The Hindu : National : "Verdict on quotas in promotions reserved"

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Wednesday, May 10, 2006

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National

"Verdict on quotas in promotions reserved"

S. Muralidhar, Advocate, Supreme Court, New Delhi, writes correcting the factual errors in the news item, "Verdict on quotas in promotions reserved," ( The Hindu , May 5):

I am one of the lawyers appearing in the cases which were heard. I wish to point out that para 3 of the news report contains the following factual errors:

The challenge in the petitions was to the validity of the 77th, 81st, 82nd and 85th amendments. (The report omits the challenge to the 81st amendment and wrongly refers to the 83rd amendment as also being challenged).

The 77th amendment was enacted to overcome the Supreme Court ruling in the Mandal case to the extent the ruling invalidated reservations for scheduled castes and scheduled tribes (SCs, STs) in promotions. In other words, the amendment (which inserted Article 16 (4A)) leaves untouched the Supreme Court ruling to the extent it prohibits reservation in promotions for other backward classes (OBCs). (The first sentence of para 3 of the report is misleading to this extent).

The Supreme Court ruling in the Mandal case had stated that not more than 50 per cent of the backlog vacancies of the reserved categories should be filled in a year. To overcome this the 81st amendment inserted Article 16(4B) which permitted the State to treat separately the backlog vacancies for the reserved categories and not count them for the purpose of applying the 50 per cent ceiling of backlog vacancies (both at the entry level and promotions) to be filled in a year. (The report makes no reference to this).

Article 335 states that the claims of the SCs, STs must be considered by the State "consistently with the maintenance of efficiency of administration." The Supreme Court had in a 1996 ruling invalidated relaxed qualifying marks in exams or lower evaluation standards for SCs and STs. To overcome this the 82nd amendment inserted a proviso (i.e., an exception) to Article 335 which permits the State to do precisely this, i.e., make provisions for Scheduled Castes and Scheduled Tribes for (a) relaxation in qualifying marks in any examination and (b) lowering the standards of evaluation in matters of promotions. (The report wrongly describes what Article 335; it further erroneously states that the 82nd amendment was inserted to do away with Article 335 altogether).

The 83rd amendment exempted Arunachal Pradesh from the requirement of making reservations for SCs in village panchayats since no such population exists in that State. (The report describes the content of the amendment wrongly; it also errs in stating that this was challenged in the cases heard by the Supreme Court).

The Supreme Court in a ruling in 1999 had declared that even if the SCs, STs were given `accelerated promotions' by virtue of their quotas, they would not be given the `consequential seniority'. To overcome this judgment, the 85th amendment was enacted which further amended Article 16 (4A) to enable the State to also give consequential seniority upon promotion of the SCs, STs. (The report states that the amendment `widened the scope' to provide for reservations in promotions even for OBCs. This is totally incorrect).

The relevant paragraph 3 published in The Hindu read:

The 77th amendment was brought to do away with the Supreme Court ruling in the Mandal Commission case restricting quotas to appointments as opposed to promotions. Article 16 (4A) was inserted to provide for reservation in promotions for the Scheduled Castes and Scheduled Tribes; the 82nd amendment was intended to do away with the provision in Article 335 that allowed reservation, subject to "efficiency of administration" (the Government brought this amendment in 2000 to allow reservation by lowering the standards of evaluation); the 83rd amendment was brought in to do with job reservation in certain States and the 85th amendment widened this scope to provide for reservation in promotions even for the Other Backward Classes.

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