117th Constitution Amendment Bill, 2012- Efficiency and adequacy of the

State Administration

Reservation as a concept is very wide. Different people understand reservation to

mean different things. One view of reservation as a generic concept is that
reservation is anti-poverty measure. There is a different view which says that
reservation is merely providing a right of access and that it is not a right to
redressal. Similarly, affirmative action as a generic concept has a different
connotation. Some say that reservation is not a part of affirmative action whereas
others say that it is a part of affirmative action.
ON CONCERN OF EFFICIENY/MERIT
The words consistently with the maintenance of efficiency of administration
under Article 335 of the Constitution of India are capable of being read differently
though have not been so read by the courts so far. In a mixed and diverse society as
in India, representation of all sections of society in different walks of life creates an
integral and, therefore, efficient society. Accordingly, representation of SC/STs
which constitute about 24.4% as per Census 2011 of the total population of the
country and whose representation in the State administration is small, if not totally
absent, will lead to efficiency in the administration. So, the intention of the
constitution makers directed that in consistency with the goal of maintenance of
efficiency of administration of SC/STs must be duly represented in the State
administration.

It may also be argued that active inclusion of about such

percentage of population into the category from which the administrators have to
be selected creates wider choice must naturally lead to selection of better
administrators. Thus the words consistently with the maintenance of efficiency of

administration are not the words of limitation but of guidance that in order to
ensure maintenance of efficiency of administration the claim of SC/STs must be
taken into consideration in making the appointments to services and posts qua the
affairs of the Union and the States.
On Nagraj Case and Article 335 of the Constitution
As per the present case, the perquisite under Article 335 is efficiency, though
originally it is consistently with the maintenance of efficiency of administration.
To understand the very concept efficiency in light of socio-economic
empowerment of SC/STs some excerpts from the Nagraj Case are as follows .
Article 335 is to be read with Article 46 which provides that the State shall
promote with special care the educational and economic interests of the weaker
sections of the people and in particular of the scheduled castes and scheduled tribes
and shall protect them from social injustice. Therefore, where the State finds
compelling interests of backwardness and inadequacy, it may relax the qualifying
marks for SCs/STs. These compelling interests however have to be identified by
weighty and comparable data.
The Court, however recognizes that, it is for the State concerned to decide in a
given case, whether the overall efficiency of the system is affected by such
relaxation.in other cases, the State may evolve a mechanism under which
efficiency, equity, and justice, all three variables could be accommodated. Further,
the Courts admission that determination of efficiency of administration lies with
the State is highly supportive of the claims of the SCs and STs under Article 335.
However, it has been observed that there is difficulty in collection of
quantifiable/comparable data showing backwardness of the class and inadequacy
of representation of that class in public employment. Moreover, there is uncertainty

on the methodology of this exercise, due to lack of established common practice to

collect such information.
Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the
prospects of promotion of the employees belonging to the Scheduled Castes and
the Scheduled Tribes are being adversely affected.
In State of U.P. v. Dina Nath Shukla, the Court also observed that Thus Article
335 read with Articles 46, 38 and 16 would give the socio-economic empowerment
to the Dalits and Tribes and rule of reservation in the matter of appointment to a
service or post under the State is part of the constitutional scheme as a positive
facility and opportunity available to them and where it is extended to OBCs., they
too get opportunity to strive to improve excellence in a service or a post in which
he or she gets appointment.
The proviso to Article 335 i.e. added by the 82 nd Constitutional Amendment, 2000,
that, ..nothing in this article shall prevent in making any provisions in favor of
SC/STs for relaxation in qualifying marks in any examination. Clarifies that for
inducting the SC/STs candidates of State services, the required qualification may
be relaxed Thus adequate representation is given priority over other
considerations as expressly mentioned from time-to-time.
Therefore, it is out of the box to reiterate that the concern of efficiency lies at the
heart of objections to quota s in promotion.
When it comes to efficiency especially of the down trodden of the society in
India, who are fighting from thousands of years for their rights, should it not be the
responsibility of the State to make them efficient. In present scenario, it would not
be out of the place to assert that even proportional reservation of 70% for SC/STs
would be very much constitutional under Article of 14 of the Constitution.

ON EMPIRICAL BATTLE AND 117TH CONSTITUTIONAL AMENDMENT

BILL, 2012
Lets examine the proposed amendment in Article 16 (4A) through 117 th
Constitutional Amendment Bill, 2012, so the proposed substitution for the later is
as follows, (4A) Notwithstanding anything contained elsewhere in the
Constitution, the Scheduled Castes and the Scheduled Tribes notified under article
341 and article 342, respectively, shall be deemed to be backward and nothing in
this article or in article 335 shall prevent the State from making any provision for
reservation in matters of promotions, with consequential seniority, to any class or
classes of posts in the services under the State in favour of the Scheduled Castes
and the Scheduled Tribes to the extent of the percentage of reservation provided to
the Scheduled Castes and the Scheduled Tribes in the services of the State..
Once the proposed substitution of Article 16 (4A) will come in to force, it will do
away with all perquisites under present Article 16 (4A) of not adequately
represented in the services under the state, of efficiency Article 335, and also of
Nagraj case. However it doesnt mean that it would violate the principle of equity,
justice and efficiency as laid down under Article 14, 16, 335 and others. The
proposed amendment seeks to bring more lucidity in the scenario of promotion,
seniority and catch up rule prevailed so long in government services.
Gone were the days when Article 16(4) was read by the Honble Supreme Court as
an exception to Article 16(1). That controversy got settled in Indra Sawhney v.
Union of India case. The words nothing in this Article in Article 16(4) represents
a legal device allowing positive discrimination in favour of a class. Therefore,
Article 16(4) relates to a class apart. So, on this basis, as much anticipated that
the proposed 117th Amendment would not stand the test of validity under basic

structure of the constitution on the account of adequate representation and

efficiency, it would not be wrong to state it so much valid under the Constitution
of India.
(Mr. Manish Raj is B.A. LL B(Hons.) from National Law Institute University and
an Ex-Senior Officer(Legal),Coal India Ltd.)