Pinarayi's KAS quota gamble on shaky legal ground, may backfire

Throwing open the gates of reservation seems to be the most preferred showpiece to woo the voter during the 2019 Lok Sabha polls.

It was Prime Minister Narendra Modi who set the trend. He announced 10 per cent reservation for the poor among the forward castes. Whether the 'upper caste quota' could withstand legal scrutiny was clearly the least of his worries.

Not to be left behind, chief minister Pinarayi Vijayan too has decided to drop his guard. Junking its stated position, the Pinarayi Vijayan government has announced that reservation norms would be followed in the recruitment to the second and third streams of Kerala Administrative Service (KAS) as well. Even as recently as December 6, 2018, the chief minister firmly held that reservation would be limited to the first KAS stream, for which the PSC would conduct direct recruitment. (KAS is Kerala's attempt to create a home-bred civil service to make up for the shortage of All India civil service personnel.)

The other two KAS streams, non-gazetted and gazetted, were to be filled by transfers, from the limited pool of government employees. Only they would be eligible to apply. (This in itself is a privilege, which would be discussed towards the end.) The government was against reservation in these two streams. The logic was that reservations need not be applied for promotions. The advocate general, too, had advised against reservation in the two 'transfer' streams.

The government was unmoved even when both the SC and ST Commission and the Minority Commission said the ideal of social justice would be served only if all the three streams had reservation. At best, the government said a special recruitment would be done if the representation of backward classes in the two streams were found to be inadequate.

Surprising change of heart

All of a sudden, with no hard facts with them to justify the change of mind, the LDF government has shed its inhibition towards KAS reservation. Strangely, the argument earlier used to limit reservation has now been used to back full on reservation. “The Supreme Court had in September ruled that the state can provide reservations for promotions,” a top law department source said.

Muslim League MLA T A Ahammed Kabeer, the biggest votary of KAS reservation in the Assembly, echoed the same logic. “The advocate general's opinion against reservation was provided in March 2018. The Supreme Court order allowing reservations for promotions came six months later in September. The AG's argument therefore has become redundant,” Kabeer said.

Shaky legal foundation

However, both the law department's and Kabeer's reading of the Supreme Court judgment seems to lack nuance. It looks like the decision on KAS reservation is legally vulnerable.

It is true that the apex court's September 26 judgment grants states the authority to introduce reservations for promotions. But it is a highly conditional right. The state government has not satisfied any of the conditions before going ahead with the KAS reservation decision. One of them is the exclusion of creamy layer, not just in the OBC but also in the SC and ST category.

Creamy layer for SC & ST

Here is what the judgment says: “The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.” Meaning, if at all the state wants reservations in promotions, it has to be first backed by the necessary data. If not, there is high chance for the decision to be struck down.

The September 26 verdict virtually upheld an earlier five-judge bench verdict of the Supreme Court referred to as M Nagaraj & Others vs Union Of India & Others. In the Nagaraj verdict, the Court had said that the application of creamy layer to the SC & ST category would not compromise the constitutional ideal of equality. This was a repudiation of an earlier Supreme Court (the Indira Sawhney verdict of 1992) order that did not want creamy layer applied to the SC/ST category.

Citing the Nagaraj verdict, the September 26 order reiterated: “Thus, we may make it clear that quantifiable data shall be collected by the state, on the parameters as stipulated in Nagaraj on the inadequacy of representation, which can be tested by the courts.”

Triple reservation boon

It is also said that the new decision would allow a government employee to enjoy three levels of reservation. At the first level, an OBC or SC/ST category could have secured a job through the reservation route. Now, the KAS offers the second level of reservation. There is a third quota. The government employee privilege. Only state government employees are considered for the second and third streams of KAS.

Three levels of reservation for a single candidate, legal experts say, is a blow to equality and would therefore fall foul of Article 14 of the Constitution.