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Daily The Prayas News Analysis-QUOTA IN RESERVATION

The Prayas News Analysis

            Reservation in job promotions not compulsory, Supreme Court reiterates

The Supreme Court also turned down Centre’s plea that overall population of SC/ST be considered for granting quota for them.

HIGHLIGHTS OF CASE

  • SC refused to refer its 2006 verdict on SC/ST job promotion to a 7-judge bench
  • SC turned down Centre’s plea for SC/ST to be considered for granting quota
  • A 5-judge Constitution bench pronounced the unanimous judgement

The Supreme Court turned down an appeal to reconsider its own earlier order that had rejected the idea of
reservations for Scheduled Castes (SCs) or Scheduled Tribes (STs) in job promotions.

The court today essentially upheld its 2006 order that had said that it was not mandatory for the government to give reservations in promotions in public sector jobs.

However, the court overturned one aspect of the 2006 order that had put a condition for the government to follow
in case it wished to provide reservation in jobs.

The Supreme Court held that states need not collect quantifiable data on the backwardness of SCs and STs for giving quota in job promotions. The 2006 order had made it mandatory for states to collect this data in case they wished to give reservations in job promotions.

A plea had asked the Supreme Court to set up a bench larger than the one that delivered the 2006 verdict and to
reconsider the idea of having reservations for SCs and STs in job promotions.

The unanimous judgment today was pronounced by a five-judge Constitution bench.

The bench headed by Chief Justice Dipak Misra said that the states need not collect quantifiable data on the
backwardness of SCs and STs for giving quota in job promotion to SC and ST employees.

The top court did not comment on two other conditions given in the 2006 verdict which dealt with the adequacy of
representation of SCs and STs in promotions and not to disturb administrative efficiency.

The bench had reserved its verdict on August 30 after hearing various stakeholders, including the Centre, on the
matter.

A five-judge constitution bench, in its 2006 verdict in the M Nagraj case, had said the states are bound to provide
quantifiable data on the backwardness of SCs and STs, the facts about their inadequate representation in
government jobs and the overall administrative efficiency, before providing quota in promotions to members of
these communities.

The Centre and various state governments have also sought reconsideration of this verdict on various grounds,
including that the members of the SC and ST communities are presumed to be backward and considering their
stigma of caste, they should be given reservation even in job promotions.

The Centre has alleged that the verdict in the M Nagraj case had put unnecessary conditions in granting quota
benefits to the SC and ST employees and sought its reconsideration by a larger bench.
Attorney General K K Venugopal, appearing for the Centre, had strongly argued in favour of granting quota to SC and ST employees, saying there was a presumption of backwardness in their favour.

He had said the SC and ST communities have been facing caste-based discrimination for long and the stigma of caste is attached to them despite the fact that some of them have come up.
During one of the hearings, senior advocate Rakesh Dwivedi, who represents those opposing quota in promotions,
had told the bench that earlier there was a presumption of backwardness with regard to scheduled caste and
scheduled tribe communities.

There should not be quota in promotions for higher services as the presumption of backwardness of SC and ST
employees “vanishes” once they join government service, he had claimed.
Dwivedi had also said quota in promotions for SC/ST may be continued for class-IV and class-III services, but should not be allowed for higher services.
Earlier, the top court had questioned the logic behind granting quota in promotions in government jobs to the kithand kin of affluent persons among the SC and ST communities who have been holding high official positions.
It had asked why the ‘creamy layer’ principle, used to exclude the affluent among Other Backward Classes (OBCs)
from enjoying the fruits of reservation, cannot be made applicable to deny quota benefits in promotion to those
affluent among the SC and ST communities.

MORE ABOUT QUOTA IN PROMOTION

SC/ST Quota in Promotions

  • The Centre made a strong pitch in Supreme Court for reservation in promotions to the employees of the
    SC/ST community.
  •  The case is in relation to a Supreme Court verdict in M Nagaraj vs Union of India case in 2006.

2006 Judgment

  • The 2006 Nagaraj judgment was pronounced by a five-judge Constitution Bench.
  • According to 2006 judgment of the Supreme Court, the government cannot introduce a quota in promotion
    for its SC/ST employees unless they prove that
    a. The particular Dalit community is backward.
    b. Inadequately represented.
    c. Such a reservation in promotion would not affect the overall efficiency of public administration.
  • The opinion of the government should also be based on quantifiable data.
  • The judgment said the three qualifiers were meant to prevent “reverse discrimination” by State.
  • The state was also required to ensure that reservations do not breach the 50 per cent ceiling.
  • The ruling said that the concept of creamy layer cannot be applied to the SCs and STs for promotions in
    government jobs.

Centre’s Argument

  • The government wants the 2006 verdict to be referred to a larger Bench for re-examination.
  • The Centre contended that the criteria set in 2006 judgement should be done away with as SCs and STs are
    presumed as backward and there was no need to have a quantifiable data to prove that such categories of
    employees suffered from backwardness.
  • Citing “1000 of years of deprivation” suffered by Dalit communities, the government is pushing for providing
    “accelerated promotion with consequential seniority” for SC/ST members in public employment.
  • Consequential seniority is when an SC/ST employee is promoted purely on reservation basis despite another
    person waiting for promotion is actually senior to him/her.
  • The SC/ST communities have faced centuries of deprivation at the hands of society.
  • They have been deprived of access to temples, schools and the basic facilities of life.
  • The State needs to show “affirmative action” by giving them equality of opportunity.
  • In job promotions also the SCs and STs must account for 23 percent or the real motive for reservations will
    get defeated.
  • Government said it wanted a total of 22.5% (15% for SC+7.5% for ST) posts reserved for promotion for SC/ST in public employment.
  • Their representation has to be proportional to the population otherwise it will be inadequate
    representation.
  • The government objected to a creamy layer concept among the SC/ST.

Constitutional Provisions

  • Article 16 (4) deals with the State’s powers for providing for appointments or posts for “any backward class
    of citizens”.
  • Article 16 (4A), enables the state to provide for reservation in matters of promotion to SC/STs who, in the
    state’s opinion, were not adequately represented in the services.
  • Article 16 (4B) deals with unfilled vacancies of a year reserved for SC/ST kept from being filled up.
    Way Forward
  • Employment and position should not be used as a single yardstick for calculating backwardness as it does
    not ensure the end of social discrimination.
  • Backwardness results from a complex web of social, economic and political structures built to safeguard
    privilege.
  •  Find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the
    entire system.
  •  There is a need for a new comprehensive law to end the ambiguity and vagueness in promotion process in
    view of the unique nature of discrimination and disadvantage Sc/STs face.

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