ARTICLE 16 AND RESERVATION IN PROMOTION
Author: Kanak Tiwari, II year of B.A.L.L.B.(honour) from School of law, DAVV, Indore.
Introduction
The Indian Constitution, 1949 guarantees fundamental rights under part III, where we have a special privilege of reservation in promotion in article 16 (4). It has been a bitterly contested issue between the Supreme Court and Parliament. In 1992 the Supreme Court, in its Indra Sawhney case, found that Article 16(4) does not permit reservation in promotion. Then, between 1995 and 2000, Parliament enacted a sequence of Constitutional Amendments that legalized reservation in promotion. In 2006, the Court responded with its Nagaraj judgement, which placed strict conditions on when the State could grant an SC/ST reservation in promotion.
Article 16
Article 16 (1) guarantees equality of opportunity for all the citizen in the matter of employment or appointment to any post under the state and clause 2 says that no citizen on the ground of religion, race, caste, sex, descent, place of birth, resident any of them.
Reservation based on resident
Now to understand articles 16(3) we can take an example – there is some area like Baster in the state Chhattisgarh, where the people belonging to that area are backward and do not have any adequate representation and the development speed of these areas are slow. So, this article provides special privilege to these people and it says that nothing in this article shall prevent the parliament from making any law describing, in regards to the class or classes of employment or appointment of the office under the government of or any local or other authority within, a state or union territory, any requirement as to a resident within that state or UT before search employment or appointment. This article provides acceleration to the development of these areas and provides equal opportunity to all the citizens of a different area of the state. This article is the exception of article 16 (2).
Reservation in Employment
Article 16(4) enables the state to make but all vision how down reservation or post in government jobs in favour of any backward class all citizens which in the opinion of the state, not adequately represented in the service of the state. Now, this article provides a privilege to the disadvantaged people of society which are not adequately Represented and socially-educationally backward classes. The Constitution of India guarantees fundamental rights under part III where we have a special privilege of reservation in promotion in article 16 (4).
The term backwards used in article 16(4) includes schedule caste and scheduled Tribes. Now for the validity of article 16 4A and to understand the scope of this article? Who will constitute the backward class community? What will be the ceiling limit of the reservation? How job efficiency will be maintained? To answer the question we have a relevant case.
In M.R. Balaji vs. State of Mysore
Caste can't be the criteria for a reservation because article 15(4) talks about class. Class is not synonymous with caste and classification between backward caste and more backward class is invalid. This judgement said that reservation can be given based on socially and educationally backward conditions and to the class which does not have adequate representation in the service under the state.
Carry forward rule
Unfilled vacancies of those seats which are reserved for SC and ST community, due to the non-availability of the suitable candidate shall be carried forward for the following year and that particular seats shall be filled by SC and ST community. The majority held that the carry forward rule as a result held at the applicant belonged to scheduled caste and scheduled tribe could get more than 50% of seats to be filled in the particular year.
In Devasand vs. Union of India-the carry forward reservation rule declared unconstitutional.
In Indra Sawhney vs. Union of India- The Mandal case- The scope and the extent of article 16 (4) has been examined thoroughly by the Supreme Court in the case of Indra Sawhney versus Union of India popularly known as Mandal case. On January 1st 1979 the Prime Minister Morarji Desai appointed a second backward class commission under article 340 of the Constitution under the chairmanship of Shri BP Mandal to investigate the socially and economically backward classes within the territory of India. The commission submitted its report in December 1980. This report had identified as many as 3743 castes socially and educationally backward classes and r recommended for reservation of 27% in government job
The Supreme Court said that-
There will be a breaching limit of 50% and reservation in any organization under the state and also the creamy layer will be excluded to take the advantage of reservation. Article 16(4) is not an exception to article 16(1). It is an instance of classification reservation that can be made under article 16.
Backward classes in article 16 (4) are not similar to socially and educationally backward in article 15 also the Supreme Court overruled the case of Balaji that held that classification between backward classes and more backward classes is not unconstitutional.
There will be no reservation in promotion.
The position after Indra Sawhney case-the Parliament enacted the constitutional 77th amendment act, 1995 to bypass the courts overruling on the point of no reservation in promotion in government service.
77th constitutional amendment Act 1995
This is an incorporation of clause (4A) in article 16 (4). This act enacted the reservation in promotion in employment of scheduled caste and scheduled Tribes which in the opinion of the state, are not adequately represented in the services under state.
81st Amendment Act 2000
Insertion of new clause (4 B) in article 16- in Indra Sawhney vs. Union of India the Supreme Court had held that 50% of the limit would apply to current as well as to the backlog vacancies. article 16 the vacancies which could not be fed up in the previous years shall be treated as a separate class of vacancies and will be held up in me succession year shall not be considered together with the vacancies of the year or year, even if they go beyond the 50% limit.
Conclusion
Article 16 for therefore creates the field which enables us to provide for a reservation provided there exist backwardness of the class and in the adequacy of representation and employment. These are compelling reasons. They do not exist in article 16 (1). It is only when these reasons are satisfied that a state gets the power to provide reservation in the matter of employment and the creamy layer in the backward classes is to be treated on par with the forward classes and is not entitled to the benefit of reservation if the creamy layer is not excluded there will be a discrimination and violation of article 14 and 16 1 in as such equals can't be treated unequally.
REFERENCES
1. Indra Sawhney v Union of India
2. In M.R. Balaji vs. State of Mysore
3. In Devasand vs. Union of India
4. AIR 1993 SC 229
5. AIR 1981 SC 138
6. AIR 1993 SC 477
7. AIR1985 SC 1495