Some of the questions that have dominated Indian reservation jurisprudence for more than half a century are whether the State could make a provision for reservation in promotion under Article 16(4)? If yes, then in what manner? The answers to these questions remain unresolved, in several respects, till date.

This article endeavours to trace the development of the law of reservation in promotions and analyses whether the recent decision of the Supreme Court in Jarnail Singh & Ors v Lachhmi Narain Gupta & Ors has brought the much-needed clarity on the subject.

The issue whether the State can make a provision for reservation in promotions first arose before a Constitution Bench in General Manager, S. Rly. v. Rangachari. It was held that the same was constitutionally permissible, as the word ‘posts’ used in Article 16(4) does not merely envisage post of ‘initial appointment’ but also ‘promotional post’.

The aforesaid legal position remained in vogue, unhindered, for almost three decades, till a nine-judge Constitution Bench in Indra Sawhney v. UOI overruled Rangachari. To overcome the decision of Indra Sawhney, Parliament enacted the Constitution (Seventy-Seventh Amendment) Act, 1995, which inserted Article 16(4A), enabling reservation in promotion for Scheduled Castes (SC) and Scheduled Tribes (ST).

While the 77th amendment restored reservation in promotions, in practice, a large number of promotional posts remained vacant due to non-availability of eligible SC/ST candidates. These backlog vacancies could not be filled in view of ceiling of 50% reservation prescribed in Indra Sawhney. This led to the Constitution (Eighty-First Amendment) Act, 2000, which added Article 16(4-B), whereby the unfilled posts were treated as a separate class.

The disputes relating to reservation in promotions, however, kept arising in different forms. In Union of India & Ors v. Virpal Singh Chauhan & Ors, it was held that SCs/STs who were given the benefit of promotion would not get consequential seniority. Hence, Article 16(4-A) was further amended by the Constitution (Eighty-Fifth Amendment) Act, 2001 giving them the benefit of consequential seniority.

The 77th amendment, 81st amendment and the 85th amendment came to be challenged in M Nagaraj v. Union of India. A Constitution Bench of five judges upheld the constitutional validity of all the aforesaid amendments. However, it was held that the power to make provision for reservation in promotions must be exercised with the conditions that:

(i) There must be quantifiable data on backwardness of SCs and STs;

(ii) There is inadequacy of representation of SCs and STs in the service and

(iii) The reservation so provided shall not affect overall administrative efficiency.

Facing difficulties in complying with the conditions set out in M Nagaraj, the states questioned the correctness of the judgment. A two-judge bench in State of Tripura v. Jayanta Chakraborty and another three-judge bench in State of Maharashtra v. Vijay Ghogre agreed to refer the matter to a Constitution Bench.

In Jarnail Singh, a Constitution Bench of five judges declined to reconsider M Nagaraj. It was, however, held that the direction in M Nagaraj, that the state has to collect quantifiable data of backwardness of SCs and STs, being contrary to Indra Sawhney, was invalid. The other two conditions of M Nagaraj were maintained.

The matter was subsequently considered by a three-judge bench in Jarnail Singh-II. A renewed plea was made by the government that the yardstick for arriving at the quantifiable data must be laid down by the Court. The government also requested the Court to lay down a test for determining inadequacy of representation. However, the Court held that these issues were best left to the discretion of the states, as they depend upon several factors.

In the post M Nagaraj era, the Central government had realised the practical difficulties in complying with the conditions set out in the said judgment. To undo the effect of the said decision, the Constitution (One Hundred and Seventeenth Amendment) Bill, 2012 was sought to be introduced in Parliament. However, the Bill could not be tabled and eventually lapsed.

The states had hoped that the gap, which the 2012 Bill had sought to fill, would be plugged by the Supreme Court in Jarnail Singh-II. However, with the Court leaving it to the discretion of the states, each state is likely to evolve its own parameters to comply with the conditions of M Nagaraj. This would inevitably lead to more and myriad litigation.

In its endeavour to provide reservation in promotions and fulfil its constitutional obligation under Article 46 of protecting the interests of SCs and STs, the ball is again in the governments’ court.

Saurabh Mishra is an Advocate-on-Record and Additional Advocate General for the State of Madhya Pradesh in the Supreme Court.