Mukesh Kumar Vs The State Of Uttarakhand - Right of Promotion is contingent upon the discretion of the State Government
The Supreme Court ruled that the state governments are not bound to fill vacancies in accordance with the rules of reservation for the SCs, STs, and OBCs. The court gave the decision over a group of appeals by Mukesh Kumar pertaining to SC and ST reservation in promotions in the posts of Assistant Engineer (Civil) in PWD, Uttarakhand Govt. The Supreme Court refused to issue a direction to the Uttarakhand state government to provide reservation to these candidates for filling vacancies. Since the availability of reservation is contingent upon the discretion. Hence, the court did not issue the writ of mandamus to issue directions.
The judgment is the latest addition in the reservation series. There has been a persistent tussle between the court and the government for reservation in promotions.
- The Indira Sawhney judgment of 1992 permitted reservation for the SCs and STs in the promotion to continue only for a period of five years. The government under Congress brought the 77th Constitutional Amendment Act in 1995 to continue the reservation in promotions further.
- Article 16(4A) is a special provision which provides for reservation for promotion only to SCs and STs, which amended several times, to promote increased reservation by states.
- 81st Amendment - to permit the government to treat the backlog of reserved vacancies as a separate and distinct group, to which the ceiling of 50 percent did not apply.
- 82nd amendment - inserted a provision in Article 335 to enable states to give concessions to SC/ST candidates in promotion.
- 85th amendment - to give the benefit of consequential seniority to SC/ST candidates promoted by reservation.
- The constitutionality of these amendments was challenged in M. Nagaraj & Others vs. Union of India & Others on the ground of alteration of the Basic Structure of the Constitution. In 2006, the Supreme Court upheld the amendments.
The present judgment made a settled law that the state government cannot be directed to provide reservations for appointment in public posts, and is not bound to make reservations for SCs and STs in matters of promotions. Thus, an individual cannot claim reservation, as his fundamental right. And, it is the discretion of the state government to decide whether reservations are required in appointments and promotions. The judgment made reservations optional. If a state government wishes to make provisions for reservation to SC/STs in promotion, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class. A number of High Courts, following Nagaraj, have struck down reservations in promotions after applying these requirements.
The concerned state will have to show, in each case, the existence of compelling reasons - which include backwardness, the inadequacy of representation and overall administrative efficiency before making provisions for reservation. The court further held that these provisions are merely enabling provisions.
This can be viewed as a break from the understanding of job reservation. The Supreme Court's earlier ruling setting the quota cap at 50% of the total vacancies was interpreted as a compulsory rule for the government to make reservations in all-new appointments for SC / ST and OBC candidates.
But Supreme Court interpreted Article 16 to give discretionary powers to the state government to determine if quotas are required in appointment and promotion in government positions. Since, Constitution empowers the state to provide for the reservation of seats in favor of SC / ST candidates in the above matters, if in the opinion of the state, they are inadequately represented in the state public services.
The decision of the state government to provide SC/ST reservation in promotion to a particular public post if challenged shall be amenable to judicial review and would have to place the data and prove before the court that reservation was necessary and does not affect the efficiency of administration.