BK Pavitra vs. Union of India 2019 16 SCC 129 (Consequential Seniority in cases of Promotion on the basis of Reservation)

Case Number: Civil Appeal No. 2368 of 2011

Decided: May 10, 2019

Decided in: Hon’ble Supreme Court of India

Citation: AIR 2019 SC 2723

Parties: BK Pavitra and Ors. vs Union of India, the State of Karnataka.

Introduction:

The government of Karnataka in 2002 enacted a legislation which granted consequential seniority to Schedule Class and Schedule Tribes employees to be promoted under the state’s reservation policy for public employees.

The Court in 2017 ruled that the law passed did not meet the guidelines established under the Nagaraj case and therefore considered unconstitutional. Following that rule, the government initiated an ad hoc committee to prove that the guidelines set up in the Nagaraj case was fulfilled; illustrating the;

1. Current backwardness of the Scheduled Class/Tribes,

2. Inadequate representation and

3. Its impact on administrative efficiency and afterwards, the earlier law was re-enacted. The constitutional validity of the re-enacted law was questioned and the Hon’ble Supreme Court held that deficiencies noted in the 2002 law was fulfilled and that the Reservation Act, 2018 is considered valid under the provisions of Article 16(4A) of the constitution.

The BK Pavitra vs Union of India highlights a ruling which has had significant impact in guiding subsequent interpretations of government’s affirmative action policies. Wherein the Hon’ble Supreme Court upheld the validity of the Act finding it in conformity with the constitutional provisions regarding government’s affirmative action and the need to ensure adequate representations of Schedule Class and Tribes in the Public service.

Facts:

In 2002, the Karnataka State government had passed a law which granted seniority promotions to be applied on the Schedule Castes and the Schedule Tribe employees in public service meaning that, employees of the reserved category could, on the basis on inadequate representation, be promoted before a general category senior employee.

While the Hon’ble Supreme Court had held in 2007, that legislation of the Karnataka government (state) did not meet the required guidelines laid down in the Nagaraj case and thus (Ultra vires) unconstitutional. Thereby giving the State’s government three months to take further actions.

Against that, the government of Karnataka formed a Ratna Prabha Committee to submit a report demonstrating that the guidelines under the Nagaraj case was fulfilled including;

The current backwardness of the Schedule Castes and the Schedule Tribes
The inadequate representation of the Schedule Castes and Schedule Tribes in public services and,
The adverse impact on administrative efficiency due to reservation in promotion,

and on that basis, the Ratna Prabha Committee, the State government amended the 2002 Reservation Act thereby inducting the 2018 Act

However, Section 3 of the 2018 Reservation Act provides for reservation in promotion and Section 4 validates consequential seniority, retrospective to the April 24, 1978 case.

ISSUES RAISED:

1. Whether the reservation policy on promotion with consequential seniority to employees belonging to Schedule Castes and Schedule Tribes is constitutionally valid?

2. What powers under the provisions of Article 16(4a) of the constitution were vested on the state as far as making provisions for promotion within its jurisdiction is concerned? Particularly by words; ‘if the state considers necessary’ and their implications on policy formulation and judicial review.

3. Whether the Reservation Act, 2018 was a legislative overruling of BK Pavitra I? As BK Pavitra I struck down Consequential Seniority and yet the Reservation Act of 2018 re-introduces it.

4. Whether the Reservation Act of 2018 was in conformity with the Constitutional bench’s judgements in Nagaraj and Jarnail Singh case?

CONTENTIONS/ARGUEMENTS:

For Petitioners, the following were their point of contention as regards to, challenging the State’s extension of consequential seniority to members of the Schedule castes/tribes;

Violation of Constitutional principles: The petitioners argued that the Karnataka State’ reservation policy was violative of the constitutional principles of equality, non-discrimination and equal opportunity as provided under the provisions of Article 14, 15 and 16 respectively.

Retrospective Application of the Reservation Act, 2018: It was also argued that the Karnataka State Reservation Act, 2018 was arbitrary and that the state’s legislature went beyond its authority which resulted in overruling of the decision of the Court in the earlier judgement of BK Pavitra 2017. The petitioners’ argument further suggested that Reservation Act of 2002 and the Reservation Act, 2018 had no difference and that the 2018 Act was re-enacted without the State’s legislature rectifying its flaws.

Legislative Overreach and the Separation of Powers: It was also contested by the petitioners that the 2018 Reservation Act was a direct attempt to overturn the judicial decision in the case of BK Pavitra 2017 and that the principles of separation of powers is meant to ensure that the legislature do not infringe upon the authority of the Judiciary. And that any judicial ruling could be reversed by a competent legislature as the Seventh Schedule of the Indian Constitution provides.

Governor’s Assent consider to be Invalid: The petitioners further maintained that the legitimacy of the Bill is questioned in as far the Bill was referred to the President for assent without sufficient justification. As asserted by the government, that there was no legitimate basis for referring the Bill to the President for consideration.

Deficiencies in report made by the Ratna Prabha Committee: The Petitioners criticized the Ratna Prabha Committee’s report for failure in following the guidelines set up in the Nagaraj and Jarnail Singh cases as provided by the Court. They further maintained that, the Committee’s report did not demonstrate the ‘backwardness of the Schedule Castes/Tribes, the inadequate representation of the Schedule castes and Tribes, and did not adequately assessed the impact on administrative efficiency’ They further contended that the policy of consequential seniority had negatively impacted administrative efficiency as a result of an undermining of the long-practiced merit based promotion system.

In response to the contentions raised by the petitioners, the Respondents made the following;

Reservation Act, 2018 was not violative of the Principles of Separation of Powers; The respondents contested the claimed made by the petitioners. They maintained that the enactment of the Reservation Act, 2018 was with the sole objective of remedying the already existing issue and therefore, the it did not, in any way constitute an infringement upon the powers of the Judiciary.

Regarding the petitioners claim on the ‘deficiencies in the report of the Ratna Prabha Committee’; The respondents contended that the Ratna Prabha Committee’s report was prepared through the compilation of several pieces of data collection consistent with the guidelines set in the Nagaraj and Jarnail Singh cases.

In a contest to the argument of the ‘Governor’s assent being considered invalid’, the respondents maintained that the Governor has discretionary power regarding giving his assent to a Bill under consideration as provided under Article 200 of the Indian Constitution;

“ when a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President”:

THE CONSTITUTION OF INDIA (Part VI. —The States. —Arts. 199-200.)

and that he exercised such power where he gives or refuses to assent to a Bill or better still send the Bill to the President for considerations wherein, there is a confusion regarding the application of a provision of law. And it was in that regard that the Governor, through his discretionary power, sent the Bill to the President for assent.

Rationale:

The Court held that the State’ extension of consequential seniority to civil servants being promoted on the basis of Reservation as provided for in the Reservation Act, 2018 is upheld and that the state’s legislation has the sole objective of addressing the inadequate representation of the Schedule Castes and Schedule Tribes in public services.

It was also emphasized that the State had considered the historical and systemic discrimination and inequalities faced by the marginalized segment of the society i.e. the Schedule Castes and Tribes could only obtain equality through the State’s proactive actions as objected in the Reservation policy. The Hon’ble Supreme Court had also acknowledged the importance of meritocracy in administration as provided under Article 335 of the Indian Constitution and emphasized that the constitutional provisions called for a balance between social justice and meritocracy and thus, administrative efficiency is deemed to be inclusive of adequate representation.

It was also held that the report brought by the Ratna Prabha Committee had demonstrated the inadequacy of representation, lack of any adverse impact on administrative efficiency, and the backwardness of the Schedule Castes and Schedule Tribes. Therefore, the Court upheld the retrospective effect of the Reservation Act, 2018 from 1978, considering it neither unfair nor unconstitutional.

Defects of the Law:

As the State was given the powers under the provisions of Article 16(4), to make provisions for the reservation of appointments or posts in favor of any backward class of citizens who in Its opinion are not adequately represented in the civil services. Which specifically allows the state’s government to create reservations in government services or those citizens considered to be underrepresented or backward. And such reservation policy as in the earlier case of B.K Pavitra (I) lacked sufficient justification under the Reservation Act, 2002, most relative to the state’s ability to demonstrate the three criteria set in the Nagaraj case; (i) the current backwardness of the SCs and STs (ii) the inadequacy of representation in government services and (iii) the adverse effect caused by the reservation in promotion, on administrative efficiency. Therefore, the State’s government, in order to demonstrate the fulfillment of the Nagaraj criteria, set up a committee (Ratna Prabha) to collect sufficient data from all government departments and thereafter submit a report on the parameters of the criteria set in the Nagaraj case. As a result of such submissions, the State was able to furnish sufficient reasons for the Reservation in Promotion Policy.

Inference:

Following the issues of reservation in promotions, it can be understood that this has always been a continuous issue of contentions in several courts in India prior this present case under discussion. This issue first arose before a nine-jedge constitutional bench of the Hon’ble Supreme Court in the case of Indra Sawhney v Union of India (1993) wherein the Court confirmed reservation policy for the OBCs and simultaneously affirmed that the State has the solemn power to implement reservation policies for Backward classes in appointment under the provisions of Article 16(4) of the Constitution of India. Emphasizing that Reservation policies are not applied to promotions and as such, it should be restricted to 50% maximum. Against that, the Parliament adopted several amendments of the constitution. Thereafter resulting to the 77^th Constitutional amendment injecting Article 16(4A) to the Constitution which now provides for reservation in promotions to the SCs and STs in government services where they are considered to be underrepresented. Another challenge was however encounter as the Reserve categories groups were being promoted ahead of the general category groups thereby consequentially becoming seniors by virtue of such promotions. For this, the Court came up with two significant rulings in the cases of Union of India and Ors. v Virpal Singh Chauhan 1995 and Ajit Singh Januja & Ors. v State of Punjab & Ors. 1996 thereby introducing the ‘Catch-up rule’ meaning that seniority would be restore to general category groups who were promoted after SCs and STs candidates and subsequently regaining their seniority over those promoted reservation in promotion policy. Following this, two significant amendments were made; the 81^st and 85^th amendments to facilitate reservation of promotions for the Schedule Castes and Tribes. And finally came the Nagaraj case of 2006 where the three constitutional amendments were challenged and the Hon’ble Supreme court laid down three criteria to validate the Reservation in Promotion policy by the States including; 1. Backwardness 2. Inadequacy in the representation of Schedule Castes and Schedule Tribes in government services and 3. Adverse impact on administrative efficiency.