Bengaluru: The state government may have decided to promulgate an ordinance to circumvent the Supreme Court's order striking down its legislation on reservation in promotions for scheduled castes and tribes, but will it be sustainable under law ?
Constitutional expert and former advocate general, B.V. Acharya, who spoke to Deccan Chronicle, believes that the the government is on a losing wicket as the ordinance could be struck down if challenged in court.
Explaining that under the 85th amendment to the Constitution, states are at liberty to give reservation in promotion, the veteran lawyer says they can consider it only if Scheduled Castes/Scheduled Tribess are not adequately represented in promotional posts and provided that the overall efficiency of a government service is not affected.
"The Supreme Court has observed that while providing reservation in promotion the state government has not done such an exercise. It should have looked into the aspects of inadequacy of representation and overall efficiency of each department before making this move. Without doing such an exercise, merely issuing an ordinance to ensure that reservation in promotions happens will not serve any purpose and will not be tenable in the eyes of the law," Mr. Acharya warns.
While striking down the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the posts in the civil services of the State) Act, 2002, the Supreme Court had observed that the "mere fact that there is no proportionate representation in promotional posts for SCs and STs is not by itself enough to grant consequential seniority to promotes who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy."
The top court had also observed that the criteria of 'inadequacy of representation', 'backwardness' and 'overall efficiency' must be fulfilled before providing reservation in promotion.
