Reservation in promotion refers to granting reservation for jobs filled by promotions in public employment to scheduled castes and scheduled tribes. The fundamental point of disagreement is whether the constitutional reservation mandate to ensure adequate representation of the scheduled castes and scheduled tribes, applies only at the entry level or at all levels.
Against this background, the Supreme Court of India on January 28, 2022 gave its judgment after hearing a batch of petitions arising out of judgments from 11 high courts, on various pertinent reservation policies in the last 10 years. They had argued that many appointments were stalled due to the ambiguities in the law. Attorney General K.K. Venugopal argued in favour of reservation in promotion. He said that even after 75 years of independence members of the scheduled castes and scheduled tribes have not come on par with the forward classes of society; it is still difficult for a member of the SC/ST to reach the ‘Group A’ category jobs.
The bench of Justices L. Nageswara Rao, Sanjiv Khanna and B.R. Gavai said the court has not expressed any opinion regarding the merits of the individual cases even in the past, and had answered the ‘common issues’ formulated in the issue. Therefore, states have to lay down the criteria for determining the inadequacy of representation of scheduled castes and scheduled tribes in promotions. The judgment came on appeals by both the Centre and states which showed their inability to proceed with a large number of pending promotions due to ambiguities in applying the reservation mandate.
Ruling of Court
According to the Supreme Court, laying down of criteria for determining the inadequacy of representation would curtail the freedom and power given to state governments. Moreover, local conditions differ vastly from state to state and under no circumstances a uniform criteria will serve the purpose.
Presently, the proof of backwardness operates at the group level, where, the state uses data to show the backwardness of a group. The court removed the prevailing conditions in proving backwardness in matters of reservation in promotion.
The court held that cadre and not class, group, or the entire service should be the unit for the purpose of collection of quantifiable data in relation to promotion quotas. It added that the entire exercise of reservation in promotions would be meaningless, if data related to the representation of scheduled castes and scheduled tribes was done with reference to the entire service.
The court also made it clear that the government cannot introduce a quota in promotion for the scheduled castes and scheduled tribes employees without proving that the particular community is backward and inadequately represented. It is also to be proved that providing reservation in promotion would not affect the overall efficiency of public administration.
The court referred to its 2006 judgment in M. Nagaraj vs Union of India that made provisions for applications of creamy layer concept in reservation in promotions. The 2006 verdict reversed the court’s earlier stance in the Indra Sawney case of 1992, which had provided for the exclusion of the creamy layer concept in scheduled castes and scheduled tribes promotions was also applicable on other backward classes. The court established that the principle of ‘creamy layer exclusion’ applies to scheduled castes and scheduled tribes promotions in matters of reservation in promotion.
Hailing the earlier constitutional benches’ decision in Jarnail Singh and M. Nagaraj cases that the respective states will determine the adequate representation of scheduled castes and scheduled tribes communities, the court ruled that the opinion of the state governments should be based on quantifiable data. The court noted that ‘collection of information on inadequacy of representation of SC/ST communities cannot be with reference to the entire service or class/group, but should be relatable to the grade/category of posts to which the promotion is sought’.
The Department of Personnel and Training (DoPT), Ministry of Personnel, Public Grievances and Pensions, Government of India defines cadre for the purpose of a roster, as a particular grade which shall comprise the number of posts to be filled by a particular mode of recruitment in terms of the applicable recruitment rules. While cadre is generally to be constructed as the number of posts in a particular grade, for the purpose of preparation of roster, it shall also comprise posts required to be filled by a particular mode of recruitment in terms of the applicable recruitment rules. However, as per Fundamental Rule 9 (4) of the DoPT, cadre has been defined as the strength of a service or a part of a service sanctioned as a separate unit.
The court left the states with the sole responsibility to assess the inadequacy of representation for promotional posts by taking into account the relevant factors. It ordered to conduct a review regarding the data for the purpose of determining the inadequacy of representation in promotions. The court refused to set out a time period and left it to the union government to fix a reasonable time for the states to conduct the review.
Criticism
The recent verdict has received out mixed reactions. Economically weak people from ‘general category’ feel neglected and say the central and state government since 1950s have been following a policy of reserving seats in promotions in favours of scheduled castes and scheduled tribes communities on the ground that they are not adequately represented at the decision-making level of public services. On the other hand, Dalit leaders across the party lines criticised the judgment for excluding creamy layer. They argue that the judgement misunderstands the rationale behind the exclusion of creamy layer principle.