Reservation in Promotion : Some Legal Issues
Constitution (77th) Amendment Act, 1995 added a clause 16 (4A) to Constitution of India. The clause does not confers any fundamental right ; it is only a power given to State.
Later on, in 2002, Constitution (85th) Amendment Act, 2001 came. It was deemed to have come into force on 17 June 1995. It again amended Article 16 (4A) of the Constitution by adding concept of consequential seniority.
Therefore, A.16 (4A) affects the unreserved category candidates that too with retrospective effect. At that point, one needs to keep in mind the aspects of retrospectivity and the limits of retrospectivity.
Union of India v Virpal Singh Chauhan [1995] GCtR 2716 (SC) was very clear. It carried effect of Article 141 of Constitution of India. The law was clearly pointed out there thus : "providing reservation in promotion is not warranted by Article 16(4)". The principle is also clear that reserved category candidates can also be treated as general category candidates. Shri Altaf Ahmed was then ASG ; he made certain submissions. The other argument made was "giving accelerated seniority in addition to accelerated promotion amounts to conferring double benefit upon the members of reserved category and is violative of rule of equality in Article 16(1)" and "accelerated promotion-cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration come to be occupied almost entirely by members of reserved categories". It was also argued that "a candidate belonging to reserved category appointed/promoted on the basis of rule of reservation should not be held entitled to compete for a general vacancy in the roster. The law was then clarified : "the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over his senior in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will regain his seniority over the reserved candidate notwithstanding that he is promoted subsequent to the reserved candidate."
Also useful is National Federation of S.B.I. v Union of India [1995] GCtR 2717 (SC). The retrospective benefits were rightly denied there. The statement of Ministry was noted. In my view, Ministry's statement clearly indicated that there is no reservation for SCs/STs in promotion. The counsel's argument regarding reservation in promotion were clearly disagreed with. It was noted that the directive does not provide for reservation in promotion. The incorrectness of granting reservation in promotion was made very clear. The law was rightly enunciated : "There can be no roster in the absence of rule of reservation.If the rule of reservation is not made applicable to a particular appointment or promotion, there can be no question of following the forty-point roster therefore."
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Written by
Vishal
Delhi
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