SC/ST Quota in Promotion

SC/ST Quota in Promotion

HOT ISSUES FOR MAINS 2019 (TOPIC #1)(SecureIas Initiative)

• Supreme Court has permitted Central government for reservation in promotion to SC/ST employees working in the public sector in “accordance with law” where ‘In accordance with law’ points towards the guidelines laid down in M Nagaraja case 2006 (presently applicable as there is no specific law which deals with the reservation in promotions)
• Prejudice and politicization in office requires reservations in promotion while promotion based on merit as entry has already been provided
• Article 335 of the Indian Constitution acknowledges the claims of SCs/STs while ‘making appointments to posts and services’.It also states that the acknowledgement of such claims subjects to efficiency in services.
• Reservations is not for Right to redressal but for Right to access
• SC in Indra swahney case held that Article 16(4)of the Constitution does not permit reservations in the matter of promotion. Thereafter, the Constitution (Seventy-Seventh Amendment) Act, 1995 came into force.
• Article 16(4a) :allowed reservations in promotions (upheld by SC in Nagaraja case,2006(however subject to 3 parameters efficiency in services,Inadequate representation in services,backwardness ))(Inserted through The Constitution (77th Amendment) Act, 1995( According to this Act, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes))
• 85th Amendment Act, 2001, was to extend the benefit of reservation in favour of the SC/ST in matters of promotion with consequential seniority(consequential seniority vs catch up rule(Consequential seniority = If A(general) is senior(say 3 years) than B(SC) and if B is promoted first due to reservations than If A promoted afterwards,then as per consequential seniority B will remain senior to A without considering experience of A))
• Arguments in favour = level playing field to oppressed + representation in senior levels is highly skewed against SCs/STs due to prejudices. Over the years Institutions has failed to promote equality and internal democracy within them. There were only 4 SC/ST officers at the secretary rank in the government in 2017 +
• Arguments against the reservation = Articles 16(4), 16 (4A) and 16 (4B) of the Constitution are only enabling provisions, and not a fundamental right + Reservation policy doesn’t intent towards the reservation without merit + Reservation and employment opportunities doesn’t guarantee the end of discrimination + may hurt the efficiency of the administration
• There is ambiguity and vagueness in promotion process as of now. Thus, there is a need for a new, comprehensive law to be enacted.
• SC/STs are given job reservations not because they are poor but because they are excluded. The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure.
• It is also a punishable offence to withhold one’s caste status while seeking government employment. A simple administrative decision to allow SC/ST candidates to compete in the general category would have helped thousands to leave the space for the less privileged among them.
• SC held that the portion of data collection in the nagaraj judgement was ‘contrary’ to the Indira sawhney verdict, and held it ‘invalid’ + SC says govt need not produce ‘quantifiable data’ of backwardness to provide the benefit.

By: Sugam Bansal