The Silence on 'Reservations in Promotions' in a caste-based social polity
In a landmark judgement by the Supreme Court of India, Justices Chalameswar and Sikri have held that:
"to carry out promotions from Scale-I upwards upto Scale-VI, reservation in promotion in favour of SC/ST employees has to be given"
in the Chairman and Managing Director of Central Bank of India & Ors v. Central Bank of India SC/ST Employees Welfare Association & Ors.
Why am I impelled to write this essay?
Simple, because no one else seems to have noticed or bothered to report this crucial judgement - on a day that there were no other groundbreaking sensational news that day (9th January 2015) that the corporate media needed to hound. Though legal portals have reproduced the judgement on their websites, its not more than a mechanical chore that they do to ensure virtual footprints on their websites.
Let me clarify that this is not a case analysis, but I am trying to address a larger question here – the question of how institutions of governance, media and society perceive the right to reservations and importance of diversity in a caste-based social polity like India.
"What To Talk of Adequate Representation...?"
The Indian Judiciary following its colonial lineage has always been tradition and ritual bound – caste and communal identity being extra, but important additives to its constitution. So unwritten rules – in other words judicial traditions have influenced appointments to the higher judiciary. An interesting story would be the elevation of Justice Hidayatullah. He refused the first offer of judgeship as it was offered on the vacancy of the lone Muslim seat in the bench, finally accepting judgeship and for the first time in its history the Supreme Court had two Muslim judges at the same time. The same unwritten code dictates the appointment of women and Dalits even today – something like the code of Omerta. In this context, the following observation of the court is extremely pertinent:
"it has gone by the spirit behind Articles 15 and 16 of the Constitution which are in the nature of affirmative actions that can be taken by the State in providing reservations for the socially and educationally backward people and that includes SC and ST classes. It has pointed out that Article 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social, educational, economic backwardness as reservation affords such classes of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. It was with this spirit in mind Clause 4A was inserted introducing an enabling provision for providing reservation in the matter of promotion as well. The High Court thereafter took note of the statistics that was placed on record to show the strength of SC/ST officers in various grades/scales/cadres in respect of UCO Bank as well as Central Bank of India and found that there was hardly any representation in the higher scales, what to talk of adequate representation (highlight author's)"
Anyone who has been working on reservations or representations in Public Sector Undertakings, Public Universities or the Government institutions could tell us that this observation is not only true for UCO and Central Bank, but is prevalent across the board including higher Judiciary. A good indicator would be the annexures in George. H. Gadbois' tome "Judges of the Supreme Court of India 1950-1989" – which clearly points out that there had not been a single woman judge till then (Justice Fatima Beevi was appointed that year, 1989) one Dalit Judge and no Adivasis (which holds true even now).
What happened at the level of Madras High Court
The reason for the digression into judicial politics is to further highlight the importance of the Justices' observation in the above case. Let us get back to the case in hand for now and trace its background. The case started off with associations representing SC/ST employees of Central Bank of India and UCO bank seeking a writ of mandamus from the High Court of Madras for implementation of reservations in promotion in the light of Article 16 (4A) of the Constitution of India and the consequent Office Memorandum issued by the Government of India, the text of which is given below.
"No. 36012/18/95-Esst(Res.) Pt:II
GOVERNMENT OF INDIA
Ministry of Personnel Public, Grievances and
Pensions, Department of Personnel and Training
North Block, New Delhi
Dated the 13th August, 1997
SUBJECT: RESERVATION FOR THE SCs/STs IN PROMOTION
The undersigned is directed to invite attention to this Department's OM No. 36012/37/93-Esst. (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 Judgment 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. This article enables the State to provide for reservation in matters of promotion, in favour of the Scheduled Castes and the 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 services/posts under the Central Government beyond 15.11.1997 till such time as the representation of each of the above two categories in each cadre 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/Department 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.
This writ was dismissed by a single judge and the associations preferred an appeal that was decided by a division bench in their favour. While upholding the claims of the Association the division bench makes some interesting observations vis-a-vis the effectiveness of reservations in promotions in the instance of these two banks, the High Court tellingly observed that:
"22. ......A consolidated statement for the promotions from the year 1997 to 2008 in MMG:IIIIV:, SMG: IV-V; SMG V-VI; TMG VI-TMG VII would depict a bleak picture regarding the entire aspect since least or no presentation for SC/ST could be seen glaringly. As per these calculations for the total promotions of 20 posts, only one SC candidate got promotion in the year 2007 and for atotal promotions of 171, within these categories only nine SC candidates got promotion. In promotions effected for the years 1997 and 2002, respectively for 19 posts and six posts, no SC/ST candidate was offered promotion. In the year 1999, for a total number of 126 posts, only one SC candidate was given promotion. Likewise, for a whopping 308 numbered of promotions in the year 2006 a meager 36 candidates of SC/ST were promoted."
With respect to the Central Bank of India and identically with respect to UCO bank;
"23. .......As per the scale wise representation of SC/ST officers as on 31.3.2008 in the UCO Bank, in Scale IV posts there is a short fall of 50 SC officers and 31 ST officers in Scale V posts, there is a short fall of 10 SC officers and 7 ST officers; in Scale VI, there is a short fall of 5 SC officers and 2 ST officers and in Scale VII posts, there is a short fall of 3 SC officers and one ST officer."
The bank managements took resort to two tools, the first Office Memorandum No. 38012/6/83-East(SCT) dated 01-11-1990 issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), Government of India clearly stating that there is no reservation within Group 'A' posts and the second, the age-old clichéd Brahminical argument that introduction of rule of reservation in promotion would reduce the efficiency of administration of Banks.
Why is this judgement important?
Let me start off with anecdotal narratives, with which I am more comfortable than with analysis. A close childhood friend of mine – some 6 years my senior – got into Electronics and Electrical Engineering at the Government College of Engineering, Salem, through the general quota at a time when the dot com boom had started. As soon as he finished his graduation, on principle, he wanted a government job rather than jump into the software bandwagon. And he got a job through reservation immediately after graduation with the Tamil Nadu Electricity Board. Reminiscent of Chinua Achebe's classic novel "No Longer at Ease", principled and straightforward, he was caught in the web of one of the most corrupt government agencies – where he was the only Assistant Engineer (entry level) who would not take bribes and initially also objected to his colleagues taking bribes.
He soon realized that he had to live in his cocoon. The colleagues were taunting him about his "privilege" of having got the job without paying bribes and insulting him by caste. The result was his being transferred within six months of every posting – his crime being a Dalit and honest – Dalits are not supposed to be honest (Ashis Nandy will vouch for that). Today he is an Executive Engineer (Thanks only to reservation in promotion), but is resigned to the fact that he is not expecting more than one promotion before he retires or opts for voluntary retirement.
I got to know of the judgement through a one line e-mail on a e-group, which did not give the cause title (name) or any other details relating to the case except for the name of Central Bank. As I wanted to find out more and being too lazy to go through the entire judgement, I googled to search for the judgement using different string of words, but with no luck – none of the media had carried it. So, I went to the Supreme Court website and searched through all the reported cases on 9th January 2015 to find this case. Out of curiosity, I once again googled with the cause title – and the only places where I found the case, were where it was reproduced in toto on legal websites.
In my opinion, the concept of the ceiling that the Supreme Court uses is contrary to the spirit of Article 16 (4A) and (4B) – particularly as the Office Memorandum on which the Court has relied is prior to the introduction of the above provisions. Nonetheless, it was an important judgement and what is jarring about it is not the critique of the judgement but the silence with which it was treated.
Let us do a reality check to figure out why this case is important. Through the history of this republic there has not been a single Dalit chief secretary, finance secretary, home secretary or RBI governor at the centre. I am sure the case must be more or less at the state level as well. The situation in PSUs and Public Universities are even worse.
The History of 'Reservations in Promotions'
This calls for a slight legal historical detour on how Article 16 (4A) happened in the form that we see it today. The matter regarding reservations in promotions was considered in Indira Sawhney v. Union of India, which was a judgment rendered on 15-11-1992. The Court specifically held that the reservation under Article 16(4) of the Constitution of India is confined to initial appointment and cannot extend to reservation in the matters of promotion. In order to nullify the effect of the aforesaid judgement, the Constitution (Seventy-Seventh Amendment) Act was enacted with effect from 17-06-1995. Through this amendment, after Clause 4, Clause 4A was inserted in Article 16 of the Constitution, which was couched in the following language: "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 the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the state."
Following this amendment, a question relating to seniority in promotion arose before the Supreme Court in Union of India and Others etc. v. Virpal Singh Chauhan and Others as to whether a person in SC or ST category, who gets accelerated promotion because of reservation would also get consequential seniority in the higher post if he gets that promotion earlier than his senior in general category. The court held that an employee belonging to SC/ST category on promotion would not get consequential seniority and his seniority will be governed by the panel position.
This led to another Constitution amendment and the Parliament enacted the Constitution (Eighty-Fifth Amendment) Act, 2001 whereby Clause 4A of Article 16 was amended. The amended Clause 4A reads: "4A. Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."
The constitutional validity of this clause and clause 4B which was also inserted through the same amendment and reads; "(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year" was challenged before the Supreme Court in M. Nagaraj and others v. Union of India and Others. The court upheld the constitutional validity of these provisions and held that these provisions flow from Article 16(4) and, therefore do not alter the structure of Article 16(4). Further, they do not obliterate any of the constitutional requirement, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs, on the one hand, and SCs/STs on the other hand, as held in Indira Sawhney. The Court, at the same time, made it clear that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are the constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
What happened at the level of the Supreme Court?
Coming back to the present case, the management's contentions were faulty for two reasons; one the Official Memorandum (1990) that they were relying on was dated much before the Eighty Fifth Constitutional Amendment (2001) and Article 335 in the hierarchy of provisions of the Constitution of India is subject to Article 16, which is a fundamental right. The High Court saw through this and rightly opined that when the Constitution has given such extra protection to the under privileged communities so as to enjoy equal opportunities as guaranteed by the Constitution, the Banks are not justified in sleeping over the matter providing reservations in promotions for a decade with no good reasons to offer.
The Supreme Court was more conservative than the High Court – which had allowed blanket reservations in promotions – the former limited it up to Scale VII – as under the 1990 Office Memorandum INR 5000/- was the ceiling for reservations in promotion and computing the same under the fifth pay commission the basic ceiling would amount to INR 20800/- and this is achieved in Nationalised banks only when an officer reaches Scale VII. Nonetheless, the Supreme Court has held that till that scale promotion in reservation is mandatory.
In another case, A. Kiruba Shankar v. Registrar, Central Administrative Tribunal with a negative result on a similar issue (thanks to an affidavit that a lawyer friend sent me), it would be pertinent to quote from the ninth report on BSNL by the Parliamentary Committee on Scheduled Castes and Scheduled Tribes (2010-2011);
"... The Committee are, however, surprised by the irresponsible reply of the ministry that since these cadre promotions are completely decentralised, as per practice no records in this connection are maintained in the BSNL (HQ) till date. The Ministry and the BSNL cannot escape from their responsibility and are equally accountable for what is happening in different circles/SSA to ensure that reservation orders for SC's and STs as prescribed..."
The silence of course is not surprising. On the contrary, I would claim that it is deliberate – the palpable fear of projected margins exhibiting knowledge and strength of using the system – to show that they are not in the margins – that they have knowledge – which in the South Asian context is blasphemous. Even where this judgement was reported, it was reported in the negative totally misreading the judgement in Times of India and Economic Times – the headlines said that the Court "No Reservation in the Selection of Top Bankers" in the former and "Courts can't ask states to provide quota in promotions" - then go on to say the Court has actually asked the concerned banks to provide reservations up to scale VII – further demonstrating the clear caste bias of the Corporate media.
I have ranted too long – that it might bore the reader. Nonetheless, despite my non-religiousness, I see this judgement and the silence around it as a portent – because on the same day that the judgement was passed, a senior Bank official with a Nationalised Bank had contacted me regarding taking on his employers who are desperately trying to throw him out through extra-legal methods by pressurizing him to resign. Now I am re-energized to take on his case despite all inconveniences that will cost me!
(Special thanks to Rajashree Gandhi for cleaning the copy and making it more readable)
Bobby Kunhu is a human rights activist and lawyer.
Cartoons by Unnamati Syama Sundar.