Not going to prescribe again policy for reservation in promotion: SC

The court asked counsel for states to identify the issues peculiar to them and submit a note within two weeks for detailed hearing in the matter from October 5

The Supreme Court on Tuesday said it is not going to prescribe again policy for determining backwardness as orders have already been passed and issues have been settled in judgements of M Nagaraj (2006) and Jarnail Singh (2018) on reservation in promotion in public employment.

"We have already passed orders on how to consider backwardness, we cannot prescribe policy further. It is for the States to implement policy and not for us to prescribe. We are not going to decide on issue of Article 16(4) and 16(4a) of the Constitution," a three-judge bench presided over by Justice L Nageswara Rao said.

The oral observations came as the Union and several state governments led by Attorney General K K Venugopal asked the top court to issue further clarifications as promotion on 2,500 posts remained stalled due to orders having passed by several High Courts.

In the Constitution bench decisions of Nagaraj (2006) and Jarnail Singh (2018), the top court had laid down conditionalities like collection of data on inadequacy of representation, overall effect on efficiency on administration and removing creamy layers in considering reservation in promotion for SC and STs employees.

Taking up over 130 petitions, the bench, also comprising Justices Sanjiv Khanna and B R Gavai, asked counsel for states to identify the issues peculiar to them and submit a note within two weeks for detailed hearing in the matter from October 5.

Venugopal, for his part, said that the ruling in Nagaraj required interpretation as the judgment had left a lot of ambiguities when it comes to reservations in promotions. He said the Centre was constrained to make nearly 1,400 promotions on an ad-hoc basis based on seniority without taking into consideration the principle of reservations, to ensure that the functioning of the departments are not affected.

He also asked the court to recall a contempt notice issued against the Secretary of the Ministry of Home Affairs over ad-hoc promotions of 149 officers, for allegedly violating the order of April 15, 2019 on the maintenance of status quo.

The bench, however, refused to recall the contempt notice and said it would hear the matter along with the main case.

During the hearing, senior advocates Indira Jaising and P S Patwalia, referred to several ambiguities in Nagaraj judgement, leading to different High Courts interfering with the guidelines framed by the state governments on reservation in promotion.

"What is adequacy when it comes to reservations in promotions under Article 16(4) of the Constitution? States are doing whatever they think fit. Some High Courts are upholding and some High Courts are striking it down," she said.

Senior Advocate Rajeev Dhavan and advocate Kumar Parimal and others, appearing for private parties, asked the court to ensure strict compliance of the conditionalities laid down in Nagaraj judgement.

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