Reservation in Promotion, and the Ten Per Cent for the Economically Weaker

In one line

Reservation in promotion is available on three conditions of which one has since been struck out, and the ten per cent for the economically weaker sections is the first reservation in Indian law that is not about caste.

In the wording a student can write in an exam: Indra Sawhney held that article 16(4) does not permit reservation in promotion. Parliament answered with article 16(4A) in 1995, adding consequential seniority in 2001, and with article 16(4B) in 2000 on backlog vacancies. In M. Nagaraj v. Union of India a Constitution Bench upheld those amendments as enabling provisions but required the State, before exercising the power, to collect quantifiable data showing the backwardness of the class, the inadequacy of its representation and the effect on the efficiency of administration under article 335. In Jarnail Singh v. Lachhmi Narain Gupta the requirement of data on BACKWARDNESS was held invalid, the Scheduled Castes and Scheduled Tribes being presumed backward by their inclusion in the Presidential Lists. The One Hundred and Third Amendment 2019 inserted articles 15(6) and 16(6) for the economically weaker sections, upheld by three to two in Janhit Abhiyan.

Reservation in promotion

The starting point. Indra Sawhney's summary: article 16(4) does not permit provision for reservations in the matter of promotion, the ruling being prospective, with existing reservations in promotion to continue for five years from the date of the judgment.

Parliament's answer. Article 16(4A), inserted by the Seventy-seventh Amendment 1995, permitting reservation in promotion to any class or classes of posts in favour of the Scheduled Castes and Scheduled Tribes not adequately represented in the services in the opinion of the State; the words "with consequential seniority" added by the Eighty-fifth Amendment 2001 with retrospective effect from 1995. Article 16(4B), inserted by the Eighty-first Amendment 2000, treating unfilled reserved vacancies of a year as a separate class to be filled in a succeeding year and excluded from the fifty per cent computation of that year. The proviso to article 335, added by the Eighty-second Amendment 2000, permitting relaxation in qualifying marks or standards of evaluation.

Facts. M. Nagaraj v. Union of India, (2006) 8 SCC 212, decided 19 October 2006 by a Constitution Bench of five. All four amendments were challenged as violating the basic structure.

Held. The amendments were upheld as enabling provisions that do not by themselves alter the structure of equality. But before making a provision under article 16(4A) the State must collect quantifiable data showing three things: the backwardness of the class, the inadequacy of its representation in the service, and that the reservation is consistent with the maintenance of efficiency of administration under article 335. The ceiling of fifty per cent, the creamy layer and the limits on sub-classification continue to apply, and the validity of individual State enactments was left to be tested case by case.