On April 30, the High Court struck down the MP Public Service Promotion Rules, 2002, thereby annulling promotions based on reservations. This has struck a blow to the ruling party and its Dalit vote bank
By Rakesh Dixit in Bhopal
On April 30, the Madhya Pradesh High Court annulled the promotions of state government staff which were done through quota saying it was against the constitution. This has left the ruling BJP in a quandary as it will impact its political fortunes. It was ahead of the 2003 assembly elections that then Congress chief minister Digvijay Singh introduced the Madhya Pradesh Service Promotion Rules-2002 to provide reservation in promotions to Scheduled Tribe and Scheduled Caste government staff. The move was meant to woo voters of these two categories who together constituted nearly 36 percent of the state’s population. However, the political gambit flopped as the Congress party was routed by the BJP. These rules provide 20 percent and 16 percent quota in government jobs to ST and SC staffers respectively. This is based on the proportion of these two reserved categories in the state’s population of nearly eight crores.
Following the April 30 verdict, Union minister for social justice and empowerment Thawarchand Gehlot sought Congress support in the Lok Sabha on May 3 to introduce a bill providing reservation in promotion to SCs, STs and OBCs in government jobs, recalling that a constitutional amendment bill with a similar provision was passed in Rajya Sabha in 2012.
SALVAGE ATTEMPT
Gehlot’s alacrity for early passage of a constitutional amendment for quota in promotion is understandable. He is the most powerful Dalit face of the BJP in MP. Significantly, in 2003, the BJP wrested 70 percent of the 82 seats reserved for SCs and STs in the 230-strong state assembly. After coming to power, the BJP not only retained the Madhya Pradesh Public Service Promotion Rules, 2002, but also appropriated it as its own to strengthen its influence among these communities.
The strategy worked in subsequent polls in 2008 and 2013. But with the quashing of the quota recently, the BJP fears its fallout on its solid Dalit vote bank. In MP’s bipolar contests between the BJP and the Congress, SC and ST votes are a decisive factor as they constitute nearly 36 percent vote share. Even before this verdict, the BJP was worried about a growing perception that it was anti-reservation as RSS chief Mohan Bhagwat’s had called for a review of the reservation policy.
Conscious of this perception, chief minister Shivraj Singh wasted no time in announcing that his government would challenge the HC order in the Supreme Court. This, despite the fact that there is a powerful anti-reservation lobby among the eight- lakh-strong government staff which strongly supports the BJP. A sizeable number of BJP leaders too want Chouhan to avoid moving the apex court.
SC GUIDELINES
The April 30 MP High Court judgment striking down the Madhya Pradesh Public Service Promotion Rules, 2002 was in response to a bunch of petitions. Chief Justice AN Khanwilkar and Justice Sanjay Yadav said they did so as the rules were not in conformity with the guidelines given by the apex court in the M Nagraj versus Union of India delivered in 2006.
The two-member bench observed: “With quantifiable data of backwardness, inadequacy of representation class-wise and post-wise, with a corresponding evaluation as to the efficiency in administration being not available…the existing provisions contained in the Rules of 2002 runs contrary to the constitutional provisions contained in clause 4A and 4B of Article 16 and Article 335 of the Constitution and are declared ultra vires and non est in law.”
It further stated: “Consequently, various promotions of SCs and STs category made on the basis of these rules of 2002 are held to be non est in the eyes of law and the persons be placed in the position as if the said Rules never existed and all actions taken in furtherance thereof must be reverted to status quo ante (the situation existing earlier).”
In the Nagraj versus Union of India case, a constitution bench gave a verdict saying Article 16(4-A) was only an enabling provision which gave freedom to the state to provide for reservation in matters of promotion to SC and ST employees. It said the provision could be enforced only after two conditions—“backwardness” and “inadequacy of representation” —were met. In the judgement, the Supreme Court had laid down certain guidelines while interpreting Articles 16, 16 (4), 16 (4A), 16 (4B) and 335, before making provisions for reservations in promotion with benefit of consequential seniority, filing up of backlog vacancies, lowering of standards of evaluation and other such criterion.
On the basis of the SC verdict in the Nagraj case, the Allahabad High Court in 2011 struck down then Mayawati government’s decision to provide quota in promotions for SCs/STs in Uttar Pradesh. On April 28, 2012, the Supreme Court upheld the verdict. Since then, the apex court has rejected various claims for quota in promotions.
Perhaps the most significant judgment from the Supreme Court in this regard came on March 11, 2016, when it virtually precluded scope for state governments to enact rules for promotions through quota. It ruled that a state is not bound to grant reservation in promotion to SC/ST employees. The order came on a petition that had sought a direction to the Uttar Pradesh government to conduct a survey to collect qualitative data regarding representation of SCs and STs in state services.
NOT MANDATORY
A bench of Justices Dipak Misra and Prafulla C Pant said the government was not bound by any constitutional provision to frame a policy for reservation in promotion and the Court could not order that reservations in promotion should be mandatory. Legal experts say that considering past Supreme Court’s rulings in this matter, the MP High Court order is most likely to be upheld, if challenged.
Nevertheless, the Shivraj government has filed a special leave petition in the Supreme Court seeking annulment of the High Court order citing mainly two reasons. One is a backlog of 17,000 reserved posts which are still unfilled and two, huge complications in reverting nearly 30,000 promoted employees and officers to their pre-2002 posts. The state government intends to impress upon the top court that MP meets two conditions—“backwardness” and “inadequacy of representation”—to continue the provision of quota in promotion. But legal experts say the state government has no data or reports to buttress these points. On the contrary, the government untiringly claims that MP has already rid itself of the BIMARU tag. “How can the CM make mutually contradictory claims about the state of MP being backward and progressive in the same breath?” asked a senior IAS officer who was involved in the legal process to challenge the verdict.
Sources say that the government does not expect relief from the Supreme Court. Its hopes are pinned on early enactment of the constitutional amendment by parliament to this effect. Till then, it will wait and watch.
COSTLY ROLLBACK
Implementing the High Court verdict will mean a lot of work as there will need to be reversion of quota beneficiaries to the pre-2002 status. It also means recovering entire additional emoluments that accrued to them after their promotions. This is sure to cause huge resentment among the beneficiaries, a political risk the government can ill-afford.
Predictably, the verdict has also accentuated a face-off between reserved and general category employee unions. Anusuchit Jati Janjati Adhikari Evam Karmchari Sangh (AJJAKS) has decided to separately approach the Supreme Court challenging the High Court’s judgment. “The state government should issue an order stating that promotions that were effected under the state public service promotion rules, not be reversed until the final pendency of the petition in the Supreme Court,” AJJAKS general secretary SL Suryawanshi said. The union said that there were a total of eight lakh employees and officials, of which 2.5 lakh are from the SC and ST category.
However, general category employee unions want expeditious implementation of the Court order. “We welcome the order. We will file a caveat in the Supreme Court demanding that our arguments too be heard,” said Arun Dwivedi, general secretary of the Class III employees Sangh, one of the bodies that are against reservation in promotion.
It all depends on which side of the fence one is on.