The Supreme Court on Tuesday allowed the Union government to go ahead with reservations in promotions to SC/ST employees in “accordance with law”.
A vacation bench of Justices Adarsh Kumar Goel and Ashok Bhushan told Additional Solicitor General Maninder Singh, appearing for the Centre, that the government can provide reservation in promotion to the SC/ST employees as per the law.
Singh contended that the apex court's order passed on May 17 in the case of Jarnail Singh and others vs Lachhmi Narain Gupta and others came in the way of the Union government to grant promotion to SC/STs.
“All the promotions have come to standstill,” he said.
The bench, however, asked, “Without complying with the M Nagaraj case judgement, how can you go ahead with promotions?”
In the Jarnail Singh case, the top court said, “It is directed that the pendency of this special leave petition shall not stand in the way of Union of India taking steps for the purpose of promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merits.”
The Nagaraj case put stress on gathering data on the inadequacy of representation before going ahead with reservation in promotions.
Senior advocate Shanti Bhushan and advocate Kumar Parimal, representing for some private parties, pointed out that a three-judge bench presided over by Chief Justice Dipak Misra and comprising Justices A K Sikri and A M Khanwilkar had on November 15 referred the matter relating to re-examination of the apex court's 2006 landmark judgement in M Nagaraj Versus Union of India to the Constitution bench.
The matter before the apex court on Tuesday was pertaining to the Centre's challenge to a Delhi High Court judgement of August 23, 2017, that quashed an August 13, 1997, notification allowing all government departments to provide reservation in promotion to SC/ST employees.
On Tuesday, the vacation bench said it would not clarify anything but would only say that the government would not be debarred in promoting employees from SC/ST category in accordance with the law.
The Delhi High Court has ruled that the government could not blindly provide for reservation in promotions, in favour of SC/STs unless, prior thereto, the requisite exercise, to acquire quantifiable data regarding the inadequacy of representation of SCs and STs in public services was undertaken.
The judgement was passed on a writ petition filed by NGO All India Equity Forum and others.
The high court had also restrained the government from granting any reservation, in promotion, to SCs or STs in exercise of the power conferred by Article 16 (4A) of the Constitution, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating the inadequacy of representation. There has to be an evaluation of the situation by taking into consideration the said data, along with the competing considerations of backwardness and overall efficiency in administration, and arriving at an empirical decision on that basis.
Notably, the Supreme Court had in the Indira Sawhney (Mandal) case (9-judge bench), permitted reservation for SC/STs in promotion to continue for a period of five years from November 16, 1992.
Subsequently, the Constitution was amended and Article 16(4A) was incorporated, enabling the state to provide for reservation in matters of promotion in favour of SC/STs if they are not adequately represented in the services.
By a decision of the Supreme Court in M Nagaraj and others vs Union of India and others (2006), the constitutional validity of Article 16(4), (4A) and (4B) was upheld.
However, consequent to the pronouncement of law in M Nagaraj, there were a slew of decisions by the Supreme Court stating that the government could not blindly provide for reservation in promotions, in favour of SCs and STs unless, prior thereto, the requisite exercise, to acquire quantifiable data regarding inadequacy of representation of SCs and STs in public services was undertaken.