PROMOTIONS BASED ON RESERVATION

ABSTRACT

– Himanshu Gupta1

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In this paper the researcher has ellaborated the meaning of reservation system in India. The paper contains the history and need of the reservation system in India; the grounds on which the reservation is being provided and who are the different people to whom the benefits of reservation are being served. The logic of reservation is still being practiced in India as it was about to end in few years after the independence of India. Why do we need reservation? What are the impacts of reservation in society? In this research, the researcher has talked about the reservation system in appointments and job promotions. The study of constitutional provisions that there are to promote the person on the basis of reservation. How reservation in promotion has helped the lower caste people to uplift their social, economic and political status. The paper focuses on the conflict which arises due to the reservation in promotion that why reservation is given on the basis of caste, not on the basis of economic status. The present scenario of reservation in promotions is also being discussed in this research.

Introduction

Reservation defines as an act of reserving, keeping back or withholding. Reservation in India is a way by which certain percentage of seats has been reserved in public sector, state and union civil services, departments, public and private educational institutions as well. Where, religious and educational institution is concerned there is no reservations in such institutions. The wings of reservation have spread to the seats ofparliament also. The history of reservation go way back to the time of Indian independence. After the Indian independence the Constitution of India pen down some group as a backward or scheduled caste or scheduled tribe. Framers of the Indian Constitution mention such groups due to the history of caste system.

In the history of caste system, such classes were oppressed and exploited such a way that they had no respect in society, no opportunity, no contribution to any matter of society. Such discrimination on the basis of purity and impurity was very cruel and has direct effect on the development and growth of these discriminated people’s life altogether.

1 B.A.LL.B., II Sem., Indore Institute of Law

This made the framers of Constitution to mention such categories and provided them a reservation to uplift them socially as well as economically.

It is also considered that such discrimination is also found in the era of Mahabharat where “Karna” also known as “soot putra” was not allowed to show his talent merely on the grounds of being low class person. The Constitution provided 15 % and 7.5% of vacancies of government educational institutions and public sector, as for the scheduled caste and tribes respectively for the period of five years after which the situations were to be reviewed.

After introducing the provisions of reservation, it was supposed to remain for few years after the independence but dramatically it got related to vote bank politics which resulted in the extension of reservation period without any fair revision. Later it was introduced to other categories as well. India being a developing nation is currently facing many obstacles and reservation is one of it. Now the biggest question that arises is that whether implementing this reservation system really helped as it was expected? Issue of Reservation is a cause of disagreement between the reserved and non-reserved categories of the society. The section of unreserved people keeps opposing the provisions of reservation in every aspect. But the needy section is vying for continuation of such policy.

EFFECT OF RESERVATION IN SOCIETY

Reservation is a systemin which some special privileges or reservation givento people belonging to backward community primarily based on caste, in government jobs or educational institutions as well. Reservation system helps them to acquire the vacant seats in government institutions despite having fewer marks than other general class people. The aim of reservation system, when it was first introduced was about to get equal status and equal opportunity for the backward classes. It has achieved the objectives, there is no second thought that reservation helped the backward class people to improve their social and economic status.

Now, the proportion of SC, ST, and OBC is increased in the government jobs and educational institutions. People of SC, ST, OBC now appear in different competitions, enrolled themselves in different educational institutions. This shows that now they are aware about the fact that their participation in education and jobs are the way of salvation fromtheir suffering situation.

Now, in Lok Sabha they get some reserved seats for SC and ST by which they can represent their community and the ideology of the society. They get the chance of decision-making power. Reservation system has also divided the country on the basis of caste, religion and gender. The objective of reservation system was to make the country live, without anykind of discrimination, but it has some impact on the country as well.

It has still created the superiority and inferiority between different class of people. Reservation system is for uplifting the backward classes socially and economically by providing them opportunities, but it did no justice to unreserved category. Despite of working very hard they have to fought with every people of their same class along with others. This generates the feeling of anger and enmity for such reserved class people. The reservation system provided the opportunities to reserved class people and left unreserved with less opportunity. Reservation is something which has become a culture more than a welfare scheme in India. Reservation has caused division of society. India is a secular country and equality is must to survive without any conflicts. Reservation divide the population of the basis of caste, religion and has done nothing for the country. Many suicidal attempts are also registered and major cause for such attempts are discouragement and depression.2

GROUNDS OF RESERVATION

The reservation policy in India was introduced during the time of Independence with a view in mind to end the discriminations and provide equal opportunities to people of every community. Initially it was meant to be time-bound and reduce in upcoming years. Things came to a head in 1989-1990 when Mr. V P Singh’s government tried to implement the recommendations of Mandal Commission which had advised that not only reservation should be continued but actually should be increased. Since then, this debate has been raging in the societywith growing discontent and causing more division within society.3

93rd Constitutional Amendment allows the government to make special provisions for “advancement of any socially and educationally backward classes of citizens”, including their admission in aided or unaided private educational institutions.

2 https://www.quora.com/Is-the-reservation-system-good-or-bad-for-India-and-why last visited at 13:10 dated on 02/ 07/2018

3 https://blogs.timesofindia.indiatimes.com/a-fresh-perspective/the-unseen-cost-of-reservation-policy/ last visited at 13:20 dated on 02/07/2018

Gradually this reservation policy is to be implemented in private institutions and companies as well. This move led to opposition from non-reserved category students, as the proposal reduced seats for the General (non-reserved) category from the existing 77.5% to less than 50.5%.4

Article 15(4)5 of Indian Constitution empowers the government to make any special provision for advancement of any socially and educationally backward classes of citizen or for the scheduled caste and schedule tribe. Similarly, Article 16(2) provides that no citizen shall on the grounds of only of religion, race, caste, sex, descent, place of birth, etc. can be discriminated in respect of any employment or office under the state.

Article 16(4) empowers the government to provide special reservation in appointment of post in favor of any backward class of citizen which in the opinion of the state are not adequately represented in the services. In a unit of 100 vacancies the present policy of reservation in appointment for various categories is as follows: 15 % of the vacancies to be reserved for SCs, 6% of the vacancies to be reserved for STs, 29 % of the vacancies to be reserved for BCs. Out of 50 appointments for OC, 3 appointments shall be reserved for Physically Handicap persons.

QUANTUM OF RESERVATION IN DIRECT RECRUITMENT

There is a reservation of 15 per cent for the members of the Scheduled Castes, 7.5 per cent for the members of the Scheduled Tribes and 27 per cent for the members of the Other Backward Classes in the matter of appointment by direct recruitment to civil posts and civil services on all India basis by open competition. There shall be a reservation of 16.66 per cent for the members of the Scheduled Castes, 7.5 per cent for the members of the Scheduled Tribes and 25.84 per cent for the members of the Other Backward Classes in the matter of appointment by direct recruitment to civil posts and civil services on all India basis otherwise than by open competition. Except in Delhi, reservation for the Scheduled Castes and Scheduled Tribes in case of direct recruitment to Group C and Group D posts normally attracting candidates from a locality or a region is generally fixed on the basis of proportion of their population in the respective States/UTs.

4 https://www.youthkiawaaz.com/2011/02/educational-reservations-india-solutions/ last visited at 14:3 0 dated on 02/ 07/2018

5 The constitution of India, 1950

Reservation for Other Backward Classes in such cases is fixed keeping in view the proportion of their population in the respective States/UTs subject to a limit of 27% and total reservation for SCs, STs and OBCs should not exceed 50%. Quantum of reservation fixed for SCs, STs and OBCs in such cases is indicated below.6 SC and ST Vacancies are not inter-transferable, the vacancies for backward classes are inter-transferable only among the different groups. Posts reserved for S. C’s and S. T’s shall be filled in only by the candidates belonging to the respective communities only. In case of non-availability such vacancy shall carried forward till a candidate of such category is available.

RESERVATION IN PROMOTION

Reservation in promotion is introduced with an objective of not just providing reservation to communities which socially backward like scheduled caste, scheduled tribes and other backward classes in jobs but aim to empower them and ensuring their participation in the decision-making process of state. In the case of Indra Sawhney & Ors Vs. UOI & Ors7 it was observed that public employment not just provide means of livelihood to backward communities but certain status and power as well.

The constitution of India provides the equality of opportunity to such communities in public employment. In article 16 clause 4 and clause 4(A) of India Constitution provides that nothing in the said article shall prevent state from making any provision for reservation of appointments or posts in favor of backward class of citizens. Article 335 defines the claims of the member of the Scheduled Castes and the ScheduledTribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

Provided that nothing in this article shall prevent in making of any provision in favor of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.

6 http://persmin.gov.in/DOPT/Brochure_Reservation_SCSTBackward/Ch-02_2014.pdf last visited at 17: 30 dated on 02/07/2018

7 AIR 1993 SC 477

QUANTUM OF RESERVATION IN PROMOTION

Reservation to the members of the Scheduled Castes and the Scheduled Tribes shall be provided in the matter of promotion when promotion is made:

a) Through Limited Departmental Competitive Examination in Group B, Group C and Group D posts.

b) By selection from Group B post to a Group Apost or in Group B, Group C and Group D posts.

c) By non-selection in Group A, Group B, Group C and Group D posts. 14 2.7

Reservation in all the above cases shall be given at the rate of 15 per cent for the Scheduled Castes and 7.5 per cent for the Scheduled Tribes. However, reservation in promotion is not given in the grades in which the element of direct recruitment, if any, exceeds 75 per cent.8

WHY RESERVATION CRITERIA IN INDIA IS BASED ON CASTE AND RELIGION AND NOT ON ECONOMIC STATUS?

Reservation in India is majorly based on caste and religion of a community to whom the benefits of reservation are being provided. The conflict arises is that whyreservation is provided to people on the basis of caste and religion but not on economic status. The meaning of reservation is to provide the benefits or the action of reserving something. The principle of reservation is equality, or to provide the opportunity to weaker sections then why on the basis of caste and religion only and not on the basis of economic status. It is hard to implement reservation on the basis of economic status.

Reservation is a way to compensate the people who are being exploited by the upper class by providing them different opportunity. It is not the fact that only poor people lack behind the opportunity only because they can’t afford good education or facilities. What if the reservation implement on the basis of economic status and the promotions and appointment in jobs are based on economic status? It might be true that only upper-class poor people get appointed or get promoted. It might be a chance of social discrimination again. Still, they will be disadvantaged. If the reservation provided on the basis of economic status still huge amount of people would be left out.

8 http://persmin.gov.in/DOPT/Brochure_Reservation_SCSTBackward/Ch-02_2014.pdf last visited on 10:10 d ated on 03/07/2018

People are discriminated on the basis of their class not on the economic basis. Promotions or appointment in jobs based are not based on economic status because the numbers of fake caste certificate frauds are way less than the numbers of fake income tax frauds in a country. It may be true that a person at low level position is richer than his higher official.

The reason behind him being rich may be corruption or bribe. Economic status can’t be a reason for reservation in promotion or appointments because less than 10% people in India pay the income tax. A person can easily fake his income in this condition. But one cannot easily fake his caste as easily as faking his income certificate. Indian economic structure will become much worse and economy will fall down. People will easily hide their economic status and income and get reservation in appointment and promoted on the basis of their economic status.

Fake income certificates would generate the huge amount of black money then and it will directly affect the Indian economy. This again make the discriminations of socially backward classes and the needed people get un-advantaged again. Reservation in promotion and appointment cannot be on the basis of economic status because the financial status of an individual is not stable it may change according to some circumstance.

It might be a chance that a poor may get richer or a rich may become poor but reservation on the basis of caste it is not like the other one. It is fixed and stable. Poor upper caste people are being exploited but rich lower caste people still get discriminated. Providing reservation in any appointments or promotion in job in not about providing economic status it is allabout providing social and political status so that are not being discriminated again, though it also helps then providing economic status also. Equality in social political and economic should be there so that people get equal opportunity to get benefited by that.

PRESENT SCENARIO OF RESERVATION IN PROMOTIONS

The Supreme Court of India has allowed the government of India to provide reservation in promotion for scheduled caste and scheduled tribes employees as per the law.

BACKGROUND :

With respect to the reservation in promotions in government jobs, the Supreme Court verdict in M Nagaraj Case (2006) that concept of creamy layer is not applicable to scheduled castes and scheduled tribes. Two earlier cases viz. Indra Sawhney Case (1992) and E V Chinnaiah v. State of Andhra Pradesh (2005) had dealt with the issue of creamy layer for Other Backward Classes. On this basis, the Centre had issued an order in 2017 extending reservation in promotions to SC and ST employees beyond five years from November 16,1992.

This government order was challenged in Delhi High Court. The Delhi High Court quashed the CentralGovernment order and thus, the promotions came to a standstill. CentralGovernment later approached Supreme Court for relief and the current SC order provides that much needed relief to Centre.9 Reservation in promotion are provided by Article 16(4) of the Constitution of India. This article enables the state to provide reservation in matter of promotion to scheduled caste and scheduled tribes.

RELEVANT CASE LAWS

• Indra Sawhney v. Union of India10

In 1979, the govt headed by PM Shri Morarji Desai appointed the Mandal commission to investigate the socially and educationally backward classes. The commission submitted its report and the mean time the Janta Government collapsed due to internal dissensions. The Congress Government came into power. They did not implement the Mandal commission report. In 1989 they were defeated and Janta dal came into power again.

The then prime Minister Shri VP Singh issued the office memoranda reserving the 27% seats for backward classes. It generates the anti-reservation movement which causes a huge loss. The 9-judge bench of SC by 6:3 majority held that decision of Union Govt to reserve 27% govt jobs for backward classes provided socially advanced person- creamy layer among them are eliminated is Constitutionally valid. Reservation of seats shall only confine to initial appointments and not to promotion and total reservation shall not exceed 50%.

9 https://currentaffairs.gktoday.in/tags/reservation

10 AIR 1993 SC 477

• M Nagaraj v. Union of India11

Some observation which are made by the 5-judge bench of Supreme Court:

• That the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all Constitutional requirements without which the structure of equality of opportunity inArticle 16 would collapse.

• That with respect to the “extent of reservation” the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.

• State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

CONCLUSION

The issue of reservation is still a disagreement between the unreserved and reserved one of the societies. One class of society always keep opposing it. The reservation in promotion is also a conflict that on what basis one can be promoted on the basis of reservation. Conflicts arises that the deserving candidate or employee remains at the same position again and does not promoted wisely. The policy of reservation was adopted to uplift and provide the social, political and educational equality. Reservation can’t be provided on the basis of economic status because it can may be fake and the grounds of discrimination were never be economic reasons, it was on the basis of caste and class. Reservation was always meant to be a short- term fix but it has been so politicized that governments are scared to even contemplate reducing it. Today it has just become the tool for politicians to gain vote banks by providing reservation.

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