Reservation in promotion is a highly debatable issue between the Supreme Court and Parliament. In the Indra Sawhney case, the Supreme Court had held that Article 16(4) does not allow for reservation in promotion. Since then, the Parliament had enacted various constitutional amendments for legalizing the reservation in promotion. Thus, in Nagraj Vs. Union of India, 2006 the Supreme Court had granted reservations in promoting SCs/STs with strict conditions; if these conditions are not fulfilled, then the State cannot grant promotion.
This article will discuss Constitutional Seniority in promotion, the 85th Constitutional Amendment, Article 16(4), the Consequential Seniority and catch-up rule, Karnataka Reservation Act, 2018, and the latest supreme court judgment on Consequential Seniority.
What is Consequential Seniority?
Consequential Seniority means reservation in promotion in public employment; such reservations are granted to the Scheduled Castes and Scheduled Tribes (SCs/STs).
Consequential Seniority allows candidates from reserved category to retain seniority over general category candidates. Therefore, if a candidate from the reserved category is promoted before a general category candidate due to reservation in promotion, then the reserved candidate will retain seniority for the subsequent position.
Example of Consequential Seniority
If ‘A’ (General category candidate) holds Level 3 of a government job post.
‘B’ (Reserved category candidate) is junior to ‘A’ in Level 3.
When promotion to the next level, i.e., Level 4 is decided, ‘B’ will be promoted (before ‘A’) to the next level due to reservation in promotions, as there is no other reserved category candidate at the same level.
Therefore, Consequential Seniority means that ‘B’ will retain the Level 4 position and ‘A’ will not regain its Seniority, and ‘B’ will be taken as senior to ‘A’ even when ‘A’ reaches Level 4 position.
The Constitutional (Eighty-fifth) Amendment Act 2001 on Consequential Seniority
The Eighty-fifth Amendment had amended Article 16 (4)(A) and introduced the principle of Consequential Seniority to protect the interest of the SCs/STs in the Government sector. It ensures that the Consequential Seniority is granted to the class that provides the relevant document that proves that the reserved class needs to be represented or underprivileged or highly affected compared to other classes.
Karnataka Consequential Seniority – Basis of The Reservation Act, 2018
The Reservation Act 2018 provides that the Consequential Seniority is not an additional benefit. Instead, it is a consequence of promotion granted to SCs/STs.
Section 3 of the Reservation Act, 2018 provides that the Consequential Seniority of the government servants who are promoted based on the reservation shall be determined based on reservation order which looks at the length of service in a cadre.
Section 4 of the Reservation Act 2018 states that the reservation order from 27th April 1978, where Constitutional Seniority has been granted to the candidate belonging to the SCs/STs, is valid, protected, and shall not be disturbed.
Consequential Seniority and Catch-up Rule
The concept of the Catch-up Rule was first introduced in the Union of India Vs. Virpal Singh (1995) and Ajit Singh Vs. State of Punjab (1996). It was upheld that the senior general candidates, who were promoted after SC/ST candidates, would regain their seniority over general candidates who were promoted earlier.
The Parliament later repealed the Catch-up Rule in the 85th & 117th Amendment that introduced the principle of Constitutional Seniority. The Catch-up Rule was found to be biased as for the interest of the reserved category. Therefore, the Constitution of India had given the power to each State to reserve certain posts for the granting promotion to the SCs/STs who have not been adequately represented in the government services.
Latest Supreme Court Judgements on Consequential Seniority
Nagraj Vs. Union of India (2006)
In this case, the Supreme Court had directed the State to produce evidence to apply the policy of reservation in promotion. The three elements that must be proved are –
- Further backwardness
- Inadequate representation
- Maintenance of administrative efficiency
Jarnail Singh & Ors. Vs. LachhmiNarain Gupta & Ors
In this case, the Supreme Court had removed the first element put forward in the Nagraj Case (i.e., further backwardness) and added the principle of exclusion of creamy layer (high-income group) of SCs/STs. The SCs/STs belonging to the creamy layer cannot be allowed to use the policy of reservation in promotion.
B K Pavitra Vs. Union of India II (2019)
The Supreme Court had looked into the 3 elements to apply the policy of reservation in promotion and put forward the following:
Regarding Backwardness – It was held that the creamy layer test could be applied at the stage of reservation in promotion. Therefore, for Consequential Seniority, it cannot be applied.
With regard to Inadequate Representation – The court had accepted the inadequate representation claim and stated that SCs/STs are inadequately represented in the State Government Services in Grade A, B, and C. In contrast, they are adequately represented in Grade D. The Court had further upheld the Reservation Act 2018 and allowed reservations up to 15% and 3% for SCs/STs, respectively.
With regard to Administrative Efficiency – The Supreme Court had accepted the claim that Karnataka Government had given high performance in various sectors though it had a reservation in public sector jobs. The court further stated that ‘administrative efficiency’ would mean ‘equal representation,’ and it criticized the merit-based approach to maintain administrative efficiency.
Pravakar Mallick Vs. State of Orissa (2020)
In this case, the court had held that if the State can provide all the required documentation to show that the reserved class is inadequately represented and backward, then the State Government is allowed to issue reservation in promotion with constitutional Seniority. However, the court did not permit the Orissa Government to issue a policy of reservation in promotion along with Consequential Seniority as it was unjust for other backward classes and general categories.
Since the court was receiving many petitions challenging the state legislations that had attempted to set aside the rules laid down by the three constitutional bench judgements namely – Indra Sawhney, Nagraj and Jarnail Singh.
In September 2021, the Supreme Court had declared that it will not reopen the earlier judgements regarding the exclusion of creamy layer, safeguarding administrative efficiency, quantifiable data on adequate representation of backward classes in government posts. The court will hear the proceedings based on the laws laid down under the earlier judgements from Indra Sawhney to Pavitra.
It had further declared that the state has to find out ways to implement the rules laid down by the court for granting reservation in promotion in government posts depending upon the situation.
The Consequential Seniority is a reservation in a promotion granted to the SCs/STs for promotion in the government sector. To claim reservation in promotion, one has to prove that it is inadequately represented, backward, and administratively efficient. Such reservation is granted to protect the interest of the SCs/STs in the government sector.