Open Forum
New Delhi, 21 November 2019
Quota in Promotions
INGENIOUS ROSTER SYSTEM
By Dr. S. Saraswathi
(Former Director, ICSSR, New Delhi)
The practice followed in fixing seniority for
awarding promotions on the basis of reservations in State government services
in Tamil Nadu was struck down as unconstitutional by the Madras High Court a
few days back. It is no surprise or shock for those following the course of
Reservation Policy which is a continuous battle fought in courts. The concerned
sections in the Tamil Nadu Government Servants (Conditions of Service) Act 2016
had been enacted superseding a Supreme Court judgement of 2016 upholding Madras
High Court verdict of 2015 which set aside the practice followed by TN Public
Service Commission in promotions since 2003.
The instance shows the obstinate adherence of
the State government to the Reservation Policy against all odds to maintain its
posture as the saviour of backward classes. Tamil Nadu has indeed enriched the
policy by enlarging its application and advancing ahead of other States. The
verdict has pointed out the failure of the State government to follow court
rulings.
This adds another court decision to the legal
literature on the Reservation Policy which is already voluminous recording
court cases of 67 years starting in 1952 in the then Madras Presidency which
led to the first amendment of the Constitution. The policy, however, began in
that province in 1927.
The policy has withstood many hurdles. Courts
can apply breaks but cannot reverse the policy as political interests are
involved. Already DMK President has condemned the failure of the State
government “to uphold social justice” which is believed to be and repeatedly
asserted as the quintessence of Reservation Policy. At the same time, voices
are heard from many sides doubting the efficacy of Reservation Policy to remove
social and educational backwardness in the society and demanding alternative
strategies to eliminate inequalities growing within the backward.
The judgement has also made some general remarks
on the working of the Reservation Policy and has issued caution in its
application that is usual in many of the earlier judgements also. The outcome
of the verdict will have its repercussions in other States as well. It is a
setback to the over-enthusiasm of governments and political parties indulging
in appeasement of vote banks.
“Any reservation is not automatic, but can
only be on need basis”, remarked the judgemen, striking at the very root of the
policy that is fostered as a right. The roster point system adopted by the
government in fixing seniority is “nothing but an indirect way of providing
reservation beyond 69 per cent”, and thus “unconstitutional”, declared the
court. Tamil Nadu is very forward in its backward (class) policy to devise
ingenious ways of extending 69 per cent reservation.
The roster system is an application to govern
reservation of posts in a cadre for different categories like SC, ST, OBC,
etc., with reference to the applicable percentage of reservation. The
application draws the reservation roster (s) by earmarking each post for one or
the other category and also helps to determine the category by which the post
which has fallen vacant is to be filled up. This system is a variation of the
rotation system devised in pre-independent Madras Presidency in which turns are
pre-fixed for each recognised category in specified unit of appointments.
Reservation in recruitment and selection is
different from reservation in promotion. Different yardsticks are to be applied
in the two cases as per the verdict of the court. The State government
employees had challenged the 200-point roster system followed by the government.
The famous Mandal Judgement of 1992
pronounced that Article 16(4) did not provide for reservation in promotions to SC
or ST. But, under various orders passed by the State governments, promotions
were brought under the Reservation Policy which practically could not be cancelled.
The court allowed its continuation for five years.
The 77th amendment of the
Constitution added 4A in Article 16 in 1995 which provided for reservation in
promotions for SC and ST. It led to a situation where a person promoted under
reservation could become senior to his seniors. This anomaly was addressed in
two judgments in 1995 and 1996 which introduced a rule to protect the affected
person’s seniority.
What is known as “Catch up Rule” was introduced
by the Supreme Court by 1999 to enable general candidates to regain their
seniority immediately on promotion over SC and ST who had been promoted earlier
under reservation and earned seniority over them. It was withdrawn by Parliament
in 2001.
The 85th Amendment of the
Constitution was adopted in 2001 providing for extension of reservation to
SC/ST in case of promotion with provision for “consequential seniority”. The
Supreme Court reintroduced the “catch up rule” in a case from Rajasthan in 2010.
Several cases pertaining to this rule emerged in many States.
There are a number of verdicts of High Courts
of different States on the issue of reservation in promotions which are not
consistent with one another. The apex court at times allowed status quo to
continue which has helped to avoid utter chaos and confusion.
For instance, the quota law of Karnataka of
2002 on promotion which did away with the “catch up rule” and provided for
“consequential seniority” to SC/ST to posts in Civil Services in the State was
struck down by the Supreme Court in February 2017. The court ruled that in
order to provide reservation in promotions, the States must first determine
whether the criteria of “inadequacy of representation”, “backwardness”, and
“overall efficiency” were fulfilled.
In this scenario, it is futile to refer to
textbooks on the principles of public administration. Max Weber’s concept that the
system of promotion is according to seniority or achievement or both and that
promotion is dependent on the judgement of superiors requires several
modifications today. Traditional criteria for promotions are given up under the
Reservation Policy. The undefinable concept of social justice takes precedence
over administrative needs.
The Supreme Court’s contention in the
Karnataka case that a State’s view on the adequacy or inadequacy of
representation of SC/ST in State services would not be subject to enquiries by
courts empowers the governments to go further in the policy and its
implementation.
The court this time has made a vital remark
that Article 16(4) is designed to ameliorate social inequality and cannot be
used to enhance it. No classification which does not pass the “test of
arbitrariness and unreasonableness” can be considered as valid. A “negative or reverse
discrimination is also against social justice”, said the court indicating
disapproval of the tendency of many State governments to enlarge reserved
places and disregard the requirements of administration.
It is also clarified by the court, though it
is already clear except for interested political leaders that horizontal
reservation cannot be granted in addition to vertical reservation. The former
relates to sub-sects and special categories like women, the handicapped,
destitute, ex-service men, etc., within the reserved quota, and the former to
reservation on community basis.
Reservation has certainly helped to uplift
individuals and communities. But, its benefits cannot percolate deep in the
society without a strict practice of eliminating the creamy layer – the forward
within the backward.---INFA
(Copyright, India
News & Feature Alliance)
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