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.