Why give quota once limit is breached: SC

Observing that “there should be some justifications to continue with reservation in promotion”, a bench headed by justice L Nageswara Rao also put the Union government in the dock over lack of data on how it determined inadequacy of representation of SCs and STs.
The bench on Tuesday sought to know from the Union government whether it even carried out the exercise of collecting data to ascertain adequacy or inadequacy of SCs and STs before promoting them.(HT File Photo)
The bench on Tuesday sought to know from the Union government whether it even carried out the exercise of collecting data to ascertain adequacy or inadequacy of SCs and STs before promoting them.(HT File Photo)
Updated on Oct 06, 2021 01:57 AM IST
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By, Hindustan Times, New Delhi

The Supreme Court on Tuesday called it “disturbing” that the Union government did not discontinue reservation in promotion for people belonging to Scheduled Castes and Scheduled Tribes (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.

Observing that “there should be some justifications to continue with reservation in promotion”, a bench headed by justice L Nageswara Rao also put the Union government in the dock over lack of data on how it determined inadequacy of representation of SCs and STs, as laid down in two previous judgments by a Constitution bench of the top court, even as it kept promoting them on the basis of a 1997 memorandum.

Attorney general KK Venugopal, appearing for the Union government, sought to explain it away by claiming that over-representation of SCs and STs in Group C and D posts should not worry the top court since there are “no takers” for these and that “general category candidates do not want these jobs”.

But the bench, which also comprised justices Sanjiv Khanna and BR Gavai, was having none of this. “The data given by the attorney general is disturbing. The moment you (government) saw that representation of SCs and STs was beyond 15% and 7.5% respectively, a decision had to be taken that we won’t continue with the promotion. But the government did not do anything of that sort. The office memorandum of 1997 continued in a blanket manner,” it said.

“The central government should have applied its mind. What is meant by adequacy? It may not mean exact 15% and 7.5% but there has to be some application of mind. Whether you are justified in providing reservation in promotion in such circumstances is the question before us,” said the court, adding that it would examine validity and legality of the government’s action between 2006 and 2017.

In 2006, the top court delivered its ruling in the M Nagaraj case, making 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 in 2018. Citing the Nagaraj judgment, the Delhi high court in 2017 quashed the 1997 memorandum after noting the Union government had not collected data on inadequacy of representation of SCs and STs.

While hearing a clutch of petitions raising various legal issues on the subject, the bench on Tuesday sought to know from the Union government whether it even carried out the exercise of collecting data to ascertain adequacy or inadequacy of SCs and STs before promoting them.

On his part, Venugopal adduced some statistics relating to the Northern Railway where this exercise was done after the Delhi high court judgment. But the bench underscored two issues: first, there was no such data being shown for a period before the HC quashed the 1997 memorandum, and second, the data given showed that SCs and STs occupied more than 15% and 7.5% in Group B, C and D posts.

“The data given by you is after 2017. It is clear that this data has been prepared only for the purpose of filing the special leave petition. Nagaraj (judgment) asked you in 2006 for collection of data on inadequacy but the Union clearly did not do anything for 10 years...You say in group A there are less than 15% and 7.5% while in groups B, C and D, they are more than this. We want to know if you stopped any promotion between 2006 and 2017 where the promotional posts had gone beyond 15% and 7.5%?” the court asked the A-G.

Venugopal replied that the Union government was 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 that it should be left open to the Union government and states to decide on promotional avenues for SCs and STs.

To this, the court retorted that it is not questioning the method finding favour with the Centre but that the government must satisfy itself that there is inadequate representation. “What method you follow could be left to you...vacancy-based or cadre-based, etc, can be seen later. But where is that exercise? What is the exercise done by the government to collect the quantifiable data? We are not disputing any method of collecting data but there has to be something exercise. Where is that exercise?” it asked.

The bench reiterated that the statistics adduced by the A-G demonstrated that there were more than required percentage of reserved category candidates in public jobs in the Northern Railway and therefore, the government should come clear on any exercise ever conducted to ascertain the number of SCs and STs in central government jobs.

Venugopal responded: “You will see more than required percentage mostly in Group C and D posts. There are no takers of these jobs. General category candidates do not want these jobs. This court should not be bothered about these posts in any case.” The top law officer added that the yardstick to determine reservation in promotion should be based on the proportion worked out in relation to the populations of backward classes.

The court, however, asked the A-G to place the data before it on Wednesday to justify its decision to continue with reservation in promotion in all identified posts.

During the last hearing on the matter on September 14, the bench clarified that Union and state governments’ policies on reservation in promotion for the SCs and STs will have to meet all the conditions laid down in two previous Constitution bench judgments in M Nagaraj case and Jarnail Singh case (2018).

The two judgments mandate the Centre and the states to collect quantifiable data showing inadequacy of representation of SC/STs at different levels of public employment, assess the impact of reservation on overall administrative efficiency, and exclude the “creamy layer” before providing for reservation in promotions.

Until the top court’s 2018 verdict, the concept of creamy layer applied only to Other Backwards Classes (OBCs). State governments complain that this policy is complicated and hard to implement, and creates backlog.

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Wednesday, January 26, 2022