The Supreme Court has ordered the listing of the Reservation in Promotion matter on Wednesday, October 6 and asked Attorney General K.K. Venugopal to reply to the Court’s question, “How did you (the Centre) make the arrangement of the figure of SCs and STs and is it on the basis of local population proportionate to the total population?”
The bench of Justice L. Nageswara Rao, Justice Sanjiv Khanna and Justice B.R. Gavai also made it clear that it will not reconsider the decisions given in the M. Nagraj cases of 2006 and Jarnail Singh of 2018 and will only consider whether the decisions of the High Court have followed the principles laid down in the earlier two judgments of the Supreme Court.
The AG pointed towards the concluding paragraphs of the Indira Sawhney judgement delivered by 9-judges bench that there can be no reservation in promotion and that is a one which resulted in the constitutional amendment introducing Article 16 (4)(a).
Article 16 (4) (a) is confined to initial appointment only and cannot extend to the matter of providing reservation in the matter of promotion. We direct this to be in effect prospectively and shall nor effect promotion already made whether on temporary or permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion shall not be disturbed for a period of 5 years and within this period, it will be open to the appropriate authorities to revise and modify the relevant rules to ensure the achievement of the objective, which means the advocacy of representation if any authority thinks so.
He further submitted that the principle of proportionate representation is accepted only in Article 330 and 332 that too for a limited period. These Articles speaks of reservation of seats in Lok Sabha and State Legislatures in favour of Scheduled Castes and Scheduled Tribes proportionate to that population but they are only temporary and special provisions, therefore it is not possible to accept the proportional representation though the proportion of population of OBC to the total population would certainly be relevant.
The 27% reservation provided by the memorandum in favour of OBCs is well within the ratio. To get reservation in favour of Scheduled Castes and Scheduled Tribes comes total of 10.5 %. In this connection references may be made of the decision given by High Court of Andhra Pradesh in Narain Rao vs State of AP striking down the enhancement of reservation from 25% to 45% for OBCs.
Here what is relevant is that the whole of Indira Sawhney is only with OBCs not with Scheduled Castes and Scheduled Tribes. Secondly, the question was as to whether the proportion of reservation for the total class of OBCs should be in proportion to their population or not.
The Court agreed on the arguments raised by the Attorney General and raised a question to clarify, “Adequate Reservation is not Proportionate Representation.”
Venugopal answered that it is to be noted that the total population of OBCs are approximately 44-45 % and of SCs and STs is 15% and 7% and now 19% and 27%. So the question arises, “Should we give reservation to every category in proportion to their population?” The answer is no, because if you give every category reservation in ratio of their percentage, it will exceed 50%. So to keep it down to 50%, the OBCs are restricted to 27%.
Venugopal further submitted that a candidate belonging to the general category is not entitled to be considered for the reserved post. On the other hand, the reserved category candidates can compete for the non-reserved post and in the event of their appointment for the said post, their number cannot be added and taken into consideration on working out the percentage of reservation.
The Attorney General stated the question is whether the total class of the OBC should be in proportion to total population or not. But it was also has shifted to 37% percent or so, and therefore this has nothing to do with the scheduled class, the number of posts in the cadre should be proportionate to the proportion of the scheduled class members to the total population of the state and filling up the post in the sense has nothing to do with the Roster System. The reservation concerned to the state government for the Scheduled Caste and Scheduled Tribes has been raised to 57%, therefore it has nothing to do with para 807.
Venugopal further submitted that Article 161 requires equality of services of representation of the state, now whichever the Scheduled Tribe, Scheduled Caste too have been considered equal as rest of the community. The significant point followed several times is why would the Scheduled Castes get more percentage comparing to their total number of their population. The Learned Counsel argues that before making any promotion in any individual case, 2 things needs to be fulfilled. The first is to produce data regarding particular group of scheduled class suffers from backwardness (scheduled classes have been considered among the backwards of the backwards), second is quantifiable data to decide as to whether so far the promotion stands but problem arises in identifying the quantifiable data. He gave the example of the Nagraj Case where it was mentioned clearly that the quantifiable data should be collected by the state and the parameters and distributed in average on the inadequacy of representation, which can be tested by the courts.
He referred the office memorandum of 1997, which has been struck down on the basis without that quantifiable data for the purpose of finding out the vacancies and the right of Scheduled Castes and Scheduled Tribes? How can the 1997, 2002, 2005 and 2006 data were set aside, and nobody could conceive the issue of Quantifiable Data and later they were promoted without Quantifiable Data on the basis of 100 or 200 points roster. He further stated on the basis of B.K. Pavithra vs. Union of India, ‘without giving a reservation that it has to be on the basis of Roster and Proportion below the population, therefore this is no more in existence so far as the quantifiable data is concerned.’
ASG Balbir Singh had also appeared before the Court and argued that after the RK Sabharwal case, the DOPT made an office memorandum which was circulated among all the offices of ministries, vacancy on post based, how particular seats were to be reserved and the reservation was 15%, and 7.5%. He further argued that in Sabharwal case, the subsequent appointments were made through promotion. The learned counsel stated that the Sabharwal case came in first when the Roster Point system was approved, which was approved in the Nagraj case too. Although, in the Nagraj case, later, it was said that data is to be collected on 3 basis i.e. adequacy, efficiency and backwardness of the caste. The particular department by making a promotion is going by the roster system, which is prescribed by 2nd July 1997. In that case, the data would be the existence of two hundred posts and thing is to be eliminated out of that on account of transfers or any other mode of filling those posts.
The Supreme Court had said in the last hearing that the Central and state governments have to fulfill all those conditions in the policies of giving reservation in promotion to the employees of SC/ST. Which have been decided by different constitution benches of the top court in the last two decisions?
The Supreme Court, in its orders in both these cases, asked the Centre and the states to collect quantitative data showing inadequate representation of SC/ST category, assess the impact of reservation on administrative efficiency and public employment, before granting reservation in promotion to the Centre and the states was made mandatory.
In this case, previously, the court has asked all the states to place the special cases of the state before the court within two weeks. The court said that there are different types of cases in different states. Therefore, their hearing will be done state-wise separately. In fact, many petitions have been filed in the Supreme Court regarding reservation in promotion in jobs across the country. In these petitions, the Centre and the States have sought urgent hearing on about 133 cases filed on the basis of decisions of 11 different High Courts related to the policy of reservation in promotion. It has been said in the case that due to conflicting orders of different High Courts, appointments to many posts could not be done.