DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

AFFIRMATIVE ACTION

FINAL DRAFT ON:

RESERVATION IN PROMOTIONS IN INDIA

Submitted for the project undertaken in partial fulfillment of B.A. LL.B. (Hons.)VIII Sem.

5 year integrated course at RMLNLU, Lucknow.

SUBMITTED TO: SUBMITTED BY :

Dr. A.K. TIWARI AYUSH TIWARI

ASSOCIATE PROFESSOR B.A.LL.B. (A) VIII SEM.

Dr. RMLNLU ENROLLMENT NO. - 150101034

 ACKNOWLEDGMENT

A major research project like this is never the work of anyone alone. Firstly, I would like to
thank respected Professor Dr. A.K. TIWARI for giving me such a golden opportunity to show
my skills this project.

This project is the result of the extensive ultrapure study, hard work and labour, put into to make
it worth reading. This project has been completed through the generous co-operation of various
persons, especially my seniors, who, in their different potentials helped me a lot in giving the
finishing touch to the project.

This project couldn’t be completed without the help of my university’s library Dr. Madhu
Limaye Library and its internet facility.

‘I am glad to have made it’

Thanking You........
 INTRODUCTION

Reservation in India has always occupied a centre stage in the political arena of Indian society as
part of the world’s largest affirmative action programmed for the depressed classes. Keeping
aside seats in government jobs and educational institutions, though opposed by many was
implemented and the duration extend by subsequent amendments to the Indian Constitution
namely the 23rd,45th,62nd,79th and 95th amendments.1 However reservations in promotions
remained another issue altogether. Introduced by the 77th and 85th amendments, there were
apprehensions about it from the very beginning.

Reservations in promotion, an issue contentious from the very beginning and fiercely opposed by
the upper caste members of Indian Polity, it aimed keeping aside a number of seats in
government offices during promotions reserved for the Scheduled Castes and Tribes. The first
step towards this was taken by the Narasimha Rao government by introducing the 77th
amendment via sub clause 4A under article 16 of the constitution. It created the problem of
consequential promotions. Later on the Manmohan Singh government replaced the section with
one that sought to legalize these “consequential” promotions under the 85th amendment in 2005.
Notably the latest step in this direction was taken by the 117th amendment in 2013 which has
cleared the passage of the Rajya Sabha and awaits passage in the lower house.

Various other issues also came to the forefront while this problem was highlighted. For instance,
there were politicians demanding that if this provision was for the upliftment of the lower
classes, then why not have it extended to Other Backward Castes as well. 2 For junior level
employees, it wasn’t much of a problem but what would happen when the turn came for a
position at the very apex of the office in question. In a state where the population of the
Scheduled Tribes and Castes was disproportionate, which community would get preference
would it be extended to private institutions, so and so forth?

1
http://www.upscguide.com/content/amendments-indian-constitution (Amendments to the Indian Constitution, Site
visited on 19-04-2013, 10:32 amhttp://www.upscguide.com/content/amendments-indian-constitution (Amendments
to the Indian Constitution, Site visited on 19-04-2013, 10:32 am
2
http://articles.timesofindia.indiatimes.com/2012-08-19/lucknow/33272387_1_promotion-in-government-jobs-
indra-sawhney-samajwadi-party (Samajwadi party opposes promotion in reservations bill) Site visited 19-04-2013 ,
5:58 pm
 CRITERIA FOR RESERVATIONS IN PROMOTIONS- DECISION IN M. NAGRAJ
CASE

In the case of M. Nagaraj vs. Union of India,3 the court in very clear cut terms lay down that if
the state wishes to have reservations in promotions, it is free to do so but at the same time it must
provide a proper reason for doing so i.e. it must show the backwardness of the community to
which it is providing reservation, the compelling reasons must consider the points of inadequate
representation and administrative efficiency as well. For this purpose Article 16 (4A) was
constitutionally valid.

However the court also laid down certain precautions in this judgment, namely:-

1- The right to equality under article 16 (1) is a fundamental right of every citizen but clauses 4
and 4 A do not confer a fundamental right upon those classes for whom reservation is sought to
be provided.

2- Clauses 4 and 4A are discretionary in nature. The state may decide when to provide
reservation , if any.

3- Besides backwardness and inadequate representation, the state must take care not to extend
reservation indefinitely or to extend the 50 % cap4 or reduce administrative efficiency.

JUDGEMENT UPHELD IN THE CASE OF UP POWER CORPORATION CASE

In the case of UP Power Corporation Ltd v. Rajesh Kumar5

The decision in the M. Nagaraj case was upheld and it was stated that:

1- Affirmative action was inevitable in a society divided by thousands of years of discrimination

due to an exploitative caste system.

2- Reservations in promotions is a much needed step towards improving representation of the

lower classes in the bureaucracy, thus ending their marginalization.

3
(2006) 8 SCC 212
4
Dr. Gulshan Prakash v. State of Haryana 2009 (14) SCALE 290
5
2012 (2) KLT 115 (SN)
3- Those who base their argument on the fact that efficiency would be reduced are of the opinion
that the lower classes are by default intellectually inferior and no amount of affirmative action
would do them any good. This mind set needs to be both discouraged and removed.

ARGUMENTS AGAINST RESERVATION IN PROMOTIONS BY P.V INDIRESAN

(FORMER DIRECTOR, IIT MADRAS)

It was argued by a former professor of IIT Madras that reservation in promotions was simply not
working for the purpose for which it was created. The gentleman based his argument on the
following points.6

1- Double benefits. That with reservation being given at the entry level in the civil services and
other government jobs, the reserved category should not enjoy further benefits in the form of
reservations in promotions as well.

2- He also agreed that though reservation was important, getting habituated to it would defeat its
very purpose. Interminable continuance of reservation would prove to be counterproductive.

3- It would promote further increase the gap between the SC ST‟s and those from the general
category and promote discrimination in the long run.

4- Deciding the criteria of reservation should be the state’s prerogative but equal importance
needed to be given to the decision of the Supreme Court which was fair and practical. In the
present situation, populist policies tended to dominate the priorities of the government.

5- It was also evident that in any organization, overlooking a person’s merit during the time of
his promotion bound to result in the less competent being promoted ahead of those who had
performed better. This was not only unfair to such meritorious people but would result in dilution
of administrative efficiency as well.

6
http://www.thehindubusinessline.com/opinion/columns/p-v-indiresan/theres-no-end-to-
reservation/article2351217.ece (Prof Indiresan on reservation) Site visited on 19-04-2013 at 6:37 pm
 WHY SHOULDNT THE OBC (OTHER BACKWARD CLASSES) BE INCLUDED IN
SUCH RESERVATION?

The representation of OBC in Central Government services as on 01.01.2008.

POSTS TOTAL OBC GENERAL SC/ST

GROUP A 91,881 5,031 (5.5%) 70,985 (77.2%) 18,539(17.3%)

GROUP B 1, 37,272 5,420 (3.9%) 1, 03,471 (73.4%) 26,785(22.7%)

The above statistics reveals that there has not been any improvement that in the representation of
OBCs in Central Government services, despite government announcing 27% reservation.

It is a matter of regret that in 18 Ministries/Departments, that is no representation of OBCs at all

in Group A services and in 9 Ministry /Department, there is no representation of OBCs in Group
B services.

Article 16(4) of the Indian Constitution states "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". The OBCs constitute nearly 60% of the Indian population and extended 27%
reservation but they have a share of 5% only in governmental services.

In a recent letter, Chairman P L Punia of National Commision of SCs (NCSC) said, "The
Commission feels the benefit of reservation in promotion should also be extended to OBCs as
per Article 15(4) and 16(4) of the Constitution." Mandal Commission as well as Parliamentary
Committee (Natchiappan Committee) in its 8th report (2005) has recommended reservation in
promotion.

EFFECT ON SENIORITY – JUDGEMENT IN VIRPAL CHAUHAN CASE –

RESEVATION NOT MANDATORY

In Union of India v. Virpal Singh Chauhan,7 two judge bench of the Supreme Court reiterated
what had been said in the Indira Sawney case that providing reservation under in promotion was

7
AIR 1996 SC 448
not warranted under article 16(4). The rule of reservation actually created a objectionable
situation in this case.

Out of the 33 candidates being considered for promotion to 11 vacancies, all were SC/ST
candidates. Not a single candidate belonged to the general category. The court noted that these
candidates had left behind even their general category counterparts in matter of merit and thereby
did not need reservation. The court also stated that there was no uniform or prescribed method of
providing reservation. Its extent and nature were purely up to the state to decide. And when a
candidate from the reserved category would get promoted, he would assume seniority over his
general counterpart only as long as that person didn’t get promoted to the same rank. In other
words, such seniority would only be temporary.

RESTRICTION LAID DOWN IN AJIT SINGH CASE – GENERALSEATS ONLY TO

BE CONTESTED BY GENERAL CATEGORY PEOPLE

In the case of Ajit Singh Januja v. State of Punjab8 a three judge bench of the supreme court went
a step ahead of the Virpal Case and laid down that when there would arise a question to fill up a
seat reserved for a SC/ST candidate in a higher grade then a person of that category would
receive first preference while for vacancies in general category seats, a person of general
category would be given first preference. Thereby in such instances, the court put a limit on the
discretion of the state in respect to matters related to reservations in promotions. The court
agreed that the seniority between the two categories in promotion would continue to be regulated
by their panel position i.e. with reference to their inter se seniority in the lower grade.

WHO SHOULD BE GIVEN PREFERENCE IN RESERVATION – SC’SOR THE ST’S?

As date from the below table would show, the share of the Scheduled Tribe population in urban
areas is a meager 2.4%. Madhya Pradesh, Maharashtra, Orissa, Gujarat, Rajasthan, Jharkhand,
Chhattisgarh, Andhra Pradesh, West Bengal, and Karnataka are the State having larger number
of Scheduled Tribes These states account for 83.2% of the total Scheduled Tribe population of
the country.9 In such a case, keeping the criteria of inadequate representation in mind, would it
be fair to stick to the limit of 7.5 % quota for Scheduled Tribes as decided by the Supreme Court
8
AIR 1996 SC 1188
9
http://censusindia.gov.in/Census_And_You/scheduled_castes_and_sceduled_tribes.aspx (SC ST Population in
India) Site visited 19-04-2013 at 7:03 pm
when their numbers are far greater? Same goes for the Scheduled Castes as well. As per the
Census 2001, total population of the Scheduled Castes in the country (excluding the population
of Mao Maram, Paomata and Purul sub-divisions of Senapati district of Manipur) is 166,635,700
which constitute 16.2% of the total population. Uttar Pradesh (35,148,377) has the largest
Scheduled Caste population, followed by West Bengal (18,452,555) and Bihar (13,048,608).
These states, along with Andhra Pradesh Tamil Nadu, Maharashtra, Rajasthan, Madhya Pradesh,
Karnataka and Punjab comprise the group of „top ten‟ states in terms of large Scheduled Caste
population in the country.

Once again would the blanket limit of 15 % reservation for the SC’s apply here?

PREFERENCE FOR SC’S OR ST’S (CONTINUED)

The biggest problem would arise in states like Bihar and West Bengal where both the number of
SC‟s and ST‟s are considerable in nature. A conflict would then arise as the number of seats
would be limited and there would be claimants from both the communities. In such a case the
government would be caught between the sea and the ravine. The recent incidence of violence in
Kandhamal was a glaring example of how the SC and the ST communities were at odds with
each other due to conflict of interest in matters of related to employment and educational
opportunities. The same was confirmed by a statement made By Chief Minister Naveen
Patnaik.10 Later on these problems would arise in more and more states where even in the
reserved category there is a competition for the seats on offer.

THE DEBATE OF CONSEQUENTIAL SENIORITY

The best way to understand Consequential Seniority is to make an assumption-- Let us assume
that A, belonging to the General Category, currently holds Level 3 of a government post and B,
appointed under the Scheduled Caste quota, is junior to A in Level 3. When promotions to Level
4 are to be decided, let us assume further, that due to reservations in promotions B has to be
promoted to Level 4 before A because there are no Scheduled Caste candidates at a seniority
similar to that of A. The question that then arose was whether A would regain seniority over B

10
http://www.indianexpress.com/news/kandhamal-violence-sign-of-scst-rift-orissa-cm/372787/ (SC’s and ST’s at
odds with each other, Site visited 19-04-2013 at 7:27 pm)
when she is promoted to Level 4 in due course. 'Consequential Seniority' means that A will not
regain her seniority and B will now be considered senior to A within Level 4.

This is the one of the primary problems with reservations in promotions. Suppose a certain
number of seats are kept empty for people of a certain caste and there aren’t enough employees
belonging to that category, those seats lie vacant thus reducing the administrative efficiency and
creating a backlog. The Supreme Court struck down the Uttar Pradesh Government Servants
Seniority Rules – which provided for consequential seniority in promotions – holding that,
although the Constitution has been permitted to enable consequential seniority, the state had
failed to satisfy conditions relating to the determination of backwardness and the appropriateness
of reservations. It is unclear what shape the proposed amendment will take, but it seems that the
state does not even want to discharge the burden that the case for special treatment must be made
out.11

SENIORITY TO BE COUNTED FROM DATE OF PROMOTION – JAGDISH LAL

CASE

An end to the heated debate on the consequential seniority came with the decision in the case of
Jagdish Lal vs. State of Haryana12 in which a three judge bench differed from all the previous
rulings. The court now argued that the seniority rule ought to apply meaning as per se and that
from now on, it would be decided from the date of promotion. The court now also stated that the
primary purpose of article 16 (4) is due representation of certain classes in certain posts but along
with article 16 (4) there are articles 14, 16(1) and 335 as well. 14 and 16 lay down the
permissible limits of the affirmative action’s by way of reservations which may be taken down
under articles 16 (4) and 16 (4 A). Article 335 ensures that the efficiency of the administration is
not jeopardized.

11
http://www.business-standard.com/india/news/devesh-kapur-the-honourable-men/483076/ (Supreme Court
strikes down UP Govts’ Seniority rules) Site visted 19-04-2013
12
AIR 1997 SC 2366
 RESERVATION IN PROMOTIONS NOT A FUNDAMENTAL RIGHT - MR BALAJI
CASE

The court laid down in the case of MR Balaji vs. State of Mysore13 that articles 16 (4) and 16 (4
A) contain no directive or command, it is only a enabling provision 14 and it imposes no
constitutional duty on the state and confers no fundamental right on any one . It is necessary to
balance all these provisions. The interests of the reserved classes must be balanced against the
interests of other segments of society.15

The doctrine of equality of opportunity is to be reconciled in favor of backward classes in such a

manner that while serving the backward classes, no encroachment shall be made upon the field
of equality. It is necessary to strike such a balance so as to attract meritorious an talented people
to the civil services. It is also recommended that the rules of adequate representation be properly
followed so that the efficiency of administration does not get affected under article 335.

In MG Badappamavar v. State of Karnataka16 the court again confirmed the ruling in the Balaji
case.

RESERVATION IN PRIVATE SECTOR WILL LEAD TO DILUTIONOF MERIT –

OPINION BY PK DORAISWAMY- FORMER CHIEF SECRETARY –ANDHRA
PRADESH

In an article in the Hindu, P.K Doraiswamy speaks about reservations in promotion in the private
sector and the various problems that could come up as a result of it. Namely17

1-Unlike in the government, where promotions are routine and seniority-based, private sector
promotions are result-based and may make or mar a company's fortunes. Applying reservation to
promotions in private sector companies would, therefore, certainly dilute competitive merit and
weaken management control over the business.

13
AIR (1998) 4 SCC 1
14
State bank sc st. welfare association vs. SBI (1996) 4 SCC 119
15
Mangat Ram v. State of Punjab (2005) 9 SCC 323
16
AIR 2001 SC 260
17
http://www.thehindubusinessline.in/2004/12/14/stories/2004121400260900.htm (Reservation in private sector)
Site visited 19-04-2013 at 10:55 pm
2-Reservation for any sub-set of persons from any population has the inherent limitation in that
the best person in that sub-set may be inferior to a person from another group. While this may
not matter in routine, low-level jobs, where only bare minimum suitability is required, it is
crucial in high-competence, high-impact jobs, such as, say, those of pilots, surgeons, scientists,
designers, professional teachers, and management consultants where companies would like to
select the best in the business.

3-An anti-SC/ST bias is an accusation few in the government have the nerve to face. This is
likely to happen in the private sector also as governments have various ways of pressuring a
private sector employer.

4-Once reservation is accepted, there would be a statutory inspector raj for checking company
rosters with all its attendant evils and potential for harassment.

5-Reservation is primarily meant to compensate for past loss of, and equalize current and future,
initial opportunity. The aim is to give easy, equitable access to the career escalator and not to
carry people from step to step on the escalator, much less to partition all available jobs
proportionately among all castes as if they are some sort of family property.

PRESENT DAY SITUATION – 117TH AMENDMENT BILL POTENTIAL DISEASTER

The government recently introduced the 117th amendment bill in the Rajya Sabha 18 which was
then subsequently cleared by the upper house. The bill was deemed necessary to circumvent a
Supreme Court judgment which deemed that proper reasons must be provided by the government
before giving reservations in promotions. It would render irrelevant the need to prove
“backwardness and inadequate representation in services”. It also seeks to insulate the promotion
quota from article 385 which says that efficiency in administration must not be affected.

The new sub-clause 4A that is supposed to be inserted reads as thus “(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 or in article 335 shall prevent the State from making any provision for
reservation in matters of promotions, with consequential seniority, to any class or classes of posts
18
http://currentaffairsappsc.blogspot.in/2012/12/rajya-sabha-passes-117th-constitutional.html (117th
amendment passed by Rajya Sabha) Site visited 20-04-2013 at 00:50 am
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.”.

On November 16th 1992 in the case of Indira Sawney the court had ruled that reservation in
promotions was illegal but had allowed it to continue for a period of five years as that was a
special case. To overcome the decision that disallowed reservations in promotions and
consequential seniority Parliament enacted three amendment acts in 1995, 2000 and 2002. The
77th and 85th amendments gave advantage to SC/ST candidates promoted by reservation. Now
with this new amendment bill the advantage is expected to tilt all the more. The grounds on
which the court had rejected the claims of the government earlier to provide reservations in
promotions stand nullified. This would prove to be harmful in the long run as those denied of this
facility namely the general category and OBC‟s would be marginalized causing a decline in their
economic indicators.

CONCLUSION

The current debate is for awarding reservation in the private sector as globalization has resulted
in a boom in the private sector while there has been a shrinkage in the jobs being generated by
the public sector entities. But is this nation only for the backward? Why is it that every time the
politicians are interested in the issues of the backward classes? The higher casts over the
generations may have been very suppressive but that does not mean that tools for empowerment
like reservation are misused. It has increasingly been the case with the politicians. When every
election nears then they have some kind of reservation or the other being announced which I
think is just a mechanism to get votes.

If real empowerment is the aim I think the backward should exhort the government to make good
schools and world class institutions for higher education and make conditions conducive for
availing of the reservation. This would go a long way in solving the problems faced by the
backward. If the backward rely on the politicians completely and think reservations would help
them out then they would be repeating the mistake that they have been repeating all these years.
It would only help in the concentration of power in a few among this class which is not the
purpose of giving reservation.
I think it is the very malfunctioning of the reservation system that has made it reach this stage
where they have started asking for reservation to be awarded in the private sector. If the whole
reservation policy would have been successful then reservation should have ended in the
educational institutions itself as those who would have got into these institutions would have
developed their skills whereby they could work as professionals or join the public sector
depending upon their interest. But the backward also have to change their mind set as the feel
they would keep getting reservation throughout so why work. I have seen the laid back attitude
of the backward classes in my university which is one among the ten National Law Universities
established in the country where they are completely funded by the state in spite of which they
don’t study.

I am strongly against awarding any kind of reservation on the basis of cast which I don’t think is
necessarily a good mechanism to determine the backwardness. A better mechanism would be
identifying the backwardness based on the economic background. A good example to understand
this would be the Brahmins who are considered to be the higher cast in the hierarchical structure
of the Hindus of whom many are not even able to meet their ends meet but since they are the
higher casts they cannot even get any reservation and be empowered.