Promotion Quota: Winnow out creamy layer

By Prabhakar Timble
11 December 2012 05:52 IST

The Constitution 117th Amendment Bill to provide for reservations in matters of promotions to any class of posts in favour of Scheduled Castes and Scheduled Tribes is running into rough weather in Parliament. If Article 16 of the Indian Constitution finally stands amended empowering the State to make reservations by floating a promotion quota in favour of SC/ST, this constitutional amendment would also face turbulent winds in the Supreme Court. Past history shows that the courts refrain from imputing malafides to the legislature and do not normally upset the amending power of the Parliament. The government taking an All-Party meeting and a general consensus has moved the amendment to nullify the impediment imposed due to the judgement in the case of Indra Sawhney Vs. Union of India (AIR 1993: SC). Known as the Mandal Commission case, the Supreme Court underscored that the rule of protection or reservation does not apply to promotions. Article 16(4) makes reservations permissible at the stage of entry level but in no way contemplates protective discrimination in promotions. The promotion quota bill tabled in the Rajya Sabha seeks to provide a constitutional mandate for reservations in promotions in the services under the State. Granting parliamentary sovereignty, a promotion quota would not be fair in the interests of harmonious working of State services.

Equity & adequate representation

The scheme of reservations enunciated through the earlier amendments to Article 16 of the Constitution are certainly just and fair since the handicap of the SC/ST is sought to be corrected at the stage of initial appointment. This is to promote equality through equity as well as to ensure adequate representation to different classes of people in the services of the government. The classification of SC/ST constitutes a differently abled group at the entry level and hence the protection is tenable.  There is definitely a difference between the persons or things grouped together and those left out of the group and as a result the classification is reasonable. The objective of protection or reservation is also logical since it is intended to provide a representation in public employment and all-India services of the State. The SC/ST is sparsely represented in public services largely due to social backwardness, effective awareness and access blocks. It is through a mechanism of protective discrimination that the conveyor belts to public services needs to be cleaned for government services to represent the different classes in the society.

After the entry level and equalisation of opportunities, further reservation as promotion quota could be oppressive not just to the open category but also to SC/ST. Such a quota raj would mean creation of a permanent separate category isolating the mainstream. What is actually needed to promote equity and justice is to enable entry. Any further isolation throughout the career would result in a vertical division in the administrative services resulting in negative fallout in personnel administration and efficiency. After entry, it is advisable to construe all officers at equal footing for promotions probably based on a mix of qualifications, seniority, confidential reports and performance appraisals. At the most, the minimum standards for promotions prescribed in respect of SC/ST could be lower than others without sacrificing merit and efficiency in administration.

In the Mandal Commission case, the Supreme Court has clearly stated that considering the demands of adequate representation in public services, lower standards could be prescribed for promotions of SC/ST officers but under no circumstances there should be blanket reservation. The Court has done a fine job in the Mandal case upholding reservations except for promotions. At the same time the judicial arm has also stated that it is even not advisable to apply reservations to certain types/classes of employment such as super-specialities in medicine, engineering, scientific research, technical posts in defence and teaching posts from the grade of Professors and others. The proposed amendment to the Constitution providing for reservation in respect of promotions would prove to be harmful in the interests of growth and fair play.

Chop the creamy layer

However, the government is bent upon amending the constitution to keep the promotion quota outside the purview of the High courts and Supreme Court. The Courts would be tight lipped once an amendment providing promotion quota would be the constitutional law of the day. Probably, courts would not be competent to adjudicate on the promotion quota for SC/ST after the amendment of the constitution. The judiciary would only step forward to rectify any gross anomalies by individual states. 

The present law on protective discrimination in public employment is actually a harmonious mix taking care of efficiency, merit and equity. However, no major political party is expected to oppose the proposed amendment since any opposition however rational and sane would be viewed as opposing the interests of the SC/ST.   Surprisingly, the Mulayam Singh led Samajwadi Party is not in favour of reservations in promotions. No political party wants to invite the label of being anti-Dalit. Though, a quota in promotions would not make a material difference to the life of the less privileged Dalits, the move seems to be to satisfy the likes of Mayawati and followers  including Dalit intellectuals who read this step as empowerment of SC/ST.

What is needed to increase the representation of SC/ST in government services is the implementation of the doctrine of exclusion of creamy layer as recommended by the apex court. If the word “Brahmin” is used in terms of socially forward class in terms of opportunity and access, then we need to recycle this terminology to locate the “Brahmins” in SC/ST. When a member of these classes becomes a part of IAS/IPS/IFS or judicial service or public services of any state, the member no longer stands socially backward, disadvantaged and handicapped. The status of such a member rises in the society and the access and entitlement to the privileges of education and life happen as a matter of course. Clothing such members and their children with further protection by way of reservation is denying the right of access to opportunity to the ‘socially backward’ SC/ST members. The government should come forward with legislation to winnow out and eject the privileged, forward and socially empowered members from the SC/ST from cornering the benefits of reservations to restore fairness and equity in the innovative scheme of protective discrimination enshrined under Article 16 of the Constitution.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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