Implementing Affirmative Action In Public Services: Comparative Administrative Practice


III.C.Enforcement of Affirmative Action



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III.C.Enforcement of Affirmative Action

Policy Formulation and Implementation


The federal Ministry of Personnel, Public Grievances and Pensions is responsible for framing policies relating to affirmative action in public service and for monitoring their implementation. The task of implementing the policies, including framing the necessary executive directions lies with individual ministries, departments, and public agencies. In addition, the different cadre-controlling authorities of the All India and Central Services are also responsible for issuing and enforcing the policy guidelines for staff in their cadres. The Ministry for Social Justice and Empowerment also provides advice and information to the nodal central Ministry on disabled persons, SC and ST. There are procedural and institutional safeguards to ensure the strict compliance with the reservation policy.
The union and state public service commissions, although at arm’s length from line ministries, are also responsible for implementing the central policies for affirmative action. Before advertising a vacancy under direct recruitment or promotion, the PSCs obtain details of reservations for different categories and the backlog for the concerned cadre and service group. UPSC and SSC scrutinize the applications to exclude OBC candidates who fall under the creamy layer.

Enforcement Tools


Central and state governments follow a unique system called rosters to ensure that there is no default by departments in appointing the SC and ST candidates to vacancies reserved for them. The rosters are intended to help the departments determine the number of vacancies; departments cannot use them for determining the order of appointment or seniority. After determining the number of reserved vacancies on the basis of the roster, the selected candidates in all categories are arranged in order of merit. Appendix 2 describes how rosters are maintained.

Negative incentives and sanctions are expected to ensure positive attitudes toward disadvantaged groups. For example, an officer’s performance appraisal takes into account the officer’s attitude to members of SC/ST and weaker sections, and an adverse entry could affect promotion prospects. Offending heads of departments are liable for prosecution under the legislation for the prevention of atrocities against scheduled castes and the Persons with Disabilities Act, besides liability for disciplinary action under civil service rules.



Monitoring


All government departments, public enterprises, and agencies controlled or funded by government are required to submit annual statements to government with information on the total number of SC/ST/OBC among the number of government servants on January 1 and the number of grade-wise appointments of all categories made under different modes during the year with details of reserved categories. Federal and state governments are required to submit annual reports to the legislature about achievements of targets under affirmative action in public employment. The annual reports of UPSC and SSC, which are placed before Parliament, include information on recruitment of SC/ST and OBC and shortfalls in implementation.
Article 338 of the Constitution created the post of a Commissioner for SC and ST to safeguard the interests of these groups and submit periodical reports to the Parliament on developmental and enforcement aspects of affirmative action. Since 1990, these functions have been entrusted to the National Commission for SC and ST. Central ministries are required to consult the commission on the implementation of job reservation policy. The commission submits annual reports to Parliament in which critical deficiencies of implementation are highlighted including the enforcement of job reservation policy. The commission has the right to compel the presence of witnesses and record evidence under oath. Similar reports are submitted by the National Commissions for Backward Classes and the National Commission for Women. These commissions monitor the implementation of policies for reservation and welfare of these groups.
Parliament has the opportunity to debate the reports of all the national commissions and question concerned departmental heads. The Standing Committees of Parliament in charge of Personnel can call for explanation from senior officials of ministries for acts of commission and omission in respect of reservation policies. Among other matters, the Joint Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes examines the measures taken by the Union Government to secure due representation of the Scheduled Castes and Scheduled Tribes in services and posts under its control (including appointments in the Public Sector Undertakings, statutory and semi-government bodies, and in the Union Territories) having regard to the provisions of Article 335. The state legislatures undertake similar scrutiny of job reservation policies, including policies for local preferences.

In each Ministry and agencies under it, liaison officers at senior level are appointed to monitor matters relating to the representation of SC, ST, and OBC in all establishments and agencies under the department. An officer from a disadvantaged group is included in all selection boards and departmental committees constituted for various services in each department as well as committees for recruitment to vacancies in groups C and D. All such committees are also required to include women officers.


Administrative inspection is carried out periodically by teams from the Ministry of Personnel. They provide the departmental head with an assessment of performance of the department in implementing orders for the reservation for Scheduled Castes and Scheduled Tribes, maintaining rosters, and filling vacancies reserved for these communities. Similar inspections are carried out by each department for agencies under it. The Parliamentary committee also deputes study groups to ministries and public enterprises to assess and report on the implementation of reservation policies.

Apart from job quotas, welfare programs of government for SC and ST provide scholarships for secondary and higher levels of education and quotas for entry into professional and arts colleges. Besides outreach efforts to raise awareness of job opportunities, government supports training schools to prepare candidates for competitive examinations. These efforts have increased the intake and quality of candidates from disadvantaged classes.


The prescribed format of reports does not contain a column on women or disabled persons. It is unfortunate that, despite its access to reports of all public agencies, the nodal central Ministry of Personnel, Public Grievances and Pensions does not conduct systematic analysis on the impact of policy changes and on the representation of different groups including SC/ST/OBC, disabled, and women across ministries, services, groups, and grades over the years. This lapse deprives government of the necessary feedback required for updating existing policies or considering new ones. The obligation imposed by the Supreme Court for rational identification of backward castes and determination of backlog has helped to institutionalize regular collection of data and has made the discourse on OBC in states more precise and open. Karnataka and other states produce excellent analytical reports on representation of backward classes and women.
Women’s representation in public service is monitored. A Focal Point was set up in the Ministry of Personnel that networks with cadre authorities in all departments on issues affecting women in civil service and conducts review of rules and regulations to reduce gender bias. A steering committee in the ministry oversees publicity efforts to enable more women to enter public service, training programs for gender sensitization, and changes in policies and regulations to remove gender bias. The committee’s efforts have led to the elimination of service rules that permit gender discrimination. The National Women’s Commission also advocates the cause of increased representation of women at all levels of public service and intervenes in cases of discrimination.



Redress of Grievances


Opportunities are available to preferred groups under affirmative action in civil service to register complaints with the departmental head or the Ministry of Personnel if regulations and orders relating to appointment and service conditions are violated. They can also complain about harassment in the workplace to the departmental head. If the executive fails to enforce reservation orders, the affected persons can approach the concerned National Commissions, administrative tribunals, and High Courts for legal remedy. Following directions from the Supreme Court, government notified rules in 1997 to ensure immediate action and punishment for sexual harassment of women employees and provide opportunities for complaints by women to go to committees with female representation.
As mentioned earlier, the Supreme Court and High Courts have played a major part in the evolution of the policy for affirmative action and the maintenance of balance among competing considerations of meritocracy and social justice. The courts’ interpretation of the Constitution has led to Constitutional amendments and restatement of policy.

SC/ST employees often form a vocal group in staff unions, and are able to influence government policies through legislators and joint consultative committees in matters that include seniority, decisions on promotion, enforcement of quotas, and filling backlog vacancies. To diffuse incipient tensions, public agencies have been advised to inform associations of SC and ST about vacancies and consult them on the implementation of reservation policy






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