Reservation in Promotion

In one line

The Supreme Court held that article 16(4) does not authorise reservation in promotion, and Parliament wrote the power into the Constitution four times over.

In the wording a student can write in an exam: article 16(4A) enables the State to make 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 Scheduled Tribes which in the opinion of the State are not adequately represented.

What Indra Sawhney held

Among its answers, Indra Sawhney v. Union of India, AIR 1993 SC 477, held that article 16(4) does not permit reservation in promotion. Reservation is a means of entry into the service; once a member of a backward class is in, promotion is governed by article 16(1) and by the ordinary rules.

The holding was made prospective, with existing arrangements allowed to continue for a period, which is a use of the technique described in [Precedent, and Departing From It].

The four amendments

The Seventy Seventh Amendment 1995, with effect from 17 June 1995, inserted article 16(4A), enabling reservation in matters of promotion for the Scheduled Castes and Scheduled Tribes not adequately represented in the services under the State. Note the narrowing: promotion reservation is confined to those two groups and is not available for the other backward classes.

The Eighty First Amendment 2000, with effect from 9 June 2000, inserted article 16(4B) on backlog vacancies: unfilled reserved vacancies of a year may be treated as a separate class to be filled in succeeding years, and are not counted with the vacancies of the year of filling for the fifty per cent ceiling.

The Eighty Second Amendment 2000 added the proviso to article 335, permitting relaxation in qualifying marks in any examination or lowering of the standards of evaluation for reservation in matters of promotion.

The Eighty Fifth Amendment 2001, retrospectively with effect from 17 June 1995, substituted words in article 16(4A) so as to add consequential seniority, so that a person promoted earlier by reservation retains the seniority gained thereby.

The four together answer Indra Sawhney on promotion, on backlog, on qualifying standards and on seniority, which is why they must be distinguished.

Nagaraj: valid, but conditional

M. Nagaraj v. Union of India, (2006) 8 SCC 212, upheld all four as constitutionally valid, being enabling provisions that do not by themselves alter the structure of equality.

But it attached conditions. Before making a provision under article 16(4A) the State must collect quantifiable data showing:

1. the backwardness of the class;
2. the inadequacy of its representation in the service; and
3. that the reservation is consistent with the maintenance of efficiency of administration under article 335.