CHAPTER V

 

RESERVATION FOR SCs / STs  IN PROMOTION

 

OFFICE MEMORANDUM DATED 13th AUGUST, 1997

 

5.1       The undersigned is directed to invite attention to this Department’s O.M. No. 36012/37/93-Estt. (SCT) dated 19.8.1993 clarifying that the Supreme Court had, in the Indira Sawhney case, permitted the reservation, for the Scheduled Castes and Scheduled Tribes, in promotion, to continue for a period of five years from 16.11.1992.

 

2.         Consequent to the Judgement in Indira Sawhney’s case, the Constitution was amended by the Constitution (Seventy-Seventh Amendment) Act, 1995 and Article 16(4A) was incorporated in the Constitution.   The Article enables the State to provide for reservation in matter of promotion, in favour of the Scheduled Castes and Scheduled Tribes, which in the opinion of the State are not adequately represented in the services under the State.

 

3.         In pursuance of Article 16 (4A), it has been decided to continue the reservation in promotion, as at present, for the Scheduled Castes and the Scheduled Tribes in the service / posts under the Central Government beyond 15.11.1997 till such time ass the representation of each of the above two categories in each reaches the prescribed percentages of reservation whereafter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories.

 

4.         All Ministries / Departments are requested to urgently bring these instructions to the notice of all their attached / subordinate offices as also the Public Sector Undertakings and Statutory Bodies etc.

5.2       On being asked whether reservation in promotion have been allowed to continue with all the terms and conditions which were prevailing prior to 16.11.1992, the Ministry in a written reply stated that, reservation in promotion vide OM dated 13.8.1997 continue beyond 15.11.1997 with the following modified terms:-

 

(i)         No relaxation in qualifying marks or standard of evaluation as per OM dated 22.07.1997 issued in implementation of Vinod Kumar Judgement.

 

(ii)        Reservation in promotion permissible till prescribed percentage of reservation is achieved and thereafter in order to maintain the prescribed percentage as per R.K.Sabharwal’s Judgement.

 

5.3       Asked to state whether as per Article 16(4A), reservation in promotion are required to be provided in the higher grade of posts filled up through promotion, the Ministry in a written reply stated, Article 16(4A) is an enabling Article.  While reservation in promotion may be provided by the State to any class or classes of posts in the services in favour of Scheduled Castes provided they are not adequately represented, other relevant consideration have also to be taken into account.

 

5.4       It was also stated that State is under mandate of Article 335 of the Constitution also.  Supreme Court in the Indira Sawney Case has held that Article 16(4A) cannot be read in isolation of Article 335 of Constitution.

 

5.5              When the Committee desired to know whether the cabinet had considered the question of extending the reservation in promotion in the higher grade of posts of Class I with the view to comply the directives of the Constitution of India      i.e.   Article  46  as well as Article 16(4) and Article

16(4A) which lays down that if in the opinion of the state SCs/STs are not adequately represented in the services under the State and reservation have to be provided, the Ministry in a written note replied in affirmative.

 

5.6       The Committee note that the Office Memorandum issued on 13.8.97 was on the basis of the amendment of Article 16(4) of the Constitution of India which contains that the existing reservation in promotion  shall continue till such time as the representations of SCs/STs reaches the prescribed percentage.  The Committee were informed that Article 16(4) cannot be read in isolation of Article 335 of the Constitution.  The Committee also note that the Cabinet had considered the question of extending the reservation in promotion in the higher grade of posts of Class-I with a view to comply with the directives of the Constitution.  According to Article 16(4A) “nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of Scheduled Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State.”  The Committee, therefore, strongly recommend that reservation should be provided not only upto lowest rung of class I posts but to all classes of posts (upto highest grade of posts) under the State. 


CHAPTER VI

 

 

Modification of instructions to provide the 50% limit shall apply to current as well backlog vacancies and discontinuation of the Special Recruitment Drives.

 

OFFICE MEMORANDUM

Dated the 29th August, 1997

 

6.1       The undersigned is directed to invite reference to the instructions contained in this Department OM No.36012/6/88-Estt.(SCT) dated April 25, 1989, according to which, for the purpose of determining the ceiling of 50% on reservation, reservation against the current vacancies and the backlog vacancies are to be treated as two distinct groups.  It was also laid down that the instructions; to the effect that not more than 50% of the vacancies could be reserved for SCs/STs, physically handicapped etc., would apply only in respect of current vacancies arising in a year and would continue to be filled up without any restriction.

 

2.         The Supreme Court in the judgement in the case of Indira Sawney Vs Union of India, inter-alia, validated the “carry forward” rule under which reservation are carried forward from year to year.  However, while doing so, the Court has also directed that the application of this rule, in whatever manner it was operated, should not result in the breach of the 50% rule.  In other words, the judgement laid down that the number of vacancies to be filled on the basis of reservation in a year, including carried forward reservation, should in no case exceed the 50% limit.  It is therefore, not possible now to treat the current and the backlog reservation on separate footings, in the manner contemplated in this Department’s OM dated April 25, 1989 mentioned in para 1 above.

 

3.         In view of the position stated above, for the purpose of applying the rule of 50%, a year has to be taken as the unit and not the entire strength of the cadre, the service or the unit, as the case may be.  Thus, not more than 50%  of vacancies in a year, including the backlog, can be filled on the basis of reservation for SCs, STs/ OBCs.  In the light of the henceforth backlog vacancies for the purpose of application of 50% ceiling on reservation shall not be treated as a distinct group, and the instructions contained in the OM dated April 25, 1989 may be treated as modified to this extent.

 

4.         This highlights the need to ensure timely filling up of reserved posts in order to avoid accumulation of backlog.  This Department has been issuing instructions from time to time stressing this aspect and laying down the steps to be taken for proper filling up of reserved posts.  For instance, instructions contained in this Department’s OM No.42/21/49NGS dated January 28, 1952, OM No.36022/4/79-Estt. (SCT) dated August 7,1976 and OM No.36034/2/78-Estt. (SCT dated February 27,1978 lay down the procedures to be followed in this respect.  Similarly, para 2 of the OM dated April 25, 1989 requires a second attempt to be made for recruitment if the first attempt to effect recruitment in reserved posts fails.  All Ministries / Departments are requested to ensure compliance with these instructions and to make all-out efforts to fill the reserved posts in the same year so that the backlog is minimised.

 

5.         The instructions take immediate effect.

 

6.         All Ministries / Departments are also requested to bring these instructions to the notice of their Attached / Subordinate Offices and Autonomous Bodies / Public Sector Undertakings under their control for compliance.

 

6.2       The Committee have been informed that prior to 8.9.1993 reservation was applicable to Scheduled Castes/Scheduled Tribes only @ 15% and 7.5% respectively.  50% ceiling on reservation as per Supreme Court judgement on reservation was applicable even prior to judgement of the Supreme Court in the case of Indira Sawhney (Mandal Judgement).  DOPT’s OM dated 9.2.1982 clarifies that in view of the Supreme Court judgement in Akhil Bhartiya Shoshit Karamchari Sangh Vs. Union of India fresh reservation alongwith carry forward reservation should not exceed 50% of total vacancies available on a particular occasion.  Introduction for the reservation of OBCs @ 27% with effect from 8.9.1993 did not take the total reservation for SCs/STs and OBCs beyond 50%.

 

6.3       It was also stated that instructions dated 25th April, 1989 excluding the backlog of vacancies from the ceiling of 50% were issued after consultation with the Ministry of Law.

 

6.4       However, in Mandal Judgement, the Supreme Court held that carry forward of reservation in whatever manner it is implemented should not violated the rule of 50% of reservation.  The Ministry of Law advised that 50% ceiling would including current reservation as well as backlog reservation.  Since the current reservation for the SCs/STs and OBCs @ 15%, 7.5% and 27% was already 49.5%, the Special Recruitment Drives hitherto conducted by excluding the backlog vacancies from 50% ceiling on reservation were not practicable.  Accordingly, OM dated 29th August, 1997 was issued clarifying the position as per the advice of the Ministry of Law.

 

6.5       The Committee pointed out that in the case of Post Graduate Institute  of Medical Education and Research etc. Vs. K.L.Narsimhan & and others (1977(4) SLR 793) the Supreme Court has laid down as under:-

 

“there is no prohibition of filling of backlog of vacancies by special recruitment.  The Special recruitment is not treated as routine recruitment in any year.  The bar of 50% would apply only when general recruitment is made for both to the general as well as reserved candidates in respect of the current vacancies.  But when special recruitment is made for selection and appointment of Dalits and Tribes for the reserved backlog vacancies normal run for recruitment is inapplicable.”

 

6.6       On being asked by the Committee as to what is the difficulty in implementing the latest judgement of Supreme Court, the Ministry in a written reply stated as under:

 

“Opinion of Attorney General of India is awaited on the implications of the Supreme Court judgement in the case of Post Graduate Institute of Medical Education and Research Vs. K.L. Narsimhan vis-à-vis Supreme Court’s judgement in the case of Indira Sawhney.”

 

6.7       In reply to a question whether the carried forward reserved post be filled up in the present context through normal recruitment due to the fact the existing reservations have already reached to the level of 50%, the Ministry  furnished the following information:

 

“With the introduction of post based roster with effect from 2.7.97, reservation is related to posts instead of vacancies as hithertofore.  The backlog position which was worked out earlier with reference to vacancy based rosters has undergone a change.  Earlier when vacancy-based roster was followed, certain cadres which were having representation for SCs/STs more than prescribed percentage of reservation were still having backlog to be filled up.  Now with the introduction of post-based roster, the cadres can not have representation of Scheduled Castes and Scheduled Tribes more than the percentage of reservation prescribed for them.  The backlog in respect of such cadres can no longer be said to exist.  However, the cadres where representation of Scheduled Castes and Scheduled Tribes was less than the prescribed percentage of reservation and were having backlog reservation are required to earmark each post for the respective categories at the rate of prescribed percentage.  Such earmarked posts are required to be filled by the respective reserved category as soon as they are vacated together with the unreserved posts till all the posts in a cadre are filled up by the respective reserved categories.  50% ceiling on reservation applies only after initial completion of the roster.  If a Scheduled Caste vacates the post, it is required to be filled up by the Scheduled Castes only by way of replacement directed by the Supreme Court in Indira Sawhney’s case.  50% ceiling will not apply at the time of replacements.”

 

6.8       The Committee during evidence pointed out that if this 50% restrictions would be applied in the reservation then the prescribed quota to the under privileged communities can never be fulfilled.  The Committee therefore suggested that this 50% limit could be applied only when the prescribed reserved quota for SC/ST is fulfilled.  In reply the Secretary DOPT, stated that “on this matter we are awaiting the opinion of the Attorney General.”

 

6.9       The Committee note that the OM of DOPT issued on 29.8.97 says that the special recruitment drive can not be continued even for clearing the backlog vacancies.  The Committee also note that in the case of PGI of Medical Education and Research etc. Vs K.L.Narsimhan & Others where it is stated that there is no prohibition on filling up backlog vacancies by special recruitment.  The special recruitment is not treated as routine recruitment in any year. Thus the Committee hold that the special recruitment is not violative of the principle of carry forward within one year.

 

6.10          Keeping in view that a substantial number of reserved posts are lying vacant in all grades in almost every Department, the Committee  are of the opinion that 50% limit has restricted the entry of SCs  and STs  in services due to which the backlog vacancies could not be completed.  However, the Committee note that in pursuance of the constitutional amendment,   the Government have issued necessary instruction  vide No. 36012/5/97/Estt. (Res) Vol. II dated 20/7/2000 for removal of the 50% ceiling.  The Committee urge that the instruction should be implemented in letter an spirit.

 

6.11          The Committee observe that reservation for Scheduled Castes and Scheduled Tribes in services, though Constitutionally guaranteed has become a farce  due to the frequent and unwanted interference by the  Supreme Court on that. The Committee therefore, recommend that necessary amendment may be made in the Constitution to enable a Reservation Act to be enacted and the same should be placed in the 9th Schedule of the Constitution so that the judicial interference can be avoided.

 

 

 

 

KARIYA MUNDA

CHAIRMAN

COMMITTEE ON THE WELFARE  OF SCHEDULED CASTES AND SCHEDULED TRIBES

 

 

                                                                                           

NEW DELHI;                                                                  

August , 2001                        

Bhadrapada, 1923(Saka)