Arguments continued for the third consecutive day in the Supreme Court on Thursday in the issue related to Reservation in Promotion.
The bench of Justice L. Nageswara Rao, Justice Sanjiv Khanna and Justice B.R. Gavai heard the Counsels of the Centre, State, Unreserved Category Employees and Reserved Categories Employee in continuation on the second and third day and the Court will hear this matter further as the arguments have not ended yet.
After going through some of the arguments made by the Counsels, the Bench asked Attorney General K.K. Venugopal whether “adequacy can be only on the basis of fixation of percentage for reservation in promotion and if that is so, if SCs were in excess of the percentage you have fixed, then whether there is any need for continuance of reservations?”
The bench asked the Counsels to submit the short arguments, written statements and any submissions apart from the submission made in the Court in short notes before the next date of hearing, which is October 21.
The arguments made by the Counsels are given below :
Arguments raised by Senior Advocate Paramjit Patwalia (on behalf of Bihar)
He started his argument by the introduction and implementation of reservation. He submitted that there are 3 stages; 1. Introduction of Reservation, whether there should at all be reservation in promotion, post Indira Sahani, 2. Actual working of Reservation, that if you have 15 percent reservation, it should not exceed that 3. Review of what you have introduced.
He submitted that the R.K. Sabharwal case dealt with working of the reservation. Para 4 of the Sabharwal case said that when you start counting general category as reserved and the access is found, then it is time for review. What two things need to be looked at include the Nagaraj Backwardness and the inadequacy of representation. The first one has gone. As far as yhe second one is concerned, Court needs to see this and whether it affects the efficiency. He further pointed out that two issues need to be clearly noticed, what will be the comprising decision of the state in inadequacy of representation, which is answered in B.K. Pavithra case; an exercise was done by the State Government to see the percentage of reserved categories in all cadres of the state and the exercise was not conducted cadrewise.
The Counsel further stated that when the government conducts the exercise, it calls for information from each department of each cadre, and then the information is scrutinised by the government; a workable reservation can be introduced and it is at the stage of introduction. After it is introduced in any particular cadre and there is an access and the state is not correcting that access which is a ground for challenging the access to correct it, but the access cannot be a stumbling block for not introducing reservation. Having cadrewise reservation is a complete non-strata. If the High Court is to hold in such matter, it will be unworkable within two days and post will be lying vacant and could not be filled up. The implementation of reservation has to be classwise and ultimately, it will work for all services of the state, which is accepted in the B. K. Pavithra case. He also points out that, in the RK Sabharwal case, it was not a case of Introduction but it was a case of Working of Reservation. In para 107 conclusion is, it is open to the state government to make reservation in promotion proportionate to representative and para 113 says about the efficiency.
Arguments made by Attorney General for India K.K. Venugopal
The AG stated that earlier in 1981 in Akhil Bharatiya Soshit Karamchari Sangh vs. UOI case, in page 269, para 32A, speaking population wise, a scheduled class constitute about 15% and scheduled tribe half percent. The Railway Administration provided for reservation of candidate, this percentage of reservation apply to Class 4, Class 3 and Class 2 and in limited way to Class 1, which today we call Class A- the method known as 40 point Roster. This Roster based appointment, it is about Equity and if they have meritorious, otherwise they would have got the same percentage.
In para 5 of RK Sabharwal case, the roster upholds the scheduled class which approximately represented the total population of the backward classes. In the Nagaraj case, it says that Article 16 4(b), we must keep in mind following the case of RK Sabharwal, the concept of post based Roster is introduced; Article 16 4(a) and 4(b) were both constituted through being inspired by observation of IndiraSahani and RK Sabharwal case.
He further argues that so far Sabharwal case is concerned which recommends this Roster System, it said it will not be valid in future and it will be proportionate to the population and the Sabharwalcase is followed which is responsible for bringing equality; and the reservation of scheduled class and scheduled tribe is made within this scope. The latest rules, there is 200 point Roster, the number of scheduled class is 36 which comes to 18% of the total. In 1969 Tamil Nadu, total scheduled class was 19% but 18% was reserved. He further states that so far Union of India is concerned, there are 53 departments; Maharashtra has 6000 cadres and when he asked the DOPT and it was said that there is 5000 cadres, for each cadre you have to go into the quantifiable data which was exercised by Karnataka Government by entirety of the state but the entirety of the state can give idea about the percentage which is fixed and that exercise is inbuilt into 15% and 7% reservation. The Learned Counsel further argued that RK Sabharwal casewas focused on post based reservation, to fill up a post mainly. Hence, the Learned Counsel points out that now are the need to give something concrete for filling up the position for scheduled class and scheduled tribe.
Senior Advocate, Indira Jai Singh
She opened her statement with a submission that this court has deferred multiple time on the concept what the equality is. It is necessary to keep in mind that Article 16 (4) is not an exception of 16 (1) which minorities claim to be however if they take anything more how could this be reserved.
She further submitted that Article 16 (4) is part and parcel of article 16 (1). It’s an aspect of perpetuality. This line of reasoning finds determination in the case of Pavitra II where the expression used is equality doesn’t mean formal equality. Equality means substantive equality. And substantive equality is a matter of transformative constitutionalism. Why is it a matter of Transformative Constitutionalism because India’s constitution is unique in the world in containing a provision of reservation in the matter of services under the State. She submits that she is not aware of any of the constitution in this world which has a similar provision.
Dealing with the distinction between reservation and affirmative action she has submitted that it’s a distinction which is every often not kept in mind and in judgement of the court there is confusion of thinking or in the true concept of reservation and affirmative action.
And what justice Sawant explains is reservation aswhere u have separate queues for women and men then the men cannot jump into the women’s queue and the vice versa. This is the concept of reservation. Affirmative action on the other hand is any other action that state wanted to take in furtherance of introducing scheme toward equality there may be scholarship programme there may be educational programmes there may be vocational programmes they all fall under the issue of affirmative action.
But if u read the judgement of the court after Sawneyyou will find there is confusion between these two concepts. I urge the court to keep these two concepts distinct to each other and the concept of formal equality distinct from the concept of substantive equality.
The entire approach of Dr Dhawan in Nagraj and in Pavitra was an approach of formal equality where he refuses to accept the facts that 16 (4) is not an exception to 16(1).
I wish to make it very clear arguing on behalf of the reserved category that we don’t want a single seat more than what is due to the reserved category. If they take anything more then what is reserved for them certainly there is a case made out for asking a question why is that happen how did that happen?
No state in India has made promotion reservation in promotion after 2006. The reason being the Nagrajjudgement required quantifiable data on adequacy of representation backward
Everyone is struggling in dark to understand what does this mean. Nagraj is inchoate judgement and t5hat is why I am grateful to this opportunity where that incompleteness will be filled up.
She has further Submitted that Government of India does not have any tool in my knowledge. Is there any tool please ask Attorney General to produce it. By what measure do they measure the efficiency of Government? What is efficiency in governance?Unless you get an answer to that question I failed to understand what the measure of efficiency that would be adopted. What Court is looking for is an objective method not a subjective method. Every appointing authority has its own measure regarding efficiency.
Secondly the term merit has not been defined anywhere. Not in the constitution nor in any judgement. Article16 (4) uses the term “representation”. Why do we have a right to representation under constitution because representation is a goal in itself in a democratic republic. The very definition of a democratic republic is moving towards an inclusive society and an inclusive society means a representative society. It means a society in which people share state power. Now this has to be adequate. Adequate qualifies representation do not qualifies adequate. The final point is that all judgement after Indira Sawney have relied on the minority and the word “enabling” “compelling reasons” does not find a place in the constitution of India or in article 16.
I am not able to understand the meaning of Compelling reasons. If it is not compelling it is not reason.
The schedule caste and schedule tribes have been enjoying the facility of reservation in promotion since 1955 the Supreme Court in his judgment dated 16.11.1992 in the case of Indira Sawney however observed that preservations of appointment for post under 16(4) of the constitution is confined to initial appointments and cannot extend to the matter of promotions. The ruling of the SC will adversely affect the interest of Schedule Caste and Schedule Tribes since the representation of the SC and ST in services in the states has not reached the required level it is necessary to continue the existing dispensation of providing reservation in promotions in the case of SC and ST.
The representation has not reached the level neither in the centre or state.
In the India, today, it is a fact that neither under the Union of India in any cadre nor in the state is the cadre is the full representation of SC and ST of the required percentage.
Arguments Raised By Gopal Sankaranarayan, Senior Advocate
Mr. Gopal states that there are 3 things that needs to be undertaken by the State; First, For whom they are going to be providing the reservation and promotion;Second, Extent of the percentage- up to 15 or 7.5 or less; Third, There must be an end point. He further states that, in RK Sabharwal case, in para 5, regarding the percentage issue, the phrase they have used is ‘Desired Representation’; it is maybe whatever the percentage as is offered. He furtherargues that adequacy vs. proportionate point, which ought to be proportionate which was statedpreviously by Learned Attorney General. In the Indira Sahani case, it was said that adequacy should not be read as proportionate; which was in context of OBC as per the AG. However, Article 16(4) specifically talks about backward classes of citizens, which includes within STs, SCs and OBCs; so the principle laid down will apply equally to SCs and STs as well.
He further stated that Article 331, sub clause 3 deals with the proportionate not less than the population, with reference to scheduled tribe; Anglo Indian Reservation has come to 70 years but SCs, STs continues for 80 years, the only right constitution provided of representation politically for SCs and STs. The Learned Counsel further states that para107 of Pavithra II, which is inconsistent with the position that has been laid down earlier; the adequacy of representation has to be assessed with reference to a benchmark of adequacy conventionally, which state and central government has linked the percentage of reservation for the SCs and STs to the percentage of population as a measure of adequacy, and it is a constitutional bench noted in RK Sabharwal case’.
Arguing over the issue of adequacy he submitted that the Sabharwal does not say that adequacy has to be proportionate but merely says that the population has to be kept in mind while exercising the power, then the rate can be determined and it will change state-wise. The last sentence of para 107 consequently, it is open to state making the reservation and promotion to SCs and STs proportionate to the representation of general population but it does not follow para 4 and 5, this is one problem in Pavithra II. He further argues that by pointing out central flaw in para 109 is- we find on merit in challenge to Ratna PrabhaCommittee, the Nagaraj case requires the collection of quantifiable data inter alia on the inadequacy of representation on services of the state, but they missed out words of 64A. The learned Counsel submits that through para 152 of Pavithra II, we should come into consideration of the fact that we have nation commission for SCs and STs in 38 and 38A, they had solemn task to review and safeguard for SCs and STs; and the commission should discharge similar functions for national commission for backward classes to review whatever reservation and promotion they are getting and for ensuring the adequacy they are receiving.
Submissions of Rana Mukherjee, Senior Advocate (On behalf of State of Tripura)
Mr. Mukherjee has opened his statement taking about the status of OBCs that they are not present in Tripura but there are tribal societies. He argues that Article 334 of the Constitution has nothing to do with Article 335. The whole concept of providing for reservation as a percentage has to be based on the proportionate of the population; it has to be on the number of people in each category. He further argued that in Tripura we have replacement roster system, which says SCs and STs have reservation against promotion. He submits that RK Sabharwal, consistently, adequacy of representation and the fill up has been given to the backward classes.
Arguments Raised By Dinesh Dwivedi, Senior Advocate (Representing Association SCs and STs and State of Orissa)
Mr. Dwevedi has submitted that in Pavithra II, reservation of person belonging to SCs and STs and specified category and promotional post was introduced by the Government order dated 27.04.1978 for the Government of Karnataka; the reservation in promotional post for SC was set up at 15% and 3% for ST for all the cadres. He further states that 33 point roster was applicable to each cadre of post under appointing authority and vacancies should not be carried forward. On 16.11.92, in Indira Sahani Case, the issue is whether reservation or promotion post contemplated, reservation contemplated by Article 16(4) should not exceed the 15%, while 15% shall be the rule; reservation under Article 16(4) could not only be provided time for entry to government service but not in matter of promotion.
He further argues that in Pavithra case, the law has been struck down that the adequate material has not been found. He points out whenever a substantial change has been brought about, the High Court always have taken care of saving the past transactions and the validity of amendments were upheld in 2006, the state was not standing still and the state carried on with new amendments till Nagaraj came with quantifiable data. He submits that adequate representation cannot be read as proportionate representation; and further points out in Various Chemicals test in adequacy factor that executive is supposed to know the existing condition of society, representatives of people of parliament and legislation, it does not mean that the opinion form is beyond judicial scrutiny all together, the said principle equally applies in the constitution provision 9, 16(4).
Court had heard the matter in first half and further adjourned the matter till October 21.