Won’t review order on SC/ST quota: Top court

A bench, headed by justice L Nageswara Rao, was hearing a clutch of petitions arising out of judgments from 11 different high courts, which delivered their rulings on various pertinent reservation policies in the last 10 years.

The Supreme Court on Tuesday said that Union and state governments’ policies on reservation in promotion for the Scheduled Castes and Scheduled Tribes (SC/STs) will have to meet all the conditions laid down in two previous Constitution bench judgments.

As soon as the matter commenced before the bench, which also included justices Sanjiv Khanna and BR Gavai, the court clarified that it would not entertain any request for reconsidering the previous judgments in M Nagaraj (2006) and Jarnail Singh (2018) cases. (Reuters)

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.

A bench, headed by justice L Nageswara Rao, was hearing a clutch of petitions arising out of judgments from 11 different high courts, which delivered their rulings on various pertinent reservation policies in the last 10 years. Some of the states from where these judgments arose are Maharashtra, Bihar, Delhi, Uttar Pradesh, Tripura, Madhya Pradesh and Punjab.

As soon as the matter commenced before the bench, which also included justices Sanjiv Khanna and BR Gavai, the court clarified that it would not entertain any request for reconsidering the previous judgments in M Nagaraj (2006) and Jarnail Singh (2018) cases, which prescribed conditions for policies on reservation in promotion.

“We make it clear that we are not going to reopen Nagaraj or Jarnail Singh (cases). We have a limited scope in these matters after our judgments. We are going to only examine if the high court judgments have followed the principles laid down by us in these two judgments,” said the bench.

On his part, attorney general KK Venugopal, representing the central government, questioned the Nagaraj judgment, contending that the condition regarding collection of quantifiable data to show inadequacy of representation of SC/ST is “vague”.

Senior advocate Indira Jaising, appearing in some of the cases on behalf of reserved category candidates, complained that the two judgments do not define what is meant by adequate representation or efficient functioning, which, she claimed, have been creating a lot of confusion in providing for reservation in promotion. Jaising pleaded that some guidelines could be given by the bench to clarify the previous judgments.

But the bench turned down this request. “We are not going to lay down any guidelines on how Nagaraj or Jarnail Singh [cases] are to be followed. We have already said in [the] Jarnail Singh [case] that it is for the states to figure out how the principles of Nagaraj [case] will have to be followed in the context of adequacy of representation and overall efficiency,” it retorted.

Senior advocate PS Patwalia, appearing for governments of Bihar and Maharashtra, also tried to raise some issues about the judgments in Nagaraj and Jarnail Singh cases and rued that the almost 60% promotional posts in Bihar are lying vacant due to certain confusion.

Representing general category candidates, senior lawyers Rajeev Dhavan, Meenakshi Arora, Gopal Sankaranarayan and advocate Kumar Parimal, strongly objected to submissions for revisiting the previous judgments.

“We are making it clear to all the counsel that we will not reopen Nagaraj or Jarnail Singh. Counsel should argue accordingly,” remarked the bench.

At this point, Venugopal tried to revive the Centre’s request for permitting it to make ad hoc promotions to fill over 130,000 vacant posts in public employment across the country. The law officer said that these promotions will be made purely on the basis of seniority and without creating any rights in favour of these employees who could be sent back to the lower post if the court were to decide against promotion of such candidates in its final order. He pointed out that the status quo order by the court, passed in April 2019, was making governance and functioning of several departments very difficult.

But the bench, which earlier in July 2020 and January 2021, declined to grant such permission , turned down the request yet again. “You have already tried for such an order before and we did not allow it. Please wait for some more time,” it told Venugopal.

The court also refused a plea by the AG to recall the contempt notice issued to Secretary, Department of Personnel and Training (DoPT), for allegedly breaching its status quo order on promotion of Central government employees. While Venugopal said that the DoPT secretary had cleared some temporary ad hoc promotion on the basis of a legal opinion given by him, the court said that a final view will be taken only when the clutch of cases is taken up after two weeks.

The bench asked the counsel for the Union and state governments to identify the issues peculiar to them and submit written submissions on such issues in the next two weeks, following which the matter will be finally heard from October 5.

Why states complain

In the M Nagaraj and Jarnail Singh cases, the Supreme Court held that if the state decides to allow reservation in promotions, it would have to collect quantifiable data showing inadequacy of representation of a class in public employment in addition to maintain overall administrative efficiency.It has also made the creamy layer test applicable to reservation in promotions of SC/ST — in the case of OBCs, at the entry level, creamy layer is defined as people with an annual family income of over ₹8 lakh.There is no reservation in promotion for OBCs.States find these yardsticks too difficult to achieve, and have complained about standards to collect quantifiable data to show inadequacy of representation.

They also want a clarification whether the inadequacy of representation has to be understood in relation to the cadre or a department or the state as a whole. The additional conditions to exclude creamy layer and assess administrative efficiency at the time of giving promotion have also created problems for the states.