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(Deepanwita Sengupta is a fourth year student at Amity Law School, Guru Gobind Singh Indraprastha University, Delhi.)
A Brief History Article 16 of the Constitution of India talks about equality of opportunity in the matters concerning public employment. It has been one of the most controversial and contentious issues in our constitutional jurisprudence over the years with various judgments and decisions regarding its validity and appropriate interpretation, along with a slew of amendments and changes in our laws which are associated with it. It came to the fore in Indra Sawhney v. Union of India (1992), where a 9-judge Constitution Bench of the Supreme Court held that caste-based reservations for promotions in public employment was not desirable. It observed that Article 16(4) grants power to the State to make reservations in appointments or posts in favour of citizens considered to be ‘backward class’ if they are inadequately represented in the State services, but it does not explicitly permit reservations in matter of promotions in public employment. The Court restricted the operation of this judgement to only prospective cases. It also held that if any State or Central service or any other authority believes that to ensure considerable and adequate representation of people categorised as ‘backward class’ of citizens in any service, category, or class and feels it is vital to provide for procedure of direct recruitment therein, it has been granted the permission to do so. Reservation in Promotion The Parliament of India effectively overruled this judgement by inserting Article 16(4A) into the Constitution by the 77th Amendment Act in 1995. It provided for reservation in promotion. However, this provision limits its applicability to only the Scheduled Castes and Scheduled Tribes, without following any further distinction or differentiation among them. Article 16 (4A) of the Constitution of India categorically states that nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the public services under the authority of the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the view of the State, are not represented in adequate and desirable amount in the services working under the State. Consequential Seniority Consequential seniority is the process when the provision of seniority in the public services are seen as a foreseeable consequence of the promotions which are granted to the people belonging to the SC/ST categories under the State services which were granted to them through policies such as reservations. The process of consequential seniority allows the candidates belonging to the reserved category to retain their seniority over their general category counterparts. When the reserved category candidate is promoted before the candidate belonging to the general category because of the policy of reservation in promotion, then for the subsequent promotion in the future the reserved candidate would retain the seniority. [i] In Union of India And Ors. V Virpal Singh Chauhan (1995) the Apex court stated that the judgment in the Indra Sawhney spoke for itself and while the rule of reservation can give certain accelerated promotion, it does not impart consequential seniority simultaneously. It is pertinent to note that this judgement was delivered in October of that year – after the 77th Amendment – and the Court acknowledged the same but refused to express an opinion on it. The Court also highlighted that the candidate who was promoted earlier by the applicability of rule of reservation is not entitled to consequential seniority over his senior just because of the special circumstances and that when a general candidate who was initially senior to him in the lower category shall be promoted, such general candidate will regain his seniority over the given reserved candidate notwithstanding that he was promoted subsequently to the given reserved candidate. This principle which came to be known as the 'catch-up rule' was reiterated in Ajit Singh Januja & Ors vs State Of Punjab & Ors (1996) which allowed the general category candidates to catch-up to their reserved category peers. It was held that consequential seniority is a consequence of reservation in promotion and not an additional benefit and also elaborated on the creamy layer test, which could only be applied at the stage of reservation in promotion and not subsequently in the case of consequential seniority. In effect, consequential seniority undoes the catch-up rule and the Supreme Court was not convinced of its constitutionality. With the 85th Amendment Act in 2001, the Parliament included the term ‘consequential seniority’ in Article 16(4A). In cases where promotion had been granted in lieu of rule of reservation, the amendment had a retrospective effect as it was to be considered in effect from June 17, 1995, the same date on which “reservation in promotion” was included by the 77th Constitution Amendment. The constitutional validity of 77th and 85th Constitutional Amendments were challenged before a 5-judge Constitution Bench in M. Nagaraj v. UOI (2006). In this case the SC upheld the validity of Article 16(4A) as merely being an enabling provision and that the State is not bound to make reservation for SCs/STs in matters of promotions. The Constitution Bench also analysed and perused whether the replacement of the earlier decided catch-up rule with consequential seniority violated the basic structure and equality principle guaranteed under the Constitution. The Court finally reached a decision and held that the catch-up rule and consequential seniority are two different judicially evolved concepts based on the country’s service jurisprudence and held that both are not implied in the clauses (1) and (4) of Article 16, as they are based on practices and not constitutional principles which are beyond the Parliament’s amending power. Hence, the exercise of the enabling power under Article 16 (4A) was held not to violate the basic features of the Constitution. The five judge bench went ahead and added a few more conditions or factors to the article, and decided that only when these conditions are satisfied by the state it will get the authorisation to provide for reservations in promotions for SC/ST. These vital conditions were, quantifiable data regarding backwardness, inadequacy of representation in public services in addition to compliance with Article 335, and no impact on the overall efficiency of administration of the state by way of such a reservation. It also specified that the State will have to see that its policy does not lead to excessiveness which shall breach the ceiling limit of 50%, removes the creamy layer and in no way extends the reservation indefinitely. These necessary conditions were known to be referred as the “compelling factors”. In the case of S. Panneer Selvam v. Government of Tamil Nadu (2015), the Division Bench of the Apex Court held that the consequential seniority for reserved category promotions can be fixed as long as there is an explicit and express provision for such reserved category promotions and not in absence of such provisions in the State rules. In the absence of any such provision or policy there will be no automatic application of Article 16-4A of the Constitution. Moreover, the State would be duty bound to collect the appropriate data so as to assess the adequacy of representation of the Scheduled Caste candidates in the service and based on the same finding the State should frame a policy/rules for consequential seniority. The condition of producing quantifiable data to prove the “backwardness” and for granting reservation in promotion to SC/ST was questioned again in the case of Jarnail Singh v. Lachhmi Narain Gupta (2018). The Supreme Court’s five judge bench came up with the important decision and held that there was no explicit need to provide data for assessing the backwardness of the SC/ST community in the state as they are already presumed to be backward in our society. However, stressing on M Nagaraj, the SC stated that a State which wants to grant reservation in promotions as per under Article 16(4A) will have to conduct a survey or study bringing close attention to the inadequacy of representation of SC/STs which is prevalent in their respective public services, while simultaneously maintaining the overall efficiency of the State administration. The Current Status of Consequential Seniority In B K Pavitra v Union of India - I, the Apex Court struck down the The Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 (“2002 Act”) as the State of Karnataka provided for the process of consequential seniority applicable to the promotees based on the length of their service in their respective cadres but, consequently failed to provide any compelling evidence which justified the consequential seniority policy applicable in the state. After the Supreme Court struck down the 2002 Act, the State created the Ratna Prabha Committee to submit a quantitative report which were to demonstrate the three compelling factors behind the enactment of the 2017 Act, these were:
In BK Pavitra v. Union of India – II (2019), the Supreme Court upheld the validity of the 2017 Act that had re-introduced consequential seniority for SC/STs in Karnataka’s public employment. The Bench held that the decision and opinion of the government relating to the appropriate adequacy of representation of the SCs and STs needs to be assessed with proper reference to the benchmark that has been unanimously decided through previous judgments on adequacy and it is a matter of subjective satisfaction of the government about how it decides the representation through reservation in matters of public employment and services. The Court conducted an in-depth analysis and studied the data provided by the State demonstrating backwardness, inadequate representation and administrative efficiency and went on to clarify that the Court's power of judicial review was limited in its approach, while simultaneously observing that the importance and need for reservation lies within the purview and domain of the executive and legislature of the state. While defining the concept of ‘representative notion of efficiency’ the court stated that the backward class of citizens in our country cannot be specifically identified only and exclusively with the reference to an economic criteria and that a meritorious candidate is not just the one who is more talented or gifted, but the one on whose appointment, the state fulfils its responsibility and upholds the constitutional goal of uplifting the downtrodden and backward SC/STs. The Bench concluded that this representative notion of efficiency is congruent with the policy of consequential seniority. The court decided that the data that was submitted by the state based on the report was just and acceptable and hence decided to uphold the validity of the 2017 Act. The judgment delivered by another Division Bench of the Apex Court earlier this year in Mukesh Kumar vs The State Of Uttarakhand (2020) appears to ring-fence the liberal and expansive approach taken in B K Pavitra II judgement. In that case, the Court had validated Karnataka’s 2017 Act despite criticism that the exercise carried out by the Ratna Prabha Committee was designed in a way to make the conclusion inevitable. In other words, the Court threw its weight behind a state government which wants to provide consequential seniority in promotions. However, in Mukesh Kumar, the Court held that State Governments are not bound to provide reservations if they decide not to do the same and they are not required to justify their actions by providing quantifiable data and decided that even if there is under representation, the court cannot issue a mandamus directing the State to provide reservation. Conclusion The Apex Court’s stance on reservation in promotion has been varying in different cases as we have seen from Indra Sawhney to BK Pavitra II, with one rejecting the notion of reservation in promotion completely holding it to be violative of constitutional principles and the other upholding the concept of consequential seniority with specific attention given to the court’s interpretation of representative notion of efficiency. But the one line of thought that has always been similar in all these judgments is the special power and authority given to the state to make criteria and policies for reservation in promotion based on each state’s demographic and representation, which meets the needs of the state while being in agreement with our constitutional goals. - Deepanwita Sengupta [i] Kunika and Kuljeevan Sidharth, ‘The Issue of Reservation as Article 16(4A) – Arbitrary or Mandatory?’( The Citizen, 12 June 2020), https://www.thecitizen.in/index.php/en/NewsDetail/index/9/18733/The-Issue-of-Reservation-as-Article-164A--Arbitrary-or-Mandatory.
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