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Do away with requirement of data for quota in promotion: Centre to Supreme Court
The top court on Tuesday called it “disturbing” that the Union government did not discontinue reservation in promotion for people belonging to SC/STs even after their numbers exceeded the upper ceiling of 15% and 7.5% respectively, of positions in some classes of central government jobs.
The Union government on Wednesday urged the Supreme Court to do away with the requirement of collecting quantifiable data by the Centre and states to determine the representation of people belonging to Scheduled Castes (SCs) and Scheduled Tribes (STs) while implementing reservation in promotion.
According to Attorney General KK Venugopal, there is a roster system in place in every cadre of the government departments to ascertain the posts required to be filled up by SCs/STs, and therefore the prerequisite of quantifiable data, as was laid down by two Constitution bench judgments of the apex court, should not remain.
“It is a fact of life. In 75 years, we have not been able to bring the SCs/STs to the same level of merit. The time has come to hold that so far quantifiable data is concerned, it is not concrete and not down to earth,” the AG told a bench led by justice L Nageswara Rao.
In 2006, a Constitution bench’s ruling in the M Nagaraj case made it incumbent upon the state to collect quantifiable data showing inadequacy of representation of a section of people in public employment in addition to maintaining overall administrative efficiency. The aspect of quantifiable data was endorsed by another Constitution bench by its 2018 ruling in the Jarnail Singh case which also mandated the exclusion of the “creamy layer” before providing for reservation in promotions.
The top court on Tuesday called it “disturbing” that the Union government did not discontinue reservation in promotion for people belonging to SC/STs even after their numbers exceeded the upper ceiling of 15% and 7.5% respectively, of positions in some classes of central government jobs.
Presenting the Centre’s views on a clutch of petitions raising various legal issues on the subject, Venugopal sought to convince the court that the roster system, based on the proportionate population of SCs/STs, has been working quite well in all government departments and that the condition of collecting quantifiable data on inadequacy of representation of SCs/STs may not be required at all.
“The time has come for this court to give a concrete basis for SCs/STs to fill up posts. There is no need to verify any further or collect quantifiable data after the roster system. In a roster system, automatically posts can get filled up. I sincerely say that Your Lordships may consider whether this is not an appropriate method,” Venugopal told the bench, which also comprised justices Sanjiv Khanna and BR Gavai.
About the aspect of overall administrative efficiency, the AG said that government employees are promoted only on the basis of their ACRs (annual confidential reports) and that there is no need to lay down any additional criteria.
When asked what should be a time period for the government to revisit the reservation policy after ascertaining the percentage of posts occupied by SCs/STs, the AG said that a periodic review should happen after every 10 years when a census is done.
Additional solicitor general (ASG) Balbir Singh, who also appeared for the central government, tried to answer the court’s queries on posts occupied by SCs/STs in excess of the upper ceiling.
“Adequacy test is to be applied at a larger level. As a society we have to meet the requirement of Article 16 (1) instead of going into granular levels. Equal opportunities are to be created and upliftment of society are ways to look at it. Equal opportunities are to be created and upliftment of society are the ways to look at the reservation policy,” Singh told the bench.
The ASG added that there are more than 15% and 7.5% representation of people belonging to the SCs/STs in Group C and D only because the reservation in policy has continued. “The picture will change drastically from the next year if we stop it now,” said Singh. He also supported the AG in saying that 10 years could be a right period to look at changes in a society and chart out the way forward.
The bench will continue hearing the case on Thursday.
The top court was hearing the batch of petitions arising out of judgments from 11 different high courts, which had delivered rulings on various pertinent reservation policies in the last 10 years. Some of the states from where these judgments arose included Maharashtra, Bihar, Delhi, Uttar Pradesh, Tripura, Madhya Pradesh and Punjab.
The Union government has been pressing for reservation in promotion proportionate to the population of SCs and STs as per a 1995 judgment by the top court in the RK Sabharwal case, and wants it to be left open to the Centre and states to decide on promotional avenues for SCs and STs. It claims that the condition regarding collection of quantifiable data to show inadequacy of representation of SCs/STs is “vague”.
On the other hand, representing general category candidates, senior advocates Rajeev Dhavan, Meenakshi Arora, Gopal Sankaranarayan and lawyer Kumar Parimal have contended that the reservation cannot be for an indefinite period and that it must stop as soon as the upper ceiling has been reached.
Further, they have emphasised that reservation in promotion should be cadre-based only after quantifiable data is collected and the creamy layer has been excluded. Additionally, the general category candidates have said that posts meant for SCs/STs cannot be kept vacant indefinitely and should be filled up by other candidates after three years, as laid down in the M Nagaraj judgment.
