Constitutional amendment around the corner in promotions quota

Normally a constitutional amendment would make front page news and generate a ton of debate, columnists would explore the issue in detail, the media would cover life stories.  In a tiny story tucked away in an obscure corner, I noticed that the Prime Minister Manmohan Singh has swung into action and has convened an all party meet on May 23th.

The rupee is tanking, the economy has slowed down, crushing power crisis threatens to shut plants, maoists rule the heartland, farmers die, FDI policy is on ventilator, telecom lawsuits and international arbitration loom, budget deficits are out of control, scams and scandals everywhere. None of these could move the PM – yet a ruling by a 2 Judge bench, which we shall see shortly has been misinterpreted, can make the entire political class sit up.

I’ll try my best to throw some light on the matter in this post. Hopefully I can get atleast a dozen more to pay attention to this fundamental issue.

The background

In Indra Sawhney  the majority (8-1)  of the judges held that even though the concept of reservations to backward classes as far as entry into the services was justified, quota in promotions was not.  Once a reserved and unreserved candidate enter the service stream at the same level – the mechanism for moving up to the next level was based mostly on seniority and claims of  past oppression had no role to play. Incidentally, the  Indra Sawhney bench had nothing to do with reservation in promotions – the Narasimha Rao government made a reference to the court ; “while you are at it,  settle this too”.  In any case, it quashed all reservations in promotions while upholding them at entry level.

The political response was swift and the 77th amendment was adopted to obliterate the position of Indra Sawhney.

Thus Article 16(4A) was born.

THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT)  ACT, 1995

2. Amendment of article 16.-In article 16 of the Constitution, after clause (4), the following clause shall be inserted, namely:-

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”.

I have to stop here for a minute.

To follow the matter further you need to understand three key concepts in promotions.  I am no expert but I have been tracking this issue for years now, so I invite folks in public service to correct any errors.

The concepts are  1) the roster system 2) the catch up rule and 3) consequential seniority.

The roster system

Say you have a department of 100 positions. These positions dont open up all at once rather vacancies arise sporadically due to retirement, transfer, promotion, deaths etc . The roster system is the instrument of choice to allocate these vacancies. For example you have a 10-point roster which might say vacancy 1=Open 2=SC 3=SC 4=Open.. until 10=OC.  The roster would then rotate.  The key to note is if a reserved vacancy arises it can only be filled by members of that group, if an open vacancy arises it can be filled by anyone including reserved category members.

The catch-up rule 

Quotas in promotion naturally allow leap-frogging.  Consider this :  Two candidates A (open) and B (reserved) are in the same class of service Grade 1.  Say, A is 5 years senior to B and both are awaiting promotion to the next level ,Grade 2.  B now gets promoted over A due to the roster system. Eventually say after 3 years A also gets the promotion to the same grade as B. What happens now ? Under the catch up rule – A will regain his seniority of 5 years over B because he was denied promotion in the first place due to the roster.  This means for the open category vacancy in Grade 3 – A has  restored his old seniority of 5 years  (ie caught up) over B.

Consequential seniority 

The exact opposite of the catch up rule above.  Now A and B are in Grade 2 – B has been there for 3 years and A has recently been promoted.  Under consequential seniority,  A is now junior to B. The fact that he was 5 years senior to B before the roster system leap frogged B is deemed immaterial. For further promotion to Grade 3 – even for open category vacancies as per the roster – A will be considered 3 years junior to B. In other words, he has lost 8 years inter se B.

Now go back to the 77th amendment. As you can see, consequential seniority confers a permanent blow to the unreserved candidate.  Several states employed a variation of this and the matter same to a 5 judge? bench of the Supreme Court in R.K Sabharwal vs State of Punjab 1995.  The court ruled consequential seniority as unconstitutional.  This was reaffirmed over the next 5 years in several cases. In 2001 it was brought again to the court in M.G. Badappananvar vs Karnataka 2001.   Due to consequential seniority general category candidates in Karnataka had retired without due promotions  while their juniors were in higher posts. Many still in service at junior levels approached for relief.  The court restored the seniority (applied catch up) of several general category candidates in this decision. This was totally in accordance with RK Sabharwal established  5 years ago.

The political class, this time the NDA government acted fast. They introduced  the 85th constitutional amendment that specifically inserted the word “promotion with consequential seniority” in Art 16(4A). Recall from before that 16(4A) was inserted to nullify Indra Sawhney. The new clause reads as follows.

THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001

(2) It shall be deemed to have come into force on the 17th day of June, 1995.

..

Now 16 (4A) reads

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority  to any class or classes “in matters of promotion, with consequential seniorityof posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”.

In one stroke the amendment obliterated  established positions in Sabharwal, Ajit Singh, Badappananvar, and a few more.  You may have missed that the amendment was made retroactive from 1995 (6 years earlier) – which means seniority lists could be redone.

The UP situation today

Now you have enough background to understand the UP situation today and the agenda for the all party meet.

There has been a tug of war between Mayawati and Mulayam over the past 10 years. Once the 85th amendment was passed Mayawati + BJP  promptly redid the lists based on consequential seniority effectively minimizing chances of general candidates. Note that  for promotion purposes OBC and Minority are general candidates.  Mulayam cancelled it later. Mayawati restored it the first thing she came back in 2007.  The net effect today is that a sufficiently large number of employees of various govt outfits were hurt by these provisions.  A 2009 report shows deep discontent in UP Power Corporation . A group of employees approached the court and sought a remedy.  In Mukund Kumar Srivastava vs State of UP, the Allahabad high court cancelled the quota system along with consequential seniority. This was because the quota or even consequential seniority was unconstitutional – they cant be due to Art 16(4A).  The UP government had not conducted any exercise or produced any data to support this quota.

The UP government appealed in the Supreme Court.  On Apr 27, a 2 judge bench of Dalveer Bhandari and D. Misra upheld the earlier order of the Allahabad High Court (Rajesh Kumar Vs UP Power Corporation 2012).  It is important to note the scope of the judgment

• The constitutionality of reservations in promotions was not challenged
• The consequential seniority (so called clause 8A in judgment) in UP was not challenged
• The judgment only hinges on the “.. are not adequately represented“. This sentence in Art 16(4A) requires some homework from the state. Indeed, this is the last wall of defence against total arbitrariness.

What can be amended ?

As you have seen the 77th and 85th amendments have already gone a long distance. What else can give way ?  In M. Nagaraj vs Union of India 2006  a constitutional bench had ruled that data related to inadequate representation  is necessary to activate Art 16(4A).  The court following the  Nagaraj judgment is only asking for data about inadequate representation – why not simply submit that record and everyone is happy.

The only way Rajesh Kumar can be obliterated is by removing the need to collect data. This is purely my opinion, we will see how things will turn out in the all party meet in 2 days time.

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority  to any class or classes “in matters of promotion, with consequential seniorityof posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”.

If agreed upon – this will be the 117th Constitutional Amendment proposed and if passed it will be the 98th Amendment.

Where do politicians stand ?

Long time readers of my blog will instantly recognize that contemporary Indian politics is a mere sideshow – the driving force is the adhocism in conferring benefits which make the masses ignore big issues and vote for benefit protection.  There is unanimity – uncommon unanimity on this issue.  In fact, they will fight with each other to rush to an amendment.  Nuance and measured positions will be seen as a ploy to scrutinize and snatch away the all important  power of adhocism.  Prakash Javadekar of the BJP, Karat of CPI-M and all others  dont even want the all party meet, calling it wasting precious time.

“There is already a consensus on the issue among all parties…There is no point delaying it by calling an all party meeting to build a consensus,” Prakash Javadekar (BJP) said.

Akhilesh Yadav’s position isnt what the media is telling you. He supports the amendment but with OBCs included in the protection.

Some are blaming others for not beating the Nagaraj judgment earlier.

The National Commission for SCs repeatedly asked the Centre to join the battle against Nagaraj case by becoming a party to the appeals filed in the Supreme Court. It wanted the government to argue that parts of the Nagaraj judgment — seeking data to prove backwardness of dalits to make them eligible for promotion – were unconstitutional. Source TOI

Salman Kursheed hates the 50% ceiling (tangential to main issue – but related to minorities).

Khurshid said the primary restriction of 50 per cent maximum limit for reservation in jobs for SCs, STs and OBCs “ties the hands of the government” in doing much for them in proportion to their population.

The MP’s throw a fit over an illustration of Ambedkar – yet think of nothing to amend his constitution 117 times.  C’est la vie.