About the Author:
3rd-year law student, UnitedWorld School of law, Gujrat
After independence, the rights of a minority was continued to be safeguarded, but significant changes happened in 1979 with the Mandal Commission Report which called for a change to admissions to institutes of higher education, except where states already had more generous requirements. It was not until the 1990s that the recommendations were implemented in Union Government jobs as well.[i]
In 1995, the 77th amendment to the Constitution was made to amend Article 16 before the five-year period expired to continue with reservations for SC/STs in promotions.[ii] This was done as a result of Indra Sawhney, but it was accompanied with restrictions that were clearly overlooked in the judgment as a result of which we have this present case. But these reservations will lead to nothing but a double reservation.[iii]
Article 16(4) is construed as warranting reservation even in the matter of promotion it would be contrary to the mandate of Article 335 of the Constitution that talks about maintenance of efficiency in administration.[iv]
Also, it was stated in State of Punjab v. Hiralal[v], the validity of an order made by the Government of Punjab providing for reservation in promotion was questioned. Though the High Court upheld the challenge, the Supreme Court reversed and upheld the validity of the Government order. Thus it was found in Indra Sawhney that it would not be allowed for the state to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. Therefore with the 81st and 82nd amendment which allowed the state to give concessions the question was still the same that, is the state bound to do so or can the state be mandated in order to give such reservation and also what is the criterion for same?.
Some clarifications were given in M.Nagaraj. v. UOI, 2006[vi] where The Supreme Court upheld the amendments, but still they specified that the State concerned would have to show, in each case, the presence of 'compelling grounds' - including 'backwardness,' 'insufficiency of representation' and total 'administrative capacity' - before rendering reservation provisions. Furthermore, the Court held that those provisions were merely enabling provisions. If a state government wants to make provisions in the promotion for the reservation to SC/STs, the state must collect quantifiable data showing class backwardness and inadequacy of that class representation. Again the mandating feature of state was in question.
In B.K.Pavitra v. UOI, 2019[vii], the Supreme Court upheld a reservation in promotion policy. The Supreme Court upheld a 2018 Karnataka Reservation Act on the ground that the state had furnished sufficient data to demonstrate both that SC/STs are inadequately represented and that the policy would not adversely affect efficiency. But also clarified that Article 335 should be kept intact with the reservation policies made. Still, the stance on state role in giving such reservation was not clear for which we have to look at this present case.
Facts and origin of the case- Mukesh Kumar & Ors. v. State of Uttarakhand –
This case is the outcome of a previous case that was filed in 2011 i.e. Vinod Kumar Nautiyal & Ors. v. State of Uttarakhand in which section 3(7) of the 1994 U.P. Public Services Act was stated unconstitutional by Uttarakhand High Court and directed that no promotion can be given by the state with effect by this section.[viii]
Thus against this, a review was filed. Therefore the Court ordered the state government to set up a committee to assess the backwardness of the reserved communities in the state and the inadequacy of their representation in public posts. Thus based on the report of this committee, it was decided to not give reservation to these post in public services for promotion for the SC/ST. Again a writ was filed in furtherance of this. But High Court in 2019 quashed this order.
As it was contrary to what was laid in Indra Sawhney and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.[ix] In which the Court had already stated the scope of Article 16(4) that it is an enabling provision, i.e. there is no necessity for the state to collect quantifiable data to assess the SC/ST in order to give them favour in reservation in promotion. The Court was of the thought that the validity of section 3(7) was tested with respect to the reservation in promotion. But instead, the question of state duty to give reservation was in question w.r.t. promotion.
Therefore Vinod Kumar again filed a writ petition in Uttarakhand High Court seeking the respondent to prepare a list of eligible candidates as per Rule 5 of Uttarakhand Promotion by Selection Eligibility Rules, 2003. Also asked to prepare a separate list for all sectors for the promotion to Assistant Engineer in PWD. Thus, the state was directed to form a Departmental Promotion Committee.
Therefore this was again disposed off by the Court in 2019 by giving reservation in promotion for only SC/ST in future vacancies to the said quota that is allotted to them.
Also in this judgment, the High Court rectified their error by citing Jarnail Singh case and stated that it is not necessary for the state to collect necessary data of backwardness. But actually, the inadequacy of representation was to be considered mainly as was stated by the Apex court in the case of M.Nagaraj (2006).
Thus quantifiable data regarding the inadequacy of the representation of the SC/ST must be considered by state in deciding the decision regarding promotion.
Further unsatisfied by this and still no clarification on state duty to give reservation further, a special leave petition was filed by the appellant.
The contention made by the State of Uttarakhand –
- No fundamental right to claim reservation in appointment or promotion to public posts.
- No Constitutional Duty to provide reservation in promotion.
- Also, it was stated that the three rules laid in M.Nagaraj were kept intact or considered, which clearly states that the state is not bound to make a reservation. (As also stated above).
- Thus no point of collecting quantifiable data when simply there is no point of giving reservation in promotion was stated by them.
- They also presented that Court can order the state to collect such quantifiable data on basis of which a decision to give reservation can be reached it is not a mandating report, as stated by Supreme Court in Suresh Chand Gautam v. State of U.P[x].
Contentions made by reserved category employees –
- The state cannot refuse to collect quantifiable data regarding inadequacy or adequacy of representation.
- Also on the basis of Article 16(4) and 16(4-A), there is an obligation on the state to give representation in the promotion.
- Right to Equality of the SC/ST cannot be taken.
- They even asked for reconsideration of the Suresh Chand judgment stating it was incorrect.
- They said that the committee was formed on the basis of M.Nagaraj judgment; thus the judgment was kept intact by them, and as the report showed inadequate representation, such reservation is to be given.
1. Whether the state is bound to make a reservation in promotions to public posts?
2. Whether this decision to give reservation solely depends upon the quantifiable data based on the adequacy of representation of SC/ST?
For deciding this case, the Apex Court referred its previous judgments in Ajit Singh v. State of Punjab (1999)[xi] it was clearly stated that Article 16(4) & 16(4-A) are just enabling provisions. Thus it is on the discretion of the state to give reservation and cannot direct the state to do so. Therefore also cannot make a reservation in promotions too. The only ways of achieving this are by collecting quantifiable data and satisfy the need for such reservation, i.e. without affecting Article 335 of the Constitution. And this data is only a deciding factor, not a compulsion.
According to the bare reading of Article 16, it is clear that it is of the subjective satisfaction of the state to check inadequacy. (As same was stated in M.Nagaraj too)
The Court said that the state must have some material on which such an opinion can be formed. Also, by citing Barium Chemicals v. Company Law Boards[xii] that such committee report may not necessarily be beyond judicial scrutiny as the scope of matters considered under it was already decided excessively in this case.
Therefore the SLP was dismissed by the Court. Thus on the basis of the report presented and considering all factors reservation in promotion was to be given. But there is no duty or no mandamus can be issued to the state to do so. And the quantifiable data is just a pre-requisite in order to achieve a decision. Also, it is not a fundamental right of the individual to ask for reservation in promotion. It is on the discretionary power and only on the fulfilment of the required points, such reservation is allowed. It is not a necessity. Thus High Court order was set aside. This judgment was given by the bench of J. L. Ngeswara Rao and J. Hemant Gupta.
Interpreting any statute and finding loopholes in it is how the judiciary develops. But if a reservation is given in promotions, this will sincerely question the credibility of the working efficiency in any department, and under government, these reservations can question on someone’s seniority in the job as well as lead to a double reservation in many instances where a job was also given as a result of reservation. But the concept of promotion was always based on appreciating someone based on their quality of work and skills, but such reservation will question the whole basis. Article 16(4) was added in order to bring justice to such backward classes, but that does not mean that the state can be mandated to implement it. It would show this clause as arbitrary to others rights. Therefore such discussion was needed to decide the scope of giving such reservation
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
[ii] 1971 SCR (3) 267
[iii] (2006) 8 SCC 212
[iv] (2000) 1 SCC 168
[v] (1968) 1 SCR 721
[vi] (1999) 7 SCC 209
[vii]1972 SCR (2) 752