Tuesday, May 29, 2012

The Uncertain Push for Empirical Data: Courts Strike Down Central Government's Minority Sub-Quota and U.P's Consequential Seniority in Promotions

Two recent decisions, one from the Andhra Pradesh High Court and the other from the Supreme Court, might well radically alter the dynamic between the courts and the State in the context of reservations.

In the judgment delivered yesterday in R. Krishnaiah v. Union of India, a Division Bench of the Andhra Pradesh High Court, comprising Chief Justice Madan Lokur and Justice Sanjay Kumar, struck down the two Office Memorandums of the Government of India (dated 22 December 2011) that carved out a 4.5% sub-quota for minorities from the overall 27% OBC quota in Central Government posts and certain central educational institutions. The Court held that there was no material placed before the Court, in terms of establishing any special backwardness, that justified creating a sub-group of religious minorities within the OBC category. The Court highlighted the fact that the sub-group comprising Muslims, Christians, Sikhs, Buddhists and Parsis was not homogenous in terms of backwardness  and this fact indicated to the Court that the sub-quota was purely based on religion. The Court also ruled that the Government of India had an obligation to consult the National Commission for Backward Classes (NCBC) under the Act establishing the Commission and that this obligation existed even though the advice of the NCBC was only 'ordinarily binding' on the Government under s.9(2) of the NCBC Act. Readers will remember that the Cabinet had approved this measure few days before the Election Commission declared elections in five states, including Uttar Pradesh, in December 2011. 

In U.P Power Corporation v. Rajesh Kumar & Ors., a two-judge bench of the Supreme Court (Justices Dipak Misra and Dalveer Bhandari) struck down Rule 8-A of the U.P Government Servants Seniority Rules that provided for consequential seniority. Rule 8-A was inserted pursuant to the 85th Constitutional Amendment which specifically permitted, through Article 16(4A), consequential seniority in promotions. Reservations in promotions had seen a lot of disagreement between the Supreme Court and the Parliament before the Supreme Court in M. Nagaraj v. Union of India (2006) upheld the validity of the 77th, 81st and 85th Constitutional Amendment Acts and ruled that Articles 16(4A)and (4B) were only enabling provisions. As a result, the State can provide for reservations in promotions and attach with it the benefit of 'consequential seniority'.** However, in U.P Power Corporation the Court has repeated what it held in Nagaraj, that Article 16(4A) is merely an enabling provision and it does not lend automatic validity to all provisions of consequential seniority in the various Rules. The conditions laid out in Nagaraj about determining backwardness, adequacy of representation and efficiency of service will have to be established.

Both decisions make very important moves as far the burden on the State to present empirical data is concerned. The courts have made it clear that the State cannot rely on general data that was collected for other purposes. The State, they say, must collect very specific data that is aimed at providing empirical support for the specific preferential policy in question. In Krishnaiah, the AP High Court held that it was not relevant, for purposes of Articles 15(4) and 16(4), to rely on the Ranganath Mishra Commission Report and a more specific exercise had to be undertaken to demonstrate why the minority groups identified in the memorandums were more backward than other groups in the OBC list. The AP High Court took a similar approach in T Muralidhar Rao v. State of AP (2010) when it struck down the Andhra Pradesh Government's move to provide a 4.5% quota for OBC Muslims in the State (the Central Government's measure mentioned above is for all minorities and not just Muslims) by holding that the State Government had relied on secondary data and had not produced specific empirical data that demonstrated how the backwardness and lack of representation of Muslim OBCs was different from that of other OBCs.  Similarly in UP Power Corporation, relying on M.Nagaraj, the Supreme Court rejected the claim that there was enough material which indicated a general inadequacy of representation of Scheduled Castes in promotional posts per se. The Court declined to accept this level of generality and said that the relevant unit for determining 'adequacy of representation' is the cadre strength.

Such a move raises very important issues for the relationship between the courts and the State on reservations. The courts are clearly looking to provide an extremely narrow meaning to the phrase 'in the opinion of the State' in Articles 16(4) and 16(4A) when deciding the adequacy of representation. The courts seem to be saying that the State cannot base its decision on data that might generally indicate inadequacy of representation and it is a very pointed exercise, down to the cadre, that is required. 

I do believe that M Nagaraj was wrongly decided, especially in the context of the condition laid down that the State will have to determine backwardness (in very obvious references to the 'creamy layer') while taking measures under Article 16(4A), which deals with promotions for Scheduled Castes and Scheduled Tribes exclusively. However, in UP Power Corporation the Supreme Court seems to ignoring that condition laid down in Nagaraj and concentrating only on the requirements of demonstrating 'adequacy of representation'. Additionally, these cases raise the inevitable question of the deference that Courts must exhibit towards the 'opinion of the State' under Article 16 and I think the courts are setting the bar too high.

**Consequential Seniority -- Let us assume that A, belonging to the General Category, currently holds Level 3 of a government post and B, appointed under the Scheduled Caste quota, is junior to A in Level 3. When promotions to Level 4 are to be decided, let us assume further, that due to reservations in promotions B has to be promoted to Level 4 before A because there are no Scheduled Caste candidates at a seniority similar to that of A. The question that then arose was whether A would regain seniority over B when she is promoted to Level 4 in due course. 'Consequential Seniority' means that A will not regain her seniority and B will now be considered senior to A within Level 4.

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