Should M. Nagaraj Judgment On Reservations In Promotion Be Reconsidered? SC Refers Question To Constitution Bench [Read Order]

The Supreme Court, on Wednesday, referred to a Constitution Bench the question of reconsideration of its 2006 judgment in the case of M. Nagaraj v. Union of India.

The Bench comprising Chief Justice of India Dipak Misra, Justice A.K. Sikri and Justice A.M. Khanwilkar passed the order, in view of a challenge to the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution of India.

In the 2006 judgment, the Apex Court had held that it is not mandatory for the State to make reservations for SC/ST in matter of promotions. However, if the State did wish to exercise its discretion, it is supposed to gather quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335.

It was further held that the State is required to adhere to the ceiling-limit of 50% and abstain from obliterating the creamy layer or extending the reservation indefinitely.

A Bench comprising Justice Kurian Joseph and Justice R. Banumathi had, on Tuesday, referred the matter to a Constitution Bench. It had noted that the question pertained to the interpretation of the provisions in the backdrop of three Constitution Bench decisions- Indra Sawhney and others v. Union of IndiaEV Chinnaiah v. State of AP and M Nagaraj and others v. Union of India and others.

The Petitions before the Court had further pointed out that even though both, Nagaraj and Chinnaiah dealt with the same subject, the judgment in Chinnaiah has not been referred to in Nagaraj's case. The application of the test of backwardness to SC/ST has also been challenged.

In view of such questions, the two-Judge Bench had ordered, "Having regard to the questions involved in this case, we are of the opinion that this is a case to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India. Ordered accordingly. Place the files before the Hon’ble Chief Justice of India immediately."

During the hearing on Wednesday, Attorney General K.K. Venugopal brought this order to the notice of the Court. The Respondents also made an attempt to challenge the validity of the said order, submitted that a reference to a Constitution Bench cannot be made by a Division Bench. The three-Judge, however, did not go into this assertion and held that it would constitute a Constitution Bench to decide whether the Nagaraj's judgment needs reconsideration.

The Appeal

The orders have been passed in an appeal filed against a judgment of Tripura High Court passed in April, 2015, wherein the Petitioners had challenged the vires of Section 4(2) of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of vacancies in services and posts) Act, 1991 and Rule 9(2) of the SC/ST Rules.

The Petitioners, who belonged to the general category, had contended that they had been deprived of their right to equality as the State had granted promotions to reserved category candidates in violation of the law laid down in Nagaraj's case.

They had contended that such promotions were granted without taking into consideration the existence of the three essential compelling circumstances-- (i) backwardness of the class; (ii) inadequacy of representation in service; and (iii) overall administrative efficiency.

It had further been alleged that the State had failed to collect relevant and requisite quantifiable data cadre-wise, as required by law, and had also made reservations in excess of the cap of 50%.

A Full Bench of the Court, comprising Chief Justice Deepak Gupta, Justice U.B. Saha and Justice S.C. Das had then held that "the manner in which the State has applied the law of reservation is totally illegal since the reservations have not been made cadre-wise".

It had clarified that for the purpose of determining maximum reservation, only those meritorious candidates belonging to the reserved category who have never received the benefit of reservation during their service can be excluded. It had then directed that the impugned provisions be read down in order to bring them in line with the judgment rendered in Nagaraj's case.

Read the Order dated 14th November passed by two judge bench