Questions of promotion

Questions of promotion

Article:

Faizan Mustafa, VC of NALSAR University analyses Supreme Court’s recent verdict on reservation in promotions

Important Analysis:

1. The Supreme Court has given an interim order permitting the Centre to provide reservation inpromotionfor SC/ST employee “as per law”
2. However, the reservations in promotions can be challenged on the basis of conditions laid down by earlier judgements. According to Article 141, these judgements are law declared by Supreme court and binding on all courts

Important Supreme Court Verdicts

3. State of Madras vs. Srimathi Champakam Dorairajan, 1951

• The case related to medical and engineering seats
• Madras High Court had eliminated the reservation policy
• This judgement led to the introduction of Clause (4) in Article 15, through an amendment in 1951
• Article 15(4) empowers the state to make special provisions for advancement of socially and educationally backwards or SC/STs.

4. Balaji, 1962

SC Verdict

• Prior to formulation of reservation policy, the government does not need to appoint a commission to determine backwardness
• The executive orders providing reservation was held valid
• Though important, caste is not the only determining factor of backwardness
• ‘Caste’ and ‘class’ are not synonymous
• SC removed the distinction between ‘backward’ and ‘more backward’
• Introduced a 50% upper limit on reservation

5. Devasan, 1963:

• The provision of ‘carry forward’ in reservations was removed
• Carry forward means that if the reserved seats remained unfilled in a year, they would be carried forward in next year

6. A. Rajendran, 1967

• In this case, the government’s reservation policy of 1963 which did not provide for reservations of post in Class1 and Class2 posts was challenged
• The SC upheld the policy and observed that reservations in appointments and promotions were discretionary and not constitutional duty of the state

7. State of Kerala vs. N.M Thomas, 1975

• Did not extend reservations in promotions
• However, provided 2 years exemption to SC/ST candidates in passing tests

8. Indira Sawheny, 1992

• The 27% reservation quota for backward classes was challenged in SC

Verdict:

• Article 16(4) is not an exception to Article 16(1)
• Caste is quite often a social class in India; SC and STs are definitely socially backward
• Classification between ‘backward’ and ‘most backward’ is constitutionally permissible
• Creamy layer to be removed from reservation for OBCs
• There should be no reservations in promotions
• Reservation should not apply to some services and certain posts
• 77^th Amendment, 1995: To enable the government to provide reservation in promotion.

9. Virpal Singh Chauhan (1995) and Ajit Singh (1999)

• SC introduced ‘catch up rule’.
• This was to enable general candidates to regain their seniority immediately on promotions of SC/STs who had been promoted earlier through reservations
• 85^th Amendment, 2001: To provide consequential seniority to SC and ST candidates promoted by giving reservation.

10. V Chinaiah, 2004

• Upheld that SCs are most backward among all backwards.

11. Nagaraj, 2006:

• 77^th and 85^th amendments were challenged
• SC held that was it not mandatory for the state to maintain reservations for SCs/STs in promotions.
• If the state wishes to do so, should first gather quantifiable data to show backwardness of the communities and their inadequate representation in public employment.

12. Ashoka Kumar Thakur, 2008

• SC observed that creamy layer doctrine is not relevant in SC/St reservation

13. Authors’ View on Efficiency of employees:

• The author criticises the notion that employees who have been appointed in the non-reserved posts perform better than those who appointed under reserved category
• He further observes that there has been no research which establishes that SC/STs are less efficient than employees appointed under general category.