B.K. Pavitra & Ors v. Union of India & Ors

    Case in the Supreme Court of India

    Petitioner: B.K. Pavitra & Ors.

    Respondent: Union of India & Ors.

    Overview

    The present case resolved the decade-old issue regarding reservation in promotion and consequential seniority by upholding the constitutionality of the Reservation Act passed in 2018 by the Karnataka Government.

    Facts of the Case

    In 2002, The Government of Karnataka enacted a Reservation Act giving a nod to the application of the ‘Consequential Seniority’ in the promotion of employees belonging to the SC/ST community. According to this act, if a reserved category employee gets promoted before an unreserved category employee through the benefit of reservation, then he will retain his seniority if and when the unreserved employee gets promoted. This act did away with the ‘catch-up’ rule that allowed general category candidates to catch-up to reserved candidates and regain their seniority.

    The issues surrounding ‘Reservation in Promotion’ has been in debate for decades which finally got settled after the amendments to Article 16 (4A) of the Constitution which included the word ‘consequential seniority’. In the case M. Nagaraj v. Union of India, the Court made it difficult for the Governments of State and Centre to grant such reservation by introducing three criteria, namely:

    1. The State must prove the backwardness of the class
    2. The State must demonstrate the inadequacy of its representation
    3. The State must show that the reservation is in the interest of efficiency

    In the Judgement of BK Pavitra 1, the Court struck down the Reservation Act of the Karnataka government on 22nd March 2017 because it was found to be violative of the Nagaraj judgement. It was held that the lack of compelling evidence provided by the State in the support of consequential seniority led to the above-mentioned action. The government was given a 3-month time to take any further action.

    The Karnataka government soon commissioned a study done by the Ratna Prabha Committee. The committee submitted its Report demonstrating the three Nagaraj criteria and based on the study, passed the 2018 Reservation Act named ‘The Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Act 2018’. This act was basically an enactment of the earlier struck down Act of 2002. Section 3 of the Act mentions the reservation in promotion criteria while Section 4 validates consequential seniority with a retrospective effect dated from 24th April, 1978.

    Various issues relating to the Act were pointed out. To name a few,

    1. It was argued that the Karnataka Government over-ruled the BK Pavitra 1 judgement by re-enacting the same Act which was held unconstitutional in the said judgement.
    2. The study that was made the basis for the Act was argued to be incorrect.
    3.  The Act failed to exclude the ‘creamy layer’ as was held to be a compulsion through the judgement of Jarnail Singh & Ors. V. Lacchmi Narain Gupta & Ors.

    Judgement

    The Division Bench of the Supreme Court upheld the Reservation Act enacted by the Karnataka government in 2018.

    The two major questions dealt by the Court were as follows:

    1. Does the Act overrule the judgement of BK Pavitra 1?
    2. Does the Act breach the precedent set in the Nagaraj and Jarnail Singh case?

    Jarnail Singh judgement removed the first criteria to be demonstrated by the State to bring about a reservation in promotion but added the ‘creamy layer exclusion’ principle which removed the high-income group among the SC/ST people from availing reservation in promotion.

    Justice Chandrachud while answering the first question on the behalf of the Division Bench upheld the 2018 Act calling it a corrective legislation as it changed the basis of BK Pavitra judgement by providing data.

    Stressing on the second question, the Court analysed the data provided by the committee and held that it was based on sampling methods and just because better methods were available, doesn’t give the Court a right to hold it invalid. Justice Chandrachud also stressed the limited power of judicial review as in the context of reservation, the adequacy of representation is left on the subjective satisfaction of the State and the Court can only strike down the Act if the reports were based on arbitrary or extraneous material (both of which couldn’t be proved).

    The Court gave detailed judgement after analyzing the three criteria set by the Nagaraj case and whether they were violated by the Reservation Act.

    Backwardness or the Creamy Layer

    The Court didn’t explain the law related to backwardness as the Judgement in Jarnail Singh case removed that criteria. However, it did include the exclusion of creamy layer which was not taken into consideration while passing of the Act. It was held that the judgement was announced after the passing of the Act and it would be unfair to apply the exclusion of creamy layer principle in the SC/ST scenario as they have been oppressed by virtue of their group identity and that can’t be avoided by earning more money. Respect cannot be gained through wealth and the concept of ‘creamy layer’ doesn’t make any sense for a group that faces social stigma. Justice Chandrachud also pointed out that the creamy layer principle in the Jarnail case was introduced for reservation in promotion and not in consequential seniority as the latter is just an outcome of the former.

    Inadequate Representation

    The Court accepted the committee’s claim of inadequate representation of SC/ST’s in government jobs across 31 departments in the State. It was found that according to the cadre wise division, SC/ST’s were poorly represented in the Grades A, B and C but had a good representation in that of Grade D. They merely consisted of 10.65 % and 2.92% across the departments and it was held that the Reservation Act of 2018 will apply up until the representation reaches 15% and 3% respectively.

    Efficiency

    The Court agreed with the committee’s claim that providing reservation to SC/ST candidates doesn’t affect the overall performance of the Karnataka State in various sectors. It also provided data proving the high performance of public sector jobs in the state hence debunking the general idea that reservation has been negatively impacting efficiency.

    Justice Chandrachud attempted at explaining the term efficiency but found that Article 335 does not define what the framers meant by the term administrative efficiency. Thus, he explained it in terms of equal representation. He also went ahead to criticize the term merit and how it has nothing to do with the narrow and inflexible criteria, say standardised exams. A person scoring more marks than the other isn’t just based on his hard work but rather also based on the availability of economic, social and cultural resources that are beyond the control of an individual as mentioned by the scholar Marc Galanter.

    He finally stated, “administrative efficiency is an outcome of the actions taken by an individual after they have been appointed or promoted and is not tied to the selection method itself.” He concluded by explaining in the words of Amartya Sen that the word merit needs to be measured as an action that leads to the betterment of the society.