The state of Karnataka had enacted:
The Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002, providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs.
The Ordinance will confer consequential seniority in cases of promotion to employees from the Scheduled Castes (SCs) and the Scheduled Tribes (STs), over and above their counterparts from the general category.
The petitioners before the high court had urged that, due to this policy, SC/ST candidates got promotion early and on account of consequential seniority, percentage of SC/ST candidates was much higher than the permitted percentage and all top positions were likely to be filled up by SC/ST candidates without general merit candidates getting to higher positions.
But the high court held:
The Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002,is valid.
Dated: FEBRUARY 09, 2017: Supreme Court of India:
The State does not have unbridled powers to provide promotion in reservation to the backward classes...an exercise to determine inadequacy of representation, backwardness and overall efficiency is: a must: before granting promotion to Scheduled Castes and Scheduled Tribes employees.
The bench of Justices Adarsh K Goel and Uday U Lalit declared:
The Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, invalid
to the extent it accorded consequential seniority to SC and ST employees in public offices without carrying out the requisite exercise.
Noting that: Mere fact that there is no 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, and thereby denying seniority to those who are given promotion later on account of reservation policy.
The apex court held that the State, must, demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions under Article 16(4).
If the State has not conducted the requisite exercise under Article 16(4A), the judicially evolved ‘catch up’ rule will fully apply to control the extent of reservation.
It rejected an argument by the Karnataka government that seniority was not a fundamental right.
While the High Court had said that there was nothing illegal about the Act and that the petitioners had failed to show it would affect the overall efficiency, the apex court said that neither the judicially laid down exercise had been carried out nor was it ensured that general candidates are fairly treated.
A bench of Justices A K Goel and U U Lalit, while setting aside the High Court order upholding the Act, said under the 85th amendment to the Constitution, liberty has been given to states to give reservation in promotion with consequential seniority under Article 16(4A), if warranted under the criteria’s of 'backwardness, 'inadequacy of representation' and 'overall efficiency'.
In order to provide reservation in promotions, the states must first determine whether the criteria of 'inadequacy of representation', 'backwardness' and 'overall efficiency' are fulfilled.
It is clear that exercise for determining 'inadequacy of representation', 'backwardness' and 'overall efficiency', is a must for exercise of power under Article 16(4A).
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