Quota in promotions on Supreme Court radar yet again

New Delhi: The Supreme Court will once again reopen the debate on reservations in promotion it had settled in 2006, in view of a challenge relating to the interpretation of Articles 16(4A) and 16(4B) of the Constitution.

A three-judge Bench of Chief Justice of India Dipak Misra and Justices AK Sikri & Ashok Bhushan on Wednesday referred the matter to a Constitution Bench to decide specifically on whether the 2006 Supreme Court judgment in M Nagaraj vs. Union of India should be reconsidered.

In its 2006 judgment of Nagaraj, the 5-judge Constitution Bench had held that the state is not bound to make reservations for SC/STs in matter of promotions. However, if they wish to exercise their discretion and make such a provision, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.

It was also held that even if the state has compelling reasons, it will have to see that its reservation provision does no breach the ceiling limit of 50%, or obliterate the creamy layer, or extend the reservation indefinitely. Also, the state has to gather quantifiable data to determine adequacy of representation and extent of backwardness of a certain class.

The Constitution Bench ordered to be set up on Wednesday will decide the limited question of whether the decision in Nagaraj case should be reconsidered or not; but the Bench will not go into the merits of the matter.

A Bench of Justices Kurian Joseph and R Banumathi had on Tuesday ruled that that the matter raised by the Tripura government in an appeal pending since 2015 should be dealt by a Constitution Bench, and therefore referred the matter to the Chief Justice.

Attorney General KK Venugopal on Wednesday brought the said order of the Division Bench to the notice of the court. Lawyers appearing for various respondents submitted that a Division Bench cannot directly refer a matter to a Constitution Bench. Without going into this aspect, the CJI-led Bench decided to constitute a Constitution Bench to decide whether to reconsider the Nagaraj verdict or not.

The Bench, headed by Justice Joseph, noted that the issue of interpretation of Article 16 – especially in the context of three apex court cases on reservations, namely, the Indra Sawhney and others v. Union of India, the EV Chinnaiah v. State of AP and the M Nagaraj and others v. Union of India and others – was under debate.

It was further noted that there were calls to revisit Nagaraj, given the fact that it failed to refer to Chinnaiah, which preceded it. Moreover, it was argued that the test of backwardness for the SC/ST community, as mandated by Nagaraj, requires a relook.

A plethora of senior lawyers, including Indira Jaising, PS Patwalia, A Mariarputham, Sanjay Hegde, Subramanium Prasad, Rajiv Dhavan, and Nidhesh Gupta appeared for various parties.

The Division Bench also noted that questions surrounding the creamy layer principle for reservations articulated in the Indra Sawhney case were raised by lawyers during the course of hearing. The Constitution Bench may dive into all of these aspects.

The matter is an appeal against a judgment of the Tripura High Court filed by the state government in 2015.  The petitioners had argued before the high court that by virtue of these special provisions, persons belonging to the general category had been deprived of their right to equality, as the state granted promotions to the reserved category candidates in violation of the law laid down by the Supreme Court in the Nagaraj case.

That case laid down a three-fold test to guide the state’s reservation policy for the SC/ST category; the factors being (i) backwardness of the class; (ii) inadequacy of representation in service; and (iii) overall administrative efficiency.

The petitioners contended that without assessing the backwardness or inadequacy of reservation, promotions have been made much in excess of the cap of 50% ordained by law. The state, on the other hand, argued that the 50% ceiling limit laid down by the Apex Court in the Indra Sawhney case was relaxable in states like Tripura, where SCs and STs together constitute 48% of the population.

The judgment delivered by the High Court heavily relies on Nagaraj, and the impugned provisions were read down in context of the same. It had held that reservation must be made cadre-wise and not department-wise, and that where the SCs and STs are adequately represented in the cadre, reservation cannot continue any longer.