'Caste' to a corner
There is tumult even among many political parties, which see in the controversy a chance to corner the Centre.
On February 7, the Supreme Court, while adjudicating in the Mukesh Kumar vs State of Uttarakhand case, ruled that reservation in promotions in government services could not be claimed as a fundamental right.
The order has sparked a huge controversy with Scheduled Caste and Scheduled Tribe organisations across the country terming it as a “huge mistake.”
After 32 years of service in Punjab’s Public Works Department, N S Kajal’s retirement day was rather unusual — he received his promotion order the same day.
The order came after Kajal fought a legal battle, knocking on the doors of justice after he was allegedly discriminated against because he belonged to the Scheduled Caste community.
“The High Court order came on February 27, 2019 and the department order on February 28, which was my retirement day. I got all the arrears since 2016 (from when the promotion came in to effect) but I could not take charge of the new post for even a single day. I could not do the work I wanted to despite my performance reports being outstanding throughout. I had worked in a range of departments,” Kajal said.
He retired as a chief engineer only on paper, working as a superintendent engineer till the last day.
Kajal’s battle has not ended, he felt.
“The person who is due for promotion next belongs to the SC community but may have to wait longer to take over as the chief engineer after my retirement,” he added.
Kajal’s case typifies the travails that government employees belonging to the Scheduled Caste or Scheduled Tribe community face.
The Central government reserves 15 per cent of all posts for SCs, 7.5 per cent for STs and 27 per cent for OBCs.
This means that when the civil services examinations are held every year by the Union Public Service Commission, 22.5 per cent of all the posts are reserved for SC/STs only.
Considering that a significant number of SC/STs join the elite bureaucracy, there should be adequate representation of the two communities at the top.
But the reality is far from that. According to a Parliament reply in July 2019, of the 89 Secretary-level officers in the central government, only four belonged to the SC/STs.
There were 93 Additional Secretaries but only 11 were from the discriminated communities. It is no wonder that the Dalit and tribal communities have been demanding reservation in promotions as well.
The crux of the debate has been around Article 16 and Article 16 (4A) of the Constitution, in which the Uttarakhand government had argued that reservation in promotions cannot be termed as a “fundamental right.”
The SC said state governments can give reservation where they feel SC/STs are not adequately represented.
Pandiyan, executive director, Witness for Justice, felt that “reservation should not be perceived as a charity. Reservation is one of the tools to achieve equality.
It is a Constitutional remedy for the people who have been historically denied access to equality. It should be viewed as a right and an entitlement.”
Chinnaraj Joseph, a development sociologist, who formerly taught at The American College, Madurai, was of the same view.
“Reservation is the most peaceful way in which transformation can happen in an unequal society. Providing an option for states to use ‘discretion’ will deny access to justice to the most marginalised among the poorer and peripheral castes. How else can historical injustices be corrected?” wondered Joseph.
Kajal’s struggle for his due is not an isolated case. Vidya Khobrekar, a senior investigator at the National Commission for Scheduled Castes (NCSC) in Hyderabad, pointed out the paradox of working in a body that works for advancing the rights of the marginalised and having been discriminated against on the basis of her caste when it came to her own promotion.
Appointed in 2008 with the NCSC, she got her promotion from investigator rank to senior investigator in 2019. Later, she also faced sexual harassment at work.
“The organisation is unable to advance the rights of its own employees. My first promotion was due in 2013. After another three years, I was eligible for another promotion. My time-bound promotion never happened. This was despite posts for SCs lying vacant. I got my first promotion when I was eligible for my third promotion,” said Vidya. She has taken legal recourse and approached the High Court.
Dwarika Prasad, who retired as a general manager with the Oil and Natural Gas Corporation Limited after working for 38 years, had a similar story to share.
“There is a systemic exploitation of the SC/ST communities. I approached the Bombay High Court in 2008 as I was discriminated against for being an SC. My petition was dismissed in 2016. My juniors were promoted and I was not, despite my career reports being outstanding. I was given timely promotions from assistant director to deputy general manager rank. I was supposed to be promoted to the post of general manager in 2001 but that came in 2009,” said Prasad, who retired in 2011.
“There are two kinds of attitudes among bureaucrats — antithetical to SC interest and apathetic. You can hardly find a handful of people who are sensitive. This is the bureaucratic scenario in the broad sense. At the all-India level, you will hardly find Scheduled Caste personnel adequately represented in all tiers of governance. I cannot imagine how a system is unable to find enough SC officers to occupy secretary-level posts in order to have a fair representation,” said former IAS officer R Christudas Gandhi.
A Dalit IAS officer who is currently in service and wished to remain anonymous said the general explanation for the low representation of Scheduled Castes at the secretary-level is often that they enter service late and retire when their promotion is due.
“The reservation is 15% for SCs at the entry-level while only a few become joint secretary-level officers according to the government’s own admission in Parliament. Where is the government’s affirmative action? When it comes to the higher ranks, the SCs are not allowed to reach the top. The general mindset is it is enough that an SC has entered the service through reservations,” said the bureaucrat.
“If India has not given the opportunity to people to rise legitimately, people get highly dejected. It is a legitimate expectation. There is anger against the judgment,” added the official. He said Article 335 of the Constitution states that the claims of the members of the SC/STs should be taken into consideration consistent with the maintenance of efficiency in administration, while pointing out Justice D Y Chandrachud’s judgment, which rejected that quotas affect efficiency and reiterated the need for achieving substantive equality.
V A Ramesh Nathan, general secretary, National Dalit Movement For Justice, a coalition which works for advancing the rights of Dalits, said court directions deny social justice to the SC/STs and the other backward classes (OBC). “The ruling demonstrates the systemic exclusion of the communities and underlines how they continue to be in society’s periphery.” “It is the obligation of the state governments to frame policies to promote adequate representation in the public service. SC/ST/OBC quotas are still vacant without due appointments,” he added.
The Centre should consider bringing in an ordinance on this order, said National Commission for Scheduled Tribes chairperson Nand Kumar Sai.
He said, “The issue of reservation is enshrined in the Constitution. It should be the obligation of states to implement reservations. In one sense, reservations have not even been effectively implemented in several spheres yet. At the NCST, we deal with a huge volume of cases in which ST communities are systemically excluded still.”
But the government insisted that SC/ST interests are always taken into consideration. “The ministry will always be there to protect the reservations. But there is a constant stream of court orders which potentially threaten the reservations,” said R Subrahmanyam, secretary, ministry of social justice and empowerment.
But several Dalit organizations are planning protests against the apex court order. The All India Ambedkar Mahasabha (AIAM), a coalition of Dalit groups, is planning to launch a movement against what it terms as an attack on the Constitution. “This is a systemic attack on the rights of Dalits and an attempt to disempower them,” said AIAM chairperson Ashok Bharti. Bhim Army chief Chandrashekhar Azad has called for an all-India strike on February 23 and a march in Delhi on February 16 to protest against this order. At a press conference recently, he called the apex court ruling a “mistake.”