The courts necessarily have to move with the time like all other institutions. We, therefore, did not expect them to rule out outright against quotas in job promotions. Affirmative action for those traditionally backward socially and economically cannot be questioned, should not be questioned. In fact, it is absolutely necessary to pull people out of centuries-old backwardness and offer them special facilities in order to bring them to the level of the vast majority of citizens. Founding fathers were right in providing reservations for scheduled castes and scheduled tribes, though they were far too optimistic, believing that after a decade there would be no need for reservations.
The way things turned out, it seems reservations not only for SCs, STs but those extended to newer categories would last in perpetuity. The Mandal reservations for the OBCs caused the top court to stipulate that total quantum of reservations for both the OBCs and the SCs and STs cannot exceed fifty per cent. The safeguard was in the interest of preserving efficiency and integrity of the concerned institutions. The trouble arose when the votaries of the caste-based reservations demanded reservations in promotions as well. Even a dimwit could realise that these would sap the morale of the entire bureaucracy and adversely impact efficiency. However, the political class lacked the will to oppose the demand fearing that it would be branded anti-reservations. In the early 90s, the apex court prescribed that the creamy layer of OBCs cannot claim special benefits.
On Wednesday, a five-judge Constitutional Bench headed by Chief Justice of India, Dipak Misra, declined to refer the matter to a seven-judge bench, thus virtually sanctioning the existing position regarding in-service reservations in promotions for the reserved categories of employees. The bench directed that the States need not collect quantifiable date on backwardness of SCs/STs employees to provide quota in job promotions. In other words, the quota at the time of recruitment is to be followed up a few years down the line by another quota for the same categories of employees. This time, for promotions over and above those that occur in the normal, time-linked manner. This is horribly excessive and is bound to tell on the quality of administration and lead to heartburns and bitterness among the employees. It is quite possible that a junior employee who has no special aptitude for his job and has not acquitted himself well in it might end up as the superior of his far more efficient colleagues under the quota in promotions provision. We cannot make any sense of it. Nor can we see how it will help uplift the traditionally backward groups.
As we said, lowering the threshold for employment and admissions in educational institutions is necessary to eventually establish an egalitarian order but to grant preferential treatment once they have gained admittance is to distort the entire administrative and educational edifice. Given the poor state they are already in, the large-scale implementation of the quotas in promotions will do great harm to the system. The SC order said, “The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class backward as they always were.” This is a welcome stipulation. However, the court would have done immense good all around if instead of barring creamy layer from in-service quotas for special promotions were it to rule it out altogether. And, two, it should have applied the creamy layer test at the very first stage of employment. There is little justification for the family members of , say, the late Defence Minister Jagjivan Ram to lay claim on reservations. His family gained immensely from reservations. His daughter was a member of the elite Indian Foreign Service. Why should anyone in her family seek a lax standard for jobs or school or college admissions is unclear. The court was conscious to clarify that the creamy layer test in no way aimed at undermining the existing SCs-STc and OBCs reservations. Its limited objective was to exclude those who had attained the stated benefits of equality and removal of untouchability from out-of-turn in-service promotions. Even such a commonsensical provision is bound to get the hackles up of the reservation lobby which is bound to react adversely. The Most troublingly, the rest of the political class is obliged to acquiesce in the excessiveness of the reservation warriors.
