Case Commentary on Mukesh Kumar v. the State of Uttarakhand
Author: Kamphilya Pallapati
Damodaram Sanjivayya National Law University, Visakhpatnam, Andhra Pradesh
Reservations in India have always been a trigger to controversies and debates. Even though the concept is in effect for many years, most of them are unhappy about it as the SC/ST remains to be isolated, illiterate, and poor. This policy of reservation became a tool for gaining money rather than a system for uplifting the poor. Initiated by the 77th and 85th amendments, reservations in promotions entirely persisted as another issue. A judgment provided by the Supreme Court on 7th Feb 2020 can affect the subject on reservations far more than what constitution-makers aimed at. The judgment, pronounced by Justice L. Nageswar Rao will be recalled for its obscurity, and for enunciating a rare understanding that reservation in the promotion will be based on a State discretion. This decision constitutes a serious challenge to policymakers as the main intention of the policymakers was to eliminate the political factors in identifying SC/ST. But, the decision conferring power on states degrades the intention of the constitution as the state may do any such action due to political reasons. Hence, the authors of this article aim at finding what precisely is not right with this decision and why it fails in giving social and financial equality.
India is a multi-religious country that follows a unique policy to bring each group on the same footing. Reservation in promotion touches on acknowledging the reservations for the jobs filled up by promotions in public employment for the people belonging to the Scheduled castes and Scheduled Tribes (SC/ST). The crux of the controversy is whether the constitutional reservation bears only at the initial level of recruitment or at all the levels to secure the appropriate representation of the SC/ ST. If so, whether the state has to collect the weighable data relating to the adequacy/ inadequacy of representation of the SC/ ST in the public services while granting or refusing to grant reservation in promotions.
The disagreement in the present case Mukesh Kumar v. the state of Uttarakhand concerns to the reservations in promotions for SC/ ST in the posts of Assistant Engineer in the public works department, Government of Uttarakhand. The government passed an order denying reservation in promotion for which the Supreme Court ruled that the right of reservation in promotion is dependent upon the discretion of the state government and held that there is no fundamental right to claim reservation in promotion. Also, it was held that no mandamus can be issued by the court to the state to collect the quantifiable details concerning the inadequacy of representation of SC/ ST in public posts.
For ages, various views were taken regarding the reservation in promotion by the parliament and the Supreme Court.
1. In the famous case of Indra Sawhney v. Union of India, the nine-judge bench observed that according to article 16 (1), posts can be reserved( in favor of a particular class) for appointments. Thus, the Supreme Court held that reservations in favor of backward classes for state services are permitted under article 16(1). But, stated that extending reservations to promotion is impermissible, as once the advantaged and disadvantaged are made equal under one class, then any further benefit extended for the promotion would be treating equals unequally.
2. Undoing the Indra Sawhney judgment, the parliament brought the 77th, 81st, 82nd, and 85th amendments to the constitution.
- To extend the benefit of promotion in service to SC/ST, clause 4A was inserted after clause 4 of article 16 of the constitution of India by the 77th amendment Act, 1995.
- The government introduced article 16(4B) in the constitution through the 81st Amendment Act, 2000. This allows reservation in promotion to contravene the limit set on systematic reservations i.e., any vacancy which is unfilled in a year and is to be filled up in the consecutive year, then such vacancy shall not be considered with the vacancies that are to be filled in the succeeding year by ceiling limit of reservation.
- Further, through the 82nd amendment act, 2000 the state added a proviso to Article 335 of the constitution of India. According to article 335 of the constitution, the claims of the SC/ST to services and posts should be consistent with the administrative efficiency. But the added provision states that article 335 cannot prevent the state from relaxing the qualifying marks or lowering the standard of evaluation of SC/ST in matters of reservation in promotions.
- In the 85th amendment Act, 2001, the parliament introduced the principle of consequential seniority to promoted SC/ST members by amending article 16(4A) of the constitution. Thereafter, article 16(4A) “in the matters of promotion to any class” became “in matters of promotion, with consequential seniority to any class”.
3. The constitutionality of all the above amendments has been challenged in M. Nagaraj v. Union of India, based on altering the basic structure of the constitution. But the Supreme Court validated the parliament’s amendments. However, introduced three strict conditions for the state to follow while imposing reservations to promotions–current backwardness, inadequate representation, and maintenance of efficiency.
4. One of the strict conditions introduced in the Nagaraj case was removed in the State of Tripura v. Jayanta Chakraborty, that the state now need not prove the current backwardness of the SC/ST.
Analysis of the case
The Uttar Pradesh public services (reservation for SC/ST & other backward classes) Act, 1994 provided reservation to SC/ST in public services. Section 3(7) of the act states that “representation for appointment to public posts filled up by promotion existing at the time of commencement of the act shall carry on till they are altered or repealed”. Later on, the 1994 act was made applicable to the state of Uttarakhand on its formation in the year 2001. Further, section 3(7) was made unconstitutional in many cases. And it was held that promotion cannot be given based on reservation. Hence, the government constituted a committee for the collection of quantifiable data regarding the inadequacy of the SC/ST representation in public services.
In the present Mukesh Kumar case, the orders passed by the government refusing reservations in the promotion were declared illegal by the high court. Also, the state government was directed to collect quantifiable data regarding the adequacy/ inadequacy of the SC/ST representations in public posts, as it would enable the government to take conscious decisions to provide or not to provide reservations. This direction was given because the evidence before the court showed that, the order passed by the government refusing to grant reservation is not based on empirical data. Later, the judgment passed by the high court went to appeal.
In the course of appellate proceedings, it was brought to the eyes of the Supreme Court that the State government formed a committee to collect data relating to the representation of the SC/ST which was not disclosed before the high court. The report of the committee revealed that there is an inadequacy of the SC/ST representation in public posts and the same report was approved by the state cabinet. Nevertheless, the government intentionally passed an order not to extend reservation in promotion. It makes a point here that, if the state government was not willing to extend reservation in promotion, it would have just denied doing so. There was no requirement to appoint a committee to collect the data. Consequently, this whole activity of collection of data was handled only to fulfill the conditions laid down in the Nagaraj case. Though the face of the report showed the inadequacy of representation of the SC/ST in public services, the state government decided not to extend for reservations.
This perspective of the state boils down to several questions- whether the data acquired by the committee was not sufficient to issue reservations in promotions according to article 16(4A)? Whether the order passed by the government was arbitrary? When the state provides reservation, the judiciary reviews the extent of the percentage of reservation. Then why can’t the court review the decision taken by the government not to provide reservation? This regard has been observed in the Nagaraj case, which states that exercise of the power by the state can be arbitrary if the state fails to evaluate the inadequacy of the SC/ST and if a concerned party to whom power is conferred, exercises that power arbitrarily, then the courts should correct such action as it is the fundamental essence of the enabling provision incorporated in the articles 16(4A) and 16(4B). Yet, the Supreme Court took no notice of these facts.
Moreover, the state refused to exercise the collection of representation of the SC/ST before the high court of Uttarakhand. Why was it so that the state did not disclose the committee report before the high court? Was it not a mala fide action? Why was this willful act of the state ignored by the Supreme Court? The order passed by the government was arbitrary on the face of it and hence was set aside by the high court. But the Supreme Court held that the government took a conscious decision and it is not bound to provide reservation in promotions for the SC/ST in public services and also mentioned that State is not bound to collect quantifiable data relating to the adequacy of representation of SCs & STs if it decides not to provide reservation which is prejudiced.
The Supreme Court adopted a narrow approach towards interpreting articles 16(1) & 16 (4A) which is a part of equality under Article 14 of the constitution. Thus, as reservation in favor of the backward classes is allowed under article 16(1) and the state can also provide the reservations in promotions under article 16(4) and 16(4A) on basis of equality. Hence, arbitrary refusal of reservation in promotion by not acquiring the quantifiable details relating to the adequacy of representation of the SC/ST is a violation of the right to equality. Therefore, the order passed by the Supreme Court violates the rights and should be allowed to be challenged under article 32 and 226 of the constitution
Additionally, there needs to be an alteration in the ruling of the present case given by the Supreme Court, which states that “the government is not mandated to provide reservations in the public posts” need to be altered. Not only article 16(4) & 16(4A) talks about reservation to the SC/ST, but also article 46 of the constitution empowers the state to foster the interest of the SC/ST. It is evident from the article 46 that there is a duty upon the state towards the SC/ST and that duty cannot be escaped. Though the directive principle cannot be made enforceable by a court, the state has to apply these principles while passing the orders. There should be a balance maintained between the fundamental rights and the directive principles of the state policy. And in case of controversy, both should be harmoniously interpreted. Accordingly, it is clear from the observation of articles 14, 16, and 46 that the state is bound to take necessary, steps to balance the social representation in public posts. Thus, it is explicit that it is not a choice for the state to provide reservations in public posts, but, only way out.
Further, keeping in mind article 46, the articles 16(4) and 16(4A) should not be interpreted in such a way to give discretionary powers to the state, but, a duty to provide reservation by asserting the data of inadequacy of representation of the SC/ST. Also, the two articles (16(4) & 16(4A) do not use the word “may” that the state may/ may not provide the reservation. Even though “shall” is also not used, this cannot be a reason to emphasize discretionary power to the state, as “shall” is not used because the articles 16(4) and 16(4A) are just illustrations to article 16(1).
Subsequently, it was held by the Supreme Court in the present case that, if there is any notice brought to the court regarding the inadequacy of the representation of the SC/ST in public services, then the court cannot issue any writ of mandamus to the government to provide for the reservation. This observation by the court humiliates and overthrows the principle of equality. This particular act by the Supreme Court permits the state to act arbitrarily and such an act would free the state from eliminating inequality to bring social justice. The fundamental principles like equality and social justice should not be left at the grace of the state. Thus, to maintain constitutionalism, the intervention of the judiciary is essential.
The ruling of the bench is that the “state is not bound to make reservations” is a dangerous move as it skews the basic structure of the constitution. Though in our opinion, providing the reservations in promotions will just be perpetuating the inequality and rather than eradicating it. Still, the state needs to assort the quantifiable data relating to the adequacy or inadequacy of the SC/ST representation in public posts to form a conscious decision. The ruling of the bench that “assortment of the data is not necessary if the state is determined not to provide reservations” is merely unjust. Also, if an issue comes before the court regarding the under-representation of the SC/ST in public services, there has to be a judicial intervention as it would be the last resort to any person when all the doors are shut. Therefore, the view adopted by the High Court in the present case is accurate and the decision by the Supreme Court is simply erroneous.
 Mukesh Kumar v. State of Uttarakhand, C.A.No. 1226 of 2020.
 Indra Sawhney v. Union of India, A.I.R. 1993 S.C.C. 477.
 M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212.
 State of Tripura v. Jayanta Chakraborty, C.A.No. 4562-4564 of 2017.
 Uttar Pradesh Power Corporation limited v. Rajesh Kumar (2012) 7 S.C.C. 1, Prem Singh v. State of Uttar Pradesh (C.A.No. 6798 of 2019).
 Vinod Prakash Nautiyal & Ors. v. State of Uttarakhand & Ors. (W.P.No. 45 of 2011).