The Supreme Court has held that states are not bound to provide reservation in appointments and there is no fundamental right to claim quotas in promotions.

“In view of the law laid down by this court, there is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions,” said a Bench of Justices L. Nageswara Rao and Hemant Gupta.

“No mandamus can be issued by the court directing the state government to provide reservations,” the Bench said in its verdict.

What was the case all about?

The apex court was hearing appeals regarding the Uttarakhand government’s 2012 decision to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes.

The decision was challenged in the Uttarakhand High Court, which struck it down.

While upholding the Uttarakhand government’s 2012 notification, the apex court said as the government is not bound to provide reservation in promotions, the HC should not have declared the state’s decision as illegal.

“It is settled law that the state government cannot be directed to provide reservations for appointment in public posts. Similarly, the state is not bound to make reservations for SCs and STs in matters of promotions. However, if they (state) wish to exercise their discretion and make such provision, the state has to collect quantifiable data showing inadequacy of representation of that class in public services,” the Bench said.

Referring to the constitutional provision about reservation, the Bench said, “It is for the state government to decide whether reservations are required in the matter of appointment and promotions to public posts.”

It noted that Article 16(4) and 16(4A) of the Constitution empowers the state to make reservations in matters of appointment and promotion in favour of SCs and STs “if in the opinion of state they are not adequately represented in the services of the state”.

“The language in clauses (4) and (4A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the state,” the Bench said, adding, “All that is required is that there must be some material on the basis of which the opinion is formed.”

What is Article 16?

Article 16 deals with equality of opportunity in matters of public employment.

Article 16(4) says that “Nothing in this Article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.”

This clause was amended in 1995 under the 77th Amendment Act.

Article 16(4A) says that “Nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the state in favour of the SCs and STs which, in the opinion of the state, are not adequately represented in the services under the state.”

In 2000, a new clause was added under the 81st Amendment Act.

Article 16(4B) says “Nothing in this Article shall prevent the state from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

What is the significance of the verdict?

Congress leader Mallikarjun Kharge said the judgment will have repercussions not just in Uttarakhand but also in several other states.

He demanded that the Centre either file a review petition in the SC or amend the Constitution to make reservation a fundamental right in the wake of the order.

“They can either take up this matter and amend the Constitution related to Article 16(4)(b) or (c) after consulting the law department or file a review petition, asking that a constitutional Bench should hear the case,” Kharge said.

He claimed that a constitutional matter should not have been heard by a two-judge Bench of the SC, but the full constitutional Bench.

Matters that affect SCs, STs, Backward Classes and economically weaker sections, who are entitled for 10 per cent reservation, should be represented properly, he added.

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