Reservation in Promotions

Nepotism

In 1992, the Supreme Court of India, in the case of Indra Sawhney v. Union of India, directed that:

  • Reservation under Article 16(4) should in no case exceed 50%
  • No reservation can be made for any class other than backward class
  • Reservation in promotions is constitutionally impermissible as once the disadvantage is removed (by providing reservation to a job), then reservation in promotions could be taken as treating equals unequally
  • Creamy layer among backward class should be excluded from the reservation

In 1995, the 77th amendment to the constitutions was made thereby inserting article 16(4A) which stated 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 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.”, thereby constitutionally validating reservation in promotions.

In 2006, the Supreme Court of India, in the case of M.Nagaraj & Others vs Union of India & Others decided on the constitutional validity of the 77th amendment. The hon’able court stated that the power to amend the constitution implies that the ‘the personality of the constitution must remain unchanged’ and ‘one cannot legally use the constitution to destroy itself’. Therefore, the hon’able court concluded that equality is the part of the fundamental feature of the basic structure of the constitution.

The Court upheld the constitutional validity of the 77th amendment thus reservations in promotions was made constitutional provided –

  • Backwardness of a class of people is shown
  • Inadequacy of representation is shown
  • Overall administrative efficiency is proved

Therefore, to prove the above points the state needs to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Further, Article 335 needs to be complied with which states that the provision of reservation should be balanced by maintaining efficiency of service.

The UP Government issued a Notification on 14th of September, 2007 by which the U. P. Government Servants Seniority (3rd Amendment) Rules, 2007, were issued, rule 8A of which states:

“Rule 8-A :- Entitlement of consequential seniority to a person belonging to scheduled castes and scheduled tribes : Notwithstanding anything contained in Rules 6, 7 or 8 of these rules, a person belonging to the SC or ST shall, on his promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also from 17.6.1995 in the seniority rules, 1991 and also provided for consequential seniority to the scheduled Castes and scheduled tribes from the date of their promotion as per the Roster/rule of reservation”

In 2012, the Supreme Court of India, in the case of U.P.Power Corp.Ltd. vs Rajesh Kumar & Ors. struck down the above Rule 8-A stating that neither the state government nor the UP Power Corporation had conducted any exercise as per the M. Natraj case. For applying reservation in promotions the government / corporation needed to show a) backwardness of the class; b) inadequacy of representation; c) overall administrative efficiency. In the UP Power case, the state government had not undertaken any exercise or collected any data showing the backwardness of the class and inadequacy of representation in service. Therefore, the rule 8-A was declared ultra-vires and set aside by the Hon’able Supreme Court.

In the light of the above decision, 117th amendment to the constitution is proposed which proposes to amend the Article 16 (4A), stating that all Scheduled Castes and Scheduled Tribes shall be deemed to be backward and the 117th amendment will override the provisions of Article 335 which states that reservation in promotion to be balanced by maintaining efficiency of service. The revised Article 16(4A) being:

“Article 16 (4A) 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 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”

In essence, by passing the 117th amendment to the constitution, no data or exercise will be required for a reservation for promotion in government jobs. (ie. The 3 conditions as mentioned in the M. Natraj case need not be fulfilled).

The 117th amendment had been passed by the Rajya Sabha in December 2012.

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2 Responses to Reservation in Promotions

  1. It is very clear that the politicians are busy doing politics in all forms just for vote bank. This reservation politics will ruin our nation for good.

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