The Supreme Court on Tuesday allowed the Union of India to proceed with the reservation in favour of SC/ST employees “as per the law” in matters of promotion, until the final disposal of the controversy by the constitution bench.
A vacation bench of Justice Adarsh Kumar Goel and Justice Ashok Bhushan was hearing an SLP preferred by the Centre against the August-2017 judgment of the Delhi High Court quashing the DoPT Office Memorandum (OM) dated August 13, 1997, which provided for the continuation of reservation in promotions indefinitely. The high court had passed the verdict in the light of the apex court constitution bench judgment in M Nagaraj (2006).
The matter was urgently listed after being mentioned on Monday by ASG Maninder Singh citing 14,000 vacancies.
On Tuesday, the ASG submitted, “There are two orders- first, of the reference to the Constitution Bench [State of Maharashtra v. Vijay Ghogre; November 15, 2017], and second, of the two-judge bench on May 17 [in Jarnail Singh v. Lachhmi Narain Gupta], passed on the submissions of the Attorney General, as earlier the status quo was continuing...I am praying for the same order so that the handicap that has been created on account of there being no promotions can be cured...”
On May 17, a bench of Justice Kurian Joseph and Justice Mohan M Shantanagoudar, hearing an SLP against the 2011 judgment of the Punjab & Haryana High Court quashing a similar OM in pursuance of M Nagaraj, had 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”.
“The interim order does not stay the judgment...,” noted Justice Bhushan.
At this point, senior counsel Shanti Bhushan quoted the following observation made on November 14, 2017, by another division bench in State of Tripura v Jayanta Chakraborty, seeking to refer to a constitution bench the interpretation of clauses (4), (4A) and (4B) of Article 16 in context of the judgments in Indira Sawney (1992), EV Chinnaiah (2005) and M Nagaraj: “...Though the learned counsel have pressed for interim relief, we are of the view that even that stage needs to be considered by the Constitution Bench. The parties are free to mention the urgency before the Hon’ble Chief Justice of India”.The observation was reproduced in the November 15, 2017 order of Chief Justice Dipak Misra, Justice AK Sikri and Justice Ashok Bhushan.
“This exact same point was also argued on May 17...,” contended Singh.
“I do not want fall foul of any observations of Your Lordships but want to make promotions in accordance with the law,” continued the ASG.
“If you say this is the law, then follow it...you need not have mentioned,” remarked Justice Goel on Tuesday.
“In the meantime, Your Lordships’ comment is that we are free to make promotions,” stated Singh.