Reserved to Rot

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Ideally, under-privileged and backward category population should get one chance to improve its mobility. But the politically motivated reservation set-up over the years has created a maze that is surviving at the cost of competence and merit. Even after the High Court ruled the practice was illegal, Tasavur Mushtaq sees the government still indecisive on what next

Teacher-ProtestingVijay is a frequent visitor to the civil secretariat in Jammu. A local resident recruited as Accounts Assistant in 1990 under reserved category, he is desperate to become Director Finance. Currently he is posted in an engineering wing.

Ashok, his batch mate is an Assistant Accounts Officer. A meritorious candidate, he lacks the ambitions because he was recruited in general category, an open merit candidate.

But how system helps the meritorious to rot by invoking the reservations is a long story and victims are as abundant as democracy. M Hussain, appointed as Junior Engineer (civil) in PHE/I&FC department in 1988 under ST category is currently in-charge Superintending Engineer and aspiring for the post of Chief Engineer. M L Bhat, is an open merit candidate and senior to Hussain by ten years. He became SE a year after Hussain.

This contrasting trajectory of growth is outcome of reservation rules and rosters applied at various stages of entry and subsequent promotions guaranteed by the Article 16 (4) of Constitution of India: “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 article provided reservation of appointments for different posts for SC/ST categories only. Subsequent, Mandal Commission recommended that 27 percent government jobs should be reserved for the candidates belonging to OBC category. Delhi accepted it on August 13, 1990.

Later, the memorandum was modified by dolling away 10 percent vacancies for other ‘Economically Backward Sections’ not covered by the reservation scheme.

In its landmark judgment, a 9- judges Supreme Court bench (in Indra Sawhney Vs Union of India), found that under Article 16(4), reservation is permissible only at the initial stage of direct recruitment and not at the subsequent promotional stage. The Court, however, permitted existing rules in this behalf to operate for a period of five years from date of judgment, 1992.

To reverse the impact of the Supreme Court judgment, Parliament by way of Constitution (77th Amendment) Act, 1995, inserted clause (4A) in the article 16. It came in to effect from June 17, 1995 enabling the state to make provisions for reservations in promotions as well.

This scheme triggered several problems pertaining to seniority of various reserved category employees over the employees belonging to general category. To grapple with these problems, a division bench of the Supreme Court (Virpal Singh Chauhan Vs Union of India) held that “Article 16(4A) enabled the government to provide for reservation in promotions but such accelerated promotion will not give accelerated consequential seniority to such promotes.” It further ruled that “even if a reserved category candidate is promoted earlier by virtue of reservation / roster then his senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted reserved category candidate.” This is called the ‘Catch-Up Rule’. This concept was upheld by the three judge bench of apex court (Ajit Singh Januja (I) Vs State of Punjab AIR 1996) later.

Following these judgments, central government amended rules on January 30, 1997 to provide for regaining of seniority by the general category candidates over the roster point promotees.

Following it up, the J&K government also introduced proviso to clause (a) of sub-rule 1 of rule-24 of J&KCCA Rules, 1956 that “general category candidate shall regain his seniority over promoted reserved category candidate in the immediate higher post / grade.”

With a view to negate the impact of judgments and memorandum dated January 30, 1997 quashing ‘consequential seniority’, the Parliament amended clause (4A) of article 16 by way of Constitution (85th amendment Act, 2001) to provide for reservation in promotion with consequential seniority. Article 16(4A) now reads as, “Nothing in this article shall prevent the state for making any provision for reservation in matters of promotion with consequential seniority to any class or classes if posts in the services under the state in favour of schedule caste and schedule tribes which in the opinion of the state are not adequately represented in the services under the state.”

In 2002, the central government withdrew the amendments made on January 30, 1997.

Much before the Constitution (85th Amendment Act, 2001) and a decision of central government to withdraw the memorandum of January 30, 1997, J&K government withdrew SRO-186 of 1997 by virtue of SRO-110 of 2000.

With all these Apex Court judgments and amendments by the Parliament, now arises the question: Whether all these amendments which state was implementing and subsequently amending the rules were applicable to the State of J&K or not.

Part III of the Constitution of India containing the fundamental rights, including 16(4), is applicable to J&K. However, all the constitutional provisions have no applicability except those as made applicable by Presidential Order 1954 and other Presidential orders through the window of Article 370. Accordingly the 77th Constitutional amendment in terms of article 16 (4A) is not ipso-facto applicable to J&K.

Furthermore, Constitution (85th Amendment Act), brought by the Parliament to provide for reservation in promotion with consequential seniority by modifying clause (4A) of Article 16 of the Constitution of India is also not applicable to J&K.

As per this the law declared by apex court, J&K is governed by the law that “the accelerated promotion on roster point does not give accelerated seniority to such promote.” So ‘Catch-Up rule’ is in vogue. The SRO-110 issued in 2000 was deleted.

Officials dealing with these matters in Civil Secretariat are of the opinion that ‘Catch-Up rule’ is in no way helping the general category candidates. Offering an instance, a deputy secretary rank officer told Kashmir Life that the system in vogue is bizarre. Considering 10 JEs – A to J, he said if there are three posts vacant for next level (AE), as per roster, A and B who are general category candidates will be elevated besides J, a category candidate, as the third one. J thus supersedes his seven seniors.

‘Catch Up rule’ says that in this grade J should be placed as per his level when other seniors are promoted. But that never happens. Till the point the remaining seven are elevated, J is already an AEE. So in this way they never come in same grade where ‘Catch-Up rule would be implemented.’

It is mentioned in one of the recommendations of the committee formed under the chairmanship of advocate general and comprising secretaries of various departments in June 2013  that “category promote will not have any seniority benefits unless reserved category candidates is not promoted to much higher cadre earlier than promotion of general category candidate.”

Appointed as JE in PHE/I&FC department under RBA category, Naseer is presently In-charge Executive Engineer. His senior general category counterparts are currently AEEs. Interestingly, the General Category candidates who were AEs at time of Naseer’s appointment are still AEEs!

“This is what actually happens. They jump across ladder and technically catch-up rule has no significance,” an Additional Secretary rank officer said. Insisting that it is a mess, an Under Secretary rank officer said if five engineers retire belonging to open merit, roster is again applied to fill the resultant vacancies. So to replace for open merit candidates, two reserved category candidates come. This is in addition to already applied rosters at various levels. “It is obviously unjust and unfair with open merit candidates,” the officer, speaking anonymously, said. “Now, we should pitch voice to have reservation for open merit as its number is seriously dwindling.”

Teachers-protestingIn wake of a landmark judgment of the J&K High Court, directing against the system in vogue, the ball lies with government, now. Various groups have come together to press for its implementation but as of now government is undecided.  Various lawmakers are pitching hard of not implementing the law as they feel they would get bashing back in their constituencies. Even few ministers in Mufti Sayeed led coalition government are unnerved and trying their best for “merit not to prevail.”

Interestingly, the government lacks the option of going in appeal against the direction. Since the judgment is based fundamentally on the constitutional relationship between state and the centre, going in appeal would mean the state government is trying to neutralize its own special status.

So the ruling coalition is in a fix. It can not go to Supreme Court against the system in vogue. It apparently has political compulsions not to disrupt the system, even after the judgment was passed. But keeping the inertia embraced will cost the society immensely. Competent will feel suffocated in the systems as rot will replace the mediocrity and rule the roost.

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