Poor Protection of Reservation related Constitutional Provisions by Government

The Constitution of India contains well defined provisions under article 16(4A) and article 335, regarding reservation for SC/ST in the matters of appointments to services and posts in connection with the affairs of the Union or of a State. The text of these articles is as follows:

Art.16(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 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.

Article 335: The claims of the member of the Scheduled Castes and the Scheduled Tribes 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 favour 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.

But in spite of the above well defined constitutional provisions, it is observed that the Government has been very slow in implementing the rulings of the Constitution Bench of Supreme Court of India in favour of reservation policy. On the other hand the Government, under pressure from various anti-reservation lobbies, groups and even private parties, has been quick in implementing quite questionable anti-reservation rulings by the Courts. The following examples are testimony to such an approach by the Government Departments.

No Withdrawal of DOPT OM dated 22.07.1997, held illegal by Constitution Bench of Supreme Court: The five judge Constitution Bench of Supreme Court of India, in its judgment and order dated 15/07/2014 in the Rohtas Bhankhar case (Civil Appeal No.6046-47 /2004) has declared the DOPT’s OM No. 36012/23/96-Estt.(Res), dated 22.7.1997 as illegal. However, the Government has issued no instructions to withdraw the said illegal O.M. dated 22/07/1997 and provide relief to all the SC/ST employees who were adversely affected due to this O.M. during 1996 to 1999. The Government has only modified the results of Section Officers / Stenographers (Grade B/Grade-I) Ltd Departmental Competitive Examination, 1996 in compliance with the Supreme Court judgment dated 15.7.2014 in the Rohtas Bhankhar case The SC/ST officers included in Central Secretariat Service SO Grade Select List, 1996 on the basis of the said Departmental exam, are also waiting for their consequential promotions to the next higher grades on the basis of their revised seniority.

Quick Withdrawal of DOPT O.M. dated 10.08.2010: In a Contempt Petition (C) no. 314/2016 filed by Samta Andolan Samiti, an anti-reservation private party, the Department of Personnel and Training (DOPT) have issued an Office Memorandum no.36012/11/2016-Estt(Res.), dated 30.09.2016, whereby the instructions contained in their earlier O.M. dated 10.08.2010, issued in compliance with the judgment of Madras High Court in WP(C) 15226/2007 (UOI Vs S. Kalugasalamoorthy) regarding consideration of SC/ST employees against general vacancies on their own merit, have been put on hold at the advice of the Solicitor General. As a result of this latest O.M. dated 30.09.3016, SC/ST employees cannot be considered for promotion against unreserved posts even if they are eligible for the same on account of his own merit and seniority, guaranteed under Article 16(4A) of the Constitution.

The issue of “own merit” involved in DOPT’s O.M. dated 10/08/2010 emanates from the Post Based Reservation Rosters for SC/ST/OBC prescribed by the DOPT vide O.M. dated 2/7/1997 in compliance with the judgement of Constitution Bench of Supreme Court in R.K. Sabharwal Vs. State of Punjab as well as J.C. Mallick Vs. Ministry of Railways. Subsequently, the DOPT vide O.M. dated 31.01.2005 had clarified that the concept of “own merit” did not apply to promotions made by non-selection methods. The said clarification dated 31.01.2005 was quashed by CAT, Madras Bench in OA no.900/2005 filed by S. Kalugasalamoorthy Vs. UOI. The decision of CAT, Madras Bench was upheld by Madras High Court in WP(C) 15226/2007 [UOI Vs S. Kalugasalamoorthy]. Consequently, the DOPT, vide O.M. dated 10.08.2010, had to withdraw its O.M. dated 31.01.2005 and clarify that the own merit concept will be applicable to promotions made by selection as well as non-selection posts. However, the Punjab and Haryana High Court, vide its judgment dated 15.07.2011 in CWP No. 13218 of 2009 [Lachhmi Narain Gupta &Ors Vs. Jarnail Singh & Ors], quashed the DOPT O.M. dated 10.08.2010 by citing Supreme Court order dated 19.10.2006 in M. Nagaraj case. The Punjab and High Court also held, in same order dated 15.07.2011, that no reservation in promotion could be made in pursuance to office memorandum dated 2.7.1997.

Government / DOPT’s Failure to present the facts correctly: The above orders of Punjab and Haryana High Court came due to the failure of Government / DOPT to inform the court that the Government has examined the issues arising out of Supreme Court judgement dated 19.10.2006 in M. Nagaraj case and intimated all the State Governments / UT Administrations / Ministries and Departments of GOI / President’s Secretariat / Lok Sabha Sectt. / Rajya Sabha Secretariat / Railway Board / UPSC / CAG of India etc., vide vide letter no. 36036/2/2007- Estt.(Res), dated 29/3/2007 that the observations made in the said case are mere obiter dicta, per incuriam and do not flow from; and cannot be reconciled with the 9 judge bench judgement of Supreme Court in the matter of Indra Sawhney case. The reference to creamy layer in the concluding paragraph and other portions of the judgement does not relate to the Scheduled Castes and Scheduled Tribes.  The Government has also failed to inform the court that other conditions laid down by Hon’ble Supreme Court in M.Nagaraj case pertaining to maintenance of efficiency in administration and data on adequate representation are also complied with through the bench marks prescribed for promotions under the DPC guidelines/recruitment rules for posts and the post based reservation rosters prescribed for each post as per the directions of Constitution Bench of Supreme Court in R.K. Sabharwal case. However, despite having strong legal background behind the reservation rules, the DOPT or the other respondent Departments, have deliberately lost their case in the Punjab and Haryana High Court.

Failure to take follow up action after High Court order dated 15.07.2011: Further, the DOPT, D/o Revenue etc. have also failed to immediately file an SLP in the Supreme Court challenging the said High Court order dated 15.07.2011 and seeking a stay thereon. The first SLP [No. 30621/011 – Jarnail Singh &Ors Vs. Lachhmi Narain Gupta &Ors] against the said High Court order has been filed by the adversely affected SC/ST officers. In a meeting convened by the Attorney General of India on 04.04.2016 in with Secretary (DOPT), Secretary (Revenue) and Secretary (DOLA), it was suggested that the Department of Revenue/CBDT may move an application before the Supreme Court praying for stay on the order of the Hon’ble Punjab & Haryana High Court in the case of Lachhmi Narain Gupta. But due to the negligence of the Govt. Officials/Department, no such application has been filed by D/o Revenue or DoPT, so far. However, contrary to the advice of Attorney General, the DoPT has issued an OM dated 30.09.2016 on the advice of the Learned Solicitor General that till such time the main matter along with the Contempt Petition is decided, no further promotions of reserved category persons to unreserved posts will be made based on the DoPT OM dated 10.08.2010, in order to preclude any interim order in contempt case. 

The OM issued by DoPT on 30.09.2016 on the advice of Solicitor General is not only illegal but also contradictory to the advice of the top Legal Authority of India i.e. Attorney General of India. With the issue of DOPT’s OM dated 30.09.2016, the process of promotion on own merit and own seniority, in terms of the O.M. dated 10.08.2010, has been stalled. Such SC/ST candidates who fulfil all the criterion prescribed and are senior to unreserved candidates, will not be promoted against unreserved points. This results in 77.5% seats being reserved for non-SC/ST candidates, which is illegal and against Hon’ble Supreme Court’s decision of ceiling of 50% reservation in case of Indira Sawhney Vs. Union of India. 

It is surprising that in a well-developed country like USA, 50% reservation in all appointments, including appointments by promotion, is being implemented honestly on the basis of rulings by the Supreme Court of that country, without specific constitutional provisions. On the other hand, in India, the constitutional rights of SCs and STs for reservation in public employment are being denied in spite sound legal framework for implementation of these constitutional provisions and the facts are not presented correctly before the courts by the DOPT and other concerned Departments. 

Cause of Negativity towards reservation rules: While the root cause of grudge against SC/ST employees lies in the feudal and caste based structure of Indian society, it gets multiplied in the Government Departments with the delayed promotions in the lower rungs of bureaucracy / Government machinery. The Government allows only 3 assured careers progressions under MACP scheme to non-Group A employees. Such progressions, due after every ten years of service, sometimes happen in slightly higher grades but not the next higher grades to which the employees are eligible for regular promotion. The other hand, the officers in Group A services enjoy 7 to 8 avenues of regular promotion and 6 promotions under Non-functional upgradation scheme (with reference to IAS officers). For example, a person recruited as a constable in a police force gets, at the most 2-3 promotions up to the level of Asstt. Sub Inspector but another person who joins as an IPS officer is entitled for 6 non-functional upgradations and upto 7 regular appointments on promotion basis. This analogy applies to every Department of the Government.

The above kinds of discrimination between Group A and non-Group ‘A’ Government servants, in matters career progression, have continued since the British Raj era. The genesis of such discrimination lie in the fact that initially the appointments to Class I posts in the Government were made only by selection of white officers from Britain. Therefore, the best of pay, perks and promotions were reserved for such British white officers. After independence, such discrimination between two sets of Government employees should have reduced. But unfortunately, the gap of pay, perks and promotions between Group ‘A’ and non-Group A employees has always been increasing. Therefore, the ‘non – Group A’ general category officers always feel cheated and their frustration results in creating hurdles for SC/ST employees, who have always been suppressed traditionally. The higher bureaucracy also finds petty quarrels among the non-Group A officers convenient and hence does not discourage it. But ultimately such frustration leads to low productivity and corruption. 

Way Forward: In order to protect the constitutional rights of the SC/ST employees and to reduce the undue attrition between SC/ST and non-SC/ST employees,  the Government should  (i) Withdraw the DOPT’s O.M. dated 22.07.1997 declared illegal by the Constitution Bench of Supreme Court and allow relief to all SC/ST employees who have been adversely affected by the said O.M. during 1996-1999, (ii)  the DOPT should withdraw its O.M. dated 30.09.2016 which is illegal as it amounts to provide 77.5% reservation to non-SC/ST candidates, in violation of the Hon’ble Supreme Court’s decision of ceiling of 50% reservation in case of Indira Sawhney Vs. Union of India, (iii)  prior legal advice of Learned Attorney General should be obtained to defend Government’s policy in various reservation related matters under the consideration of Hon’ble Supreme Court, (iv) should appoint SC/ST officers at the middle and higher levels in Estt. (Reservation) Division so as to ensure honest presentation of facts pertaining to reservation policy.

It is also suggested that when the Government is in complete over-haul mood by doing away with all the redundant and discriminatory practices, which are in vogue since the early period of British Raj, it would be a great service to the nation by overhauling the Government’s personnel policy with the reduction of gap in availability of promotional opportunities for Group A and non- Group A officers. The MACP for the non- Group ‘A’ Government employees must have at least 5 non-functional financial upgradations i.e. one assured career progression after successful completion of 7 years’ service. The Group ‘A’ officers of other organised services, like Central Secretariat Services, should be equated with the officers of Group ‘A’ services in the matters of non-functional financial upgradation. Such a positive approach will certainly reduce the rate of attrition amongst the employees of different groups and categories and they will contribute heavily for a highly productive and corruption free India.

Get Together and Seminar on Reservation

The Central Secretariat SC/ST Employees Welfare Association (Regd.) organised a get together and the Seminar on Reservation in Promotions on 29th April, 2016 at Speaker Hall, Constitution Club,New Delhi. Shri Faggan Singh Kulaste, Chairman, Parliamentary Committee for Welfare of SCs and STs, chief guest on the occasion addressed the gathering. He exhorted all the stakeholders in the matter of reservation in promotions to sit together and suggest a lasting solution to never ending litigations on this subject, particularly after a spate of judicial pronouncements pursuant to the Supreme Court judgment in M. Nagaraj case (2006). He assured his unstinted support to the cause. Earlier, Dr. K.S. Chauhan, Senior Advocate in Supreme Court informed the audience that when the deveoped countries, like USA, UK, South Africa etc. have the provisions of reservation in promotions in service as well as in all types of private contracts on the basis of law laid down through judicial interventions and not on the basis of any such provisions in their respective constitutions, why it is in India that here well defined constitutional provisions for reservation are challenged in courts every now and then. He said that apart from reservation for black population, the women in USA also enjoy the benefit of reservation as a part of Government's policy for affirmative action for less privileged sections of society. Mr. Rohtas Bhankhar, President of Central Secretariat SC/ST Employees Welfare Association, advised all the employees to unite fight together for the common cause of saving the interests of the downtrodden sections of society. Mr. M.S. Kalania Deputy Secretary called upon all the educated and service class persons of Dalit Adivasi communities to join hands and pay back to their society in the form their contribution in educational and economic upliftment of poor people living in destitution. The issues of discrimination and selective implementation of rule to harm the promotional prospects of SC/ST Employees in Central Secretariat by DOPT, the nodal Department for service and reservation related matters, were also highlighted. It was pointed out to the audience that how mischievously the DOPT amended rules for promotion from the post of SSA to ASO by increasing minimum qualifying service from 8 years to 10 years without keeping the mandatory saving clause for non application of the revised rule to such employees who were eligible for promotion under the pre-revised rule at the time of said revision. In this way Department obstructed the promotion of hundreds of SC/ST Employees by deliberately keeping their earmarked posts vacant. On the other hand, the DOPT refused to revise the minimum qualifying service for promotion from Section Officer grade to Under Secretary grade from existing 8 years to 6 years as per revised guidelines because such an amendment was going to the benefit of SC/ST Section officers. Resultantly, there has been minimal representation of SC/ST officers in the Under Secretary Grade Select Lists for the years 2009, 2010, 2013 and 2014. A strong pitch was raised to stop Ad-Hoc Appointments in Central Secretariat. The provision of making ad-hoc appointments is resorted to in rare and special circumstances. In normal course all appointments are to be made on regular basis in consultation with UPSC, wherever required under the rules. But the DOPT has not only adopted the ad-hoc appointments as a regular feature in its cadre management but it has also been making blatant misuse of Ad-hoc appointments to detriment of SC/ST officers. Our officers have to retire without promotion because of this ad-hoc policy of the Government. For example, the DOPT has not been able issue a regular Select List for Deputy Secretary grade since 2011. All promotions in this grade are being made on ad-hoc basis. Delay in issuing regular select list will cause SC/ST Deputy Secretaries to retire with promotion in Director grade. Secondly, even while making ad-hoc appointments, no attention is paid to the DOPT OM no. 36012/27/2000-Estt.(Res.), dated 15/3/2002. As per this O.M. the vacancies identified as falling under SC/ST share and are proposed to be filled up ad-hoc basis, should be filled up in the same manner as in the case of filling up on regular basis. The backlog of SC/ST vacancies is to be treated as a group distinct from the current vacancies in terms of DOPT OM no. 36012/5/97-Estt.(RR) Vol.II, dated 20/7/2000. Therefore, it was appealed to the DOPT to stop making ad-hoc promotion as a rule. They should ensure timely release the regular Select Lists for all grades as per promotion guidelines. The speakers also raised the issue of complete implementation of Supreme Court Order in Rohtas Bhankhar case and Review of Results of SO Gr./ Steno. Gr. B LDCE, 1997-1999. The Constitution Bench of Hon’ble Supreme Court, in its judgment dated 15.7.2014 in the Rohtas Bhankhar case (Civil Appeal No.6046-47 /2004) has declared the DOPT’s OM No. 36012/23/96-Estt.(Res),  dated  22.7.1997 as illegal and quashed. However, the Government still considers the said O.M. dated 22.7.1997 as legal for all SC/ST employees except those who appeared in Section Officers /Stenographers (Grade B / Grade-I) LDCE, 1996. Such a view of the DOPT is gross violation of the “Law of Land” declared by Hon’ble Supreme Court in Rohtas Bhankhar case.   The Government still considers the illegal O.M. dated 22.7.1997 as legal for all SC/ST employees except those who appeared in Section Officers /Stenographers (Grade B / Grade-I) LDCE, 1996. Such a view of the DOPT is gross violation of the “Law of Land” declared by Hon’ble Supreme Court in Rohtas Bhankhar case.   As a matter of fact, with the quashing of DOPT’s O.M. dated 22.7.1997 by the Supreme Court in Rohtas Bhankhar case, all the Limited Departmental Competitive Exams held between 1996 and 2000 should be reviewed by allowing concessions in respect of SC/ST category employees that were withdrawn under the said illegal O.M. The Department should also take action simultaneously for inclusion of fresh candidates against vacancies being created with the shifting of SC/ST candidates to new Select Lists of 1996, 1997, 1998 and 1999 after implementation of Supreme Court judgement. For example, the DOPT is yet to take any action to fill up the vacancies caused by movement 41 Section Officers from SO grade select lists 2000 - 2003 to the SO grade select list1996. The Government has implemented the Supreme Court, in its judgment dated 15.7.2014 in the Rohtas Bhankhar only in respect of Section Officers/  Stenographers (Grade B / Grade-I) Ltd. Departmental Competitive Examination, 1996.The officers included in SO Select List, 1996 are still waiting for their empanelment in the revised Select Lists for US grade on the basis of their revised seniority. —