In a major relief for employees belonging to Scheduled Castes (SCs) and Scheduled Tribes (STs), the Supreme Court has said that the government “is not debarred from making promotions in accordance with law” till Constitution bench of the apex court decides on the petitions before it
In a major relief for employees belonging to Scheduled Castes (SCs) and Scheduled Tribes (STs), the Supreme Court has said that the government “is not debarred from making promotions in accordance with law” till Constitution bench of the apex court decides on the petitions before it. This comes after the top court had on March 20 taken serious note of instances of abuse of the Prevention of Atrocities Act for political and personal reasons. It also laid down stringent safeguards including provision for anticipatory bail and vetting of a complaint to determine if a case was made out before registration of an FIR under the Act. This led to protests and allegations about the dilution of the law and the central government approached the court to reconsider.
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Union Minister for Social Justice & Empowerment Thaawarchand Gehlot stressed that the hearing would set at rest all allegations, especially in the wake of the order on the Scheduled Castes and Tribes (Prevention of Atrocities) Act, that the government was trying to end reservation and other safeguards for SC/STs through courts.
Gehlot also ruled out any immediate plans to bring in a Bill on the matter in the monsoon session of Parliament. “This (dilution allegation) is a misconception which led to a Bharat Bandh on April 2. Now we are hopeful that even in the Atrocities Act matter, the court will give a favourable order. We will wait until their order is out and only then bring in an ordinance if the ruling is not in our favour,” he said.
What to expect on government promotions?
Following the hearing, the central government said this will not only ensure quotas in promotion for its SC/ST employees but also allow all such employees, whose promotions had been reversed in recent years, to be reinstated. Gehlot said that consultations were held between his ministry, the Ministry of Law and Department of Personnel and Training and underlined that “promotion mein reservation ka raasta khul gaya hai (provision for reservation in promotion has been cleared) “.
“Even though this is just an interim order, and the matter will be decided by a larger Constitutional Bench, we will immediately implement it so that reservation can be made applicable to promotions also. Also, if any of the promotions granted to SC/ST employees post 1997 were reversed, then they too will get the benefit of this order,” he said, adding that they will have to be reinstated to their erstwhile posts.
According to legal experts, the order paves the way for the government to extend reservation to promotions as envisaged by the Constitution, but this has to be strictly in accordance with the law as it stands now.
What does the law say?
Union Minister Ram Vilas Paswan said, “The Law Ministry will look into the issue of all those cases where promotions given to SC/ST employees were reversed. They were eligible for promotions right from the beginning, right from the day Article 16 (4A) came into the Constitution. Hence, they should get it. They will get it.” Article 16 (4A) is a special provision which provides for reservation for promotion only to SCs and STs
The Statement of Objects and Reasons of the 77th Amendment Act, 1995 noted that reservations in promotions for SCs and STs had been discontinued after the November 16, 1992 judgment in Indra Sawhney and Others vs Union of India and Others (Mandal case), in which the Supreme Court observed that reservation under Article 16(4) — which allows the state to make provisions for “reservation of appointments or posts in favour of any backward class of citizens” — did not apply to promotions.
Clause 4A was introduced with an aim to ensure that reservations in promotions continued. “Nothing in this article shall prevent the State from making any provision 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.”
Clause 4B was inserted to ensure that while calculating the quota for a particular year — capped at 50% by Indra Sawhney — the unfilled or ‘carried forward’ quota from the earlier year was not clubbed with the regular quota of that year. The clause said, “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… that year.”