Recently, the Honourable Supreme Court of India upheld the constitutional validity of Karnataka Extension of Consequential Seniority Promoted on the basis of Reservation Act, 2017 in the case of B.K.Pavithra v. Union of India-II  under Article 16(4A) of the Constitution of India and hence, upheld reservation in Promotion in government jobs. Under this law, Reservation in promotion has been proposed for SC and ST candidates in order to protect consequential seniority of reserved candidates in promotion in government jobs.
Let’s understand reservation in promotion. It means that a reserved category candidate will get an accelerated promotion over a general category candidate of the same rank, however, A two-judge bench in Union of India v. Virpal Singh Chouhan proposed a ‘catch-up’ rule according to which a general category candidate promoted after a reserved candidate would regain his seniority over the roster point promotee of reserved category on such promotion. Article 16(4A) makes no compulsion of upholding reservation with or without consequential seniority and is not constitutionally mandatory. However, after the Constitution (Eighty-Fifth Amendment) Act, 2001 the words “in matters of promotion to any class” has been substituted by “in matters of promotion, with consequential seniority, to any class” in article 16(4A).
Since independence, candidates belonging to scheduled tribes and scheduled caste are provided with reservation in India. The main aim of providing reservation is to uplift the socio-economically backward classes. Reservation in India has been a controversial and sensitive topic since independence. There has been enough of debates and discussions. Various courts have intervened from time to time to and upheld reservation as constitutionally valid laying emphasis on article 14 of Indian Constitution. In 1962, the Rangachari judgment  was one of the first such instances.
In Indra Sawney V. Union of India , the nine-judge constitutional bench recognized reservation for Other Backward Classes (OBCs). The Honourable Supreme Court had held that Article 16(4) does not apply to the reservation in promotions. After this, Seventy-Seventh amendment Act was passed introducing article 16(4A) in the Constitution of India in 1995. Article 16(4A) empowers the state to make any law in relation to reservations related to SCs and STs in India. This article validates reservations related to promotions. In 2006, a five-judge bench in M.Nagraj V. Union of India  validated reservation in promotions on fulfillment of three conditions. The pre-requisites for availing reservations are – a state must prove the inadequacy of representation, the backwardness of the class seeking reservation and surety of administrative efficiency at the same time. Parts of this judgment are contrary to the nine-judge bench’s judgment of Indra Sawney case. After this, a five-judge bench in Jarnail Singh v. Lachhmi Narain Gupta  recognized Nagraj’s observation of the requirement of proof of the inadequacy of representation. Along with this, it was observed that exclusion of creamy layer for reservation is totally justified even in case of SCs and STs.
Keeping in mind the above observation, the Supreme Court in B.K.Pavithra v. Union Of India-I had declared the Karnataka Reservation Act, 2002 as invalid on the ground that the Karnataka State Government had failed to provide enough quantifiable data on the three parameters as laid down in Nagraj’s case. The state government, then, immediately set up the Ratna Prabha Committee under the leadership of the then additional chief secretary of state. The committee presented its report on May 5, 2017 on the basis of which Reservation Act, 2018 was immediately passed. The governor obtained presidential assent to the bill under article 200 and eventually, it became a law. This law was challenged in the court on various grounds including the illegality in governor’s act of referring the bill for presidential assent.
The bench of Justice U.U.Lalit and Justice D.Y. Chandrachud called the new legislation to be curative in nature as it removed the basis of B.K. Pavithra-I. Rejecting the allegations on the method used by Ratna Prabha Committee, it observed that sampling is a valid methodology and even if better methods were available, research by sampling method is not invalid. It also held that governor’s act of referring the bill for Presidential assent is non-justiciable and hence, valid.
Reservation in India was incorporated for the upliftment of socio-economically backward population in India. We totally agree with this concept but now, the reservation has become a political issue merely for voter appeasement and caste-based politics. India as an economy to prosper, it is a high time that we must move from entitlement and birth identity to meritocracy. Meritocracy is the need of the hour. Great thinkers like Confucius, Aristotle and Plato supported meritocracy. No other country in the world has such a large-scale reservation model. Discrimination can be removed only when a person will be recognized by his capabilities and not by his birth. The China and Singapore models of growth and development are highly meritocratic and the world is the witness of their unprecedented growth. China, Singapore and other countries in the world did not have deep-rooted discrimination like India, but after seventy years of independence, we have come to a level where we can adopt the meritocracy model to some extent. For fighting with social evils and for ensuring representative participation of India’s diverse population, we are providing for reservation in the educational sector and in public sector jobs. Though it has been held in various pronouncements and in constituent assembly debates that providing reservation does not sacrifice administrative efficiency. Article 335 has been incorporated in the Constitution of India for the same purpose but still, we believe that observation in Indra Sawhney case of not providing reservation in promotions is highly beneficial for the country. ‘Efficiency’ has no relation with group identity and is more about individual performance. At a time, when there is a high need to move towards meritocracy, upholding reservation in promotion is not an appropriate measure in our opinion. Reservation is not the only way to remove inequalities in society, but we have made it. We have forgotten to take other measures for ensuring equality in society like inter-caste marriages, awareness against discrimination, etc.
There has been no exclusion of creamy layer in the act. Justice B.P.Jeevan Reddy in Indra Sawhney case had held that exclusion of socially advanced class from benefits of reservation would make it ‘truly backward’. Though his observation was related to OBCs, we believe that the concept of the creamy layer must be followed strictly irrespective of the category a candidate belongs to, only this can ensure that benefits are actually enjoyed by those in need of them. In Jarnail Singh’s judgment, the Honourable bench had held the inclusion of creamy layer for SC/ST candidates also so as to ensure that the benefits of affirmative action reach to the one who needs it the most. We believe that once your social stratification takes place, priority should be given to those who are actually in need. We must not forget that if there is no provision of exclusion of creamy layer, there are chances of misuse by higher rank officials and the one who is actually in need would continue to be the sufferer. When we say that discrimination of SCs and STs is on the basis of group identity, the one who is exploited the most must benefit the most. The poor and illiterate class suffers maximum discrimination and for ensuring their benefit, the creamy layer must be excluded.
In Ajit Singh Januja v. State of Punjab –I , the court had observed that a balance needs to be maintained in reservation law so as to prevent ‘reverse discrimination’. Here in this situation also, the rights of non-ST/SC candidates are in question. There should be no compromise with the principles of equality. Article 14 and 16(1) are of paramount importance. We must not compromise with the basic structure principal as laid down in Keshwananda Bharti v. Union of India . In India, reservation once increased cannot be reduced again because of social and political reasons. There is a constant increase in demand for reservation by various groups. The 50% cap is on the verge of being crossed. In such a situation, the legislature should be vigilant enough to maintain a balance between meritocracy and entitlement. Judiciary should also interpret laws wisely and in consonance with the basic structure of the Constitution of India. Growth and Development of India as a whole are of paramount importance.
 WP No. 1201 of 2018
 1996 A.I.R. 446
 General Manager, Southern Railway v. Rangachari., A.I.R 1962 SC 36 (India).
 A.I.R. 1993 S.C. 477 (India)
 A.I.R. 2007 S.C. 71 (India)
 A.I.R. 2018 SC 4729(India).
 2018 SCC OnLine SC3340
 The Constitution of India.
 A.I.R. 1996 S.C. 3471 (India).
 A.I.R. 1973 S.C. 1461 (India)
ABOUT THE AUTHOR
Khushi Sharma is a second year student pursuing B.A.LL.B.(Hons.) from Hidayatullah National Law University, Raipur. Her key area of interest is Constitutional Law.
In Content Picture Credit: The Quint