SC’s interim order on reservation in promotions: A temporary measure?

by August 9, 2018 0 comments

SC’s interim order on reservation in promotions A temporary measure

The SC order has put the Central govt in a bind

A vacation bench of the Supreme Court has passed the interim order on June 05, 2018 clarifying that Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter.

The Supreme Court interim order will permit the government to fill a large number of vacancies in government departments. The circulars issued by the department of personnel and training can be followed to make promotions as per existing reservation policy.

The Government was not able to fill up vacancies in the wake of conflicting judgments by different courts. The Supreme Court’s decision will protect the government from being in contempt. Now, the government can proceed with promotions in accordance with laws. But which are these laws? That, however, is not clear yet.The court should have clarified on what circular or rules should the government go ahead with the promotions until a final judgment is given by the Supreme Court.

even the Nagaraj judgment given by the Supreme Court in 2006 has to be revisited. With regards to the power vested with the government for reservation in promotions, there are three conditions that must be met before promotions are decided. These are backwardness, inadequate representation, and efficiency in administration. Since various circulars issues by Government for reservation in promotion had not taken care of these parameters laid down by the Supreme Court, many High Courts struck down the Government circulars thereby stalling the whole process of promotions in Government Departments.

It is to be remembered that provisions under articles 16(4), 16 (4A) and 16 (4B) of the Constitution providing for reservation in promotion are only enabling provisions and not a fundamental right. A few years ago, there was a case relating to reservation in appoint
ment for faculty posts in the super specialties in AIIMS. The Supreme Court ruled that no reservation in promotions would be given. All parties had protested this decision, but nothing happened after that.

The Supreme Court while passing the interim order on June 05, 2018 has clarified that the Government is not debarred from making promotions in accordance with law, subject to further orders. Effectively it means that inter
im order is only a temporary relief and till the Constitution Bench delivers the Judgment. The Government will still have to make promotions in accordance with law and that law is enunciated in Nagaraj case too. Filling up the vacancies with principles of reservation in promotion under the interim order will be subject to final decision of the Apex Court.

By PK Malhotra: former Law Secretary of India

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