PRESENTED TO PRESENTED BY

Prof S.K. Gaur PRIYA PANDEY

SESSION- 2019-2020
COURSE- LL.M [1ST SEM]
SUBJECT- Comparative Public Law and Systems
of Governance.
ENROLLMENT NO- A8101819133

TOPIC - RESERVATION IN PROMOTION

(FROM INDRA SAHWNEY TO JERNAIL SINGH )


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. INTRODUCTION

India was a country with highly rigid caste-based hierarchal structure, with
ascending order of privileges and descending order of disabilities, which operated
for about 3000 years.

In India now government provides law for a quota system whereby a percentage of
posts are reserved in employment in Government and in the public sector units,
and in all public and private educational institutions, except in the religious/
linguistic minority. There was an overwhelming majority in the nation that was still
backward – socially, economically, educationally, and politically. In the words
of a great authority on public administration, L D White, promotion means "an
appointment from a given position to a more difficult type of work and greater
responsibility, accompanied by change of title and usually an increase in pay". 

The question is whether this sort of a reservation is necessary for SC/

STs when they already have a reservation at the entry level. The
reservation policy is also extended to the Scheduled Castes and Scheduled
Tribes for representation in the Parliament of India. Reservation cannot be
exceeded 50%, as per the rulings given by the Supreme Court, but certain
Indian states like Rajasthan have proposed a 68 % reservation which
includes a 14% reservation for forward castes.

Article 16(4) constitutes a significant exception to the principle of equality

embodied in Article 16(1). Under Article 16(4), the State may make
reservation of appointments or posts in favour of any backward class of
citizens, which, in the opinion of State is not adequately represented in the
public services under the state. The term state denotes both Central and
state governments and their instrumentalities.

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• History of reservation.
In India reservation system is not derived of any act passed by the
parliament or the state legislature in the country. In the past 20 years
there has been amendments made in constitution for making reservations for
dalits easy.
The 77th amendment allows reservations for scheduled castes and
scheduled tribes in promotions.

The 85th amendment grants consequential seniority to such candidates who

have undergone accelerated promotion.

The 81st amendment on the other hand permits the state to carry forward
unfilled vacancies of one year that were reserved under articles 16(4) or
16(4A) to any succeeding year(s) and such carry forward vacancies will be
ignored while calculating the 50% ceiling on reservation. [1] 

. Reservation in promotion for the SCs and STs was introduced in

1955. Second amendment came in 2001, when the NDA
government accepted the principle of reservations in promotions,
‘with consequential seniority’ and its continuance has been
ensured by the Constitution (Seventy-seventh Amendment) Act.

The concept of reservation system in the society is basically a set

of rules, practices or a set of laws which has been passed by the
constitution and has been termed as statutory. However, this topic
of reservation has proved to be a very controversial one among the
Indian citizen with some people favoring for the system and some
people completely against the system.  The third amendment,
mooted by the UPA government, follows another Supreme Court
judgment, one that holds that every case of reservation in
promotion would need to be supported by "compelling reasons"
related to backwardness, poor representation in the upper
echelons of the government and overall efficiency of
administration. The new Bill proposes SCs (and STs) be deemed
backward ipso facto. [2] 

This provision of reservation in government employment with laxity

in qualifications and age limit was made in the constitution of free
India for 10 years with the hope that in those ten years people of
these castes would come up to get educated and earn
respectability in the society through some getting employments in
the government offices. On the same grounds, reservations in
democratically elected positions in the government were also
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provided. [3] Further history of reservation in government jobs has
been discussed in detail in the next head under article 16(4) of
Indian constitution.

Reservation in employment under Article- 16(4) Indian

constitution .

Our constitution provides for reservation in promotions. Article

16(4) permits reservation of appointments or posts in favour of any
backward class which is not adequately represented in the
services. [4]

 The Constitution was amended thrice to change this in order to

provide not only reservation in promotions but also for
consequential seniority on that basis. These amendments were
made under article 16(4A). What this means is that a person gets
promoted through reservations, then claims to be senior on the
basis of that promotion for the purposes of a further promotion,
and this continues indefinitely.

There are certain controversies which arise though this one is carry
forward problem, that is vacancies in the reserved seats can be
carried forward in the future years, not exceeding 50 percent of
total vacancies available for posts in the following year as held in
Indira Sawhney case [5] .In this case it was also held reservations
in promotions are unconstitutional, but allowed its continuation for
five years as a special case.

In 1995, 77th amendment to the Constitution was made to insert

clause (4A) to Article 16 before the five-year period expired to
continue with reservations for SC/STs in promotions. Clause (4A)
was further modified through the 85th amendment in order to give
the benefit of ‘consequential seniority’ to SC/ST candidates
promoted by reservation.

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CASES OF SUPREME COURT

In the discourse on reservations, the Supreme Court’s nine-

judge constitution bench’s judgment (1992) in Indra
Sawhney vs Union of India constitutes a landmark, as it
upheld reservations for Other Backward Classes (OBCs). The
bench had also held in this judgment that reservations in
appointments, under Article 16(4) of the constitution, do not
apply to promotions.

In order to change the basis of this judgment (which is a

legitimate exercise by parliament), the Constitution 
(77th Amendment) Act, 1995 was passed by parliament,
inserting Article 16(4A), which enables the state to make any
law regarding reservation in promotion for SCs and STs.

Other amendments followed. Article 16(4B) provides that

reserved promotion posts for SCs and STs that remain
unfilled can be carried forward to the subsequent year. Article
16(4B) ensures that the ceiling on the reservation quota –
capped at 50% by Indra Sawhney – for these carried forward
unfilled posts does not apply to subsequent years.

Article 335 mandates that reservations have to be balanced

with the ‘maintenance of efficiency’. The 2001 amendment
to it, carried out during Atal Bihari Vajpayee’s reign at the
Centre, clarified that the article will not apply to the state
relaxing evaluation standards in matters of promotion.

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 ‘Perverting the Constitution’: The Case Against 10%
Reservation
1. In 2006, a five-judge constitution bench of the Supreme
Court delivered its judgment in M. Nagaraj vs Union of
India, validating parliament’s decision to extend
reservations for SCs and STs to include promotions
with three riders.-
A. It required the state to provide proof for the
backwardness of the class benefitting from the
reservation,
for its inadequate representation in the position/service for
which reservation in promotion is to be granted

The judgment in Nagaraj soon gave rise to misgivings that it

failed to recognise that the SCs and STs continued to suffer
from centuries of discrimination, by requiring the state to
reassess their backwardness in the case of reservations in
promotions. 

The critics of Nagaraj claimed that a five-judge bench

erroneously and impliedly overruled a nine-judge bench
decision in Indra Sawhney, which clearly held that SCs and
STs are homogenous and could not be sub-categorised.

Nagaraj, they said, paved the way for denial of reservations

for SCs and STs in promotions, if some of them fail to
qualify the criteria for backwardness, inadequate
representation in services and efficiency, let alone their non-
membership of the creamy layer group within the SCs and
STs.
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 The application of the creamy layer principle to the SCs and
STs was the most contentious part of the Nagaraj judgment,
which the critics claimed was inconsistent with the nine-
judge bench ruling in Indra Sawhney.

These criticisms against Nagaraj were reviewed by another

five-judge bench in Jarnail Singh vs Lachhmi Narain
Gupta last year. I.e, in 2018

In this case, the bench held that Nagaraj’s insistence on

collection of quantifiable data on backwardness in relation to
the SCs and STs was contrary to Indra Sawhney, and
therefore, bad in law.

But the bench approved Nagaraj’s insistence on proof for

inadequate representation of classes for whom promotional
posts are reserved, and on submission of additional proof
that efficiency would not be impacted by such reservation,
because of Article 335.

Secondly, the bench in Jarnail Singh held that the creamy

layer principle is an essential aspect of the equality code, and
therefore, exclusion of creamy layer while applying the
principle of reservation is justified, even in the case of SCs
and STs.
B.K. Pavitra I

In 2017, a two-judge bench of the Supreme Court had

declared a 2002 legislation passed by Karnataka assembly
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invalid (B.K. Pavitra vs Union of India-I) on the ground that
Karnataka had not collected quantifiable data on the three
parameters – inadequacy of representation, backwardness
and the impact on overall efficiency – before making
reservations in promotions.

The 2002 Act passed by the Karnataka assembly provided for

consequential seniority to roster-point promotees based on
the length of service in a cadre.

After the decision of the Supreme Court in B.K. Pavitra I on

March 22, 2017, the Karnataka government set up the Ratna
Prabha Committee, headed by the then additional chief
secretary to submit a report on the backwardness and
inadequacy of representation of SCs and STs in the state civil
services and the impact of reservation on overall
administrative efficiency in the state.

Explainer: The 1993 SC Judgment Capping Quotas at

50%, Disallowing Them for the Poor
This committee submitted its report on May 5, 2017.  On the
basis of the Ratna Prabha Committee report, the state
assembly passed the Karnataka Extension of Consequential
Seniority to Government Servants Promoted on the Basis of
Reservation Bill, 2017.  The Bill received president’s assent
under Article 200 of the constitution, after the state governor
referred it for his consideration following a controversy that
the state legislature could not undo a Supreme Court’s
judgment, declaring a similar law passed in 2002 invalid.
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The 2018 Act was challenged in the Supreme Court in B.K.
Pavitra II.
B.K. Pavitra II
In B.K. Pavitra II, the Supreme Court bench of Justices U.U.
Lalit and D.Y. Chandrachud held on May 10 that the state
legislature, by enacting the 2018 Act, took care to remedy the
underlying cause which led to a declaration of invalidity of
the 2002 Act. Curative legislation is constitutionally
permissible, and is not an encroachment on judicial power,
the bench held. Such a law is valid because it removes the
basis of the Supreme Court’s decision.
While curing the defect, it is essential to understand the
reasons underlying the declaration of invalidity of the earlier
Act. The reasons constitute the basis of the declaration.  The
legislature cannot simply override the declaration of
invalidity without remedying the basis on which the law was
held to be ultra vires, the bench clarified.
The bench held that both the governor’s reserving a Bill for
the consideration of the president under Article 200 and the
president’s assent or his withholding of it to a Bill under
Article 201 are not justiciable. The bench’s ruling has
implications for federalism, as governor’s action in referring
a Bill for consideration of the president, when there are no
clear grounds for doing so, can leave a state legislature
without any remedy.
The bench had to resolve this issue, as the petitioners had
challenged the Karnataka law on the ground that the state
governor’s reference of the Bill for president’s consideration
was illegal. They had also challenged the president’s assent
to the Bill.
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Relying on Indra Sawhney, the bench held that the opinion of
the government on the adequacy of representation of the SCs
and STs in the public services of the state is a matter which
forms a part of the subjective satisfaction of the state. When
an authority is vested with the power to form an opinion, it is
not open for the court to substitute its own opinion for that of
the authority, nor can the opinion of the authority be
challenged on grounds of propriety or sufficiency, the bench
held categorically.

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