Justice R.M. Sahai [1]
617. Promotion is the most sensitive branch of service jurisprudence. Although its purpose is manifold but the principal objective is, ‘to secure the best possible incumbents for the higher positions while maintaining the morale of the whole organisation’ Introduction to the Study of Public Administration by Leonard D. White page 380 as it not only, ‘serves the public interest’ Introduction to the Study of Public Administration by Leonard D. White page 380 but is founded on the inherent principle that the higher one moves the greater is the responsibility he assumes.
618. Manner and method of promotion is usually linked with the nature of posts, if it is selection or non-selection. Reservation, for SC/ST, has been extended, to both, by this Court in Rangachari and Soshit Karamchari respectively reiterated, in State of Punjab v. Hira Lal, [1971 (3) SCR 267] and Jagannathan. Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagarmathan, [1986(2) SCR 17]
In Rangachari it was held, the condition precedent may refer either to numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation’. Rangachari, (AIR 1962 Supreme Court 36) (supra)
In the context the expression, ‘adequately represented imports consideration of size as well. as values, numbers as well as the nature of appointments’. Rangachari (supra)
619. But inadequacy of representation is creative of jurisdiction only. It is not measure of backwardness. That is why less rigorous test or lesser marks and competition amongst the class of unequals at the point of entry has been approved both by this Court and American Courts. But a student admitted to a medical or engineering college is further not granted relaxation in passing the examinations. In fact this has been explained as valid basis in American decisions furnishing justification for racial admissions on lower pecentage. Rationale appears to be that every one irrespective of the source of-entry being subjected to same test neither efficiency is effected nor the equality is disturbed. After entry in service the class is one that of employees. If the social scar of backwardness is carried even, thereafter the entire object of equalisation stands frustrated. No further classification amongst employees would be justified as is not done amongst students.
620. Constitutional, legal or moral basis for protective discrimination is redressing identifiable backward class for historical injustice. That is they are today, what they would not have been but for the victimisation. Remedying this and to balance the unfair advantage gained by others is the constitutional responsibility. But once the advantaged and disadvantaged the so-called forward and backward, enter into the same stream then the past injustice stands removed. And the length of service, the seniority in cadre of one group to be specific the forward group is not as a result or any historical injustice or undue advantage earned by his forefather or discrimination against the backward class, but because of the years of service that are put by an employee, in his individual capacity. This entitlement cannot be curtailed by bringing in again the concept of victimisation.
621. Equality either as propagated by theorists or as applied by courts seeks to remove inequality by, ‘parity of treatment under parity of condition’, C. J. Ray in Thomas, (AIR 1976 Supreme Court 490)(supra)
But once in ‘order to treat some persons equally, we must treat them differently” Justice Black Burn in Bakke, (1978 (57)Law Ed 2d 750) (supra) page 844 has been done and advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating, effects of past discrimination but perpetuating it.
622. Constitutional sanction is to reserve for backward class of persons. That is class or Group interest has been preferred over individual. But promotion from a class or, group of employees is not promoting a group or class but an individual. It is one against other. No forward class versus backward class or majority against minority. It would, thus, be contrary to the Constitution. Brother Kuldip Singh, for good and sound reasons has rightly opined, that, Rangachari cannot be held to be laying down good law.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448