By Dr. Rajkumar Singh
Originally, the members of Scheduled Castes and Scheduled Tribes were provided to enjoy the facility of reservation in direct recruitment and in promotion, as per Article 16 (4) of the constitution, which continued till 15 November 1992, but interrupted, on the day 16th of the month, in the case of Indra Sawhney, popularly known as Mandal Judgement.
A 9-judge bench, the Supreme Court decided that the Article 16 (4) of the Constitution did not provide for interests of SCs and STs community and to continue it further the government passed the 77th Amendment of the Constitution adding a new clause 4A in Article 16 making it Article 16 (4 A) with effect from 17 June 1995.
Now, the Article 16 (4A) clearly mentions, “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and Scheduled Tribes which, in the opinion of the State are not adequately represented in the services under the State.”.
Negative effects and solutions
The other negative effect of Indra Sawhney was regarding filling the backlog vacancies on account of non-availability of candidates in which the said judgement held that the number of vacancies to be filled on the basis of reservation in a year including carried forward reservations in different categories should not exceed fifty per cent.
In the light of this judgement it became difficult to fill the backlog vacancies and to hold special drives. Thus, to nullify the order in reference to Court’s judgement Article 16 (4B) was inserted in the constitution by passing 81st Constitutional Amendment Act 2000, on 9th June in which the vacancies of current year was separated to that of backlog number and prohibited to count taking together in determining the ceiling of fifty per cent reservation on total number of vacancies of that year. In line, the consequential seniority hurdles of the judgement of the Supreme Court in the case of Virpal Singh Chauhan, 1995 along with the issue of official letter dated 30th January 1997, were removed by passing the Constitution 85th Amendment Act 2001.
The above constitutional amendments and provisions were made by the government to continue the promotion of SCs and STs in the light of the judgement in the Indra Sawhney case delivered in the year 1992.
Reservation and constitutional amendments
In another development among the constitutional amendments, the 77th and 85th were challenged by the General category employees and the 5-judge bench of the Supreme Court clubbed all the petitions challenging which became the basis of the case known as M. Nagraj vs. Union of India, delivered in 2006.
The Court, in its judgement made it amply clear that Article 16 (4-A and 16 (4-B) have been inserted flow from Article 16 (4) and they do not alter the structure of the said Article but rather retain the controlling factors or the compelling reasons as mentioned in Article 335, like backwardness and inadequacy of representation as it mandates that reservations have to be balanced with the maintenance of efficiency. In it, the Court validated Parliament’s decision to extend reservation for SCs/STs to include promotion.
The judgement, although, did not make any other aspects, such as, ceiling limit of 50%, concept of creamy layer, the concept of post-based roster, yet it laid down three controlling conditions that the State must meet prior to granting SC/ST a representation in promotion. First, the State must show the backwardness of the class. Second, it must show that the class is inadequately represented in the position/service for which reservation in promotion will be granted, and finally, it must show that the reservations are in the interests of administrative efficiency.
In the context, a recent controversy arose from an appeal by the State of Tripura against the judgement of the Tripura High Court which had struck down Section 4 (2) of the Tripura Scheduled Castes and Scheduled Tribes Act, 1991 as being in violation of the three controlling conditions laid down in Nagaraj. The division bench which heard the appeal comprising Justice Kurian Joseph and R. Banumathi referred the case to a Constitution Bench on 14 November 2017 and again tagged all cases related to the theme.
In a significant judgement delivered did not call for a review of the Nagraj case but struck down the demonstration of backwardness provision from Nagraj case and while doing so, it introduced the creamy layer exclusion principles, requiring that the State does not extend reservation in promotion to SC/ST individuals who belong to the creamy layer.
Latest judgements and reservation
The M. Nagaraj case judgement of 2006 validated earlier constitutional amendments made earlier to continue the reservation in promotion for SC/ST community, but at the same time it also laid down three conditions for granting such a facility, such as, presenting proof of backwardness, inadequate representation and overall efficiency in public administration. These conditions made two things clear; a. the State is not bound to make reservations in the matter of promotion, and b. It reversed the earlier instance of Mandal case in which it had excluded the creamy layer concept of SCs/STs but now it was also applicable to this category in the interest of the weakest of that community.
In a further development the Centre asked the Court to review the above two issues which was made clear by the Court in the case of Jarnail Singh vs. Lachhmi Narain Gupta in the year 2018, invalidating the requirement of collecting quantifiable data by States on the backwardness of SCs and STs while granting quota in promotions as laid down by the Court in Nagaraj verdict but States need to back it with appropriate data showing the inadequate representation in the cadre. In the second place, the Court refused to include the creamy layer in the orbit of benefits of reservation and promotion.
Author: Dr. Rajkumar Singh. Professor for the last 23 years and presently Head of the University Department of Political Science with Dean, Faculty of Social Sciences at the Bhupendra Narayan Mandal University, Madhepura (Bihar), India.