Reservation in Promotion

Move three, the conditions. The amendments were challenged, and in M. Nagaraj v. Union of India the Supreme Court upheld them but read conditions into their exercise. As the argument in Jarnail Singh records, Nagaraj required the State, before making a promotional reservation, to collect quantifiable data showing the backwardness of the class, the inadequacy of its representation, and to consider the maintenance of efficiency of administration under article 335. It also applied the creamy layer exclusion to the Scheduled Castes and Scheduled Tribes in this context.

The report of Nagaraj could not be opened from the sources this book is built from. It is named without a citation, and what is stated about it above is taken from the account of it given in Jarnail Singh, which was read. Confirm it against the report before relying on it in writing.

Move four, the correction.

Facts. Jarnail Singh v. Lachhmi Narain Gupta, decided 26 September 2018 by five judges. The Attorney General asked that Nagaraj be reconsidered by seven judges on two points: that requiring quantifiable data on the backwardness of the Scheduled Castes and Scheduled Tribes contradicts the nine-judge Bench in Indra Sawhney, which treats them as the most backward once they are in the Presidential Lists under articles 341 and 342; and that Nagaraj had misread Indra Sawhney in applying the creamy layer to them.

Held. Nagaraj need not be referred to a Bench of seven. But its conclusion that the State has to collect quantifiable data showing the backwardness of the Scheduled Castes and Scheduled Tribes, being contrary to Indra Sawhney, is held to be invalid to this extent. The Court declined to disturb Nagaraj on the creamy layer, and declined the Attorney General's invitation to lay down proportionality to population as the test of adequacy, noting the difference in language between article 330, which mandates proportionality for reserved seats in the House of the People, and article 16(4A), which does not.

Why it matters. It leaves a precise, and examinable, list of what a State must now do.

What a State must show today

Not backwardness. Jarnail Singh removed that requirement for the Scheduled Castes and Scheduled Tribes. Their inclusion in the Presidential Lists settles it.

Inadequacy of representation. Still required, and it must rest on data about the cadre in question, not on a global figure for the service.

Efficiency of administration. Article 335 must be considered. On State of Punjab v. Davinder Singh, decided 1 August 2024 by seven judges, article 335 is not a limitation on the exercise of power under articles 16(1) and 16(4) but a restatement of the necessity of considering the claims of the Scheduled Castes and Scheduled Tribes. So it is a factor to be weighed, not a veto.

The creamy layer. Applies, on Nagaraj as left undisturbed by Jarnail Singh, and supported by Gavai J.'s concurrence in Davinder Singh. See [The Creamy Layer] for the precise status.

Cadre-wise, not service-wide. Because adequacy of representation is judged in relation to the posts to which promotion is being made.

The arguments

For promotional reservation. Reservation at entry alone produces a service in which the disadvantaged class is present at the bottom and absent at the top. Representation that stops at the lowest grade is not representation in any sense that matters, and the higher the post the greater its influence on policy.

Against. Promotion is by definition a comparison of those already in the service, all of whom have crossed the entry barrier. The justification for assistance at entry, that the competition was unequal, is weaker once the candidates have been in the same service for years. Consequential seniority compounds the effect, since a promoted candidate carries the advantage forward at every later stage.

The compromise the law has reached is the list above: permitted, confined to the Scheduled Castes and Scheduled Tribes, and conditional on data about representation and consideration of efficiency.

A worked example

A State proposes to reserve twenty-five per cent of promotion posts in the grade of Superintending Engineer for the Scheduled Castes and Scheduled Tribes, with consequential seniority. It relies on a departmental note stating that these communities are backward and that reservation is required as a matter of social justice. It has figures for the department as a whole but not for that grade.

Is the source of power good? Yes. Article 16(4A) permits reservation in promotion with consequential seniority for the Scheduled Castes and Scheduled Tribes.

Is the material good? No, on two counts. Relying on backwardness is unnecessary and beside the point after Jarnail Singh; and departmental figures are not figures for the grade. Adequacy of representation must be judged in the cadre to which promotion is made, because that is the field article 16(4A) operates on.

What else is missing? Consideration of article 335, which on Davinder Singh is a restatement of the need to weigh the claims consistently with efficiency, not a bar, but which must actually be weighed.

And the creamy layer? The scheme must provide for the exclusion, on Nagaraj as undisturbed by Jarnail Singh.

Does the ceiling apply? Yes, to the article 16(4) group, applied to the year's vacancies, with carried-forward vacancies excluded by article 16(4B).

Answer. The power exists; the exercise fails for want of cadre-specific data on representation and for want of consideration of efficiency, and it must provide for the creamy layer.

Quick revision

• Indra Sawhney: article 16(4) does NOT permit reservation in promotion, prospectively, with five years for existing schemes.
• Parliament's answer: article 16(4A) 1995 (promotion, SC and ST only), 16(4B) 2000 (carry forward), the words "with consequential seniority" 2001, and the proviso to article 335 in 2000.
• Nagaraj upheld the amendments but required quantifiable data on backwardness and inadequacy, consideration of efficiency, and the creamy layer.
• Jarnail Singh 2018: no reference to seven judges, but the requirement of data showing BACKWARDNESS of the SC and ST is invalid, being contrary to Indra Sawhney. Creamy layer left undisturbed. Proportionality to population rejected as the test.
• What a State must now show: inadequacy of representation, cadre-wise, on data; consideration of article 335; and provision for the creamy layer.
• Davinder Singh: article 335 is a restatement, not a limitation.

Test yourself

1. Set out the four moves in this topic in order, with the year of each.

2. What exactly did Indra Sawhney hold about promotion, and what did it do about existing schemes?

3. Which classes may benefit from a reservation in promotion, and which may not?

4. What did Nagaraj require, and which of its requirements did Jarnail Singh hold invalid, and why?

5. List what a State must establish today before reserving in promotion.

6. Give the argument for and against consequential seniority.