Consequential Seniority in Karnataka: BK Pavitra v. Union of India - II

On 10 May 2019, the Supreme Court upheld the validity of the 2018 Reservation Act that introduced consequential seniority for SC/STs in Karnataka public employment.

 

Consequential seniority allows reserved category candidates to retain seniority over general category peers. If a reserved category candidate is promoted before a general category candidate because of reservation in promotion, then for subsequent promotion the reserved candidate retains seniority. In effect, consequential seniority undoes the 'catch-up rule' that allowed general category candidates to catch-up to reserved category candidates.

 

The full name of the Act is The Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018 (2018 Reservation Act).

 

Background

In an earlier judgment (BK Pavitra I), the Court struck down the Reservation Act, 2002 on 22 March, 2017. It held that the State had failed to provide compelling evidence justifying the consequential seniority policy. It granted the State of Karnataka 3 months to take further action.

 

Following the decision, the State of Karnataka created the Ratna Prabha Committee to submit a quantitative report demonstrating the three Nagaraj criteria:  (i) current backwardness of SC/STs, (ii) cadre-wise representation of SC/STs in Government Departments, (iii) effect on administrative efficiency due to reservation in promotion.  On the basis of the Ratna Prabha Committee report, Karnataka passed the 2018 Reservation Act.

 

Section 3 of the 2018 Reservation Act provides for reservation in promotion and section 4 validates consequential seniority, back dated to 24th April 1978.

 

Judgment

The Division Bench of the Supreme Court speaking through Justice Chandrachud upheld the Reservation Act 2018.

 

The Court was entertaining two central questions:

  1. Is the Reservation Act 2018 a legislative overruling of BK Pavitra I? BK Pavitra I struck down consequential seniority, yet the Reservation Act 2018 re-introduces it.
  2. Is the Reservation Act 2018 in conformity with the Constitution Bench judgments in Nagaraj and Jarnail Singh?

 

Nagaraj requires the State to produce compelling evidence in order to introduce a reservation in promotion policy. In particular, the State must quantitively demonstrate three criteria: (i) further backwardness, (ii) inadequate representation and (iii) maintenance of administrative efficiency. Jarnail Singh removed the first criteria, however it introduced the creamy layer exclusion principle. The creamy layer (high income sub-group) of an SC/ST cannot avail of reservation in promotion.

 

On the first question, the Court held that the Reservation Act 2018 is not a legislative overruling of BK Pavitra I. Justice Chandrachud stated the 2018 Act changed the basis of BK Pavitra I  by providing data. He held that corrective legislation is constitutionally possible.

 

On the second question, the Court analyzed the data provided by the State demonstrating backwardness, inadequate representation and administrative efficiency. Justice Chandrachud clarified that the Court's power of judicial review was limited, observing that the need for reservation lies within the domain of the executive and legislature. He emphasised that the Court would only strike down the legislation, if it found that the Ratna Prabha Committee relied on extraneous or arbitrary considerations.

 

The Court found the data submitted acceptable and hence upheld the Reservation Act 2018. We go into more detail below.

 

Backwardness / Creamy Layer

The Court did not look at the data on backwardness because Jairnail Singh had removed that requirement. 

 

However, Jarnail Singh did introduce the creamy layer exclusion principle. The Committee had not collected creamy layer data, given that the judgment came out after the report. Nevertheless, the Court upheld the Reservation Act 2018.

 

Justice Chandrachud reasoned that Jarnail Singh introduced the creamy layer principle for reservation in promotion and not for consequential seniority. Specifically, he held that consequential seniority is a consequence of reservation in promotion and not an additional benefit. Hence, he held that the creamy layer test could only be applied at the stage of reservation in promotion and not subsequently for consequential seniority.

 

Inadequate Representation

The Court accepted the claim of inadequate representation. The Committee found that SC/ST employees constitute 10.65% and 2.92% respectively across 31 State Government departments. Further, it found the cadre wise representation to be:

  • SCs: 12% (Grade A), 9.79% (Grade B), 12.74% (Grade C), 16.91% (Grade D)
  • STs: 2.70% (Grade A), 2.34% (Grade B), 0.04% (Grade C), 2.34% (Grade D)

 

The Report concluded that there is inadequate representation of SC/STs in State Government services in Grade A, B and C while adequate representation in Grade D.

 

The Court clarified that reservation in promotion via the Reservation Act 2018 will be allowed until SC/ST representation reaches 15% and 3% respectively.

 

Efficiency

Next, the Court looked at administrative efficiency. Justice Chandrachud accepted the Committee’s claim that Karnataka continues to show high performance in various sectors despite reservation in public jobs. While the Report did not go into specifics, it concluded that no inference can be drawn that reservation in favor of SC/ST has negatively impacted efficiency.

 

Further, Justice Chandrachud introduced an inclusive definition of administrative efficiency. He examined the definition of efficiency under Article 335 of the Constitution and observed that it ‘does not define what the framers meant by the phrase “efficiency of administration”.’ He then proceeded to define efficiency in terms of equal representation.

 

Justice Chandrachud criticized the predominant merit-based approach to maintaining administrative efficiency. He observed that the seemingly neutral system of standardized tests mask existing inequalities in society, which appear to favor already privileged candidates. Referring to scholar Marc Galanter, he said that standardized exam results are based on economic resources, social and cultural resources and individual hard work. He observed that the first two are structural conditions beyond the control of the individual. He held that the conditions must be controlled for.

 

Then he introduced a representative definition of efficiency. Citing Amartya Sen, he held that merit should be measured as an action that leads to societal good. Hence, he held that a meritorious candidate is not just one who is more talented, but on whose appointment fulfills the constitutional goal of uplifting SC/STs.

 

He concluded that this representative notion of efficiency is congruent with the policy of consequential seniority.