cpc

Reservations cannot be applied in promotions


Court :

Brief :
The court recognised article 14 as one of the basic features of the constitution which provides both ‘equality before the law’ and ‘equal protection of the laws’.

Citation :
Citation:AIR 1993 SC 477 Indra Sawhney vs Union of India

Bench: 

M.H. Kania, C.J., M.N. Venkatachaliah, S. Ranavel Pandian, Dr. T.K Thommen, A.M. Ahmadi, Kuldip Singh, P.B. Sawant, R.M. Sahai and B.P. Jeevan Reddy, JJ.

Facts:

In this case the court was asked to pronounce o the Constitutional validity of two offices of memoranda of the central government. One of them, which were initially brought before the court, were issued on 13th August, 1990. Implementing partially the Mandal Commission Report, it reserved 27 percent vacancies in Civil Posts and Services under the Government of India to be filed by direct recruitment form the socially and educationally backward classes (SEBCs). Before the court could decide the validity of the memorandum, the other memorandum was issued in September, 1991. It provided for the preference to the poorer sections of SEBCs in respect of 27 percent reservation made by the first memorandum and also made additional 10 percent reservation for other economic backward sections of the people who were not covered by the existing scheme. The first memorandum stated the SEBCs would comprise in the first phase the caste and communities which are common to both the lists in the report of the Mandal commission and the state government’s lists.

Issue:

  • Whether Article 16(4) is exhaustive of the concept of reservations in favour of backward classes?
  • Whether Clause (4) of Article 16 provides reservation only in the matter of initial appointments/direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well?

Judgement:

The court recognised article 14 as one of the basic features of the constitution which provides both ‘equality before the law’ and ‘equal protection of the laws’.

Clause 4 enables the state to meet special provisions for the advancement of socially and educationally backward classes of citizens or for the schedule caste and schedule tribes. Such provisions include reservations or quotas and can be made in the exercise of executive powers without any legislative support.

Schedule caste and Schedule tribes are defined in definitional Article 366(24) (25) respectively. The constitution gives no definition of backward classes, however Article 340 contemplates appointment of a commission to investigate the conditions of ‘socially and educationally’ backward classes and such other matters may be referred to the commission by the president.

The court upheld the first memorandum but invalidated the addition of 10 percent by the second. The court held that a class or classes in Article 15(4) and 16(4) are not to be construed in the Marxist sense. The Constitution does not define these classes nor does it lay down in methodology for their determination. To maintain the cohesiveness and character of a class the ‘creamy layer’ can and must be excluded from SEBCs. The court also held that the economic criteria alone cannot be the basis of backwardness although it may be a consideration along with or in addition to social backwardness.

The court in this case held that barring any extra ordinary situation, reservation should not exceed 50 percent. This limit applies to all reservations including those under Article 16(1) and altogether the reservation should not exceed the 50. The 50 percent limit does not include those members of SEBCs who got selected on their own merits percent limit; exemptions, concessions and relaxation do not have this limit application. For the application of this rule a year should be taken as the unit and not the entire strength of the cadre, service or the unit. So long as the limit is observed carry forward rule is permissible. The court by this decision overruled Devdasan Case, rejecting the carry forward rule’s inapplication. The court has clearly held that clauses 15(4) and 16(4) are not exceptions to 15(1) and 16(1), they are the means of achieving the Right to Equality enshrined in those articles. However, they are exhaustive of all reservations concessions, relaxations and exemptions for SEBCs.

The validity of Art. 15(5)

Parliament enacted the Central educational institutions (reservation and admissions) Act, 2006 providing for 15, 7 ½ and 27 percent reservation in Central institutions of Higher education and research for members of SC and ST and SEBCs respectively. 

Approves the classification of backward classes into backward and more backward but disapproves that the backward classes must be so situated as SC and ST. it also held that clause 4 exhausts all special provisions for backward classes and no favor can be granted to them under clause 1.

This case validated the carry forward rule so long as the actual reservation in a particular year does not exceed 50 % of the vacancies. The 50 % limit has to be worked out on the basis of total vacancies in a particular year and not on the basis of total strength in cadre service. Extraordinary situations were an exception.

Can reservations apply to selection posts as well as promotional posts?

The advancement of backward classes requires not only that they should have adequate representation in the lowest rung services but that they should aspire to secure adequate representation in selection post in the services as well.

The court held that the reservation could be made only in respect of direct recruitment at any level but not in respect of promotions. However, short of reservations any special provisions could be made to facilitate promotion of members of backward classes in the services. This case is overruling the Rangachari case.

To overcome the decision in this case that no reservation in promotions could be made under clause 4, clause 4-A was added in effect justifying reservations for SC and ST in promotions.

The court also remarked that clauses 4 and 4-A do not grant a fundamental right, they are but enabling provisions which must be balanced against the right to equality guaranteed in clauses 4 and 16.

 

Archit Uniyal
on 03 July 2020
Published in Others
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