Tuesday, September 04, 2012

Reservation in promotions

In the public discourse, there is much misinformed analysis of the recent controversy over reservation in promotions.  In this recent article, Mr.P.S.Krishnan explains the issues succinctly.  The highlight of his article is that in the Nagaraj case, the Supreme Court's  five Judge Bench upheld the amendments which facilitated reservations in promotions for the SCs and STs, but imposed conditions which are relevant only for the OBCs.  In the recent U.P.Power Corporation case, the reverse happened: the Court insisted on compliance with those wrongly-imposed conditions to quash the relevant provisions of the U.P.Act, enabling reservations in promotions. Some of our contributors, who have followed the issue closely, may like to comment on Mr.Krishnan's article in a separate post.

UPDATE: Constitution 117th Amendment Bill has been introduced in the Rajya Sabha

6 comments:

Madhav Khosla said...

As someone in favour of reservations, I find the argument for reservations in promotions absurd since it undermines the very logic of reservations: it treats equals unequally. And to then offer further promotions, indefinitely, on the basis of a promotion gained through reservations betrays all notions of equality. For my very different take on the matter, as compared with VV's post, see: http://www.indianexpress.com/story-print/988464/

V.Venkatesan said...

Dear Madhav,
Though it is my post,I only drew attention of our readers to Mr.Krishnan's article. I'd appreciate if you could answer the substantive points which Mr.Krishnan makes. Of course, I have read your IE piece. I don't think it addresses the issues Mr.Krishnan raises specifically.

V.Venkatesan said...

Madhav,

You also assume that level playing field is achieved at the entry point. As today's article in The Hindu shows, (http://www.thehindu.com/opinion/op-ed/article3871312.ece), SC/STs enter civil services late in their career, and retire without enjoying the years of service, usually availed by those who enter earlier. Therefore, the level playing field remains unequal even after entry, justifying the need for quota for promotions. Or, we adopt the fixed tenure solution, as suggested by Katju.

Pranav Sachdeva said...

just read the following order where I appeared for the State govt. and you wud notice a slightly different approach:




When Special Leave Petition (C) No.30143 of 2009 came up for
hearing on 26th April, 2010, this Court passed the following order, in
view of the statement made by the learned counsel appearing for the
State of Himachal Pradesh, and the special leave petition was disposed
of:


"The State of Himachal Pradesh has issued a Circular
on 07.09.2007 as regards the promotion of SCs/STs in the State
service. The said circular was challenged by the respondent No.1
and the circular was quashed by the High Court by the impugned
judgment. Learned counsel appearing for the State submits that
the circular issued on 07.09.2007 has since been withdrawn as
the State intends to collect more details with regard to
representation of SCs/STs and to pass appropriate orders within
reasonable time i.e. approximately within three months after
collecting necessary details and datas. The petitioner would be
at liberty to take appropriate steps, if any adverse order is
passed. This Special Leave Petition and the Contempt Petition
are thus disposed of finally."


Pursuant to the aforesaid order, it appears that the State of
Himachal Pradesh has collected the necessary data as on 31.12.2011.
This is evident from the answers given to the Assembly Question
Unstarred No.196, to which the reply was given on 4.4.2012. The
question was specific in the following terms:
(a) How much is the present SC/ST backlog in the State; and
(b) What steps the Government is taking to fill-up the
backlog of these categories?


The answer to the aforesaid question (a) and (b) was that
"The necessary information is at Annexure - "A"."
A perusal of the Annexure-A shows that the details of backlog
position of Scheduled Castes/Scheduled Tribes in direct recruitment
and promotion in the services of the State and
Boards/Corporations/Public Sector Undertakings etc. as on 31.12.2011.
That being the position, we are of the considered opinion that there
should be no impediment in the way of the respondents in taking a
final decision on the question of providing reservation to the members
of Scheduled Castes and Scheduled Tribes in the matter of promotion
within the State of Himachal Pradesh.


Learned counsel appearing for the State of Himachal Pradesh
submits that the Government will require at least six months time to
take the necessary decision. We are not inclined to accept the
aforesaid submission. In our opinion, in the facts and circumstances
of this case, it is necessary for the State of Himachal Pradesh to
take the necessary policy decision on the question of providing
reservation to the members of Scheduled Castes and Scheduled Tribes in
the matter of promotion in the services within the State of Himachal
Pradesh, within a period eight weeks from the date of receipt of a
certified copy of this order.
The State of Himachal Pradesh is directed to place on record
the compliance report before the next date of hearing.
This matter shall stand over for ten weeks.

Madhav Khosla said...

The argument is, unfortunately, fallacious. The playing field is level because both persons enter at the same "level", their respective ages is beside the point. To grant quotas in promotions is a reductio ad absurdum from the logic of affirmative action because we it argues that even once people are at the same level, special treatment for certain groups should take place. This is effectively a simple case of discrimination or inequality. There is a reason why Ambedkar strove hard for “equality of opportunity” and not “equality of outcomes”. He feared that lower castes would not be able to enter civil services – it is opportunities he addressed.
Quite frankly, to argue that an SC/ST receives special treatment to enter university, then special treatment in the examination for the civil service, and then requires further special treatment to be promoted within the service is nothing but a casteist idea. It is casteist in the following way: it suggests that, no matter how much a person is educated or works, she cannot rise in the bureaucracy on her own, she can only rise by speaking through her caste – it is her only marker and she can never transcend it. I wouldn’t like to demean SC/STs in the fashion, and would afford them greater dignity. To tell a person belonging to a low caste that even once opportunities are equalised, he can still not advance and can still speak only through his caste, is a demeaning and totalitarian idea.
Furthermore, why do you insist that caste remains the yardstick for backwardness when, however much a person’s social and economic status rises, their caste cannot change. If no further inquiry is warranted beyond identifying caste, then how do the socially and economically backward members of lower castes ensure that, absent judicial intervention, their benefits are not taken by lower caste members who are no longer backward? Let alone people who are backward from other groups.
Between Hindu nationalists on one side, and caste extremists on the others, one can only wait for an India in which citizens are not forced to speak through a single immutable identity. And, of course, none of this even begins to address the divisions that this will create within the civil services. How will a person feel when he sees that a person his junior gets promoted only because of her caste – a person who might well be socially and economically advantaged? The deep psychological conflicts that caste-identification creates, which Ambedkar so thoughtfully spoke of and worried over, will be visible writ-large. Finally, much of your post relates to the normative justifications for promotion quotas. But how can that normative rationale possibly be extended to consequential seniority? To granting a promotion quota, then granting a further promotion just on that basis, and creating a scenario of an indefinite double promotion? Even reductio ad absurdum does seem mild here. And the greatest tragedy is that rather than addressing the deep poverty and shameful history of oppression that groups that suffered in India, we will create further divisions and dole out benefits to elite members within those groups. Between no clarity on backwardness at one end and no clarity on equality at the other, a grand show of interest group capture is at work.

Rohit De said...

Madhav,

You raise quite a condundrum.
"To tell a person belonging to a low caste that even once opportunities are equalised, he can still not advance and can still speak only through his caste, is a demeaning and totalitarian idea"

So how would you explain the near complete absence of officials belonging to the certain castes in high office? The only non caste-ist arguments that can explain this, are questions relating to the design and structure of the services and possible institutionalized biases.

As Vivek Katju points out the idea that promotions are purely on some abstract notion on merit is falacious. In the services, they are often determined by your age and your rank in an examination taken several decades ago (atleast uptil the final stages). The feeling is so ingrained that several diplomats resigned en masse, when someone a few ranks junior to them (Shiv Shankar Menon) was promoted over them. Hypothetically, how is the the resentment that someone is promoted because of their caste different from resenting someone being promoted by their age.

To have age relaxation for SC/ST candidates and then ensure a system that is rigged so that they can almost never rise to a particular post is almost perverse. This is similar to a workplace that does not give accommodate female employees who need to take time off for raising their families.

Perhaps reservations are a blunt instrument to achieve this, and we should really be rethinking our entire system of recruitments and promotions. Mr Katju's suggestion of fixed tenure is one such, Surabhi suggested lateral hires as another way of filling the gap. Tarunabh's had discussed some form on an equal opportunities commission.