SERVICE LAW

SEMINAR PAPER

“RESERVATION IN PROMOTIONS : AN ANALYTICAL STUDY“

SUBMITTED TO:

Mr. Adv. Chaitanya

(MNLU, Aurangabad)

SUBMITTED BY:

MANU PRATAP SINGH

LL.M (Constitutional Law)

SEM- II

Roll no- 54

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AREA OF RESEARCH:

This research work comes under the area of Constitutional Law.

TOPIC OF RESEARCH:

This paper is written on the topic “Reservation in promotion- An Analytical study”.

SIGNIFICANCE OF RESEARCH
This Seminar paper will deal with the concept of Reservation in promotions emphasized under
the Constitution of India.

ISSUES

To analyze the concept of Reservations in promotions as mentioned under the Indian

Constitution.

To examine the various provisions provided under the constitution regarding reservation in
promotions.

OBJECTIVES
The goal is to basically look at the principle of reservations in promotion under the provisions of
the Indian Constitution and their implementation by the governments.

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RESEARCH METHODOLOGY
This research is doctrinal research. The main source of information is secondary in nature. The
study is not empirical in nature. Cases decided by the Courts, books, scholarly articles,
magazines and newspaper articles are relied upon to develop and examine the judicial approach
with regard to Reservations in promotion.

INTRODUCTION

We live in a country where equality and freedom are promised and this freedom and equality is a
gift of democracy to us. Our constitution gives us the right to freedom and most importantly to
exercise this freedom in an equitable manner. At the same time, it is incumbent on the part of the
state to ensure that equality prevails in all sections of the society. Hence it was to achieve this
purpose; the system of reservation was enshrined in our constitution. So that the so-called
deprived classes can come at par with the so-called privileged ones. The Constitution of India
allows this kind of positive discrimination in order to bring about equality of opportunity and
status in the society. The founding fathers had never intended Reservation to be a temporary
phenomenon. Reservations to the underprivileged were to be extended until they were uplifted
socially and stabilized economically. Reservations with the view of helping the deprived classes
to gain a better footing and avail equal benefits of an independent and free nation was introduced
in the system.

Articles 14 to 18 of the Indian constitution guarantees Right to Equality to all persons within the
territory of India. Article .16(1) is a facet of Art.14 and they are closely inter-connected. Art.16
(1) particularizes the generality of Art.14 and identifies, in a constitutional sense, “equality of
opportunity” in matters of employment under the state. Under Art. 16(4), the state may make
reservation of appointments or posts in favor of any ‘backward class of citizens which, in the
opinion of the state, is not adequately represented in the public services under the state.
Reservation in promotions is one such provision under this Article which is highly debated upon.
The 77th Amendment to the constitution inserted Article 16(4A) permitting reservation even in
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matters of promotion. But this was restricted to promotions in favor of SC/ST, provided they
were not adequately represented in the services under State. In a subsequent decision, reservation
in matters of promotion has been upheld 1.Thus by inserting Article 16(4A), Parliament amended
the Constitution and removed the base as interpreted by the Supreme Court in the Mandal case.
Reservation can therefore apply not only to initial recruitment but also in matters of promotion.

Understanding Article 16 Clause 4(A) Of The Indian Constitution

Article 16 of the Indian constitution guarantees equality of opportunity in matters of public

employment. There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the state. Clause 4 under this article says that
nothing in this article shall prevent the state from making any provision for the reservation of
appointments or posts in favor of any backward class of citizens, which, in the opinion of the
state, is not adequately represented in the services under the state. This clause expressly permits
the state to make a provision for the reservation of appointments or posts in favor of any
backward classes of citizens which, in the opinion of the State are not adequately represented in
the services under the State. The power conferred on the State can only be exercised in favor of
backward classes and therefore, whether a particular class of citizens is backward, is an objective
factor to be determined by the state. While the State necessarily has to ascertain whether a
particular class of citizens is backward. Now coming into Clause (4A), it goes on like this
“Nothing in this article shall prevent the state from making any provision for reservation in
matters of promotion (with consequential seniority, to any class or classes of posts in the
services under the state in favor 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.”2

This Clause was inserted by the Constitution (77 th Amendment) Act, 1995 to
overcome the decision in Mandal case that no reservation in promotions could be made under
1
Ashok Kumar Gupta v State of Uttar Pradesh (1997)5SCC201.
2
Durga Das Basu, Shorter Constitution of India, Vol 1.

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Clause (4). Justifying promotion, to the Scheduled Castes and Scheduled Tribe candidates in
promotion, the court had at one point held that even their seniority acquired by promotion over
the general class candidates shall not be affected by subsequent promotion of the general class
candidates. It has, however in Ajith Singh (II) v. State of Punjab 3, later overruled itself and held
that reserved category promotes could not count their seniority in the promoted category from
the date of their continuous officiating in the promoted post vis-à-vis the general candidates who
were senior to them in lower category and who were later promoted. A senior general candidate
at the lower level, if he reaches the promotional level later but before the further promotion of
the reserved category candidate, he will be treated as senior at the promotional level to the
reserved candidate even if the reserved candidate was promoted to that level earlier. Incidentally
the court also remarked that Article 16(4) and (4-A) is not a fundamental right. It is an enabling
provision which must be balanced against the right to equality guaranteed in Articles 14 and
16(1). It disagreed with the decisions which treated Article 16(4) and (4-A) as fundamental rights
and imposed an obligation upon the state to enforce them. The court suggested a balancing
between Articles 16(1) and 16(4) and (4-A). Again. In State of Bihar v. Bal Mukund Shah4 the
court has held that Article 16(4) is an enabling provision within which even judicial services can
be brought. But while providing reservation under this provision the requirement of maintenance
of efficiency of administration under Article 335 must be taken into account. Also, while making
reservation in the subordinate judicial services the High Court must be consulted. The Court has
stated that the primary purpose of Art.16(4) is due representation of certain classes in certain
posts. But, along with Art.16(4), there are Arts.14, 16(1) and 335 as well. Arts. 14 and 16 lay
down the permissible limits of the affirmative action by way of reservation which may be taken
under Arts. 16(4) and 16(4-A). While permitting reservations, Art. 14 and 16(1) also lay down
certain limitations at the same time. Art. 335 ensure that the efficiency of administration is not
jeopardized.5

3
(1999) 7 SCC 209.
4
(2000) 4 SCC 640.
5
Mahendra P jain, Indian Constitutional Law, Vol I

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Reservation in Promotions- A comprehensive analysis

Promotion of S/C and S/T employees out of turn because of the scheme of reservation gives rise
to several problems, especially, pertaining to seniority of such persons over the employees
belonging to the general category. The Supreme Court has sought to grapple with such problems
keeping in view considerations of equity and fairness. While talking about reservation in
promotions, a very important case that should be cited is `Union of India v. Virpal Singh
Chauhan6. In this casea two- Judge Bench of the Supreme Court reiterated what the court said in
Indra Swahney v. Union of India7, that providing reservation in promotion factually created a
poignant and objectionable situation in Virpal. The Court stated that it was all left to the
discretion of the respective States to decide upon the reservation or roster in the matter of
promotions and hence it was not uniform. The general candidate who was senior will always
have preference over the candidate who promoted by the virtue of reservation notwithstanding
that he was promoted subsequent to the reserved candidate. Yet in Ajit Singh Januja v. State of
Punjab8, a three Bench of the Supreme Court went a step ahead by taking into consideration
Articles 14, 16 and 335, the Supreme Court has now categorically laid down that when there
arises a question to fill up a post reserved for a SC/ST candidate in a still higher grade, then a
SC/ST candidate is to be promoted first, but when the question is in respect of promotion to a
general category post, then the general category candidate who has been promoted later would be
considered first for promotion applying either the principle of seniority cum merit or merit cum
seniority.

When a reserved candidate is recruited at the initial level he does not go through the same
normal process of selection which is applied to a general candidate. A reserved candidate gets
appointment to a post reserved for his group. He is promoted to a higher post without competing

6
AIR 1996 SC 448
7
AIR 2000 SC 498
8
AIR 1996 SC 1188

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with general candidates. The normal seniority rule, from the date of continuous officiating from
the date of promotion applies when a candidate is promoted in the normal manner and not to the
promotion of a reserved candidate. In the case of Badappanavar v. State of Karnataka9, the
Supreme Court has again confirmed its decision in the previous cases and directed that the
seniority lists as between the general and reserved promotes, and promotions, be reviewed in the
light of the ruling in that case. The Court directed that the seniority of the general candidates be
restored accordingly.

In the case of U.P Power Corporation Ltd. v. Rajesh Kumar and ors10:

The government’s response, as reflected in the 117{+t}{+h}Constitution Amendment Bill

introduced in the Rajya Sabha, is unsatisfactory. While the proposal remedies the error
in Nagaraj on the issue of backwardness of the SCs/STs, its approach to ‘adequacy of
representation’ and efficiency is counterproductive. The proposed Article 16 (4A), which seeks
to substitute the existing Article 16 (4A), has done away with concerns of efficiency by stating
that nothing in Article 335 can be an impediment, and the reference to ‘adequacy of
representation’ has been deleted.

Anomalous situation

This leads to the anomalous situation where the above two factors continue to be relevant for the
OBCs and the SCs/STs as far as initial appointments are concerned since Article 16(4) will not
be similarly amended. The proposed amendment offers us no insight into why these factors are
irrelevant in the particular case of reservation in promotions for the SCs/STs. It would have been
far more legitimate to argue for a more meaningful understanding of efficiency before the
Supreme Court rather than completely negating it as a factor through a constitutional
amendment. Similarly, removing the reference to ‘adequacy of representation’ will only further
question the legitimacy of reservation in promotions.

The Supreme Court must give the state room for manoeuvre on what is acceptable empirical
data. It also cannot remain silent on some critical normative questions and keep the government
9
JT 2000(Suppl.3) SC 408
10
(2012) 7 SCC, 1

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guessing about the terms on which it will permit the exercise of power under Article 16 (4A).
Reservation in promotions at the entry level does not ensure that the project of equality of
opportunity is complete. We could argue endlessly whether reservation in promotions would take
that project further but, in terms of governance, we have already made a political and
constitutional choice. It cannot be the judiciary’s task to indirectly undo that choice having
already upheld it and it must be the government’s task to make legitimate use of it. The
envisaged constitutional amendment is the least legitimate option because any political
consensus will be based on electoral compulsions. Governments, State and Central, must present
the country with hard facts to derive legitimacy — hard facts confirming the lack of presence of
India’s most marginalised sections in the upper echelons of bureaucratic power. It is this
evidence of the lack of presence that will expose the hollowness of the claims concerning
equality of opportunity in public employment.

In each case the Court has got to be satisfied that the State has exercised its discretion
in making reservations in promotions for SCs and STs and for which the State concerned will
have to place before the Court the requisite quantifiable data in each case and satisfy the Court
that such reservations became necessary on account of inadequacy of representation of SCs and
STs in a particular class or classes of posts without affecting general efficiency of services as
mandated under Article 335 of the Constitution. Subject to the limitations introduced by this
judgment, the Supreme Court upheld the Constitutional validity of the Constitution (77th
Amendment) Act, 199511.

Meeting constitutional provisions with social justice

The major controversy and debate that’s going on about the idea of reservation is that
Reservation policy has bluntly promoted caste over intellect and hard work. As a result, we are
producing substandard engineers, doctors, bureaucrats and other professionals under the present
reservation policy. Thereby promoting incompetent people and promotes these people over
deserving and qualified individuals. Among them the majorly contested question will be about
the need for reservation in promotions.

11
M. Nagaraj v. Union of India,(2006) 8 SCC 212

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If one takes a look at the issue objectively one will realize that the intention behind reservations
is not faulty at all but it is the implication and the application of it that has proved ineffective.
The way reservation has been implemented all these years has deepened and aggravated the caste
distinctions in the society, marginalized the poor and the needy and has benefited only the
topmost layer of the so called Backward classes. The benefit of reservation has failed to trickle
down to the lowest section of the society. Moreover, it has killed the spirit of brotherhood and
healthy competition, the desire to surge forward and to work hard. Yet all these statements can
be counter argued by properly implementing the true essence of the policy of reservation. A
solution attributed by the concerned citizens to this is that, rather than embedding a proviso in
the constitution that ensures reservations in promotions, what we need is a constitutional
amendment that will give any state or institution currently subject to reservations a 10-year
window in which to try out alternate affirmative ideas and plans, subject to periodic reviews. At
the end of 10 years, if the plan is a failure, the amendment can be made to automatically lapse
and compulsory reservations mandated instead. This seems to be a fair enough idea that can be
implemented yet its outcomes still remain a blurred reality. The main reason adduced for giving
promotions on a caste basis is that there are very few SC/ST candidates in the higher echelons of
government. In order to bring about equality in this arena, the existing provisions in the
constitution itself seems to be fair enough. Yet the application of the procedure ought to be
targeted and justified through all means. The duty to implement the rule of reservation is a
constitutional duty to be performed honestly, sincerely and in its true content and spirit and the
public servant entrusted with the duty and power to implement it, should be accountable. The
discretionary power of the State to make requisite reservation is absolutely justified. Every
discretionary power is not necessarily discriminatory. Equality is not violated by mere
conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is
conferred. The provisions under Article 16(4-A) are permissive in nature. They leave it to the
state to provide for reservation. The provisions regarding the reservation in promotion is made
by Government by enacting a law providing for reservation keeping in mind the parameters in
Article 16(4) and Article 335.

The State is not bound to make reservation for Scheduled Castes or Scheduled
Tribes in matters of promotion. However, if they wish to exercise their discretion and make
reservations in promotions, the State have to collect quantifiable data showing backwardness of

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the class and inadequacy of representation of that class in public employment, keeping in mind
maintenance of efficiency, as indicated by Article 335. The concepts of efficiency,
backwardness, inadequacy of representation are required to be identified and measured. That
exercise depends on availability of data. That exercise depends on numerous factors. It is for this
reason that enabling provisions are required to be made because each competing claim seeks to
achieve certain goals.

CONCLUSION

Reservation in promotions becomes socially justified when it is implemented by assimilating the

true idea of its connotation. The doctrine of equality of opportunity in Art. 16(1) is to be
reconciled in favor of backward classes under Art. 16(4) in such a manner that Art.16(4), while
serving the cause of backward classes shall not unreasonably encroach upon the field of equality.
It is necessary to strike such a balance so as to attract meritorious and talented persons to the
public services. It is also necessary to ensure that the rule of adequate representation in Art.16(4)
for the backward classes and the rule of adequate representation in promotion for SC/ST under
Art.16(4-A) do not adversely affect the efficiency in administration which is a tantamount of the
quality of the working individuals within it.

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Bibliography

Cases

Ashok Kumar Gupta v State of Uttar Pradesh (1997)5SCC201

Ajith Singh (II) v. State of Punjab (1999)7SCC209

State of Bihar v. Bal Mukund Shah (2000)4SCC 640

Union of India v. Virpal Singh Chauhan AIR 1996 SC 448
Indra Swahney v. Union of India AIR 2000 SC 498
Ajit Singh Januja v. State of Punjab AIR 1996 SC 1188

Badappanavar v. State of Karnataka JT 2000(Suppl.3) SC 408

M. Nagaraj v. Union of India,(2006) 8 SCC 212

U.P Power Corporation Ltd. v. Rajesh Kumar and ors (2012) 7 SCC, 1.

Books

Durga Das Basu, Shorter Constitution Of India, VOL 1, Lexis Nexis

Mahendra P jain, Indian Constitutional Law, Vol I

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