Quotas not a fundamental right
In a major judgement, the Supreme Court has said on 9 February 2020 that there is "no fundamental right which inheres in an individual to claim reservation in promotions", and also no court can order a state government to provide for reservation to SC/STs. A bench comprising Justices L. Nageswara Rao and Hemant Gupta said, "In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations.
- Citing the necessity of relevant data collection regarding representation of SC/STs in public jobs, the apex court emphasized this exercise is prerequisite to begin reservation. And this data collection exercise, is not required when the state government decided not to provide reservations.
- The top court observed the state government has the absolute discretion to decide whether or not to provide for reservation in jobs or reservation in promotions. Also, the state government is not under any obligation to do so.
- Citing its judgement, the bench said that Article 16(4) and 16(4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled Castes and Scheduled Tribes in public service is a "sine qua non for providing reservations in promotions."
- The top court also clarified that a state government is bound to collect data regarding inadequacy of representation of SCs/STs in government services when it wants to provide reservation but otherwise.
- The top court also observed that the state cannot be issued directions to provide reservations for appointment in public posts. The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions, added the court.
- However, if a situation arises where such provisions were to be introduced, then the state government concerned should collect quantifiable data, which exhibits inadequacy of representation of that class in public services. And, this data would have to be brought on record before the court when a challenge is laid to the reservation policies.
- The court observed, "Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Scheduled Tribes in State services.
- Even if the under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation.
- The apex court also observed that the inadequacy of representation of SC/STs is a matter within the subjective satisfaction of the State. The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed, added the court.
- The ruling of the top court came on a clutch of petitions connected with reservation to Scs and STs in promotions in the posts of Assistant Engineer (Civil) in Public Works Department, Government of Uttarakhand, where the government had decided against reservations. But, the High Court asked the state to first collect quantifiable data connected with representation of SCs/STs, and decide on the matter.
- The High Court also gave another direction that all future vacancies that are to be filled up by promotion in the posts of assistant engineer, should only be from the members of SCs and STs. The apex court set aside these directions.
- The top court, however, said that if the decision of the state government to provide reservations in promotion is challenged then the state concerned will have to place before the court the quantifiable data that reservations became necessary on account of inadequacy of representation of SCs and STs without affecting general efficiency of administration as mandated by Article 335.
- Under Article 16, the state can make reservations in matters of appointment and promotion in favour of the SCs and STs if they are not adequately represented in the services of the state.
- However, it is for the states to decide whether reservations are required in the matter of appointment and promotions to public posts.
- The issue of reservations is a contentious one, with a petition regarding halting of benefits for well-off members from SC/ST communities - the "creamy layer" - pending in the Supreme Court.
- In 2018 a five-judge Constitution Bench said the "creamy layer" could not get benefits of reservation in government jobs.
- In December last year the centre requested a seven-judge bench to review this.