Reservation in Public Employment

Reservation in Public Employment

This Article is written by Miss Divyakshi Jain, Semester X, B.B.A. LL.B. (IPR Hons.) at National Law University Jodhpur. The article deals with the Reservation in Public Employment.

Originally the fundamental rights in the constitution of India did not provide for reservation of any kind on the grounds of caste, or social and educational backwardness. However, Articles 330[1] and 332[2] provides for reservation of seats in the state and union legislatures for the SC and ST.

In the case of State of Madras v. Champak Ram[3], the Madras Government had by a Government Order (GO) reserved seats in medical and engineering colleges for different communities based on religion, race, and caste. The GO was held void by the SC because it classified students based on caste and religion irrespective of merit. After this judgment, Article 15(4) was inserted by the 1st Constitutional Amendment Act, 1951[4] to overturn the Champak Ram Judgement.

Article 15(4) states that: “Nothing in this article or clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.[5] After this amendment, the Kaka Kalekar committee was constituted to find out the grounds on which reservation should be provided.

Art. 16(1) guarantees equality in employment to all citizens.[6] And Art 16(4) of the Indian Constitution states 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 service under the State.” acts as an exception to it.

Ambedkar said that the drafting committee of the Constitution had to “produce a formula” that reconciled three points of view when it came to government jobs:

  • There should be equality of opportunity for all citizens
  • There should be “no reservations of any sort for any class or community at all”; and
  • There should be reservations for “certain communities which have so far been outside the administration”

Ambedkar argued that if reservations were too excessive, the first principle of equality of opportunity would be violated. To illustrate his point, Ambedkar said that if a government reserved 70% of the positions in government jobs, leaving only 30% for the general populace, then this would violate the principle “that there shall be equality of opportunity”. “Therefore”, he said, “the seats to be restricted to a minority”.

Explaining the nature of Art. 16(4), the Supreme Court has stated that it is an enabling provision conferring a discretionary power on the state for making any provision or 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 service of the state. The scope of Article 16(4) is much wider than 15(4) because there are no qualifying words that limit the definition of backwardness.

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The two most contentious issues in the application of Article 15(4) as well as Article 16(4)[7] have been:

(i) Determination of backward classes: Backward classes have not been defined in the constitution. Article 340 however empowers the President to appoint a commission to investigate conditions of socially and educationally backward classes.[8] Based on the report of the commission, the president may specify who is to be considered as backward classes. Backwardness, as envisaged by the article, must be both social and educational and not either social or educational.

Caste cannot be the sole test for ascertaining backwardness. Poverty, occupation, place of habitation are relevant factors and need to be taken into consideration.

In Jayasree v. State of Kerala[9], the supreme court held that neither caste by itself nor poverty by itself is a determining factor of social backwardness. While in the case of P Rajendran v State of Madras[10], SC upheld the test of backwardness which was solely based on caste.

In the case of KC Vasanth Kumar v. State of Karnataka[11], the SC held that both caste and poverty would be relevant factors in determining backwardness and caste cannot be the sole criteria as the term used in Article 15 is class and not caste. Both social and educational backwardness should be kept in mind before formulating a reservation policy.

(ii) Extent or quantum of reservation: In Indra Sawhney v UOI, well known as the Mandal Commission case, the supreme court by 6:3 majority held- “The sub-classification of backward classes into more backward and backward for Article 14(5) can be done but as a result of sub-classification, the reservation cannot exceed more than 50%. Reservation in Promotion was denied.[12]

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Transplantation to backward class by adoption marriage or conversion:

A High Caste Girl Marrying a Schedule Tribe is not entitled to benefits of reservation. In the case of Dr. Neelima v. Dean PG Studies AP Agricultural University[13], a high caste girl marrying a boy belonging to Scheduled Castes is not entitled to the benefit of reservation available to STs. In Meera Kanwaria v Sunita[14], this fact was reiterated.

And in the case of Rameshbhai Dabhai Naika v. State of Gujarat[15], the question was whether a person whose mother belongs to ST and the father belongs to the upper caste is entitled to the affirmative action of the state. It was held that the offspring will take the caste of the father and this presumption will act stronger when the father is from the upper caste.

It was also held that a person transplanted to a lower caste through marriage, adoption, or conversion is not entitled to the benefit of reservation in 15(4) or 16(4) because he got an advantageous start in life by virtue of being from the higher caste.

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Carry forward rule

If all the reserved posts are not filled in a year for want of suitable candidates from those classes, then the shortfall is to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years.

In Devdasan v. Union of India[16], the carry forward rule was considered and was struck down on the ground that reservation under 16(4) cannot exercise to deny reasonable equality in matters of public employment. In this case, the reserved seats were carried forward due to which the number of reserved seats exceeded 50%. Justice Subba Rao dissented from the majority and held that reservations were not an exception but a part and parcel of the fundamental right to equality of opportunity.

Disagreeing with Ambedkar’s view, Justice Subba Rao said that equality of opportunity was meaningless without reservations—those higher up in the social ladder would obviously do better than those lower down. The right to equality means nothing if unequal are treated equally and would lead to equality losing its essence.

In Indra Sawhney v. UOI, the Supreme court overruled Devdasan and held that the carry forward rule was valid so long as it did not in a particular year exceed 50% of vacancies. That is to say, Justice Subba Rao’s dissent was now accepted through this judgment.

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Reservation in Promotion

In the State of Kerala v. NM Thomas[17], the question was whether it is permissible to give preferential treatment to SCs and STs under Art. 16(1). The Court upheld the validity of reservation in matters of promotion. In A.B.S.K Sangh v. UOI[18], the railways had reserved more than 50% of the seats. The court upheld reservation in promotion and also upheld the carry-forward rule.

In Indra Sawhney v. UOI, with respect to a reservation in promotion, the court held that reservation is confined only to initial recruitment and not in promotion. The carryforward rule was upheld but the reserved seats should not exceed more than 50%.

Catch Up Rule: This concept first appeared in Union of India v Virpal Singh[19]. If a reserved category candidate is promoted earlier than his senior (general candidate), but when the general candidate also gets promoted later, he would regain his seniority. The seniority between the general and reserved candidates would continue to be governed by their panel position. Accelerated promotion due to seniority does not give accelerated or consequential seniority.

Consequential Seniority rule: It is also called accelerated seniority, if a reserved candidate is promoted earlier than the general (senior) candidate, the reserved candidate would be considered senior even after the general candidate is promoted to the same position. In Ajit Singh Juneja v. state of Punjab-1[20] and M.G. Badappanavar v. State of Karnataka[21] the Court applied the consequential seniority rule.

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Other Major Amendments Regarding Reservations in Public Employment

In order to overturn the Indra Sawhney Judgment, the court passed the 77th amendment act which allowed reservation in matters of promotion.[22] The constitutional validity of the 77th amendment was challenged in Ashok Kumar Thakur v. State of Bihar[23]. The court upheld its constitutional validity.

The 81st Constitutional amendment removed the 50% ceiling for backlog vacancies which was put in the case of Indra Sawhney.[24] The 85th amendment gave the benefit of consequential seniority in case of reservation in promotion.[25] The constitutional validity of the amendments was challenged in M Nagraj v. Union of India[26] and the court upheld the validity of the amendments.

Recent Updates

In February 2020, the Supreme Court decided a case that gives state governments arbitrary powers to withdraw all reservations for backward classes. In Mukesh Kumar v. State of Uttarakhand[27], the Supreme Court held that while a government has to collect “quantifiable data” justifying its decision to have reservations in favor of backward classes, it needs to carry out no such exercise if it decides to scrap reservations altogether. This judgment, which follows a long line of authorities, reveals the inherent contradictions in the law on reservations laid down by the Supreme Court.

The Supreme Court held that there is no fundamental right to reservations and that therefore, the government of Uttarakhand was free to abolish backward class quotas in public employment without conducting any study. In other words, the Supreme Court held that while governments have to carry out detailed studies before introducing reservations, they need to do almost nothing before abolishing them. Even in states, where there are genuinely needy individuals the right to the reservation can be unilaterally scrapped.

The SC has to now answer the fundamental question: Are reservations an exception to the principle of equality of opportunity or not? If not, can the court continue to deny that there is a fundamental right to reservations?

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[1] Constitution of India, 1950 Art. 330.

[2] Constitution of India, 1950 Art. 332.

[3] AIR 1951 SC 226.

[4] The Constitution (First Amendment) Act, 1951.

[5] Constitution of India, 1950 Art. 15(4).

[6] Constitution of India, 1950 Art. 16(1).

[7] Constitution of India, 1950 Art. 16(4).

[8] Constitution of India, 1950 Art. 340.

[9] AIR 1976 SC 2381: (1976) 3 SCC 730.

[10] AIR 1968 SC 1012.

[11] AIR 1985 SC 1495.

[12] Indra Sawhney v. Union of India, 1992 (Suppl) 3, SCC 217.

[13] AIR 1993 Andh Pra 229.

[14] (2006) 1 SCC 344.

[15] (2012) 3 SCC 400.

[16] (1964) SC 179.

[17] (1976) 2 SCC 310; 1976 (1) SCR 906.

[18] AIR 1981 SC 298.

[19] 1995 (7) SC 231.

[20] 1996 (2) SCC 215.

[21] 2001 2 SCC 666.

[22] The Constitution (Seventy-seventh Amendment) Act, 1995.

[23] 1996 AIR 75: 1995 SCC (5) 403.

[24] The Constitution (Eighty-First Amendment) Act, 2000.

[25] The Constitution (Eighty-Fifth Amendment) Act, 2001.

[26] AIR 2007 SC 71.

[27] 2020 SCC OnLine SC 148.

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