Legal experts said what this essentially means is that the government can extend reservation to promotions as envisaged by the Constitution, but this has to be strictly in accordance with the law as it stands now.
Amid a raging debate on the issue of reservation in promotions, the Supreme Court Tuesday said the government “is not debarred from making promotions in accordance with law”, but “subject to further orders” and “pending further consideration of the matter”.
Legal experts said what this essentially means is that the government can extend reservation to promotions as envisaged by the Constitution, but this has to be strictly in accordance with the law as it stands now. And the law that currently holds is the 2006 judgment of the Supreme Court in M Nagaraj & Others vs Union of India.
That order upheld the validity of Article 16 (4A) — a special provision which provides for reservation for promotion only to SCs and STs — and said the government can provide reservation in promotions provided it is backed by compelling reasons like proof of backwardness and inadequacy of representation and ensure that it does not affect the overall efficiency of administration.
As per the order Tuesday, any such appointment will also be subject to the final outcome of petitions which have raised the question and are pending before the apex court.
The bench of Justices A K Goel and Ashok Bhushan was hearing the Centre’s plea in connection with an order of the Delhi High Court which, in August 2017, struck down a 1997 circular, issued by the Department of Personnel and Training, extending reservation in promotion to SC and ST employees beyond the five years stipulated by the apex court in the landmark 1992 judgment on Indira Sawhney vs Union of India. The High Court had said that this was not supported by any quantifiable data to prove conditions of backwardness etc.
Appearing for the Centre in the Supreme Court, Additional Solicitor General Maninder Singh submitted that the entire process of promotion had come to a “standstill” due to orders of various High Courts on the matter and that the apex court too had ordered status quo in one of them. He pointed out that there were separate verdicts by the High Courts of Delhi, Bombay and Punjab and Haryana on the issue of reservation in promotion to SC/ST employees.
“How is promotion taking place as of now,” the bench asked. To this, the ASG replied, “They are not. It is all at standstill. This is the problem… I am the government and I want to give promotion as per Constitutional mandate.” Singh referred to an order passed by a bench of Justice Kurian Joseph and M Shantanagoudar on May 17 this year.
The May 17 interim order, which came on an appeal against an order of the Punjab and Haryana High Court against allowing reservation in promotions of Income Tax officers, 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”.
Singh urged the bench to pass a similar order. At this, Justice Goel said, “we will say you (Centre) can go ahead with promotion in accordance with law.”
Singh also referred to Article 16 (4A), which enables the state to provide for reservation in matters of promotion to SC/STs who, in the state’s opinion, were not adequately represented in the services.
“That is the enabling provision,” the bench observed, and added that under it, the state would have to make out a case for providing reservation in promotion to SC/STs based on quantifiable data.
In November 2017, the Supreme Court, while hearing a batch of petitions that arose from a Bombay High Court order quashing two state government notifications giving reservation to SCs, STs and denotified tribes, nomadic tribes, Special Backward Category and OBCs in job promotion, referred the Nagaraj judgment to a Constitution Bench on whether it needed a relook.
The M Nagaraj verdict had also said that the creamy layer concept cannot be applied to the SCs and STs for promotions in government jobs. Referring the matter to the Constitution Bench, the apex court said more clarity was needed on the matter of creamy layer in the situation of competing claims within the same races, communities, groups or parts thereof of SC/ST communities notified by the President under Articles 341 and 342 of the Constitution.
Paswan, Gehlot welcome Supreme Court order
New Delhi: Union minister and LJP president Ram Vilas Paswan on Tuesday welcomed the Supreme Court order on reservation in promotions to SC/ST employees. He said the LJP was thankful to Prime Minister Narendra Modi and the government for properly presenting the matter in court leading to the order.
On Sunday, Paswan had met BJP chief Amit Shah and demanded that the government should issue an ordinance on reservation in promotions.
Minister for Social Justice and Empowerment Thawar Chand Gehlot also welcomed the Supreme Court’s order and expressed the government’s commitment for the welfare of SCs and STs. “I welcome the decision of the Supreme Court. It will not only open new doors for the communities but also widen the existing scope in various arenas of employment in government sector,” he said. —ENS