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Reservation in Jobs



Reservation in Jobs

Parmeshwar Jha



(February (February 19301930 -- MarchMarch 2012)2012)

Late Dr. Parmeshwar Jha started his career as a Lecturerin Department of Political Science, C. M. College Darbhangaand retired as University Professor under L.N.M.U.

A teacher of very high repute, he taught graduate andpost graduate students for nearly four decades. Dr. Jha wasknown for his scholarly approach in the field of comparative

government & politics .

He successfully guided research projects of more than adozen PHD students. Besides several research articles, healso authored a number of books –“India From Raj to Republic” “Political Representation in India” “Local Self Government” and more..

An eminent political commentator, Dr. Jha was a regularcontributor in leading English and Hindi newspapers of Bihar. His incisive criticism on contemporary political issueshas been widely acclaimed.



Contents

iIntroduction

1 1Genesis and Growth of Reservation System inIndia

2 41Right to Equality and Provisions of Reservations

3 79Meaning of Expression Backward Class of

Citizens under Article 16 (4)4 118Reservation Provisions for the Scheduled Castes

and Scheduled Tribes

5 166Provisions of Reservation for Other BackwardClasses

6 206Reservation in Promotions

7 243Means Test or Creamy Layer–Principled and

Extent of Reservation8 283Downward Mobility in Caste Hierarchy–A Way

to Gain Economic and Social Privileges

9 315Conclusion

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Introduction

Affirmative action to uplift and redress the Conditions of thebackward class of citizens may be adopted by two methods:First, by a program of preferential treatment extendingcertain special advantages to them, or by reservation orquotas in their favour, to the exclusion of everybody outside

the favoured groups. However, special preference must not

be unduly unfair to the persons left out of the favouredgroups. Preferential treatment without reservation merely aids the backward classes of citizens to compete with themore meritorious and forward class of citizens. On the otherhand, reservation is such a drastic measure that it excludesall categories of people falling outside the backward classesof citizens from competing in the reserved quota of seats or

posts. No matter what qualifications they possess and how

superior their merits are, these persons not belonging to thepreferred groups are prevented from competing with thoseof preferred groups in respect of the reserved seats or posts,

whereas, candidates belonging to the preferred groups areentitled to compete for any seat or post, whether in thegeneral category or in the reserved quota.

However, preferences without reservation may be adoptedin favour of chosen classes of citizens, allowing them a

longer period for passing a test or by awarding additionalmarks or granting other advantages like relaxation of age orother minimum requirements. Moreover, it would be withinthe discretion of the state to provide financial assistance tosuch persons by way of grants, scholarships, fee concessionsetc. Such preferences or advantages are like temporary

crutches for additional support to enable the members of thebackward and other disadvantaged classes to march forward

and compete with the forward classes of people. Thesepreferences are provided to them because of their inability to compete effectively in open selections on the basis of merits for appointment to posts in public services and thelike or for selection to academic courses. Such preferences



can be extended to all disadvantaged classes of citizens whether or not they are victims of prior discrimination. What

qualifies persons for such preferences is backwardness ordisadvantage of any kind which the state has responsibility to ameliorate. The blind and the deaf, the dumb and themaimed, and other handicapped persons also qualify for suchpreferences. Other classes of citizens, who are at comparative

disadvantage for whatever reasons, also qualify for suchpreferences whether or not they are victims of priordiscrimination. All such persons may be beneficiaries of

preferences short of reservation. Any such preference,although discriminatory on face value, may be justified asa benign classification for affirmative action warranted by acompelling state interest.

On the other hand, reservations or quotas may be provided,exclusively reserving posts in public services or seats inacademic institutions for backward classes of people

suffering from lingering effects of prior discrimination.Factually, reservation is intended to redress backwardnessof a higher degree, for a free and open selection. It isa discriminatory exclusion of the disfavoured classes of meritorious candidates. It is not a case of merely providing

an advantage, concession, or preference in favour of thebackward classes and other disadvantaged groups. It is noteven a handicap to disadvantage the forward classes so

as to attain a measure of qualitative or relative equality between the two groups. Reservation, which excludes fromconsideration all those persons falling outside the especially favoured groups, irrespective of merits and qualifications,is drastic discrimination. However, provision of reservation

may be adopted to achieve qualitative equality but unless,according to the Supreme Court in Balaji case, strictly andnarrowly tailored to a compelling constitutional mandate, it

is unlikely to qualify as a benign discrimination. Unlike inthe case of affirmative action programs, backwardness itself is not sufficient to warrant reservation. What qualifies forreservation is backwardness which is the result of identifiedpast discrimination and which is comparable to that of the

ii Reservation in Jobs



Article 14 provides, “The state shall not deny to any personequality before law or the equal protection of the laws

within the territory of India.” Clause (1) of Article 15 furtherprovides that the state shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them.” Clause (2) of Article 15 thereafter,reiterates, “No citizen shall on grounds only of religion, race,

caste, sex, place of birth or any of them, be subject toany disabilities, liability, restriction or condition with regardto access to shops, public restaurants, hotels and places

of public entertainment or the use of wells, tanks, bathingghats, roads and places of public resort maintained wholly orpartly out of state funds or dedicated to the use of generalpublic.”

Moreover, Article 16 makes provision for equality of opportunity in matters of employment. Clause (I) of the

Article thus, provides “There shall be equality of opportunity

for all citizens in matters relating to employment orappointment to any office under the state.” Clause (II)further maintains, “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residenceor any of them, be ineligible for or discriminated against in

respect of any employment or office under the state.”

Furthermore, clause (2) of article 29 makes provision that“No citizen shall be denied, admission into any educationalinstitution maintained by the state or receiving aid out of thestate fund, on grounds only of religion, race, caste, languageor any of them.”

However, clause (2) of article 38 also reiterates that, “Thestate shall in particular, strive to minimize the inequalitiesin income and endeavour to eliminate inequalities in status,facilities and opportunities, not only amongst individuals but

also amongst groups of people residing in different areas orengaged in different vocation.”

In no other constitution in the world has right to equality been so elaborately discussed and given so much prominence

iv Reservation in Jobs



as the constitution of India. However, the framers of theconstitution felt that equality could not be achieved without

giving some privileges to socially and educationally backwardclasses who were victims of past discrimination and itslingering effects. Until and unless, they gain equality of status and dignity by special measures and enjoin the mainstream of national life, right to equality as provided under

different articles of the constitution will remain only onpaper. The Supreme Court of India also termed the equality as provided under the constitution, as formal equality and

not real equality for the backward classes of people whoare victims of the lingering effects of deprivation anddiscrimination since time immemorial. Thus, the framers of the constitution qualified the right to equality of opportunity in matters of employment by inserting clause (4) in article

16 which reads as thus, “Nothing in this article shall preventthe state from making any provision for the reservation of appointments or posts in favour of any backward class of

citizens, which in the opinion of the state, is not adequately represented in the services under the state.”

Likewise, clause (4) was added in Article 15 later on,by Parliament, which consisted of the members of the

constituent Assembly, by passing the first constitution(Amendment) Act, 1951 which is as follows:-

“Nothing in this Article or in clause (2) of Article 29 shallprevent the state from making any special provision for theadvancement of any socially and educationally backwardclasses of citizens or for the scheduled castes and thescheduled tribes.”

Thus, the framers of the constitution thought it advisableto incorporate clause 4 in article 16 for equalizing theemployment opportunities in the services under the state.

The state may adopt positive measures for reservation of appointments or posts in favour of any backward classes of citizens which in the opinion of the state is not adequately represented in such services. Likewise, Parliament inserted

Introduction v



article 16 by the founding fathers, according to advocates of reservation.

The trinity of the goals of the constitution viz. socialism,secularism and democracy cannot be realized unless allsections of society participate in the state power equally irrespective of their caste, community, race, religion or sex.

And all discrimination in the sharing of the state power madeon those grounds should be eliminated by positive measures.Thus, under Article 16 (4) the reservation in the state

services is to be provided for a class of people which mustbe backward and in the opinion of the state not adequately represented in the services of the state. Moreover, under

Article 46, the state is required to promote with specialcare the educational and economic interests of the weaker

section of the people and in particular of the scheduledcastes and the scheduled tribes, and to protect them fromsocial injustice and all forms of exploitation. However, the

claims of the scheduled castes, the scheduled tribes andother backward classes in the services of the state are to betaken into consideration with the maintenance of efficiency in administration. For, whomsoever, reservation is made,therefore, the efficiency is not sacrificed. That is the mandate

of the constitution itself.

However, the various provisions of the constitution relatedto reservation acknowledge that reservation is an integralpart of the principle of equality where inequalities exist.Further, they accept the reality of inequalities and existenceof unequal social groups in the Indian society. They aredescribed variously as socially and educationally backward

classes (Article 15 (4) and article (340), a backward classof citizens under article 16 (4) and weaker sections of thepeople (article 46).

According to the advocates of reservation in services underthe state, inequality ill favours fraternity and unity remains adream without fraternity. Thus, the goal enumerated in thepreamble of the constitution of India, of fraternity assuring

Introduction vii



the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as

the equality of opportunity is not assured to all. Likewise,the social and political justice pledged by the preamble of the constitution to be secured to all citizens will remain

wishful thinking unless economic justice is guaranteed toall. The liberty of thought and expression also, will remain

on paper in the face of economic deprivation. Remunerativeoccupation is a means not only of economic upliftmentbut also of instilling in the individual self-assurance, self-

confidence, self-esteem as well as self-worthiness. It alsoaccords them status and dignity as an independent anduseful member of the society. It enables them to participatein the affairs of the society without dependence on ordomination by others and on equal plane depending upon

the nature, security and remuneration of the occupation. And when it is with a government controlled organisation,it has an added edge. It is coupled with power and prestige

of varying degrees and nature depending upon theestablishment and the post. Employment under the state, by itself, may many times help to achieve the triple goal of social, economic and political justice, according to JusticeSawant who favoured 27% reservation for other backward

classes in the posts and employment under public services. According to him, in private services, it is a means of social levelling and when it is public service it is also a

means of directly participating in the affairs of the state. A deliberate attempt to secure to those who were designedly denied the same in the past, is an attempt to do social andeconomic justice to them as ordained by the preamble of theconstitution, Justice Sawant claimed.

The objective of the special protection guaranteed by articles15 (4) and 16 (4) is promotion of the backward classes,

that is only those classes of citizens who are incapableof lifting themselves in order to join the mainstream of upward mobility in society. The wealthy and the powerful,however, social and educationally backward they may be, by reason of their ignorance, do not require to be protected,

viii Reservation in Jobs



for they have the necessary strength to lift themselves out of backwardness. The rich and powerful are not favourites of

the constitution. It is not sufficient that the persons meantto be protected are backward merely by reason of illiteracy,ignorance and social backwardness. If they have, in spiteof such handicaps, the necessary financial strength to raisethemselves, the constitution does not extend to them the

protection of reservation. Thus, the chosen classes of personsfor whom reservation is meant are those who are totally unable to join the mainstream of national life because of

their utter helplessness arising from social and educationalbackwardness, aggravated by economic disability. Any stateaction resulting in reservation must, therefore, be so tailoredas to weed out and exclude all persons who have attaineda certain predetermined economic level. Only persons falling

below that level should qualify for reservation. According tothe Supreme Court, this economic level has, of course, to be

varied from time to time in accordance with the changing

value of money.11

The Directive principles of state policy contained in Article46 emphasize the overriding responsibility and compellinginterest of the state to promote the educational andeconomic interests of the weaker sections of the people,and in particular of the scheduled castes and scheduledtribes. They have to be protected from social injustices and

all forms of exploitation. This principle must necessarily guide the construction of articles 15 and 16. All affirmativeaction programmes must be inspired by that principle andaddressed to that end. Whether such action should be inthe nature of preferences or by recourse to reservation is amatter on which the state must, by an objective evaluation of the degree and nature of backwardness and with referenceto other constitutional principles, come to a conclusion.

However, the state has a vital interest to uphold theefficiency of administration. To ignore efficiency is to failthe nation. Any step taken by the state in considering theclaims of the members of the scheduled castes and the

Introduction ix



scheduled tribes for appointment to public services mustbe guided by efficiency. This principle as stated in article

335, must necessarily guide all positive action programmesfor backward and other disadvantaged classes of peoplein matters of appointment to public services and posts.Likewise, efficiency being a compelling state interest, it mustguide affirmative action in matters of admission to academic

institutions, more so in specialised institutions of learning,for in the final analysis, efficiency of public administration is

governed by the quality of education.22 To weaken efficiency

is to injure the nation. Any reservation made without dueregard to the command of article 335, according to the ApexCourt, is invidious and impermissible.

Reservation affords backward classes of citizens a goldenopportunity to serve the nation and thereby gain security,status, comparative affluence and influence in the decisionmaking process. But it is wrong to see it as a weapon to

capture power. In a democracy, real power lies in the ballotand it is exercised by the majority. The right to elect andright to be elected granted to the scheduled castes, thescheduled tribes and other backward classes on the basisof adult suffrage have immensely empowered them. Beingin majority in the electoral rolls, they decide the fate of political parties in elections thus, any attempt to projectthe concept of reservation under clause (4) as a weapon of

aggrandisement to gain power will result in the creation of meaningless myth and a dangerous illusion which ultimately

will distort the constitutional values.

However, it is possible that large segments of populationenjoying well-entrenched political advantage by reason of numerical strength may claim backward class status, whenon correct principles, they may not qualify to be regarded

as such. If such claims were to be conceded on extraneousconsiderations, motivated by pressures of expediency, and without due regard to the nature and degree of backwardness, the very evil of discrimination, which issought to be remedied by the constitution, would be in

x Reservation in Jobs



danger of being perpetuated. This would be the reverse of what is required, at the expense of merit and contrary to the

interests of the truly backward classes of citizens, who arethe constitutionally intended beneficiaries of reservation. Inthe words of Justice Krishnaiyer:

"To lend immortality to the reservation policy is to defeat its

raison d'etre; politicise this provision for communal supportand party ends is to subvert the solemn aims of theconstitution."

Raison Raison d'eter d'eter of of reservation reservation and and its its limits:- limits:-

The fundamental question is, what is the raison d'eter of reservation and what are its limits? The constitution permits

the state to adopt such affirmative actions as it deemsnecessary to uplift the backward classes of citizens. Thebackward classes of citizens, according to the framers of theconstitution, were in the past denied access to governmentservices owing to their inability to compete effectively inopen selections on the basis of merit. It is, therefore, opento the government to reserve a certain number of seatsin places of learning and public services in favour of the

scheduled castes, scheduled tribes and other backward

classes to the exclusion of all others irrespective of merits.33

Reservation is one of the measures adopted by the Indian

constitution to remedy the continuing ill-effects of priorinequities stemming from discriminatory practices againstseveral classes of people which had resulted in their social,economic and educational backwardness. Reservation ismeant to be addressed to the present social, economicand educational backwardness caused by purposeful societaldiscrimination. In order to attack the continuing ill-effect andperpetuation of such injustices, the constitution permits and

empowers the state to adopt corrective measures even whenthey have discriminatory and exclusive effects. However, any such measure in so far as one group is preferred to the

Introduction xi



exclusion of another must necessarily be narrowly tailored tothe achievement of the fundamental constitutional goals.

However, what the constitution permits, is the adoptionof suitable and appropriate remedial measures to correctthe continuing ill-effects of prior discrimination. Thus, over-inclusiveness in such measures by unduly widening the

net of reservation to unjustifiably protect the ill–deservedat the expense of the others would result in invidiousdiscrimination offending the constitutional objectives. Benign

classification of affirmative action by reservation must stay strictly within the narrow bounds of remedial actions. Any such programme must be consistent with the fundamentalobjectives of equality. Classes of people saddled withdisabilities and consequently relegated to social, educational,

economic and political powerlessness specially qualify todemand the extraordinary and special protection of reservation.

Thus, reservation is meant to remedy the handicap of priordiscrimination impeding the access of classes of people toelite educational institutions as well as public administration.However, it is for the state to determine whether the evil

effects of inequities, stemming from prior discriminationagainst classes of people, have resulted in their beingreduced to positions of backwardness and consequentunderrepresentation in educational institutions as well aspublic administration. Reservation was considered a remedy or cure for the ill-effect of historical discrimination by theframers of the constitution.

Positive action programmes by preferential treatment, shortof reservation, in favour of disadvantaged classes of citizensmay be justified as benign redressal measures based on validclassification. The more positive affirmative actions adopting

reservation by quota or other “set aside” measures or gealsin favour of certain classes of citizens to the exclusion of others are discriminatory and thus, must be narrowly tailoredand strictly addressed to the problem which is sought to

xii Reservation in Jobs



be remedied by the constitution. Any such action by thestate must necessarily be subjected to periodic administrative

review by a specially constituted authority so as to guaranteethat such protections are applied correctly and strictly to apermitted constitutional end.

Reservation is not an end in itself. It is a means to achieve

equality for those sections of the population which aresuffering from the lingering effects of prior deprivation anddiscrimination. The policy of reservation to achieve that end

must, therefore, be consistent with the objectives in view.

Reservation must not outlast its constitutional object andmust not be a vested interest to develop and perpetuateitself. There will be no need for reservation or even

preferential treatment once equality is achieved. Achievement and preservation of equality for all classes of people irrespective of their birth, creed, faith or language is

one of the noble ends to which the constitution is dedicated.Every reservation founded on benign discrimination and justifiably adopted to achieve the constitutional mandate of equality must necessarily be a transient passage to that end.It is temporary in concept, limited in duration, conditional in

application and specific in object. Reservation must contain within itself the seeds of termination. Any attempt toperpetuate reservation and upset the constitutional mandateof equality is destructive of liberty and fraternity, and all thebasic values enshrined in the constitution. A balance has tobe maintained between the competing values and the rivalclaims and interests so as to achieve equality and freedomfor all.

However, the framers of the constitution were fully consciousof the unfortunate position of the scheduled castes and thescheduled tribes. To them equality, liberty and fraternity

were but a dream, an ideal guaranteed by the law, butfar too distant to reach and far too illusory to touch.These backward people and others in similar positions of helplessness were the favourite children of the constitution.

Introduction xiii



It was for them that ameliorative and remedial measures were adopted to achieve the end of equality. To permit those

who were not intended to be so unfortunate or victims of prior discrimination, is to dilute the protection and defeatthe very constitutional aim.

Thus, “the victims of prior injustices are the special favourites

of the law. Their plight is a shameful scar on the nationalconscience. It is the constitutional command that promptmeasures were adopted by the state for the promotion of

these unfortunate classes of people especially to positionsof comparative enlightenment, culture, knowledge, influenceand prestige so as to place them on the levels of equality

with the more fortunate of our countrymen.”44

However, the sooner the need for reservation is brought toan end, the better it would be for the nation as a whole.The sooner we redress all disabilities and wipe out all traces

of historical discrimination, and stop identifying classes of citizens by the stereotyped, stigmatized and ignominiouslabel of backwardness, the stronger, healthier and betterunited we will have emerged as a nation founded on diversecustoms, practices, religions, languages all knitted together

with innumerable binding strands of common culture andtradition. Thus, reservation must one day becomeunnecessary and a relic of an unfortunate past. Every such

action must be a transient self-liquidating programme. Thatis the hope and dream cherished by the framers of theIndian constitution. That is the end to which the state hasto address itself in making special provisions for the chosenclasses of people for special constitutional protection so that“persons will be regarded as persons and the discriminationof the type we address today will be an ugly feature of

history that is instructive and behind us.”55

General General Observations:- Observations:-

1. It is wrong and unwise to see affirmative actionmerely as a penance or an atonement to the sins

xiv Reservation in Jobs



of past discrimination. It is not retributive justiceon wrongdoers. It is corrective and remedial justice

to compensate the victims of prior injustice. It isnot focussed on reparation of past inequities. Itis a forward-looking balancing act of reformativesocial engineering, an architect of a better futureof harmonious relationship amongst all classes of

citizens. It is an equitable redistribution of community resources with a view to the greatesthappiness of the greatest number.

2. It is true that an important aspect of state interest ininitiating affirmative action is to correct or remedy the evil effects of inequities stemming from priordiscrimination, but the focus in any such actionmust be on the victims and not on the wrongdoers.

The constitutional mandate is to rescue the victimsof prior discrimination and not to punish the

wrongdoers. The sins of the past shall not visit

upon the present either by allowing its ill-effects tocontinue or by taking retributive action as retaliationupon the wrongdoers. The task of nation building isnot to open up the wounds of the past but to allowthem to heal by negating their ill-effects and wiping

out injustices stemming from them. Any present orcontinuing discrimination is, of course, remediableor punishable under law.

3. Discrimination in any form hurts as there is anelement of deprivation of the legitimate expectationsof classes of people upon whom the inevitableconsequences of any such action must necessarily fall. Any unfair and undue deprivation of any class

of people is constitutionally impermissible.4. Reservation of posts or seats for the benefit of some

and to the exclusion of others is inherently unjust

and unfair unless strictly brought within reasonablelimits. The only legitimate object of excluding thegenerality of people and conferring a special benefitupon the chosen classes is to redeem the latter frombackwardness.

Introduction xv



Reservation in Jobs

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