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Above: Reservation in promotions is a sensitive issue in Karnataka, like the dilution of the SC/ST Atrocities Act against which protests were held in Bengaluru/Photo: UNI

The Karnataka state cabinet has cleared a bill to continue implementing reservation in promotions for SCs/STs despite the fact that the issue will be heard by the apex court soon

By Stephen David in Bengaluru

On January 30, the 71st death anniversary of Mahatma Gandhi, the HD Kumaraswamy-led JD(S)-Congress government decided to pay tribute in a special way. The cabinet cleared a bill to implement a law that will continue with a 40-year-old practice to maintain reservation in promotions for Scheduled Castes (SC) and Scheduled Tribes (ST) government employees.

With the 2019 Lok Sabha elections fast approaching, the 10-month-old Kumaraswamy government did not want to send a wrong signal to the numerically strong SC/ST bloc—almost 25 percent of the state’s nearly seven- crore population.

Way back in 1978, then Chief Minister Devaraj Urs had introduced a law to fast-track promotions for SC/ST government employees. He batted for reservation in promotions in the state civil services in pursuance of Article 16 (4A) of the Constitution.

Every government since then continued with the practice until one general category person (BK Pavitra, an engineer with the Bangalore Development Authority) challenged it in the Supreme Court. In February 2017, in BK Pavitra vs Union of India, the apex court struck down the practice of reservation in promotions and gave the Siddaramaiah-led Congress government three months to prepare a revised list. The Court observed that a proper exercise for determining “inadequacy of representation”, “backwardness” and “overall efficiency” was a must for exercise of powers under Article 16 (4A). The Court held that in the absence of this exercise, the “catch up” rule will be applicable. It directed that revision of the seniority lists be undertaken and completed within three months and further consequential action be taken within the next three months.

In compliance with the directions of the apex court, the Karnataka government had issued an order to all appointing authorities to revise the seniority lists. The state government had also filed a review petition which was dismissed by the apex court. In March 2017, the Congress government set up a committee under Additional Chief Secretary K Ratna Prabha, a Dalit IAS officer who later became the chief secretary, to study the status of SC/ST government staff.

Ratna Prabha’s report endorsed the government’s stand that the promotions were in line with the efficiency, backwardness and inadequacy of the SC/ST backlogs in the state. This meant that promotional vacancies were reserved for SCs/STs, but not filled for want of eligible persons.

The 2018 assembly elections in Karnataka was another factor for the Siddaramaiah regime to score some brownie points for his party. In November 2017, nine months after the rebuff from the Supreme Court, the Siddaramaiah government came up with a special bill to circumvent the apex court’s order. The bill was called the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Bill, 2017. It was sent to the governor, who in December 2017 forwarded it to President Ram Nath Kovind.

After studying the bill, President Kovind gave his assent in June 2018, in a major relief to SC/ST employees who were shaken by the month-old Kumaraswamy government’s demotion of hundreds of SC/ST officials and promotion of officers of the general and backward classes, thereby complying with the Supreme Court order. Karnataka Deputy Chief Minister G Parameshwara, a Dalit Congressman, even interpreted the presidential assent as a victory for the commitment of the Congress towards the welfare of the SC/ST communities.

Ratna Prabha gave a detailed study of quantifiable data while reporting there was inadequacy in SC/ST representation in the state civil services. The Karnataka government sought to move ahead after getting the views of legal experts and the Karnataka law commission while incorporating the findings of Ratna Prabha. The government justified the special law/bill, saying there were compelling reasons for providing consequential seniority to persons promoted on the basis of the policy of reservation in Karnataka since 1978.

Kumaraswamy adopted a watch and wait attitude while a delegation of state government employees belonging to the SC/ST communities put pressure on him to go ahead and implement the special law. They even threatened to file cases against Chief Secretary TM Vijay Bhaskar for the government’s stand, and claimed that over 60,000 employees in more than 50 departments were affected by the government’s decision.

In October 2018, a Supreme Court bench of Justices UU Lalit and DY Chandrachud started hearing arguments on a batch of petitions including those opposing the SC/ST staff demand. Rajeev Dhavan, arguing for the general category staff, contended that the BK Pavitra judgment, delivered in February 2017, had set a precedent. The special law that the Siddaramaiah government came up with was an abuse of legislative power to circumvent the apex court’s judgment and was not in conformity with the M Nagaraj judgment which also made a reference to the exclusion of creamy layers, he said.

Meanwhile, former Attorney General Mukul Rohatgi communicated to the Karnataka government that it could go ahead with the special law. Even the state BJP unit batted for the SC/ST staff cause. They found an ally at the centre when Attorney General KK Venugopal conveyed the centre’s view to the Supreme Court. The centre had said that benefits given under the SC/ST quota cannot be taken back.

Lok Sabha Opposition leader Mallikarjun Kharge’s son and Karnataka Social Welfare Minister Priyank Kharge also put pressure on the Kumaraswamy government to implement the special law on consequential seniority. This was after he was piqued by the new government’s December 2018 circular curtailing pension and retirement benefits for staff who were demoted as a result of the Supreme Court’s February 2017 order. Kharge wrote to Kumaraswamy: “Many departments, without comprehending the SC’s order, prepared faulty seniority lists outside the legal framework, demoting several SC/ST staff. The DPAR’s circular, dated December 6, 2018, has cut back financial benefits to retired SC/ST staff. The government itself is violating the ordinance.”

SC/ST ministers like him rued that despite the absence of a stay by the apex court, the government was in two minds, which affected the promotions of thousands of employees. In essence, Kumaraswamy was told to first go ahead with the special law and then worry about the apex court verdict. After several legal experts gave Kumaraswamy the green signal, he decided to go ahead on January 30 as a mark of respect to Mahatma Gandhi.

Karnataka Law Minister Krishna Byre Gowda, who announced the cabinet decision to continue with the promotions, said: “Since the President has given his assent to the bill, we need to go ahead with it.” Gowda added a caveat: “The cabinet has given its app­roval, but this is subject to the Supreme Court’s final decision.”

With the matter now before the Supreme Court, legal representatives from both sides are sharpening their knives for another pitched battle.

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