INTRODUCTION

” Reservation is the policy of a carrying out corrective, ameliorative strategies for removing
the cumulative disadvantage of socially, educationally, economically disadvantaged groups
of population and bringing them at par with the rest of population.”

The primary objective that was to be achieved through reservation was to compensate the
people located in the bottom of the caste based society on account of their exploitation and
stagnation in the past, basically the objective is to correct the past wrongs and to make an
unprejudicial workforce in the society in addition to help those people who were deprived of
their basic rights in the past and were discriminated unfairly and to fulfil their highest
potential.

Following Independence, India committed itself to establish a equalitarian and socially just
society. In 1950, when the constitution was promulgated, scheduled caste and schedule tribe
were recognised as two of the most excluded, marginalised social groups that needed special
protection. Various provisions were included specifically for the upliftment of the
marginalised groups and to abolish all forms of discrimination and social exclusion resulting
from the caste based society and to mitigate their position in the society.

Our society has always been full of inequalities. It was a caste ridden, stratified hierarchical
society, and a segment of the society had been denied the bare human rights. Reservation or
Protective discrimination is the policy of granting special privileges to the downtrodden and
the underprivileged sections of society, most commonly women. These are affirmative action
programs, most visible in both the United States and India, where there has been a history of
racial and caste discrimination. The practice is most prominent in India, where it has been
enshrined in the constitution and institutionalized.

The right to equality of opportunity is a fundamental right. The right had been recognized by
the legal system over a century or so. "Equality of opportunity has two different and distinct
concepts. There is a conceptual distinction between a non-discrimination principle and
affirmative action under which the state is obliged to provide a level playing-field to the
oppressed classes," said a five-judge Constitution Bench headed by Chief Justice Y.K.
Sabharwal.

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Looking at the ground reality, it is the equality which has to be decided. Balancing comes in
where the question concerns the extent of reservation. If the extent of reservation goes
beyond the cut-off point, then it results in reverse discrimination.

Reservation granted by the constitution of India to the marginalised communities has always
been one of the most argumentative topics. One major question is contended when debating
within jurisprudence and legal theory- Is there any system that truly caters to the objective of
justice/equality and how to establish such system? which has been answered severally but
only few are relevant. Rawlsian theory of justice is one of them. Reservation being the most
volatile issue in India, there are two groups to it, one group contending about all the hardships
faced by them which should be compensated and other group contending that India, being a
democratic and secular country, therefore everyone should be treated equally and call this
discrimination. Although, every caste has in someway or the other suffered the unequal
assignment of rights, but the caste positioned at the bottom of the hierarchy of the caste-based
system suffered the most as they were denied several rights such as right to property,
education, civil, religious rights.

But the reservation that was intended to uplift the marginalised sections of the society, has in
a way now created creamy layer within the weaker sections of the society resulting into the
per location of the benefits.

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 1. RESEARCH PROBLEM

Article 16(1) which provides for right to equal opportunity in public employment, therefore
does excess reservation violates the provisions of Article 16 of the constitution. Also, to
know about the cases where excess reservation has been talked about, and to know what
possible solution to this problem can be.

2. RESEARCH OBJECTIVES

To find out about the reservation in jobs and its objectives when it came into being

To assess whether the set standards are enough to tackle the current situation.

3. RESEARCH QUESTIONS

Is the objective of protective discrimination been attained or achieved in the status quo?

4. RESEARCH METHOD

The researcher will be using doctrinal research and primary as well as secondary data such as
statutes, precedents, judicial pronouncements and commentaries and digests.

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 REVIEW OF LITERATURE

1. Reservation Policy in India: Theory and Practice by S.R. Maheshwari

The journal helped me to understand the history of the reservations and why it was
granted under the Indian Constitution. The author has explained the history of
reservation in detail. It helped me to understand the objective behind the provisions
regarding the reservation in the Indian Constitution. The journal gave me the brief
understanding of the situation of the SC’s and ST’s at that point of time.
It gave me the brief overview of the problems which were faced by the backward
classes during the enactment of the constitution.

2. Reservation provisions and safeguards in employment by Dr. Komaraiah J.B.

The journal helped me to understand how the reservation in Promotion in Jobs has
been evolved and what are the problems faced by the court regarding the reservations
in jobs. The author discusses about how the policy is misused by the people and the
people who need it for their development, are not able to access it. The author
explains the provisions regarding the reservation by various case laws, which helped
me to understand the policy in depth.
The journal gave me the brief understanding about the topic.

3. H.M. Seervai, Constitutional Law of India

The book helped me to understand every provision in the Constitution of India
regarding reservation. It helped me to understand the provisions which are enshrined
in the constitution in detail. The author explains the provisions of the Constitution in
depth and explains it in every detail. The author explains the section by giving its
significance and history behind the law.
It gave me the clear understanding of the law and helped me to analyse it better.

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 RESERVATION IN PROMOTION

Aimed at keeping aside a number of seats in the government offices in case of promotions
for SC/ST’s, it has always been opposed by the upper caste members of Indian polity.

During the Narasimha Rao government, first step towards this was taken and 77th
amendment was introduced via sub clause 4A under Article 16, which created the
problem of consequential promotions. Later, during Manhoman Singh govt, in the 85th
amendment, this replaced the section with one that sought to legalize this consequential
promotion. Providing for reservation in matter of promotions amounts to excessive and
double reservation and if it is made successively at each stage of promotion, it would be
reverse discrimination, as the reserved category is enabled to frog leap over his
competitors, which would create inefficiency in the administration. People of unreserved
category would feel that however their performance is, the reserved people will always be
above and steal a march over them. Article 16(4) contradicts Article 335 that is
maintenance of efficiency in administration, and such provisions will result into putting a
premium upon in efficiency, as the unreserved category have to compete only with the
same category, they would not want to work hard and the reserved category would too not
work hard as there is assurance of promotion of irrespective of whether they work
efficiently or not. It would also be against Article 51 A clause (J), goal of excellence.

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 CRITERIA FOR RESERVATION IN PROMOTIONS- DECISION IN M.
NAGRAJ CASE

In the case of M. Nagraj vs. Union of India1, the court in very clear cut terms lay down
that if the state wishes to have reservations in promotions, it is free to do so but at the
same time it must provide a proper reason for doing so i.e it must show the
backwardness of the community to which it is providing reservation, the compelling
reasons must consider the points of inadequate representation and administrative
efficiency as well. For this purpose Article 16 (4 A) was constitutionally valid.

However the court also laid down certain precautions in this judgment, namely:-

1- the right to equality under article 16 (1) is a fundamental right of every citizen but
clauses 4 and 4 A do not confer a fundamental right upon those classes for whom
reservation is sought to be provided.
2- Clauses 4 and 4A are discretionary in nature. The state may decide when to provide
reservation, if any.
3- Besides backwardness and inadequate representation, the state must take care not
to extend reservation indefinitely or to extend the 50 % cap 2or reduce
administrative efficiency.

The same judgment was upheld in the case of UP Power Corporation vs. Rajesh
Kumar3, it was held in the above case that:

1. Reservation in promotions is a much needed step towards improving representation

of the lower classes in the bureaucracy, thus ending their marginalization.
2. Those who base their argument on the fact that efficiency would be reduced are of
the opinion that the lower classes are by default intellectually inferior and no
amount of affirmative action would do them any good. This mindset needs to be
both discouraged and removed

1
(2006) 8 SCC 212
2
Dr. Gulshan Prakash v. State of Haryana 2009 (14) SCALE 290
3
2012 (2) KLT 115 (SN)

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 HOW THE ISSUE OF RESERVATION IN PROMOTION EVOLVED?

In Comptroller and Auditor General v K.S Jagannathan4, it was held that the reservation
in favour of backward classes of citizen including the members of SC/ST’s, as contemplated
by Article 16(4) can be made not merely in respect of initial recruitment but also in respect of
posts to which promotion are to be made.

In B.N Tewari v Union of India5, if sufficient number of reserved candidates were

available, the number of vacancies were to be carried forward, this rule of carry forward was
held to be invalid and unconstitutional

In Janaki Prasad Parimoo v state of Jammu and Kashmir6, equal treatment was denied in
regard to reversion owing to reservation made under the government orders in promotion as
headmasters.

The nine judges bench did not agree with the decision of the Rangachari case, that Article
16(4) contemplates or permits reservation in promotion as well. The court held that it is true
that the expression “appointment” takes in appointment by direct recruitment, appointment by
promotion and appointment by transfer. It may also be that Article 16(4) contemplates not
merely quantitative but also qualitative support to backward class of citizen. It must not be
forgotten that the efficiency of administration is of such paramount importance that it would
be unwire and impermissible to make any reservation at the cost of efficiency of
administration that undoubtedly is the effect of Article 335. Reservation of appointments or
post may theoretically and conceivably means “some impairment for efficiency but then its
explain it away by saying but the risk involved in sacrificing efficiency of administration
must always be borne in mind when any states sets about making a provision for reservation
of appointments or post. The court further held that “we see no justification to multiply the
risk which would be the consequence of holding that reservation can be provided even in the
matter of promotion. While it is certainly just to say that a handicap should be given to
backward class of citizen at the stage of initial appointment, it would be serious and
unacceptable inroad into the rule of equality of opportunity to say that such a handicap should
be provided at every stage of promotion throughout their career. That would mean creation of

4
AIR 1987 SC 577
5
AIR 1965 SC 1430
6
(1973) 1 SCC 420

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permanent separate category apart from the mainstream – a vertical division of the
administrative apparatus. The member of reserved categories need not have to compete with
others but only among themselves. There would be no will to work, compete and excel
among them. Whether they work or not, they tend to think, their promotion is assured. This in
turn is bound to generate a feeling of despondence and heart burning among open
competition members. All this is bound to affect the efficiency or administration putting the
members of backward classes as a fast track would necessarily result in leapfrogging and the
deleterious effect of leap-fogging need no illustration at our hands. At the initial stage of
recruitment of reservation can be made in favor of backward class of citizen but once they
enter the service, efficiency of administration demands that those members too compete with
others and earn promotion like all others; no further distraction can be made thereafter with
reference to their birth mark. They are expected to operate an equal footing with others.

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 AFTER MANDAL CASE

The Court had laid down that there shall be no reservation in promotions in government jobs.
The court, however, ordered that since reservation in promotions was admissible to SC/STs
through various offices since 1954, the same be continued for another period of 5 years only.
This buffer period was provided to executive to take appropriate measures to implement the
Indra Sawhney order. Thus, Rangachari decision was overruled. In order to remove the
anomaly, the parliament through 77th Constitutional Amendment, added Clause 4A in Art. 16
w.e.f. 17.06.1995 making provision for reservation in promotions for SC/STs.7

The constitutional position on the insertion of Clause 4A is that the State is now empowered
to make provision for reservation in matter of promotions as well, in favour of SC and ST
wherever the State is of the opinion that SCs and STs are not adequately represented in the
service under the State. Nevertheless, it is only an enabling provision which empowers the
State to make any provision for reservation for SC and ST candidates in the matter of
promotion as well. If the state makes no reservation, the High Court has no jurisdiction under
Art.226 of the Constitution to issue any direction therefor.8

This amendment was clearly intended to nullify the effect of the decision of Mandal case.
The evil of reservation in promotions was abolished by the Supreme Court as it caused lot of
bitterness among the employees of the same category who were bypassed by their colleagues
having less merits. There was no demand for it from any section SC’s and STs. In view of
this, the amendment for reservation in promotions is hardly justified. The haste in which the
government had brought the 77th Amendment clearly show that it was passed for political
considerations. It has its own dangers. Although at present it covers only the SCs & STs, but
in due course a demand for such reservation can be made for other OBCs also.

7
National commission fot SC/St
8
A.P. Sarpanch Association v Govt. of A.P., AIR 2001 AP 474.

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In Ahkil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India9, the validity of a
number of circular issued by the Railway Administration was questioned. The experience
gained over the year disclosed that reservation of appointments / posts in favor of SCs / STs,
though made both at the stage of initial recruitment and promotion was not achieving the
intended result in as much as several posts meant for them remained unfilled by them
accordingly, the administration issued several circular from time to time extending further
concession and other measures to ensure that members of these categories avail of the posts
reserved for them fully. The circular contemplated (1) giving one grade higher to SC / St
candidates than in assignable to an employee; (II) carrying forward vacancies for a period of
three years; and (III) provision for in – service training and coaching to raise the level of
efficiency of SC / ST employees who were directed to be promoted on a temporary basis for
a specified period, even if they did not obtain the requisite places. The contention of the writ
petition was that these circular, being incises term with the mandate of Article 335 are bad.
Rangachariwas sought to be re-opened by arguing that Article 16(4) does not take in
reservation in the matter of promotion. The division bench (Krishna Iyer, Pathak and
Chinnappareddy, JJ. not only refused to re – open Rangachari but also repelled the attach
upon the circulars. It was held that no dilution of efficiency in administration resulted from
the implementation of the circular in as much as they preserved the criteria of eligibility and
minimum efficiency required and also provided for in- service training and coaching to
correct the deficiency if any.

9
A I R 1981 S C 2981

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 EFFECT ON SENIORITY

In Union of India v. Virpal Singh Chauhan10, two judge bench of the Supreme Court
restated what had been said in the Indira Sawney case that providing reservation under in
promotion was not warranted under article 16(4). The rule of reservation actually created a
objectionable situation in this case.

Out of the 33 candidates being considered for promotion to 11 vacancies, all were SC/ST
candidates. Not a single candidate belonged to the general category. The court noted that
these candidates had left behind even their general category counterparts in matter of merit
and thereby did not need reservation.

The court also stated that there was no uniform or prescribed method of providing
reservation. It’s extent and nature were purely upto the state to decide. And when a candidate
from the reserved category would get promoted, he would assume seniorioty over his general
counterpart only as long as that person didn’t get promoted to the same rank. In other words,
such seniority would only be temporary.

In the case of Ajit Singh Januja vs. State of Punjab11, a three judge bench of the Supreme
Court, and addressed the question that when there would arise a question to fill up a seat
reserved for a SC/ST candidate in a higher grade then a person of that category would receive
first preference while for vacancies in general category seats, a person of general category
would be given first preference.

Therefore, in such cases, the court put limit on the discretion of the state in respect to matters
related to reservations in promotions. The court agreed that the seniority between the two
categories in promotion would continue to be regulated by their panel position i.e. with
reference to their inter se seniority in the lower grade.

10
AIR 1996 SC 448
11
AIR 1996 SC 1188

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 ARGUMENTS AGAINST RESERVATION IN PROMOTION

The reservation in Promotion is not fulfilling its objective for which it was created.

1. Double benefits: That with reservation being given at the entry level in the civil
services and other government jobs, the reserved category should not enjoy further
benefits in the form of reservations in promotions as well.

2. Reservation is losing its purpose as people are getting habituated to it. Endless or
interminable continuance of reservation would not be productive or is beneficial for
the development of the individual

3. - It would promote further increase the gap between the SC ST‟s and those from the
general category and promote discrimination in the long run.

4. It was also evident that in any organization, overlooking a person’s merit during the
time of his promotion bound to result in the less competent being promoted ahead of
those who had performed better. This was not only unfair to such meritorious people
but would result in dilution of administrative efficiency as well.

5. Unlike in the government, where promotions are routine and seniority-based, private
sector promotions are result-based and may make or mar a company's fortunes.
Applying reservation to promotions in private sector companies would, therefore,
certainly dilute competitive merit and weaken management control over the business.

6. Reservation is primarily meant to compensate for past loss of, and equalise current
and future, initial opportunity. The aim is to give easy, equitable access to the career
escalator and not to carry people from step to step on the escalator, much less to
partition all available jobs proportionately among all castes as if they are some sort of
family property.

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 PRESENT DAY SITUATION- 117TH AMENDMENT BILL

The government recently introduced the 117th amendment bill in the Rajya Sabha which
was then subsequently cleared by the upper house. The bill was deemed necessary to
circumvate a Supreme Court judgment which deemed that proper reasons must be provided
by the government before giving reservations in promotions. It would render irrelevant the
need to prove “backwardness and inadequate representation in services”.

The new sub-clause 4A that is supposed to be inserted reads as thus

“(4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled

Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall
be deemed to be backward and nothing in this article or in article 335 shall prevent the State
from making any provision for reservation in matters of promotions, with consequential
seniority, to any class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation
provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”.

On November 16th 1992 in the case of Indira Sawney the court had ruled that reservation in
promotions was illegal but had allowed it to continue for a period of five years as that was a
special case. To overcome the decision that disallowed reservations in promotions and
consequential seniority Parliament enacted three amendment acts in 1995, 2000 and 2002.
The 77th and 85th amendments gave advantage to SC/ST candidates promoted by
reservation.

Now with this new amendment bill the advantage is expected to tilt all the more. The grounds
on which the court had rejected the claims of the government earlier to provide reservations
in promotions stand nullified. This would prove to be harmful in the long run as those denied
of this facility namely the general category and OBC‟s would be marginalized causing a
decline in their economic indicators.

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 CONCLUSION AND SUGGESTION

The decision to introduce reservation in promotions for SC/ST’s has been always been the
issue of contention and scrutiny. Although the court by itself is not opposed to reservation, it
has in several cases left questions unanswered failing to clarify the conditions required on
which reservation shall be given in promotions.

In Nagraj case, there conditions that were laid down raise several concerns. Reservation in
promotion in Article 16(4) is permitted for ST/SC’S only and not OBC’s. Therefore, the first
condition in Nagraj case that requires state to demonstrate ‘backwardness of beneficiaries’ is
controversial as it results into the ‘creamy layer’ test for SC/ST’s surreptitiously. Supereme
court has in several cases including Indra Sawhney case, that the creamy layer test is not
applicable to SC/ST’s. As the members of SC/ST’s satisfy the condition of backwardness
automatically and there is no need to further establish the condition by the state.

In the Debates regarding reservation in promotions, the question that has always been there
is the question of efficiency, all the people advocating for reservation in promotion rarely
argue or deny the argument of ‘loss in efficiency’, and rebut in by resorting to arguments
about inclusion and social justice

Caste based reservation is an idea whose time is gone, to prove its efficiency or inefficiency,
sixty years was long enough. If the aim is to cope up and compensate for past injustice,
reservation in educational institutions shall be provided and not in government jobs as there is
always the risk of efficiency being demerit of the society’s functions and also leads to greater
injustice and chaos in the society. In the beginning, Ambedkar promised that Dalits need it
for ten year only, but still this continued. It has only been extended from then, earlier it was
limited to SC’ST’s only now there is new addition of OBC’s, Muslims and even
economically backward upper castes too. After the Indira Sawhney judgement, some
constitutional amendments provided for reservation in promotion, but the Supreme court said
that this can be not done unless state could show that certain caste was backward and grossly
underrepresented in a service. The contended question is even after 60 yrs of reservation, why
are SC’ST’s still under represented?

As there is a provision of going by seniority and then by merit in the government jobs, few
reserved categories are near the top as their average age of entry is around 30-31, while the

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average age of other candidates is 25-26, so losing seniority criteria would help. Therefore
reservation in promotion is clearly not the solution, but lowering the age for entry of SC’ST’s
candidates in administrative services.

I think it is very much the failure of the reservation system that has made it reach the stage
where people have begun to ask reservation in private sector. If the entire reservation
approach would have been effective, then reservations should have ended in the educational
institutions itself as people who have gotten into these establishments would have developed
their skills whereby they might work as professionals or be a part of the general public
sector relying upon their interest.

Hence, the backward also has to change their mindset as they would believe that they would
continue getting reservation throughout therefore why work.

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 BIBLIOGRAPHY

Statues

 The Constitution of India, Bare Act

Books and Journals Referred:

 M.P. Jain, Indian Constitutional Law

 Reservation Policy in India: A critical Evaluation by Mukul Shastry
 Judicial Interpretation on reservation Policy in India by Subramanian

Websites

 https://www.freepressjournal.in/editorspick/quota-in-promotions/1364182
 https://www.thehindubusinessline.com/news/national/sc-clear-decks-for-reservation-
in-promotion-to-scst-employees/article24087618.ece\
 http://www.legalservicesindia.com/article/1457/Indra-Sawhney-&-Others-Vs.Union-
of-India.html
 http://www.prsindia.org/billtrack/constitution-one-hundred-seventeenth-amendment-
bill-2012--2462
 https://www.indiatoday.in/india/story/supreme-court-reservation-job-promotions-
1349478-2018-09-26
 https://economictimes.indiatimes.com/topic/Constitution-(117th-Amendment)-
Bill/news
 https://timesofindia.indiatimes.com/india/sc/st-job-promotion-quota-supreme-court-
says-no-need-to-collect-data/articleshow/65960334.cms
 https://www.news18.com/news/opinion/scst-quota-in-job-promotions-why-indias-
reservation-policy-needs-correction-1889193.html
 http://www.recentscientific.com/judicial-interpretation-reservation-policy-india

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