Answer:

Reservation in India is part of the world’s largest affirmative action programme for the depressed classes. However, it has always remained a contentious issue especially in the matter of promotions in public employment.

In the Indira Sawhney & Others vs Union of India, 1992 case, the Supreme Court held that the reservation in appointments, under Article 16(4) of the Constitution, do not apply to promotions. However, subsequent to this judgement, a series of constitutional amendments and judicial pronouncements were made, which negated this judgement:

♤ The 77th Constitution Amendment Act, 1995 inserted Article 16(4A), which enabled the state to make any law regarding reservation in promotions for the SCs and STs. Also, Article 16(4B) provided that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year.

♤ In the M Nagaraj case, the Supreme Court also upheld the validity of the Parliament’s decision to extend reservations in promotions. However, it introduced three conditions, essentially necessitating the state to:

o Provide proof for the backwardness of the class benefitting from the reservation,

o Provide proof for its inadequate representation in the position/service; and

o Show how reservations in promotions would further the administrative efficiency as mandated by Article 335.

However, the first condition was rejected in Jarnail Singh vs Lachhmi Narain Gupta case.

♤ The Nagaraj judgement was further used in BK Pavitra vs Union of India-I case to strike down the legislation passed subsequent to the 85th Constitution Amendment Act, 2001 by the Karnataka assembly in 2002 that provided for consequential seniority.

o The court held that the government had not collected quantifiable data on the three parameters – inadequacy of representation, backwardness and the impact on overall administrative efficiency – before extending reservations in promotions.

♤ However, in the recent Supreme Court judgement in BK Pavitra vs Union of India-II, it upheld the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Act, 2018. The Act gives a one-time promotion to SC/ST employees, and is referred to as a “catch-up” clause.

o The court held that Article 16 (4A) enables the state to provide for reservation in matters of promotion to SC/ST. Further, the opinion regarding the adequacy of representation of the SCs and STs in the state public services is a matter which forms a part of the subjective satisfaction of the state.

The latest 2018 judgement has also examined various associated issues related to reservation in promotion debate such as -

♤ Issue of merit and efficiency: The court held that the efficiency of administration must be defined in an inclusive sense, where a ‘meritorious’ candidate is not merely one who is ‘talented’ or ‘successful’ but also one whose appointment fulfills the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

♤ Notion of substantive equality: It also held that Indian Constitution envisages not just a formal equality of opportunity but the achievement of substantive equality.

♤ Issue of creamy layer: It held that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status.

Overall, the judgment asserts that the policy of reservations is a tool to achieve substantive equality and due representation in public services.