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Aiswarya Murali
BA, LL.B
Faculty of CG-1
1st Semester
Acknowledgement
I take this opportunity to express my gratitude and personal regards to Ms Aakanksha Kumar
for inspiring and guiding me during the course of this project work. I also owe my sincere thanks
to the library staff, National Law University for the corporation and facility extended from time
to time during the progress of my project work.
Aiswarya Murali
Research methodology
This project takes into account the provisions in the constitution for reservation in promotions. It
also analyses the application of the amended article in the real life scenario and also runs through
the highly debated question of its true fulfillment of social justice and equity.
Table of Contents
Introduction......................................................................................................................................1
Understanding Article 16 Clause 4(A) Of The Indian Constitution................................................3
Reservation in Promotions- A comprehensive analysis...................................................................6
Meeting constitutional provisions with social justice......................................................................8
Conclusion.....................................................................................................................................11
Bibliography..................................................................................................................................12
Introduction
We live in a country where equality and freedom is promised and this freedom and equality is a
gift of democracy to us. Our constitution gives us the right to freedom and most importantly to
exercise this freedom in an equitable manner. At the same time it is incumbent on the part of the
state to ensure that equality prevails in all sections of the society. Hence it was to achieve this
purpose; the system of reservation was enshrined in our constitution. So that the so-called
deprived classes can come at par with the so-called privileged ones. The Constitution of India
allows this kind of positive discrimination in order to bring about equality of opportunity and
status in the society. The founding fathers had never intended Reservation to be a temporary
phenomenon. Reservations to the underprivileged were to be extended until they were uplifted
socially and stabilized economically. Reservations with the view of helping the deprived classes
to gain a better footing and avail equal benefits of an independent and free nation was introduced
in the system.
Articles 14 to 18 of the Indian constitution guarantees Right to Equality
to all persons within the territory of India. Article .16(1) is a facet of Art.14 and they are closely
inter-connected. Art.16 (1) particularizes the generality of Art.14 and identifies, in a
constitutional sense, equality of opportunity in matters of employment under the state. Under
Art. 16(4), the state may make reservation of appointments or posts in favor of any backward
class of citizens which, in the opinion of the state, is not adequately represented in the public
services under the state. Reservation in promotions is one such provision under this Article
which is highly debated upon. The 77th Amendment to the constitution inserted Article 16(4A)
permitting reservation even in matters of promotion. But this was restricted to promotions in
favor of SC/ST, provided they were not adequately represented in the services under State. In a
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subsequent decision, reservation in matters of promotion has been upheld 1.Thus by inserting
Article 16(4A), Parliament amended the Constitution and removed the base as interpreted by the
Supreme Court in the Mandal case. Reservation can therefore apply not only to initial
recruitment but also in matters of promotion.
the general class candidates shall not be affected by subsequent promotion of the general class
candidates. It has, however in Ajith Singh (II) v. State of Punjab 3, later overruled itself and held
that reserved category promotes could not count their seniority in the promoted category from
the date of their continuous officiating in the promoted post vis--vis the general candidates who
were senior to them in lower category and who were later promoted. A senior general candidate
at the lower level, if he reaches the promotional level later but before the further promotion of
the reserved category candidate, he will be treated as senior at the promotional level to the
reserved candidate even if the reserved candidate was promoted to that level earlier. Incidentally
the court also remarked that Article 16(4) and (4-A) is not a fundamental right. It is an enabling
provision which must be balanced against the right to equality guaranteed in Articles 14 and
16(1). It disagreed with the decisions which treated Article 16(4) and (4-A) as fundamental rights
and imposed an obligation upon the state to enforce them. The court suggested a balancing
between Articles 16(1) and 16(4) and (4-A). Again. In State of Bihar v. Bal Mukund Shah 4 the
court has held that Article 16(4) is an enabling provision within which even judicial services can
be brought. But while providing reservation under this provision the requirement of maintenance
of efficiency of administration under Article 335 must be taken into account. Also, while making
reservation in the subordinate judicial services the High Court must be consulted. The Court has
stated that the primary purpose of Art.16(4) is due representation of certain classes in certain
posts. But, along with Art.16(4), there are Arts.14, 16(1) and 335 as well. Arts. 14 and 16 lay
down the permissible limits of the affirmative action by way of reservation which may be taken
under Arts. 16(4) and 16(4-A).While permitting reservations, Art. 14 and 16(1) also lay down
3 (1999) 7 SCC 209.
4 (2000) 4 SCC 640.
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certain limitations at the same time. Art. 335 ensure that the efficiency of administration is not
jeopardized.5
Promotion of S/C and S/T employees out of turn because of the scheme of reservation gives rise
to several problems, especially, pertaining to seniority of such persons over the employees
belonging to the general category. The Supreme Court has sought to grapple with such problems
keeping in view considerations of equity and fairness. While talking about reservation in
promotions, a very important case that should be cited is `Union of India v. Virpal Singh
Chauhan6. In this casea two- Judge Bench of the Supreme Court reiterated what the court said in
Indra Swahney v. Union of India7, that providing reservation in promotion factually created a
poignant and objectionable situation in Virpal. The Court stated that it was all left to the
discretion of the respective States to decide upon the reservation or roster in the matter of
promotions and hence it was not uniform. The general candidate who was senior will always
have preference over the candidate who promoted by the virtue of reservation notwithstanding
that he was promoted subsequent to the reserved candidate. Yet in Ajit Singh Januja v. State of
Punjab8, a three Bench of the Supreme Court went a step ahead by taking into consideration
Articles 14, 16 and 335, the Supreme Court has now categorically laid down that when there
arises a question to fill up a post reserved for a SC/ST candidate in a still higher grade, then a
SC/ST candidate is to be promoted first, but when the question is in respect of promotion to a
general category post, then the general category candidate who has been promoted later would be
considered first for promotion applying either the principle of seniority cum merit or merit cum
seniority.
When a reserved candidate is recruited at the initial level he does not go through the same
normal process of selection which is applied to a general candidate. A reserved candidate gets
appointment to a post reserved for his group. He is promoted to a higher post without competing
with general candidates. The normal seniority rule, from the date of continuous officiating from
the date of promotion applies when a candidate is promoted in the normal manner and not to the
promotion of a reserved candidate. In the case of Badappanavar v. State of Karnataka 9, the
Supreme Court has again confirmed its decision in the previous cases and directed that the
seniority lists as between the general and reserved promotes, and promotions, be reviewed in the
light of the ruling in that case. The Court directed that the seniority of the general candidates be
restored accordingly.
In each case the Court has got to be satisfied that the State has exercised its discretion in
making reservations in promotions for SCs and STs and for which the State concerned will have
to place before the Court the requisite quantifiable data in each case and satisfy the Court that
such reservations became necessary on account of inadequacy of representation of SCs and STs
in a particular class or classes of posts without affecting general efficiency of services as
mandated under Article 335 of the Constitution. Subject to the limitations introduced by this
judgment, the Supreme Court upheld the Constitutional validity of the Constitution (77th
Amendment) Act, 199510.
9 JT 2000(Suppl.3) SC 408
10 M. Nagaraj v. Union of India,(2006) 8 SCC 212
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to try out alternate affirmative ideas and plans, subject to periodic reviews. At the end of 10
years, if the plan is a failure, the amendment can be made to automatically lapse and compulsory
reservations mandated instead. This seems to be a fair enough idea that can be implemented yet
its outcomes still remain a blurred reality. The main reason adduced for giving promotions on a
caste basis is that there are very few SC/ST candidates in the higher echelons of government. In
order to bring about equality in this arena, the existing provisions in the constitution itself seems
to be fair enough. Yet the application of the procedure ought to be targeted and justified through
all means. The duty to implement the rule of reservation is a constitutional duty to be performed
honestly, sincerely and in its true content and spirit and the public servant entrusted with the duty
and power to implement it, should be accountable. The discretionary power of the State to make
requisite reservation is absolutely justified. Every discretionary power is not necessarily
discriminatory. Equality is not violated by mere conferment of discretionary power. It is violated
by arbitrary exercise by those on whom it is conferred. The provisions under Article 16(4-A) are
permissive in nature. They leave it to the state to provide for reservation. The provisions
regarding the reservation in promotion is made by Government by enacting a law providing for
reservation keeping in mind the parameters in Article 16(4) and Article 335.
The State is not bound to make reservation for Scheduled Castes or Scheduled
Tribes in matters of promotion. However, if they wish to exercise their discretion and make
reservations in promotions, the State have to collect quantifiable data showing backwardness of
the class and inadequacy of representation of that class in public employment, keeping in mind
maintenance of efficiency, as indicated by Article 335. The concepts of efficiency, backwardness,
inadequacy of representation are required to be identified and measured. That exercise depends
on availability of data. That exercise depends on numerous factors. It is for this reason that
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enabling provisions are required to be made because each competing claim seeks to achieve
certain goals.
Conclusion
Reservation in promotions becomes socially justified when it is implemented by assimilating the
true idea of its connotation. The doctrine of equality of opportunity in Art. 16(1) is to be
reconciled in favor of backward classes under Art. 16(4) in such a manner that Art.16(4), while
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serving the cause of backward classes shall not unreasonably encroach upon the field of equality.
It is necessary to strike such a balance so as to attract meritorious and talented persons to the
public services. It is also necessary to ensure that the rule of adequate representation in Art.16(4)
for the backward classes and the rule of adequate representation in promotion for SC/ST under
Art.16(4-A) do not adversely affect the efficiency in administration which is a tantamount of the
quality of the working individuals within it.
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Bibliography
Cases
Ashok Kumar Gupta v State of Uttar Pradesh (1997)5SCC201
Ajith Singh (II) v. State of Punjab (1999)7SCC209
State of Bihar v. Bal Mukund Shah (2000)4SCC 640
Union of India v. Virpal Singh Chauhan AIR 1996 SC 448
Indra Swahney v. Union of India AIR 2000 SC 498
Ajit Singh Januja v. State of Punjab AIR 1996 SC 1188
Badappanavar v. State of Karnataka JT 2000(Suppl.3) SC 408
M. Nagaraj v. Union of India,(2006) 8 SCC 212
Books
Durga Das Basu, Shorter Constitution Of India, VOL 1, Lexis Nexis
Mahendra P jain, Indian Constitutional Law, Vol I
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