Justice P.B. Sawant[1]
Question VIII:
Would reservation of appointments or posts “in favour of any Backward Class” be restricted to the initial appointment to the post or would it extend to promotions as well?
539. None of the impugned government memoranda provide for reservations in promotions. Hence, the question does not fall for consideration at all and any opinion expressed by this Court on the said point would be obiter. As has been rightly contended by Shri Parasaran, it is settled by the decisions of this Court that constitutional questions are decided only if they arise for determination on the facts, and are absolutely necessary to be decided. The Court, does not decide questions which do not arise. The tradition is both wise .and advisable. There is a long line of decisions of this Court on the point. The principle is so well-settled and not disputed before us that it is not necessary to quote all the authorities on the subject. To mention only two of them, see The Central Bank of India v. Their Workmen, ((1960) 1 SCR 200) and Harsharan Verma v. Union of India, (AIR 1987 Supreme Court 1969).
540. The reservations in the services under Article 16(4), except in the case of SCs/STs, are in the discretion of the State. Whether reservations should at all the kept and if so, to which field and at what levels and in which mode of recruitment – direct or promotional — and at what percentage, are all matters of policy. Each authority is required to apply its mind to the facts and circumstances of the case before it and depending upon the field, the post, the extent of the existing representation of different classes, the need, if any, to balance the representation, the conflicting claims etc., decide upon the measures of reservations. The reservations, as stated earlier, cannot be kept mechancically even where it is permissible to do so. For some reasons, if Central Government, in the present case, has not thought it prudent and necessary to keep reservations in promotions, the decision of the Central Government should not be probed further. it is for the Government to frame its policy and not for this Court to comment upon it when it is not called upon to do so.
541. However, if it becomes necessary to answer the question, it will have to be held that the reservations both under Article 16(1) and 16(4) should be confined only to initial appointments. Except in the decision in Rangachari (AIR 1962 Supreme Court 36) (supra), there was no other occasion for this Court to deliberate upon this question. In that decision, the Constitution Bench by a majority of three took the view that the reservations under Article 16(4) would also extend to the promotions on the ground that Articles 16(1) and 16(2) are intended to give effect to Articles 14 and 15 (1). Hence Article 16(1) should be construed in a broad and general, and not pedantic and technical way. So construed, “matters relating employment” cannot mean merely matters prior to the act of appointment nor can ‘appointment to any office’ mean merely the initial appointment but must also include all matters relating to the employment, that are either incidental to such employment or form part of its terms and conditions, and also include promotion to a selection post. The Court further observed that :
“Although Article 16(4), which in substance is an exception to Articles 16(1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme solicitude shown by the Constitution for the advancement of socially and edcuationally backward classes of citizens.
The scope of Article 16(4), though not as extensive as that of Article 16(1) and (2), – and some of the matters relating to employment such as salary, increment, gratuity, pension and the age of superannuation, must fall outside its non-obstante clause, there can be no doubt that it must include appointments and posts in the services. To put a narrower construction on the word ‘posts’ would be to defeat the object and the underlying policy. Article 16 (4), therefore, authorises the State to provide for the reservation of appointments as well as selection posts.”
542. The majority has, however, added that in exercising the powers under the Article, it should be the duty of the State to harmonise the claims of the backward classes and these of the other employees consistently with the maintenance of an efficient administration as contemplated by Article 335 of the Constitution.
Justice Wanchoo, one of the two Judges who differed with the majority view held that Article 16(4) implies, as borne out by Article 335, that the reservation of appointments or posts for backward classes cannot cover all or even a majority of the appointments and posts and the words “not adequately represented”, do not convery ? any idea of equality but mean sufficiency of numerical representation in a particular service, taken not by its grades but as a whole. Appointments, according to the learned Judge, must, therefore, mean initial appointments and the reservation of appointments means the reservations of a percentage of initial appointments. The other learned Judge, viz., Ayyangar, J., forming the minority held that Article 16 (4) has to be read and construed in the light of other provisions relating to services and particularly with reference to Article 335. So construed, the word “post” in that Article must mean posts not in the services but posts outside the services. Even assuming that it was not so, according to the learned Judge, the inadequacy of representation sought to be redressed by Article 16 (4) meant quantitative deficiency of representation in a particular service as a whole and not in its grades taken separately, nor in respect of each single post in the service. By this reasoning the learned Judge held that Article 16(4) can only refer to appointments to the services at the initial stage and not at different stages after the appointment has taken place.
544. It has been pointed out earlier that the reservations of the backward classes under Article 16 (4) have to be made consistently with the maintenance of the efficiency of administration. It is foolhardy to ignore the consequences to the administration when juniors supersede seniors although the seniors are as much or even more competent than the juniors. When reservations are kept in promotion, the inevitable consequence is the phenomenon of juniors, however low in the seniority list, stealing a march over their seniors to the promotional post. When further reservations are kept at every promotional level, the junior not only steal march over their seniors in the same grade but also over their superiors at more than one higher level. This has been witnessed and is being witnessed frequently wherever reservations are kept in promotions. It is naive to expect that in such circumstances those who are superseded, (and they are many) can work with equanimity and with the same devotion to and interest in work as they did before. Men are not saints. The inevitable result, in all fields of administration, of this phenomenon is the natural resentment, heartburning, frustration, lack of interest in work and indifference to the duties, disrespect to the superiors, dishonour of the authority and an atmosphere of constant bickerings and hostility in the administration. When, further, the erstwhile subordinate becomes the present superior, the vitiation of the atmosphere has only to be imagined. This has admittedly a deleterious effect on the entire administration.
545. It is not only the efficiency of those who are thus superseded which deteriorates on act. count of such promotions, but those superseding have also no incentive to put in their best in work. Since they know that in any case they would be promoted in their reserved quota, they have no motivation to work hard. Being assured of the promotion from the beginning, their attitude towards their duties and their colleagues and superiors is also coloured by this complex. On that account also the efficiency of administration is jeopardised.
546. With respect, neither the majority nor the minority in the Constitution bench has noticed this aspect of the reservations in promotions. The later decisions which followed Rangachari (AIR 1962 Supreme Court 36) were also not called upon to and hence have not considered this vital aspect. The efficiency to which the majority has referred is with respect to the qualifications of those who would be promoted in the reserved quota.
547. The expression “consistently with the maintenance of efficience of administration” used in Article 335 is related not only to the qualifications of those who are appointed, it covers all consequences to the efficiency of administration on account of such appointments. They would necessarily include the demoralisation of those already in employment who would be adversely affected by such appointments, and its effect on the efficiency of administration. The only reward that a loyal, sincere and hard-working employee expects and looks-forward to in his service career is promotion. If that itself is denied to him for no deficiency on his part, it places a frustrating damper on his zeal to work and reduces him to a nervous wreck. There cannot be a more damaging effect on the administration than that caused by an unreasonable obstruction in the advancement of the career of those who run the administration. The reservations in promotions are, therefore, inconsistent with the efficiency of administration and are impermissible under the Constitution.
548. There is also not much merit in the argument that the adequacy of representation in the administration has to be judged not only on the basis of quantitative representation but also on the basis of qualitative representation in the administration and, hence, the reservation in promotions are a must. There is no doubt, as stated earlier, that the adequacy of representation in administration has also to be judged on the basis of the qualitative representation in it. However, the qualitative representation cannot be achieved overnight or in one generation. Secondly, such representation cannot be secured at the cost of the efficiency of the administration which is an equally paramount consideration while keeping reservations. Thirdly, the qualitative representation can be achieved by keeping reservations in direct recruitment at all levels. It is true that there is some basis for the grievance that when reservations are kept only in direct recruitment, on many occasions the rules for appointment to the posts particularly at the higher level of administration, are so framed as to keep no room for direct recruits. However, the remedy in such cases lies in ensuring that direct recruitment is provided for posts at all levels of the administration and the reservation is kept in all such direct recruitment.
549. It must further be remembered that there is a qualitative difference in the conditions of an individual who has entered the service as against those of one who is out of it, though both belong to the backward classes. The former joins the mainstream of all those similarly employed. Although it is true that he does not on that account become socially advanced at once, in some respects, he is not dissimilarly situated. The handicaps he suffers on account of his social backwardness can be removed, once employed, by giving him the necessary relaxations, exemptions, concessions and facilities to enable him to compete with the rest for the promotional posts where the promotions are by selection or on merit-cum-seniority basis. A provision can also be made to man the selection committees with suitable persons including those from the backward classes and to devise methods of assessment of merits on impartial basis. The selection committee should also ensure that the claims of the backward class employees are not superseded. These measure, instead of the exclusive quota, will go a long way in instilling self-confidence and self-respect in those coming into the service through the reserved quotas. They may not have to face work in a hostile and disrespectful atmosphere since they would have won their promotional posts by dint of their seniority and/or merit no less commendable than those of others. The urge to show merit and shine would also contribute to overall efficiency of the administration.
550. There is no doubt that the meaning of the various expressions used in Article 16, viz., “matters relating to employment or appointment to any office”, “any employment or office” and “appointments or posts” cannot be whittled down to mean only initial recruitment and hence the normal rule of service jurisprudence of the loss of the birth marks cannot be applied to the appointments made under the Article. However, as pointed out earlier, the exclusive quota is not the only form of reservation and where the resort to it such as in the promotions, results in the inefficiency of the administration, it is illegal. But that is not the end of the road nor is a backward class employee helpless on account of its absence. Once he gets an equal opportunity to show his talent by coming into the main-stream, all he needs is the facility to achieve equal results. The facilities can be and must be given to him in the form of concessions, exemptions etc. such as relaxation of age, extra attempts for passing the examinations, extra training period etc. along with the machinery for impartial assessment as stated above. Such facilities when given are also a part of the reservation programme and do not fall foul of the requirement of the efficiency of the administration. Such facilities, however, are imperative if, not only the equality of opportunity but also the equality of results is to be achieved which is the true meaning of the right to equality.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448