[dropcap]I[/dropcap]N June 2018, the Department of Personnel and Training (DoPT) invited applications for joint secretary-rank posts in revenue, financial services, economic affairs and several other departments. This was the first instance of recruitments at the level of joint secretary being made through the lateral entry mode. Six thousand individuals applied for ten posts. Nine were ultimately selected.
The hurried move to induct bureaucrats through the lateral entry route came as a surprise to many. In August 2016, the Minister of State for Personnel had stated in Parliament that there was no proposal to constitute a committee to study the feasibility of lateral entry into the civil services.
Supporters of the move see it as a game-changer to usher in changes in the bureaucracy. Its opponents see it as a mechanism to push in sympathizers of the current dispensation into the government. This piece seeks to examine the legality of the move and whether it can withstand judicial scrutiny.
It is common for constitutions to regulate politics. One of the striking features of the Indian Constitution is Part XIV that focuses on the bureaucracy. Members of the Constituent Assembly placed a great deal of importance on an independent civil service. M. Ananthasayanam Ayyangar described a contented civil service "as the backbone of the country". Sardar Patel was even more vehement. Speaking on the floor of the Assembly in October 1949, Patel stressed on the importance of the services thus:
"The Union will go – you will not have a united India, if you have not a good all-India service which has the independence to speak out its mind, which has a sense of security that you will stand by your word and, that after all there is the Parliament, of which we can be proud, where their rights and privileges are secure. If you do not adopt this course, then do not follow the present Constitution. Substitute something else. Put in a Congress Constitution or some other Constitution or put in RSS. Constitution – whatever you like – but not this Constitution. This Constitution is meant to be worked by a ring of Service which will keep the country intact. There are many impediments in this Constitution which will hamper us, but in spite of that, we have in our collective wisdom come to a decision that we shall have this model wherein the ring of Service will be such that will keep the country under control."
The outcome of these debates was Part XIV of the Constitution which deals with services under the state. Article 315 of the Constitution provides for the constitution of the Union Public Service Commission (UPSC) as well as the State Public Service Commissions (SPSC). The powers and functions of these commissions are contained in Article 320 which holds that it is their duty to conduct examinations for appointments to the services of the Union and the services of the State. Article 320 also provides that these commissions have to be consulted on all matters related to the method of recruitment for civil services and civil posts.
The mode of recruitment into the services is well known. The UPSC conducts an annual examination for which up to a million candidates appear every year. This is followed by a second examination and an interview. Some 759 candidates were recommended to various services this year. The hiring of nine candidates this year is the first instance of recruitment through the lateral entry route.
In a reply to an RTI Application, the DoPT has confirmed that there shall be no reservation for posts on which recruitment is made by lateral entry. The DoPT has argued that since recruitments through lateral entry are being made only to single vacancies, the question of the reservation does not arise. Former bureaucrats have termed this stance as illegal and a violation of the Constitutional right to reservation. This position is incorrect for two reasons.
First, the Supreme Court has, in a long line of precedents has held that there cannot be reservations for a single vacancy. The position was laid down by a Constitution Bench of the court in Post Graduate Institute of Medical Education and Research, Chandigarh vs Faculty Association. This has been repeated by the Court's subsequent judgments in State of Punjab v RN Bhatnagar and Kuldeep Kumar Gupta vs HP State Electricity Board.
Thus, the DoPT is correct in its reasoning that there cannot be reserved in case of lateral entry to single posts. It is true that recruitments to the services come with their system of reservations. Indirect recruitments, there is a reservation of 15% in favour of members of the Scheduled Castes, 7.5% in favour of members of Scheduled Tribes and 27% for members of Other Backward Classes. There are also provisions for reservations in promotions for members of the Scheduled Tribes and Scheduled Castes. These are made pursuant to Article 16 of the Constitution which guarantees equality in the matter of public employment. Articles 16 (4) and 4 (A) provides for reservation in matters of public employment and are worded thus:
"(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
[(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, 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 which, in the opinion of the State, are not adequately represented in the services under the State.]
What happens if multiple vacancies arise and are filled up by lateral entry without reservation? A bare reading of the provisions reproduced above reveals that there is no "right to reservation" under the Constitution. Rather, Articles 16 (4) and 4A are merely enabling provisions, allowing the state to make reservations. It is the prerogative of the state to make them. However, it is not obligated to do so. Thus, if the state seeks to recruit candidates to multiple posts, it is not duty bound to reserve seats for members of different caste groups.
This position was first enunciated by a Constitution Bench of the Supreme Court in M R Balaji v. State of Mysore. Later, in C A Rajendran vs Union of India, it was urged that Article 16(4) was itself a fundamental right granted to members of the Scheduled Castes and Scheduled Tribes. The Supreme Court rejected it and ruled that "Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation". In 1988, in P & T SCs and STs Employees' Welfare Association vs Union of India, the Supreme Court categorically ruled that it was not open for a member of SCs/STs to move a court to compel the government to provide job reservations because Article 16(4) was merely an enabling provision.The position was confirmed by a bench of nine judges in Indra Sawhney vs Union of India. Most recently, this has been confirmed by the Court in its September 2018 judgment in Jarnail Singh.
Simply put, the law on the subject is this – The Constitution allows the state to reserve posts in employment. However, it is not duty-bound to do so. Viewed thus, the absence of reservation in lateral entry recruitment is not illegal. However, it is definitely a clever legal stratagem designed to bypass the system of reservations.
Members of the Constituent assembly were conscious that governments had tried to circumvent the recommendations of a public service commission. Speaking in the Assembly in August 1949, P S Deshmukh argued:
"On the whole, Sir, I am prepared to say that the Commissions in India, have not worked too badly; but there are devices by which the recommendations of the Commissions are often procured or set at nought. There have been complaints so far as the working of our Public Services Commissions is concerned in this respect. Not so much that they have been partial, or that there is any other allegation to that effect, but that the whole procedure is so circumvented, or some short cuts devised, by which the choice of the Public Services Commissions becomes more or less an automatic approval of the appointments already made……. This evil has gone to such an extent that some people contend that vacancies are made for persons and persons are not sought for vacancies, although the provisions with regard to Public Services Commissions are complied with."
Deshmukh's words are proving to be prophetic. Two years ago, while speaking at the Jodhpur Literary Festival, BJP MP Subramanian Swamy had rejected all talk about the government ending caste-based reservations. "Lekin hamari sarkaar aarakshan ko us star par pahuncha degi jahaan uska hona ya nahin hona barabar hoga"(Our government will make a reservation so irrelevant that it wouldn't matter whether the quota system exists or not).
A study of the current government's actions over the last few years shows a systematic attempt to dent the policy of reservations. The number of direct recruitments by the UPSC has fallen considerably over the last few years. The number of recruits has fallen from 1,236 in 2014 to 759 in 2018. Now, dozens of bureaucrats are set to enter through the system of lateral entry – which does not provide for reservation. If this trend continues, and it appears it most likely will, then the reservation policy will be severely undermined.
The notifications inviting applications for lateral entry have been challenged before the Supreme Court. After some arguments, the petition was withdrawn. Going by existing precedent, the Court is unlikely to intervene.
The structure of allegiance between the political executive and the policy executive is a delicate one, and maintaining it is a major task. This is particularly so in democracies like ours which are prone to volatility. The system of lateral entry as it exists may be in compliance with the letter of the law but surely violates its spirit. One hopes that the Government of the day realizes this and takes corrective measures.
Pranjal Kishore is a Delhi based lawyer. He tweets @parahoot