RESERVATION IN PROMOTIONS IS NOT A FUNDAMENTAL RIGHT Supreme Court

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The Supreme Court in its recent verdict ruled that reservation in promotions is not a fundamental right and the states are not bound to provide reservations in promotions.

Supreme Court of India
Supreme Court of India

The Supereme Court in its recent verdict in February 2020, that there is no fundamental right to claim reservations in promotions. According to the supreme court order reservation is “enabling provisions” not a fundamental right. Enabling Provision here means that it entitled to provide equality in jobs.

Origin

The judgment was based in a batch of appeals pertaining to the reservations to Scheduled Castes and Scheduled Tribes in promotions in the posts of Assistant Engineer (Civil) in the Public Works Department of Uttarakhand.

Questions in mind:

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  • Is there any boundation on state govt to make reservation in public posts?
  • Is reservation in promotion is a fundamental right?

Discussion in Detail:

Articles involved : Article 16

Article 16 – Equality of opportunity in matters of public employment (every citizen is having equal opportunity in matters related to employment or appointment to any office under the state.)

Article 16(4) – Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State.

Article 16(4A) – Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, 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 which, in the opinion of the State, are not adequately represented in the services under the State.

Both parts of article 16 i.e. 16(4) and 16(4A) are authorizing provisions which give discretion of state government to consider for providing reservations if the circumstances warrant so.

According to Supreme Court if any State government decides to provide SC/ST reservation in promotion to a particular public post is challenged, it would have to place the data and prove before the court that reservation was necessary and does not affect the efficiency of administration, which should include:

  • Quantifiable data regarding backwardness
  • Inadequacy of representation in public services
  • No impact on the overall efficiency of administration by way of such reservation

The only purpose of the state government to collect the data regarding the adequacy of representation is to prove that in actuality there is a requirement for the reservation.

The article entitles the state to make provisions for the appointments and promotions in favor of any backward class of citizens only if in the opinion of the State they are not adequately represented in the services of the State.

Article 16 – II – No citizen shall be discriminated on the grounds of religion, race, caste, sex, descent, place of birth and residence or any of them for employment or office under the state.

According to articles 16 (4) and 16 (4-A) Nothing shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

According to the Constitution, the Supreme Court cannot issue mandamus. (A judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty) to the state government to provide reservation.

After analyzing the whole concept we can conclude that Reservation in promotion for public posts is not a fundamental right.

Related Constitutional Amendments:

77th Constitution Amendment

  • The Parliament of India enacted the Constitution (Seventy-Seventh Amendment) Act, 1995, providing for reservation in promotion and overruled Indra Sawhney on this point. Article 16(4A) was inserted in the Constitution, and it came into effect from 17-06-1995.

85th Constitution Amendment

  • By way of 85th Constitutional Amendment, in 2001, the words “consequential seniority” were included after reservations in promotions in Article 16(4A), and it was said to be in effect from June 17, 1995, i.e. the same date on which “reservation in promotion” was instituted in the Constitution by way of 77th Constitution Amendment.
  • “Consequential seniority” means that seniority in public services would be given as an automatic consequence of promotions to SC/ST persons given by way of reservations.

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