This article is written by Advocate Vaishali Goyal, Delhi High Court

Introduction

The law on reservation in promotions has undergone several changes. Article 16 of the Constitution of India guarantees to its citizens equality of opportunity in matters of public employment. Article 16(1) contains this principle as follows:

“16. Equality of opportunity in matters of public employment.—(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 

Clause 4 and 4A of Article 16 deals with reservation and reservation in matters of promotion respectively. The two clauses are produced below for ready reference:

 (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. 

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

Clause 4A enables the State (defined under Article 12) to make provisions for reservations in promotions to posts in services under the State. Such provision can however be only made (i) in favour of the Scheduled Castes (hereinafter, “SCs”) and the Scheduled Tribes (hereinafter, “STs”), and (ii) for classes which, in the opinion of the State, are not adequately represented in the services under the State. This Clause was inserted to Article 16 vide Constitution (Seventy-seventh Amendment) Act, 1995. Later, the benefit of reservation in promotions to SCs and STs was given with consequential seniority vide Constitution (Eighty-fifth Amendment) Act, 2001.

Law before Constitution (Seventy-seventh Amendment) Act, 1995

Even when the explicit power to provide reservation in promotion was not given to the states, the Hon’ble Supreme Court of India, as early as in 1961, had read such a power implicit under Article 16(4) and as exception to the broader principle of equality enshrined under Article 16(1). It was held by the Hon’ble Court in General Manager, Southern Railway v. Rangachari AIR 1962 SC 36 that Article 16(1) confers equality to citizens not only in terms of initial appointment but also in respect of other matters relating to employment like, gratuity, superannuation, terms of service, promotion, etc. Article 16(4) constitutes an exception to equality guaranteed under Article 16(1) and thus has to be strictly construed. However, the historical reasons for which advancement of socially and educationally backward classes has been treated by the Constitution as a matter of paramount importance may have to be borne in mind in construing Article 16(4).  Thus observing, the Hon’ble Court concluded that reservation in promotion can be provided by the States under Article 16(4) as an exception to Article 16(1). The Hon’ble Court had read the inherent limitation of (i) maintaining administrative efficiency as underlined in Article 335, and, (ii) adequacy of representation of such backward classes within the services of the states, in providing such a benefit to the backward classes.

This interpretation was further endorsed by the Hon’ble Supreme Court in C.A. Rajendran v. Union of India & Ors., AIR 1968 SC 507 (5 judges bench). In this case, the Hon’ble Court had held that States have power to provide reservations in promotions under Article 16(4), however the method evolved by the Government must be such as to strike a reasonable balance between the claims of the backward classes and claims of other employees and the need to maintain efficiency in administration. 

In Rajendran, the Court also concluded that Article 16(4) does not confer any right on the members of backward classes and there is no constitutional duty imposed on the States to make a reservation for SCs and STs, either at the initial stage of recruitment or at the stage of promotion. Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State. 

Landmark Ruling- Indra Sawhney (1992)

The aforesaid interpretation was altered to a great extent in Indra Sawhney and Ors. V. Union of India & Ors., 1992 Supp (3) SCC 217 (9 judges Bench). In this 9 judges’ Bench decision, the Hon’ble Court answered several questions pertaining to reservations. 

The Court held that Clause 1 of Article 16 is a facet of Article 14 which furthers the guarantee of equality in matters of employment. Similar to Article 14, Article 16 inheres in itself the same powers permit classification and to make beneficial provisions for classes which are differently situated. Thus, Clause (4) is not an exception to Clause (1) and even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms. 

Striking down reservation in promotions

However, when it came to providing reservation in promotions the Hon’ble Court disagreed with the view in Rangachari that reservations in promotion are contemplated under Article 16(4). Thus, in Indira Sawhney the Court concluded that reservation under Article 16(1) is only contemplated at the stage of direct recruitment and not at the stage of promotion. Any effort to provide reservation at promotion would affect the efficiency of administration and violate the principle of equality enshrined under Article 16(1). In the words of the Court, it was concluded as follows:

107…While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career. That would mean creation of a permanent separate category apart from the mainstream – a vertical division of the administrative apparatus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, compete and excel among them…At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that these members too compete with others and earn promotion like all others; no further distinction can be made thereafter with reference to their “birth-mark”, as one of the learned Judges of this Court has said in another connection. They are expected to operate on equal footing with others.

Thus, the Court held that the majority opinion in Rangachari, to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, was not sustainable in principle and ought to be departed from. However, the Court clarified that it was within the powers of the state to extend concessions and relaxations (like carrying forward of vacancies, provisions for in-service coaching/training, etc.) to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. However, it would still not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories in the matter of promotions since that would compromise the efficiency of administration. 

Constitution (Seventy-seventh Amendment) Act, 1995

Even though the Court held that the direction in Indira Sawhney decision would apply prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis and that wherever reservations were already provided in the matter of promotion, such reservations shall continue in operation for a period of five years from the date 9of the judgment. Within that period, liberty was given to the appropriate authorities to revise modify or reissue the relevant Rules to ensure the achievement of the objective of Article 16(4). The ground situation was that members of these backward classes had been enjoying reservations in promotions since a very long time and such a move would have severely affected their interests. Therefore, in order to provide reservations in promotions the Parliament amended the Constitution and added Clause (4A) to Article 16 in 1995. The statement of objects and reasons of the Constitution (Seventy-seventh Amendment) Act, 1995 were as follows:

“The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of Indra Sawhney and Others vs. Union of India and Others, however, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the Government to protect the interest of the Scheduled Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is necessary to amend article 16 of the Constitution by inserting a new clause (4A) in the said article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.”

Challenge to the insertion of Clause 4(A) to Article 16

Article 16(4A) was subsequently challenged in M. Nagaraj v. Union of India, (2006) 8 SCC 212 (5 Judges Bench). The Court upheld the amendment stating that the amendment merely alters the law relating to reservations. It does not impinge upon the right to equality which is a fundamental right and part of basic structure of the Constitution. Further it held that Clause (4A) is derived from Clause (4) of Article 16. Clause (4A) is confined to SCs and STs alone and it has retained the parameters mentioned in Article 16(4). The Court thus upheld providing reservation in promotion. However it recognised that for providing such affirmative action, the state should have quantifiable data to show backwardness and inadequacy of representation of these classes while keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335.

Subsequent development of the requirement to collect quantifiable data

The decision in Nagraj Singh was challenged in Jarnail Singh and Ors. V. Lachhmi Narain Gupta and Ors., (2018) 10 SCC 396 (5 Judges Bench). It was contested that the observation in Nagraj that the State has to collect quantifiable data showing backwardness in respect of the SCs and STs and application of the principle of creamy layer in respect of SCs and STs is contrary decision in Indra Sawhney. It was contended that in Indira Sawhney this Court had held that SCs and STs are the most backward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List Under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the SCs and STs all over again. The Court upheld the argument and stated that it is clear that when Nagaraj requires the States to collect quantifiable data on backwardness, in so far as SCs and STs are concerned, this would clearly be contrary to the Indra Sawhney and would have to be declared to be bad on this ground. However, the Court retained the other two requirements of collection of data to show inadequacy of representation and maintenance of efficiency in administration.

Also, the Hon’ble Court in this judgment has upheld the exclusion of creamy layer from within the SCs and STs from gaining the benefits of reservations in promotions. It stated that such exclusion promotes the principle of equality. Thus, the Court made it clear that that quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj on the inadequacy of representation, which can be tested by the Courts. 

High courts and Supreme Court have applied the aforesaid principles strictly while adjudging laws, notification providing for reservation in promotion and consequential seniority. In B.K. Pavitra and Ors. V. Union of India and Ors., (2017)4SC C 620 the Hon’ble Supreme Court held that absence of  proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. It was subsequently in B.K. Pavitra and Ors. v. The Union of India (UOI) and Ors.. AIR 2019 SC 2723 that the Supreme Court upheld the provisions made by the Karnataka Government when following the decision in B.K. Pavitra (2017), the State government constituted the Ratna Prabha Committee and duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. 

The above discussed position has been crystallised in the recent case of Mukesh Kumar & Anr. v. The State of Uttarakhand & Ors., Civil Appeal No. 1226 of 2020, February 07, 2020. (Division Bench). The Hon’ble Supreme Court dealt with the central point that whether the State Government is bound to make reservations in public posts and whether the decision by the State Government not to provide reservations can be only on the basis of quantifiable data relating to adequacy of representation of persons belonging to SCs and STs. The Hon’ble Court concluded that Article 16(4) and 16(4A) are enabling provisions. The Government is not bound to provide reservation in promotions to SCs and STs. There is no fundamental right which inheres in an individual to claim reservation in promotions. The requirement to collect quantifiable data with respect to inadequacy of representation of SCs and Sts in public administration is sine quo non if the Government provides reservation in promotions. The data to be collected by the State Government is to justify reservation to be made in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of the Constitution. Collection of such data is not required when the State Government decided not to provide reservations.

The Court further held that no mandamus can be issued by this Court to the State Government to provide reservation; therefore no mandamus can be issued by the Court to the State to collect quantifiable data relating to adequacy of representation of the SCs and STs in public services.

Conclusion 

Therefore, it is now established law that if state seeks to provide reservation to members of SCs and STs, it has to collect quantifiable data vis-a-vis representation of SCs and STs in a particular cadre of a service and it has to form an opinion about inadequacy of representation based on that data. Further, notwithstanding how difficult it might be, the state also has to ascertain the effect of reservation on the efficiency in administration. It is only on the fulfilment of these two criteria, the state can justify its action of providing reservation in promotions. 

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