Karnataka Act brings in reservation in Outsourced Government Jobs: Ten Discussion points

Avani Chokshi

On 25.07.2024, the State Government of Karnataka led by Congress passed the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments etc.,) (Amendment) Act, 2024 (hereinafter referred to as the ‘Amendment Act’) in the Karnataka Legislative Assembly, , amending the 1990 enactment that provides for reservation in government posts. The Act was one amongst six laws passed without any debate while BJP and JDS were clamouring for discussion on the MUDA controversy. Passed with the stated aim of ‘social justice’ in outsourcing and to provide constitutional rights to everyone, the Act has not received enough attention. While the act is deeply significant as it extends reservation beyond the daily diminishing number of permanent posts, some serious issues with the Act also deserve to be highlighted. 

At the outset, it may be noted that even before passage of the Amendment Act, the Government issued a circular in May 2024 through the Department of Personnel and Administrative Reforms directing for implementation of reservation for members of SC/ST/OBC communities in departments that engaged in outsourcing of over 20 candidates, if outsourcing extended for over 45 days. It also  specifically directed that 33% of the said outsourced staff must be women. Any vacant post would have to be filled with a candidate from the same category. The circular specifically covered all government departments, autonomous bodies, corporations, boards, and universities.

Now, through the passage of the Amendment Act, the Government has brought in a similar provision in the law itself. We may remember that courts have repeatedly held that Circulars do not have the force of law, and as such, it is of significance that this provision has been brought into the law.

The Amendment Act provides, inter alia, as follows:

“A manpower supply agency recognised by the Government while making appointment on the basis of outsource against direct recruitment quota to any post in the cadre of the State civil services or establishments in public sector has to ensure that adequate representation is given to the members of the Scheduled Castes, Scheduled Tribes and Other Backward Classes to such extent and in such manner as may be prescribed”

A few aspects can be noted in this regard. 

First, the introduction of reservation outside of permanent government employment is highly welcome and can be seen as a stepping stone into reservation in the private sector. With fewer and fewer permanent government posts available, the social welfare objective of reservation has become highly diluted and the vast majority of employees do not have the benefit of reservation. 

Second, the first proviso states that “Provided that, the appointment on the basis of outsource shall be on temporary basis and shall not be regularized against direct recruitment quota.” The outsourcing of permanent and perennial nature of jobs to manpower agents is highly dubious and an unfair labour practice. In fact, the said jobs ought to be permanent in nature instead of creating a name lending contractor to avoid giving these workers the benefits of permanency. The state is going beyond its mandate in the introduction of such a provision, which is outside the scope of the enactment on reservation and will have impact on all employees. Such a provision perpetuates insecurity of employment under the State. In view of the fact that the 1990 law contains a provision that the Act will have overriding applicability “notwithstanding anything contained in any of the decided cases by any of the court”, may cause some impact on cases of regularisation before the courts. 

Third, the benefit is limited to outsourcing “against direct recruitment quota”, meaning that this benefit will not apply when outsourcing is not made against a vacant sanctioned post. However, often, the State indulges in rampant outsourcing and states that the same is being done due to lack of sanctioned posts. There is no reason whatsoever that such contract workers should not get the benefit of reservation. The Supreme Court in 2013 noted that “Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need.”If the State government has not rationally assessed the need, the workers should not pay the price. 

Fourth, reports show that Karnataka has 2.5 lakh vacant govt jobs against a sanctioned strength of 7.72 lakh posts across 43 departments. In this context, stating that outsourcing against this quota will get the benefit of reservation is a severe disadvantage to the workers, not a benefit at all. This means that 2.5 lakh workers who would be entitled to pay scales, reservation and all the security of government employment would be denied the same and be given minimum statutory benefits while also granting reservation. This is an unfair labour practice and should not be legitimised by stating that while this is being done, social welfare will be complied with. Socially backward communities should get the benefit of permanent secure employment with the State that will ensure intergenerational growth. 

Fifth, another valid viewpoint is that contractualisation is a reality now. While continuing our battle against the informalisation of employment, at the same time a regulation to ensure that there is reservation to historically oppressed sections even in these insecure occupations is of some merit. 

Sixth, in this context the Second and Third proviso are of significance. They provide:

“ Provided further that, the appointment on the basis of outsource shall not exceed ten percent of the sanctioned strength of the post against direct recruitment. 

Provided also that, on or before the commencement of the Karnataka scheduled castes, scheduled tribes and other backward classes (Reservation of Appointments etc.,) (Amendment) Act, 2024 if the appointment on the basis of outsource exceeds ten percent of the sanctioned strength of the post, then such appointments shall be reduced every year by ten percent.”

Hence, it could be argued that an attempt has been made to limit the reach of outsourcing. Moreover, arguably posts that are not against direct quota in excess of 10% of sanctioned strength would also have to be reduced.

Seventh, unlike the DPAR circular of May 2024 which provided that 33% of these outsourced posts were to be reserved for women, no similar provision is made under the Amendment Act. 

Eight, unlike the DPAR circular of May 2024 which specifically covered all government departments, autonomous bodies, corporations, boards, and universities, the Amendment Act extends only to the Cadre of State civil services or establishments in public sector.

Ninth, the percentage of reservation is not specified in the Amendment Act but adequate representation is to be provided as may be prescribed. On the other hand, percentage of reservation in permanent employment attributed to government order “under clause (4) of Article 16 of the Constitution of India”, which gives the state the power to make reservations for appointments and promotions in favour of backward classes of citizens. It is unclear why the order for reservation in outsourced posts is not also attributed to the powers under Article 16(4) of the Constitution. 

Tenth, one last change may be noted. The Amendment changes the composition of the Standing Committee to include revenue department secretary and remove labour department secretary. This speaks to the priorities of the State. 

In view of this assessment, there is a requirement for more debate on the provisions of the Amendment Act, which seems to be an act of give and take for the working class.