In April 2020, the Hon’ble Supreme Court of India in the case of Pravakar Mallick & Anr. v. State of Orissa & Ors. [Mallick], ruled upon the Civil Appeal filed by the Appellants aggrieved by the Order of the Orissa High Court in a writ petition regarding reservation in promotions. The central issue was the validity of a Government Order altering the gradation list whereby the SC/ST candidates were given seniority against the General category officers in promotions.
Details of the Judgement
Present Respondents, general category officers, were appointed in Orissa Administrative Services in the 1980s and got promoted in 2000. The Appellants herein, who were appointed in the 1990s also got promoted to the same level in 2000 against the reserved category positions. A Government Resolution was passed in 2001 which maintained the seniority of the Respondents. However, the 2001 Amendment Act was passed and subsequently a Government Resolution of the year 2002 was prepared which altered the seniority and granted it the reserved category officers.
Respondents failed in their challenge to this alteration before the Orissa Administrative Tribunal. Thereafter, they filed a writ petition in the Orissa HC seeking quashing of Government Resolution and the consequential Gradation List.
The High Court held that Article 16(4) empowers the State Government to only make laws for granting promotion in services. As the Government Resolution cannot be considered law under Article 12 of the Constitution, it is invalid. Thus, the HC retained the seniority of the present Respondents.
Aggrieved by the Order of the HC, the Appellants approached the SC. The Appellants relied on the Nagaraj judgement, to submit that the State has the power to grant reservation with consequential seniority either by way of a legislation or an executive order. Further, Section 10 of the Orissa Reservation of Vacancies in Posts and Services (For SCs and STs) Act, 1975 was relied upon to submit that the existing State laws allow for reservation in promotions and consequential seniority.
To this, the Respondents submitted that Art. 16(4) is an enabling provision which entrusts the power to make law on this matter, and in no manner, it is mandatory to do so. The Respondents further submitted that to grant reservation, the government has to prove that the representation of the class was not adequate.
The Supreme concluded that: firstly, Orissa has not made any special law to grant reservation in promotions according to Art. 16(4) in the form of a legislation or an executive order; secondly, that the Government Resolution cannot be considered a law and is issued merely based on the instructions issued by the Government of India; thirdly, the Orissa Act of 1975 does not have any provision for grant of seniority to the promoted officers; fourthly, the requirement of adequacy was not met by the Orissa Government; and fifthly, the Original 2001 Government Resolution be reinstated and the seniority should be with the general category Respondents who joined the services earlier.
Analysis of Mallick case and Approach of the Indian Judiciary
In terms of the factual scenario presented before the Court in this matter, the ultimate conclusion in Mallick cannot be failed with. Unfortunately, the reasoning and reliance on precedents in reaching that conclusion could have been better.
Due to some inconsistent judgements and lack of clear law on the subject there exists a governance paralysis on the issue of reservation in promotions. The SC in the case of Virpal Singh, evolved the ‘catch up principle’ which postulates that reserved promoted candidates are not entitled to seniority in the promoted post and if the general category candidate reaches the said post, he is entitled to seniority over the promotees to reserved vacancies. This position was deviated from by the SC in its subsequent judgment (Jagdish Lal), wherein the Court provided the reserved category candidates seniority in the promotion and held that seniority should be on the basis of promotions and not the time of the first appointment. Fortunately, this position was overruled later and the previous approach of the catch-up rule was reinstated (Ajit Singh).
The Amendment Act further complicated the position leading to new tests being invoked by the judiciary to determine the validity of reservation in promotions. A Constitution Bench of the SC in the case of Nagaraj while upholding the constitutional validity of Article 16(4) of the Constitution laid down a mandatory requirement. According to the Nagaraj judgement, the States have the liberty to make laws to grant reservation in promotions if they collect quantifiable data showing backwardness of the class and inadequacy of representation in public employment. This mandatory requirement was seen as a rider on the constitutional power of the State Government and was thus criticized. This position was corrected by the SC vide its decision in the case of Jarnail Singh, wherein the SC opined that this requirement violates the principles laid down in the Indra Sawhney case.
The most correct position in this matter can be inferred from two decision of the SC in the B.K. Pavitra matter. In its 2018 Order, the SC emphasized upon the determination of ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’ by the State Government to for exercising powers under Article 16(4A). Finally, in its 2019 Order, the SC declared the Karnataka State Legislation which provided for reservation in promotion as constitutional as it followed the principle of adequacy of representation and went a step further and determined that this step was necessary for the overall administrative efficiency.
The most important aspect to be noted while granting reservation in promotion is that a mere disproportionate representation of officers from the reserved category in promotional posts should not be the sole criteria for extending the benefit of Article 16(4). However, the SC in Mallick failed to lay down any standard formula which should be carried upon conclusively. Though it took into consideration various judicial precedents into consideration, it did not rely on them to deliver the judgment.
The judiciary is taking a parochial view in resolving this issue which is deeply entrenched in the field of public employment. It is evident that the Indian Courts have laid down various mandatory requirements to be followed by individual states while making law for grant of reservation in promotions. They have evolved various principles to guide the law-makers. A combined reading of Nagaraj, B.K. Pavitra, and Jarnail Singh would lay down the requirements that need to be adhered to and the proportionality sought to be achieved in making law for grant of reservation in promotions and consequential seniority.
However, the actual issue to be answered is the dispute between equality in law [Article 16(1)] and equality in fact [Article 16(4) and (4A)]. While 16(1) allows equality of opportunity to every citizen, 16(4) and (4A) runs contrary to it and provides special rights to backward classes. A balance needs to be struck by the judiciary so as to ensure a consistent approach in all States of the country. The approach should be tailored in a way to achieve maximum efficiency while ensuring adequate representation of all the classes rather than relying upon quantifiable data grant reservation.
ABOUT THE AUTHOR
Chitransh Vijayvergia is a final year BA LLB (Hons.) student at the National University of Advanced Legal Studies, Kochi. He has a keen interest in dispute resolution laws and insolvency laws but he often writes on other fields of law as well.