Reservation in Employment Sector: Indian Scenario

Introduction:

“Justice, social, economic and political” are the essence of Indian society. These words are of utmost importance and reservation ensures that the disadvantaged groups are not left behind either due to their economic status or due to their caste, sex, etc. The reservation has become an identifying feature of India. It is important to know how the concept of reservation evolved and what percent of reservation has been allotted to different categories under the employment sector.

History of the Reservation

Reservation referred to as “affirmative action” is a system wherein, a certain percentage of seats are reserved in government jobs, educational institutions, and in Parliament and state legislature for the disadvantaged group, whose interest is not being represented. The reservation ensures that the disadvantaged groups do not lack behind and thus reservation gives an opportunity to bring themselves in a line with all other groups.

• Initially, the Constitution of India provided reservation only to the legislatures of SC and ST, and that also for a period of 10 years from the enactment of the constitution i.e., until 1960. Based on the Mandal Commission Report of 1991, OBCs came into the ambit of reservation [article 15(5)].
• Amendment to the constitution led to the introduction of several provisions like extending the period of reservation for the legislatures and subsequent amendment by inserting [article 15(4) and Article 16(4)] led to the reservation in the educational institution and governmental jobs. The validity of the reservation under article 15(4) and Article 16(4) is not given.
• The constitution initially provided reservation on the basis of social and educational backwardness, but in 2019, the Economically Weaker Section (EWS) bill granted reservation on the basis of economic backwardness. Supreme Court earlier ruled that granting reservation on the economic ground was against the constitution, as the main aim of reservation was to represent disadvantaged classes (castes) and the reservation is not a poverty alleviation scheme, hence reservation on the basis of economic status should not be considered for the reservation. To stop quashing of the law by the court, the Parliament granted reservation to the economically weaker section by bringing an amendment to the constitution.
• One of the prominent cases in a reservation is Indra Sawhney vs Union of India,1992 where the Supreme Court of India ruled that under Article 15(4) and Article 16(4) caste-based reservation should not exceed 50%. The court held that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”. Despite Supreme Court’s ruling, the EWS bill was introduced as it was reservation based on economic status and not on Caste and hence it did not violate the ruling of the Supreme Court.

Reservation in Employment

On the issue of reservation, The State of Madras vs Smt. Champakan Dorairajan,1951[1] was the first major verdict where the Supreme Court said that in the case of employment under state, Article 16(4) provides reservation for backward class people but there was no such provision in Article 15. So the Parliament by inserting clause(4) amended Article 15.

For government-based jobs, there is direct and indirect recruitment for employment. SCs have been granted direct recruitment since 1947 and STs since 1950.

There are two types of Reservation % for SC /ST and OBC in Central Government Jobs for Two types of Direct Recruitment to civil posts and civil services on all India basis.

A. Appointment by direct recruitment to civil posts and civil services on all India basis by open competition.

• The Scheduled Caste would have a reservation of 15%
• The Scheduled Tribe would have a reservation of 7.5%
• Other Backward Classes would have a reservation of 27%

B. Appointment by direct recruitment to civil posts and civil services on all India basis otherwise than by open competition.

• The Scheduled Caste would have a reservation of 16.66%
• The Scheduled Tribe would have a reservation of 7.5%
• Other Backward Classes would have a reservation of 25.84%

For the Economically Weaker Section of the society 10% reservation has to be granted.

Reservation to Central government jobs for direct recruitment on All India basis by open competition[2]

Category	Reservation %
Scheduled Caste	15
Scheduled Tribe	7.5
Other Backward Classes	27
Economically Weaker Section	10
Total	59.5

The vacancy left out of the above-mentioned category cannot be filled by any other category. Around 60% of the seats are reserved for the government-run institutions and only 40% are for the general category. Also, it has to be noticed that all other categories can also compete for this 40% seats.

In the case, M.Nagaraj & Others vs Union Of India & Others (2006)[3], Supreme Court introduced certain criteria for promotion, the court held that State has to meet three requirements:

• Demonstrate the backwardness of the SC/ST.
• Prove that the SC/ST is inadequately represented in relevant public employment
• Maintain the overall efficiency of administration

Then there comes the concept of creamy layer[4] and non-creamy layer. SC/ST has a non-creamy layer concept. Children of SC/ST parents can seek the facility of reservation irrespective of the parents’ income status or the government post held and are also granted reservation in the promotion since 1955. On the other hand, OBC has a creamy layer concept wherein, only those who come from non-creamy layers can seek for OBC reservation, and also there is no reservation in the promotion of OBCs[5]

Persons with disabilities would have 3% reservation in all categories and each percent reserved for persons suffering from:[6]

• blindness or low vision
• hearing impairment
• locomotor disability or cerebral palsy

The reservation for women has always been a debated topic and also the political manifesto. Recently Bengal government mentioned that women would have 50% reservation in government jobs along with free healthcare, school, and so on. BJP has also stated that 33% reservation would be granted to women in national-level jobs.

RTI data has shown that in central universities of India open category candidates are large in number as compared to other categories “95.2% of professors, 92.9% associate professors and 66.27% assistant professors are from open category “

Percentage of total officers under open category in:

• NITI Aayog – 73.84%
• Union Public Service Commission (UPSC) – 64.76%
• Comptroller and Auditor General of India (CAG) office – 66.79%
• Cabinet Secretariat – 80.25 %

Here, OBC reservation is the worst hit as it falls short of its 27% reservation quota.[7]

There has always been a mention of reservation for government-run institutions. Now the private sector has also proposed to extend reservations in the private sector. The private sector has different views with regard to the reservation. Now, apart from the reservation on the basis of caste and economic status, the concept of domicile-based reservation has evolved. Unlike the government sector where reservation is based on social and economic status, the Private sector wants to introduce reservations for locals.

Facing the issue of unemployment, few states in India have passed a bill for the reservation of locals. Andhra Pradesh was the first state in attempting to pass the bill. However, the bill was challenged for being unconstitutional. Karnataka has also passed several provisions so that the private sector could grant reservations to locals. Also, the Rajasthan chief minister has proposed a “100% job quota for the bonafide unemployed youth of Rajasthan” for the public sector[8] but there has been no update to it yet.

Most recently, Haryana has passed a law, The Haryana State Employment of Local Candidates Act, 2020 wherein, 75% of the jobs in the private sector which pays upto Rs 50,000 per month must give preference to the locals.[9] With regard to the law passed by Haryana question of the constitutionality of the law has been raised as the legal experts have criticized the law for being violative of freedom of equality.

How reservation is affirmative action?

Without this “positive discrimination,” it would have been difficult to uplift the disadvantaged group. When the progress of any nation is considered, the progress of each and every individual has to be considered as well. Employment in any country should be discrimination-free.  As each and every individual irrespective of the caste contribute to progressing the country. It is the reservation, which has helped SC, STs, OBCs, women, and the disabled to grow. The reservation for the disabled has proved to be fruitful as this had been a medium for them to scale a ladder of success. Also, the provisions of the Constitution have to be followed, Article 15 states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”

Issues with Reservation in the Employment Sector

• Vote Bank Politics: The reservation has become a vote bank politics. Politicians tend to influence the public, fake promises by politicians, to give employment on a reservation basis.
• Criticism at Workplace: Members from Scheduled caste, Scheduled Tribe are being criticized in their workplace for seeking their position through reservation and not by merit. Sometimes physically disabled are not treated at par with others.
• No Independent Body: Even though the percentage of reservation for each category has been set, there is no proper independent body that could ensure that the reservation percent for categories is strictly implemented in employment.
• Domicile or Local Reservation: To stop the disruption of the economy due to unemployment, local reservation has been implemented in a few states. But it has to be realized that if a high percentage of employment is allocated for locals, it would not prove effective for a business. It may happen that locals may not have certain skills required for that business. For example, Gurugram is a financial and technology hub and if the locals do not possess the required skills and are still forced to be a part of the business, this may hamper the overall economy. 

Conclusion

Reservation in the employment sector has the purpose of the welfare of the disadvantaged section of society. Job reservation has helped in the representation of people and bringing them in a line with all others. To every law or policy, there come challenges, which need to be tackled. Reservation-related laws need to be updated from time to time. To ensure the successful implementation of reservation without violation of any fundamental right, proper emphasis should be given to its implementation.

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References:

[1] The State of Madras vs Smt. Champakan Dorairajan ,1951, AIR 226, 1951 SCR 525

[2] Reservation Percentage for SC /ST, OBC and EWS in Central Government Jobs/ gservants

[3] M.Nagaraj & Others vs Union Of India & Others, 2006, AIR 2007 SC 71

[4] People of backward class who are socially, educationally and economically advanced

[5] OBC in central government jobs/gservants

[6] Reservation% of people with disabilities/gservants

[7] Economic & Political Weekly,vol LIV no 19

[8] State that have introduced or proposed local employment/ India briefing

[9] The Haryana State Employment of Local Candidates Bill, 2020