In this blog post, Vineet Kumar, a student of National Law University Odisha and Nalini Chandrakar, a student of Hidayatullah National Law University, write about the ongoing controversy at Madhya Pradesh High Court in the context of reservation in promotion and High Court’s opinion on the issue.
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Introduction
The reservation has always been a dicey and volatile issue in Indian democracy. One group argues that it has faced numerous hardships since time immemorial and deserves certain relief as compensation for that. On the other hand, another group claims that India is a secular and democratic country, and its Constitution suggests that everyone is equal. They call it discrimination if any particular group enjoys any additional benefits. But the same Constitution also lays down provisions for reserving seats in different areas of life, such as education, government jobs, judiciary, etc. Hence, for a layman, this is a conflicting situation.
The Hon’ble Supreme Court of India has, through various judgments, given its opinion on this matter. These decisions reflect the behavior of judiciary in such matters. One of such important decisions, which have been a landmark in the field of reservation, is the case of M. Nagaraj v. Union of India.[1], where the idea of reservation in promotion in the government departments was challenged on the basis of the policies on which it was based claiming such policies to be discriminatory and illegal in nature. The Madhya Pradesh Government provided reservation in promotion to the Scheduled Castes and Scheduled Tribes in the public department. The decision was criticized for being an ultra-vires action and breaching the law of equality and provisions laid down in the Nagaraj case.
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Brief Summary of Nagaraj Case
Background
To place this in context, it should be remembered that in Indra Sawhney case, it had been held that Article 16(4), because it then stood, wasn’t wide enough to bring inside its fold reservation in matters of promotion. However, the Court declared that this might not have an effect on promotions that had already been created and, in fact, granted the extra protection that wherever reservations have already been provided for in Central or State Services, a similar position might continue for an additional amount of 5 years. After that, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, that did offer for reservations in promotions. To recapitulate, this provision presently reads:
“(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.”
It was later said in Supreme Court’s judgment M. Nagaraj, where the Court, while upholding the constitutional validity of the improvements and changes bought up in Article 16, also set out certain conditions and standard for the State to implement corrective measures under Articles 16(4A), as also 16(4B) (that deals with carrying forward of vacancies reserved for backward classes such as OBC/SCs/STs).[2]
Outline
Broad issue raised was –
- Validity
- Interpretation
- Implementation of – firstly 77th amendment act 1995, 81st Amendment act 2000, 82nd amendment act 2000, 85th amendment act 2001 and secondly action was taken in pursuance there from which obtain to reverse choices or decisions of Supreme Court in matters concerning promotion and their application with retrospective impact.
- Petitioners also challenged 82nd amendment act with Article 16(4A) and (4B) which had essentially deprived article 335.
- Another issue was all these amendments destroy the basic structure of constitution about article 14, 15, 16.
Description
- 77th amendment act 1995 – through the 77th Amendment, Article 16(4A) had been inserted into the Constitution, which read, in relevant part: “[The State can] make any provision for reservation in matters of promotion to any class or classes of posts… For the Scheduled Castes or Scheduled Tribes.”[3]
- 81st Amendment Act 2000- also, via the 81st Amendment, the government had also inserted Article 16(4B) into the Constitution, which read, in relevant part:
“[The State may consider] any unfilled vacancies of a year which are reserved for being filled up in that year… as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year”.[4]
- 82 amendment act further added a clause to Article 335 – “…nothing in this article shall prevent in making of any provision in favor of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts.”
- 85th amendment Act 2001- “In article 16 of the Constitution, in clause (4A), for the words “in matters of promotion to any class”, the words “in matters of promotion, with consequential seniority, to any class” shall be substituted.”[5]
Held
Amendments were held as constitutionally valid. Article 16(4A and B) are inserted into the flow of article 16, and they do not alter the structure of Article 16(4).
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Current Petitions
The Madhya Pradesh government provided reservation for the Scheduled Casts and Scheduled Tribes in the promotion in government jobs. Through the present writ petitions the validity of the decision of providing reservation in promotion by the Madhya Pradesh Public Services (Promotion) Rules, 2002 has been challenged in the Madhya Pradesh High Court. On the ground that the government’s actions violated the principle of law laid down in the M. Nagaraj Case.
The High Court of the State, responding to the writ petitions, quashed the Madhya Pradesh Public Services (Promotion) Rules, 2002 which provided for reservation for depressed casts in promotions in Government services. The division bench comprised of CJ. Ajay Khanwilkar and J. Sanjay Yadav observed that the rules violated the law laid down in M. Nagaraj v. UOI and were against the public policy, and thus they ruled that “the plea for prospective overruling of the provisions relating to reservation in promotion in the Rules of 2002 is negative”.[6]
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Highlights of the current judgment
- The current judgment the main question for which answer was to be sought was whether or not the current Rules, framed in 2002, can be said to be workable. The court ruled that the existing provision relating to a reservation, backlog vacancies, carry-forward of backlog vacancies and the operation of a roster, as laid down by Rules of 2002, are contrary to Art. 16(4) (A) and (4) (B) and Art. 335 of the Constitution. Further, it violated the law laid down in the Nagaraj case.
- On an analysis of the provisions of Rules of 2002, one major problem can be traced. As per the rules, “The reserved posts which remain unfilled due to non-availability of suitable public servants of the category for which the post is reserved despite consideration of the names of all public servants eligible for consideration as per the Recruitment Rules shall be carried forward, that is to say, shall be kept vacant until the suitable public servants belonging to that reserved category is available. In no circumstances, any vacancy of reserved category shall be filled up by promotion from the public servant belonging to any other category”.[7]
- This itself poses a problem as the unfilled vacancies are not included in the ceiling of 50% and are taken separately. If any posts are left vacant in the next year also, this number of unfilled vacancies will increase and will never be included in the ceiling limit. The number will keep increasing every year.
- If this judgment of the High Court is implemented, more than 50,000 officials of various ranks may have to be reverted.[8]
- The court ruled that various promotions of SC’s/ST’s category made by these Rules are non-est in the eyes of the law and persons promoted have to be reverted.
Can MP Govt. appeal against this judgment?
Obviously, the Madhya Pradesh Government is hurt after losing the battle for reservation in promotion. If the government reverts the promotion of the people promoted, an agitation against such an action will not be considered unusual. But as per the law, the Right to Appeal under Article 136 is not taken away. The Madhya Pradesh government can file a Special Leave Petition u/a 136 of the Constitution. This SLP can be filed in the period of 90 days from the date of judgment of the High Court. So given that the High Court decided the case on 30.04.2016, the SLP can be filed till 30.07.2016.
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Conclusion
The decision will surely have an effect on the government job in the Madhya Pradesh on a large scale. A close reading of the SC verdict in Nagaraj case reveals the fact that the Court used the expression “creamy layer” while interpreting Article 16(4), 16(4A) and 16(4B) and in the process of specifying limitations on the amending power of Parliament regarding social reservations.
Reservation is a hot topic in any democracy. Though the laws have been laid down in this regard, the procedural requirements and workability of the provisions must be carefully scrutinized before awarding reservations. Grounds like inadequacy in representation, backwardness are to be carefully examined. The inadequacy of representation, the text of Article 16 clearly lies down that it is a matter of the state to determine. While it must base its determination on some materials, the importance is given to empirical evidence that is required.[9]Proper studies must be conducted by the state to determine the correct number.
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Footnotes:
[1](2006) 8 SCC 212
[2]http://www.legallyindia.com/blogs/guest-post-article-16-and-the-concept-of-a-power-plus-duty-ii
[3]https://indconlawphil.wordpress.com/2014/03/27/reservations-equality-and-the-constitution-vii-exploring-the-boundaries-in-m-nagaraj/
[4]http://constitutionofindia.yolasite.com/81st-amendment.php
[5] Supra 2
[6]www.livelaw.in/breaking-madhya-pradesh-hc-quashes-scst-reservation-promotion-government-service-read-jt/ (para 31)
[7]Rule 13, Madhya Pradesh Public Services (Promotion) Rules, 2002
[8]Madhya Pradesh High Court sets aside SC/ST quota in promotion in state govt, FPJ Bureau, The Free Press Journal (May 1st, 2016)
[9] (2012) 7 SCC 1
