Reservation in Promotion to SC/ST in Government Service-The Constitution (One Hundred and Seventeenth Amendment) Bill, 2012

The Government has proposed to bring two important bills related to the Government servants in this winter session of parliament

1.The Pension Fund Regulatory and Development Authority Bill, 2011.

2.The Constitution (One Hundred and Seventeenth Amendment) Bill, 2012 – Reservation in services to SCs/STs

The Bill on Reservation in Promotion to SC/ST in Government Service is the hottest topic of all Central and State Government Employees at present. Because all the government employees can see a considerable pay hike only in two occasions, number one occasion is at the time of their promotions and next one is at the time of Pay Revisions. This may occur only thrice in their entire service period. As per MACP Scheme every government employee is assured three financial up gradation in his service, since it was decided that at least three promotions can be granted to a government employee in his entire service period. So it is quite natural that everybody wants to get promotions according to their seniority when vacancies arise in the promotional grade. But here is the place Reservation plays an important Role. When operating the reservation rule in promotion, sometimes Seniors in the Grade have to wait patiently for a quite long time to get their promotion by simply giving their opportunity to his junior being a reserved category. Sometimes a bunch of Juniors in a particular grade are getting promotions leaving their senior in the same grade citing the reason that roaster to be maintained in the promotional grade though the prescribed percentage of reserved category exists in that grade. So this creates bitterness among many government servants and who felt deprived for not getting promotions approached the courts for justice. But no one is against to the matter of Reservation in Recruitment. The procedures followed to provide reservation in promotion according to the grade is the main issue here to be settled. Every Government Servant respect the privileges provided by the Article 16 and Article 335 in The Constitution Of India 1949. Then what necessitates the Government to introduce the Constitution (one hundred seventeenth Amendment) bill, 2012 in the Parliament?

The Government said in its Statement of Objects and Reasons for the bill (The Constitution (One Hundred and Seventeenth Amendment) Bill, 2012) introduced in Rajyasabha that

The Scheduled Castes and the Scheduled Tribes have been provided reservation in promotions since 1955. This was discontinued following the judgment in the case of Indra Sawhney Vs. Union of India, wherein it was held that it is beyond the mandate of Article 16(4) of the Constitution of India.  Subsequently, the Constitution was amended by the Constitution (Seventy-seventh Amendment) Act, 1995 and a new clause (4A) was inserted in article 16 to enable the Government to provide reservation in promotion in favour of the Scheduled Castes and the Scheduled Tribes. Subsequently, clause (4A) of article 16 was modified by the Constitution (Eighty-fifth Amendment) Act, 2001 to provide consequential seniority to the Scheduled Castes and the Scheduled Tribes candidates promoted by giving reservation.

The validity of the constitutional amendments was challenged before the Supreme Court. The Supreme Court while deliberating on the issue of validity of Constitutional amendments in the case of M. Nagaraj Vs. UOI & Ors., observed that 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 in promotion.

Relying on the judgment of the Supreme Court in M. Nagaraj case, the High Court of Rajasthan and the High Court of Allahabad have struck down the provisions for reservation in promotion in the services of the State of Rajasthan and the State of Uttar Pradesh,respectively. Subsequently, the Supreme Court has upheld the decisions of these High Courts striking down provisions for reservation in respective States

It has been observed that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise.

Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected.

Demands for carrying out further amendment in the Constitution were raised by various quarters. A discussion on the issue of reservation in promotion was held in Parliament on 3-5-2012. Demand for amendment of the Constitution in order to provide reservation for the Scheduled Castes and the Scheduled Tribes in promotion has been voiced by the Members of Parliament. An All-Party Meeting to discuss the issue was held on 21-08-2012.There was a general consensus to carry out amendment in the Constitution, so as to enable the State to continue the scheme of reservation in promotion for the Scheduled Castes and the Scheduled Tribes as it existed since 1995.

In view of the above, the Government has reviewed the position and has decided to move the constitutional amendment to substitute clause (4A) of article 16, with a view to provide impediment-free reservation in promotion to the Scheduled Castes and the Scheduled Tribes and to bring certainty and clarity in the matter. It is also necessary to give retrospective effect to the proposed clause (4A) of article 16 with effect from the date of coming into force of that clause as originally introduced, that is, from the 17th day of June, 1995.

So in a speedy action to circumvent the Supreme Court order, the government has decided to pass a bill providing for reservation to SCs and STs in promotions in government jobs with effect from 1995 and it will be brought in Parliament in this winter season.

Readers are welcome to leave their opinion here about Reservation in promotion policy