The amendment that buries merit

Quietly, with an eye firmly on votes, Parliament has passed an amendment ensuring seniority to SC/STs, a decision that erodes the case for merit like never before, says ARVIND P. DATAR

In December 2001, a constitutional amendment of far reaching impact was passed virtually unanimously in the Lok Sabha and Rajya Sabha. There was no debate or discussion in either House. There was hardly any mention in the press or on television. The amendment was to ensure accelerated seniority to schedule castes and schedule tribes (SC/ST).

The 77th and 80th amendments nullified the constitutional safeguards laid down in the Mandal case. The latest amendment has nullified the Supreme Court judgment in the Ajit Singh case. With this amendment, SC/ST candidates will be entitled to not only preference at the time of recruitment but during promotions as well. In several cases, general candidates will have virtually no hope of promotion irrespective of their merit.

Mandal revisited

The Mandal Commission was constituted in 1979 under Article 340 of the Constitution. It submitted its report three years later. The report was discussed twice in Parliament — in 1982 and 1983 — but no action was taken until 1991, when the then prime minister VP Singh made a sensational announcement that he would implement its recommendations. This was obviously done to checkmate Devi Lal’s political ambitions.

The reservations expressed by the Central Government were challenged and heard by a nine judge bench of the Supreme Court. While upholding the reservations, the SC laid down safeguards to ensure that the rights of non-SC/ST candidates and backward classes (general category) do not completely destroy the rights of other Government employees. Indeed, the Supreme Court said there must be an attempt to strike a reasonable balance between the claims of backward classes and the claims of other employees. It observed that:

• Reservations should not normally exceed 50%.
• The Central and State Governments should take steps to identify the creamy layer, which must be excluded so as to ensure that the benefit of reservation reaches weaker sections who really need reservation.
• While there could be reservation at the time of recruitment, reservation in the matter of promotion was not permissible.

The Central and State Governments were given a period of five years to modify or reissue relevant rules to ensure no reservation in promotions.

Article of contention

The Constitution (77th Amendment) Act, 1995 inserted Article 16(4A) which nullified the Supreme Court ruling that there could be no reservation in promotion. The Constitution (81st Amendment) Act, 2000 inserted Article 16(4B) permitting unfilled vacancies to be carried forward. These would be treated as a separate class and filled up in any subsequent year. The unfilled vacancies would be excluded in calculating the limit of 50% for reservation. Therefore, if the unfilled vacancies and the current vacancies together covered 80% of the vacancies in any particular year, it would still be constitutional. Thus, the two important aspects of the Mandal case were nullified.

The creamy layer

The Mandal case made it mandatory for the Central and State Governments to identify the creamy layer and exclude these persons from the benefit of reservation. In fact, eight out of nine judges in the Mandal case called for exclusion of the creamy layer while five of them required such a layer to be specifically identified. The Supreme Court indicated that the creamy layer would refer to persons who had reached a higher level of social advancement and economic status like IAS/IPS and other All India Services. The Bihar Government prescribed the creamy layer as comprising professionals whose income is more than Rs10 lakh per annum and businessmen whose turnover was not less than Rs 10 crore.

For IAS officers, it was prescribed that the wife or spouse must be a graduate and the ‘‘spouse’’ should also own a house in an urban area. If this was not absurd enough, it was further prescribed that either the mother or father of the IAS officer should also have been a direct recruit to class I services. This mockery was rightly rejected by the Supreme Court. The Kerala Government went a step further and notified that there was no creamy layer at all in their State! The Supreme Court struck down this pathetic move.

Promotion question

There were conflicting decisions of the Supreme Court as to the rights of SC/ST category roster promotees vis-a-vis general category promotees. This controversy was referred to a Constitution Bench of five Judges in Ajit Singh (II) v State of Punjab (1999). The court had earlier held that reserved candidates who were promoted at roster points could not be treated as senior to general candidates who had joined service earlier but were promoted later. A later decision took a different view.

The controversy can be explained by a simple example. At the base level (Level 1), there are employees from both general category and reserved category. A general candidate is senior to the reserved candidate. The reserved candidate is promoted first, on account of roster point promotion, to the next level — level 2. The general candidate who is actually senior, gets promoted later to the same level 2.

There is now a question of further promotion to level 3. The Supreme Court held that at level 2, reserved candidates who were roster point promotees could not be treated as senior to the general candidate. If this was done, the reserved candidates would get accelerated promotion from level to level and the general candidates would never catch up with them at all. The effect of Supreme Court judgment was that for promotion from Level 2 to Level 3, seniority will be given to the general candidate for further promotion.

The Supreme Court pointed out that if reserved categories are given accelerated promotion from level to level, that would virtually wipe out the chances of the general category. It was demonstrated that in the Punjab Government, 100% of the Deputy Secretaries and Under Secretaries would be manned by SC /ST categories whereas Superintendents Grade I would be manned to the extent of 53%. While in Haryana, 100% Headmasters and 71% of Headmistresses in the Education Department would be from SC/ST candidates.

The Supreme Court has repeatedly pointed out the need for balancing the rights of reserved candidates with the rights of other employees in the general category. The Supreme Court was therefore, perfectly justified in observing that the absence of promotional equality would be unconstitutional. This judgment is now nullified by the amendment passed by both Houses in December, 2001.

Some reservations

The 77th and 80th amendments have now been challenged before the Supreme Court. The amendment will also be challenged.

There is no doubt that the latest amendment has been passed without any debate or reference to any joint committee because of the forthcoming elections in Uttar Pradesh.In reality, most of the benefits of reservation are garnered by the rich and famous and conditions of the really deserving members of the reserved category has remained unchanged for 40 years.

It is a tragedy that not a single party thought it fit to debate the serious consequences of the amendment. Article 335 emphasises the importance of maintaining efficiency of the administration while taking into account the clams of SC/ST candidates.

There is no doubt reservations are still necessary. There is equally no doubt the creamy layer has to be excluded so that Dalits genuinely benefit. Like a drug addict who will do anything for his next fix, our MPs have not hesitated to sacrifice the national interest if such a move will generate a few more votes at the next election.

(The writer is a senior advocate)