Reservation as a
concept is very wide. Different people understand reservation to mean different
things. One view of reservation as a generic concept is that reservation is
anti-poverty measure. There is a different view which says that reservation is
merely providing a right of access and that it is not a right to redressal.
Similarly, affirmative action as a generic concept has a different connotation.
Some say that reservation is not a part of affirmative action whereas others
say that it is a part of affirmative action.
ON CONCERN OF EFFICIENCY/MERIT
The words ‘consistently with the maintenance of efficiency of
administration’ under Article 335 of the Constitution of India are capable of
being read differently though have not been so read by the courts so far. In a
mixed and diverse society as in India, representation of all sections of
society in different walks of life creates an integral and, therefore,
efficient society. Accordingly, representation of SC/STs which constitute about
24.4% as per Census 2011 of the total population of the country and whose
representation in the State administration is small, if not totally absent,
will lead to efficiency in the administration. So, the intention of the
constitution makers directed that in consistency with the goal of maintenance
of efficiency of administration of SC/STs must be duly represented in the State
administration. It may also be argued
that active inclusion of about such percentage of population into the category
from which the administrators have to be selected creates wider choice must
naturally lead to selection of better administrators. Thus the words
‘consistently with the maintenance of efficiency of administration are not the
words of limitation but of guidance that in order to ensure maintenance of
efficiency of administration the claim of SC/STs must be taken into
consideration in making the appointments to services and posts qua the affairs
of the Union and the States.
On Nagraj Case and Article
335 of the Constitution
As per the present case, the perquisite under Article 335 is
‘efficiency’, though originally it is “consistently with the maintenance of
efficiency of administration”. To
understand the very concept efficiency in light of socio-economic empowerment
of SC/STs some excerpts from the Nagraj Case are as follows “…. Article 335 is to be read with Article
46 which provides that the State shall promote with special care the
educational and economic interests of the weaker sections of the people and in
particular of the scheduled castes and scheduled tribes and shall protect them
from social injustice. Therefore, where the State finds compelling interests of
backwardness and inadequacy, it may relax the qualifying marks for SCs/STs.
These compelling interests however have to be identified by weighty and
comparable data.”
The Court,
however recognizes that, “it is for the State concerned to decide in a given
case, whether the overall efficiency of the system is affected by such relaxation….in
other cases, the State may evolve a mechanism under which efficiency, equity,
and justice, all three variables could be accommodated. Further, the Courts admission that
determination of efficiency of administration lies with the State is highly
supportive of the claims of the SCs and STs under Article 335.
However, it
has been observed that there is difficulty in collection of
quantifiable/comparable 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, due to lack of established
common practice to collect
such information.
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.
In State of U.P. v. Dina Nath Shukla, the Court also observed that “Thus Article 335 read with Articles 46, 38 and 16
would give the socio-economic empowerment to the Dalits and Tribes and rule of
reservation in the matter of appointment to a service or post under the State
is part of the constitutional scheme as a positive facility and opportunity
available to them and where it is extended to OBCs., they too get opportunity
to strive to improve excellence in a service or a post in which he or she gets
appointment.”
The proviso to Article 335 i.e. added by the 82nd
Constitutional Amendment, 2000, that, …..nothing in this article shall prevent
in making any provisions in favor of
SC/STs for relaxation in qualifying marks in any examination…. Clarifies that for inducting the SC/STs
candidates of State services, the required qualification may be relaxed… Thus
adequate representation is given priority over other considerations as
expressly mentioned from time-to-time.
Therefore, it is out of the box to reiterate that the concern of
efficiency lies at the heart of objections to quota s in promotion.
When it comes to ‘efficiency’ especially of the down trodden of the
society in India, who are fighting from thousands of years for their rights,
should it not be the responsibility of the State to make them efficient. In
present scenario, it would not be out of the place to assert that even proportional
reservation of 70% for SC/STs would be very much constitutional under Article
of 14 of the Constitution.
ON EMPIRICAL BATTLE AND
117TH CONSTITUTIONAL AMENDMENT BILL, 2012
Let’s examine the
proposed amendment in Article 16 (4A) through 117th Constitutional
Amendment Bill, 2012, so the proposed substitution for the later is as follows,
“(4A) Notwithstanding anything contained elsewhere in the Constitution, the
Scheduled Castes and the Scheduled Tribes notified under article 341 and
article 342, respectively, shall be deemed to be backward and nothing in this
article or in article 335 shall prevent the State from making any provision for
reservation in matters of promotions, 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 to the extent of the percentage of
reservation provided to the Scheduled Castes and the Scheduled Tribes in the
services of the State.”.
Once the proposed
substitution of Article 16 (4A) will come in to force, it will do away with all
perquisites under present Article 16 (4A) of “not adequately represented in the
services under the state”, of ‘efficiency’ Article 335, and also of Nagraj
case. However it doesn’t mean that it
would violate the principle of equity, justice and efficiency as laid down
under Article 14, 16, 335 and others. The proposed amendment seeks to bring
more lucidity in the scenario of promotion, seniority and catch up rule
prevailed so long in government services.
Gone were the days when
Article 16(4) was read by the Hon’ble Supreme Court as an exception to Article
16(1). That controversy got settled in Indra Sawhney v. Union of India case.
The words “nothing in this Article” in Article 16(4) represents a legal device
allowing positive discrimination in favour of a class. Therefore, Article 16(4)
relates to “a class apart”. So, on this basis, as much anticipated that the
proposed 117th Amendment would not stand the test of validity under basic
structure of the constitution on the account of adequate ‘representation’ and
‘efficiency’, it would not be wrong to state it so much valid under the
Constitution of India.
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