TATA INSTITUTE OF SOCIAL SCIENCES

Deonar, Mumbai- 400 088 School of Law Rights and Constitutional Governance

Assignment / Report Submission

Name :Shubham Tripathi

Enrollment No. :M2016ATJ025
Programme Name : Master of Law in Access to Justice
Course Title : Curriculum Development and Teaching Laws
Course Code :LL.M-05
Semester : 1st Semester Year: 2016-17
Assignment Title :Reservation in Promotions For SC/ST in Public Services - A
Critical Perspective
Due Date : 12/02/17
Submitted on :

Signature of the Student : ……………………………………

Course Teacher :
Grade Assigned :
Signature of Teacher
“ It is all very well to talk about the equality of law for the millionaire and the
beggar but the millionaire has not much incentive to steal a loaf of bread, while
the starving beggar has. This business of the equality of law may very well
mean, as it has come to mean often enough, the making of existing
inequalities rigid by law. This is a dangerous thing and it is still more
dangerous in a changing society. It is completely opposed to the whole
structure and method of this Constitution and what is laid down in the
Directive Principles."

-From Jawahar Lal Nehru’s speech in Parliament, delivered on May 29, 1951

Reservation in Promotions For SC/ST in Public Services -

A Critical Perspective
Chapter-1 Introduction

Reservation in promotions, is a part of affirmative action by india, where the people

of SC/ST community gets reservation not only in recruitment of public services but
also, in reservation. Such practise was prevalent in public services through order and
circulars of public services. Later to give it a constitutional mandate government tried
to put it in constitution of india by passing amendments. By the virtue of which, if a
person of SC/ST community is getting recruited in public services he would get the
reservation in promotion through merits and consequential seniority also.

Historical Background

As the caste system in india is a well known principle, it is a system which comprises
of totally different, endogamous, hereditary , occupation specific communities. In its
old manifestation, the approximately 2500 year old Varna framework, there were four
wide classification of castes : brahmins (clerics and educators), kshatriyas (warriors,
frequently eminence), vaisyas (dealers, retailers, cash loan specialists), sudras
(manual occupations). At a few point in its advancement, the sudras split into two
groups, offering ascend to the group of the ati~sudras who did the most modest
occupations. These were regarded as below the line of ritual immaculateness and
were viewed as untouchables. In the first place references to the act of untouch
capacity can be seen around 1020 AD. In this manner, despite the fact that
untouchability emerges later than the caste system itself, it is old enough to be
viewed as a necessary part of the Caste system .

Reservation as Affirmative Action

The Affirmative Action program in India owes its beginning to the British period,
which, notwithstanding started caste based quotas in a few parts of the nation,
likewise brought about the setup of an across the country lawful framework with the
standard of "equality for everyone under the eyes of of the law". Articles 15(4) and
16(4) of the Indian constitution accommodate 22.5 percent shares in state run
organizations and employments.A similar extent of seats is too held for SCs-STs at
all the levels of administration.
Chapter-2 Reservation in Promotion

Reservation in promotion is given to the people of SC/ST community since 1955

through a governmental order. There are two methods of filling vacancies i.e., one
through appointment and one through promotion. Generally, 67% of vacancies are
filled through appointment and 33% through promotion.the way in which such
promotion was given is as follows.

Appointments

Percentages of reservation are in force in favor of the SC and ST in filling vacancies

in posts and services under government of india It should be noted that the
reservation rosters are intended to be an aid to determining the number of vacancies
to be reserved for SCs and STs in any particular exAmination, recruitment, etc., and
are not meant for determining the order of actual appointment or fo the purpose of
determining seniority.(Order 7)

Promotions

The Government of india reviewed their policy in regard to reservation and other
concession to SC and ST in posts filled by promotions and have, in supersession of
the order in the OM, dated 8-11-1963 According to which reservation in promotions
can be made as follows :-

Promotion through limited departmental competitive examinations

In these cases, the person of SC and ST community would be able to get reservation
in promotion in which direct recruitment does not exceed 75%, Such reservation is
only available for promotion in Classes II,III,IV posts only.

Promotion by Selection Method.

In these type of promotion a person of lower grade post is promoted to upper grade
post through selection process. Here the reservation will be 15% for scheduled caste
and &.5% for person of scheduled tribe.Such reservation would only be applicable
where direct recruitment does not exceed 75%.
Promotion on the Basis of Seniority subject to fitness

The procedure to be followed where promotion are made on the basis of seniority
subject to the fitness has been laid down in Paragraph !b of Ministry of Home Affairs,
O.M. No. 1/9/58- R.P.S., dated the 16th May, 1959, which provides that in such
cases the decision to be taken on the suitability of each individual officer for such
promotion although there is no need for comparative evaluation of their respective
merits and that decision on fitness or the unfitness of an officer for promotion should
be taken by the departmental promotion committee instead of by an individual
officer.

Chapter-3 Conflict of Court and Parliament over Reservation in

Promotion

In The General Manager, Southern Railway v. Rangachari, 1 a sharply divided

Supreme Court by a majority of 3:2 permitted the State to make provisions for
reservations not only in appointments but also in promotions under Article 16(4). In
the case of Indra Sawhney and Others v Union of India 2 decided on 16.11.1992,

1 A.I.R. 1962 S.C. 36.

2 (1992) Supp. 3 S.C.C. 217.
while interpreting the concept of reservation the supreme Court has held that under
Article 16(4), reservation to the backward classes is permissible only at the time of
initial recruitment and not in promotion. Court declared that reservation given to
SC/ST in promotion should be abolished and court gave timeline of five years for
establishing the judgment.Government came up with 77th Amendment which reads
Article 16(4A) as follows :-
“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 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." The statement of objects and rationale of this amendment were illuminative
in nature.

This amendment was challenged by by some of the petitioners. Petitioners say that if
accelerated seniority is given to the roster-point promotees, the consequences would
be disastrous. A roster-point promotees in the graduate stream would reach the 4th
level by the time he attains the age of 45 years. At the age of 49, he would reach the
highest level and stay there for nine years. On the other hand, the general merit
promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time,
he gets eligibility to the 4th level, he would have retired from service. Petitioners say
that the consequences of the impugned 85th Amendment which provides for
reservation in promotion, with consequential seniority, would result in reverse
discrimination in the percentage of representation of the reserved category officers in
the higher cadre.

Later 85th amendment came into place which also added consequential seniority in
its statement. Court said reservation in promotion for consequential seniority is
creating genuine bias to the individuals from the general community. This became
known in the Supreme Court judgement in R.K. Sabharwal v. state of Punjab, 3 in
this petition , a few individuals from the Scheduled Castes and Scheduled Tribes got
promotion to the senior grade subsequent to superseding a few of their senior
associates. These promotions were tested under the watchful eye of the Supreme
Court. Two conflicts were raised in the interest of the petitioners. The main conflict
that even individuals from reserved classes who had got in through the merit based
promotion ought to be considered for realizing the number of people of reserved
category which was appropriately dismissed by the Supreme Court. The second
dispute was that the operation of roaster framework ought to be stopped as and
when the reserved vacancies are filled by the competitors having a place with the
reserved community. Promotions were being made to higher posts on the premise of
reservations even after the endorsed representation in the administration or posts
was secured. This brought about a circumstance where the quantity of reserved
applicants surpassed their share. supreme Court held that the roaster framework is a

3 (1995) 2 S.C.C. 745.

running record which is to work just till the share gave under the guidelines is
reached and not after that point. Once the recommended rate of representation is
secured the numerical trial of adequacy would be fulfilled and consequently the
roster would not survive. Accordingly, the Supreme Court guaranteed upkeep of
harmony between the reserved community and the general class.

Later in case of M.Nagaraj & Others vs Union Of India & Others 4 Court declared that
it is not mandatory for government to give reservation in promotion for SC/ST. Court
held that before giving any such reservation government has to make a research and
collect quantifiable data of backwardness, which should not be generic. And Data
must be in favour of inadequacy of representation . Government would also establish
that such reservation would not have effect on the efficiency of administration . Later
Rajasthan high Court and High court of allahabad declared such reservation given
by State government as ultra vires on the basis of decision of M Nagaraj.

117th Amendment bill vis-a-vis Discussions in Rajya sabha

The bill Says Article 16(4A) will be “Notwithstanding anything contained elsewhere in
the Constitution, the Scheduled Castes and the Scheduled Tribes notified under
article 341 and article 342, respectively, shall be deemed to be backward and
nothing in this article or in article 335 shall prevent the State from making any
provision for reservation in matters of promotions, 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 to the extent of the percentage of
reservation provided to the Scheduled Castes and the Scheduled Tribes in the
services of the State.”.

This bill was introduced in Rajya Sabha by the erstwhile UPA government, Whereas
BSP,TDP,Congress,RJD were in strong favor of this bill, BJP,Shiv Sena and Sp
were showing dissenting opinion over it. Where SP was criticizing it as whole but
BJP was criticizing it on certain points as the Spokesperson of BJP, Mr. Arun Jaitley
said “ We are not against this bill,we don't have any problem in assuming that people
of SC/ST community should be considered as backward in whole, but the clause
which says that it will override Article 16 and Article 335, it would destroy the basic
structure of constitution which the parliament Should not”.

4 WRIT PETITION (CIVIL) NO.61 OF 2002

Chapter-4 Critique of the Act

Backward Classes and Castes

M.R. Balaji and Others v. State of Mysore 5 is the landmark case here of affirmative
action. A Constitution Bench of the Supreme Court thought about the question
whether "in backward classes" signify 'in backward classes'. The Court held that a
class does not mean a caste or a group. In the expressions of the Court: "If the
classification of backward classes of citizen was construct exclusively with respect
to the caste of the resident, it may not generally be coherent and may maybe contain
the bad habit of sustaining the positions themselves."However, the Court held that it
(1963) Supp. 1 S.C.R. 439.
5
won't not be unimportant to consider the of group caste for choosing the question
whether it is a regressive class of nation. It involves worry that a greater part of the
nine Judges in Indra Sawhney v. Union of India has embraced the significance of
caste in the matter of classification of backward classes despite the secular
character of the Constitution.
So it can be construed from the statements that court is not in favour of considering
a person backward, just because he belong to a particular caste. So before giving
reservation to an IAS officer with 20 years of experience. They should first establish
the fact that he is backward with reason.

Extent of Reservation

In M.R. Balaji's case,6 the Supreme Court held that the reservation under Article
15(4) can't surpass half of the seats. " Speaking generally and extensively, an
special arrangement ought to be under half; how substantially less than half would
rely on the significant prevailing conditions in each case."7."The Court was of the
view that proviso (4) of Article 15, being an exception to clause (1) of Article 16,
must be translated narrowly. In State of Kerala v. N.M. Thomas,8 a Bench of seven
Judges overruled this suggestion and held that Article 16(4) is not a exceptional
case but rather a feature of Article 16(1). Article 16(1) itself allowed sensible
classification between disparately situated citizens and the uniformity of opportunity
ensured by Article 16(1) was interpreted to be not simply formal or lawful balance but
rather 'relative correspondence' or 'dynamic disposal of articulated imbalance'. This
understanding gave more energy to the Executive and Legislature to incline toward
individuals from backward classes even after entry into the administration.however,
the open deliberations in the Constituent Assembly concerning this arrangement
obviously uncover that Article 16(4) was expected to be an exception to the non
specific standard set down in Article 16(1) read with Article 16(2).

Inadequacy of Representation

As such reservation is provided from 1955, so it is duty of government to make a

proper research and collect a quantifiable data over inadequacy of representation of
people of SC/ST category. So if government is really serious about the issue, so they
cannot deny their responsibility for the subject. There are various data collections
made by national commision for SC/ST like as follows:

6 1963) Supp. 1 S.C.R. 439.

7 bid at 470.
I

8 (1976) 2 S.C.C. 310.

But it must not be in Generic sense, they have to establlish it in each and every
case.

Former Attorney General of India, Mr. Soli J. Sorabjee spoke about this issue in an
interview, where he rightly said. “You cannot go by Popular sentiments and popular
demands, you must go through the discipline of constitution.” 9

Retrospective Effect of the Act

In the statement of act it is given that it will take effect retrospectively from 1995.
Which means that some people who are at a post may have to be brought down as
that seat could be of reserved category. Whereas a person of SC/ST category who
retired from a lower post would be brought again directly as the head of the
department and some people of general category will be retired immediately. So, the
resultant of this act would be a chaos.

Overriding of Article 16 and Article 335 vis-a-vis Efficiency of Administration

Equality is undeniably the most essential element of our Constitution. There can be
no contention over this proposition . Reservation in appontments and promotions
was permitted in light of the fact that it implied to serve the objective of
accomplishing bigger social equality. It was said that society was unequal and this
inequality must be set right at time of appointment. But,in the instance of reservation
in promotions the class which is being segregated is in any event monetarily
equivalent. Individuals serving in a similar unit get comparable pay for the work they
attempt. There is financial equality which is generously not the same as what
reservation in recruitment implies to give. It must be recollected that reservation in
recruitment is for all classes of posts and consequently individuals can be enlisted
straightforwardly to higher posts in this manner making them climb the social
stepping stool. On a large scale level, this contention holds great. In the event that

Law of the Land: Reservation in promotion, Rajya Sabha Tv

9
individuals from one class i.e., SC, or ST, or OBC, can be enrolled to a higher post,
there is no motivation to give fortification reservation to their fellowmen who are in
lower posts. The class overall advantages by the direct recruitment rule. The
contention is exceptionally basic. There is no reason for victimizing individuals who
serve a similar job of administrations. Subsequently, the amendment abuses
equality, an exceptionally fundamental element and certainly part of the essential
structure of our Constitution.

This brief study reveals that the attitude of the Legislature and the Executive towards
the people of India (the authors of the Constitution) and their problems makes a
world of difference. The first phase of post-revolutionary era always facilitated radical
reforms. It was a crucial period of India too for laying the foundations for rebuilding.
The then Legislature and the Executive were keen to improve the lot of the people by
redeeming the promises made for socioeconomic changes during the struggle for
Independence. The Judiciary lagged behind and in fact, unwittingly obstructed the
pace of land reforms. Studies made by sociologists, political scientists and lawyers
consistently show that perpetuation of reservation will seriously damage the
prospects of forging unity among all sections. reservation were to serve a limited
purpose, while massive social reconstruction of India went on.

Chapter-5 Conclusion & Way Forward

Initially, the Parliament used to amend the Constitution to facilitate socio-economic

reforms for the benefit of the toiling masses. However, in recent years, the power to
amend the Constitution is used to nullify sound decisions of the Supreme Court
which strengthen the basic structure of the Constitution and further its objects, only
for the purpose of gaining electoral advantage.

Unfortunately, the Legislature and the Executive have undergone a sea change over
the years. The incumbents care more for votes and power rather than the voters and
the people of India. It is often said that the British followed the principle of divide and
rule. However, it would be trite to say that they have not divided the country as much
as their remote successors have done in the last three decades and still continue to
do. What is needed is upliftment of all weaker sections by massive affirmative action
giving the highest priority to the lowest strata, which is too weak to avail the
reservation made in the name of Scheduled Castes, Scheduled Tribes and the
backward classes, keeping in view the relevant Directive Principles.

Article 41 enjoins upon the State to secure the right to work, to education and to
public assistance in cases of unserved want. Article 43 calls upon the State to
secure a living wage and conditions of work ensuring a decent standard of life etc.
Article 45 requires free and compulsory education to be *24 provided for all children.
Article 46 requires the State while implementing the above-mentioned Directive
Principles to take special care of the weaker sections. Unless free and compulsory
education is provided for every child and simultaneously the schemes for upliftment
of all weaker sections of the society are implemented irrespective of race, religion,
caste or language or place of birth, it is not possible to remove backwardness and
assure the dignity of the individual and promote unity among the citizens.

Reservation are not a solution, they have become a problem. Prof Andre Beteille
says:
"what has gone wrong with our thinking on the backward classes is that we have
allowed the problem to be reduced largely to that of job reservation The problems of
the backward classes are too varied, too large and too acute to be solved by job
reservation alone. The point is not that job reservation has contributed so little to the
solution of these problems but, rather, that it has diverted attention from the masses
of harijans and adivasis who are too poor and loo lowly even to be candidates for the
jobs that are reserved in their names. Job reservation can attend only to the
problems of middle class harijans and adivasis; the overwhelming majorities of
adivasis and harijans, like the majority of the Indian people, are outside this class
and will remain outside it for the next several generations. Today, job reservation is
less a way of solving age old problems than one of buying peace for the moment." 10
The weakness of Indian democracy is lack of strong leadership with requisite vision
and drive to attain the Constitutional goals. Group leaders who thrive on caste and
community, royalties with sectarian agenda strutting on the political stage today
relying on money power and muscle power are hardly the kind who can deliver the
goods. More and more criminals, industrialists and businessmen are seen entering
Parliament and State Legislatures. Corruption is institutionalized. Non-governance/
mis-governance is seen in most parts of the country. Crime rate is rising, but not the
rate of conviction. Terrorism is unabated. Problems of poverty, illiteracy and
unemployment, scarcity of potable water, healthcare and electricity suffered by rural
masses need urgent attention. Radical electoral reforms arc needed to revamp the
system. Political parties lack the will to carry out the promised electoral reforms.
E.S. Venkataramiah, J. indicated the affirmative action to be taken to begin within
K.C. Vasantha Kumar v. State of Karnataka:

10 ANDRE BETEILLE, THE BACKWARD CLASSES IN CONTEMPORARY INDIA 42 (1992).

'There are in all castes and communities poor people who if they are given adequate
opportunity and training may be able to compete successfully with persons belonging
to richer classes. The government may provide for them liberal grants of
scholarships, free studentship, free boarding and lodging facilities, free uniforms,
free mid-day meals etc. to make the life of poor students comfortable. The
Government may also provide extra tutorial facilities, stationery and books free of
cost and library facilities. These and other steps should be taken in the lower
classes so that by the time a student appears for the qualifying examination he may
be able to attain a higher degree of proficiency in his studies." 11

Almost two decades have gone by. No Government and no Legislature in the
country has ever attempted to follow this path.

References

Books
● Swamy‟s compilation on reservation and Concessions
By muthuswamy and brinda (Swamy Publishers (P) Ltd)

● Mechanics of Reservation for SC/ST in Services

By B.M. Masand (ankur publishers new delhi)

● Brochure on reservation for scheduled caste and scheduled tribes in services

By Bata K Dey and S.k. Dasgupta (Government of india ,new delhi 1987)

Cases

● Indra Sawhney v Union of India (1992) Supp. 3 S.C.C. 217

● R.K. Sabharwal v State of Punjab (1995) 2 S.C.C. 745
● State of Kerala v N.M. Thomas (1976) 2 S.C.C. 310

11 A.I.R 1985 S.C. 1495, 1558

 ● State of Madras v Smt. Champakam Dorairanjan A.I.R. 1951 S.C.
226
● The General Manager, Southern Railway v Rangachari A.I.R. 1962
S.C. 36
● M. Nagaraj & Ors vs Union Of India & Ors (AIR 2007 SC 71)

Referred Links and Articles

● http://ncsc.nic.in/files/Reservation%20in%20Promotion.pdf
● http://dopt.gov.in/sites/default/files/FAQ_SCST.pdf
● http://www.irtsa.net/pdfdocs/Supreme_Court_Rules_Out_Reservation_in_Pro
motion.pdf