Before Providing Reservation In Promotions To A Cadre, State Obligated To Collect Quantifiable Data Regarding Inadequacy Of Representation Of SC/STs : Supreme Court

On Friday, the Supreme Court delivered the judgment in the issue relating to reservation in promotions. The Apex Court has set out certain guiding principles in relation to reservation to promotion, while leaving some to be determined by the Centre and State Governments on a case-to-case basis. A Bench comprising Justices L. Nageswara Rao, Sanjiv Khanna and B.R. Gavai has divided the broader issues common to the batch of petitions, pertaining to the issue of reservation in promotion, filed before it, in six categories and decided those issues without getting into the merits of the individual cases for the time being. Brief Background The Supreme Court in Indra Sawhney And Ors. v. Union of India And Ors. 1992 Supp (3) SCC 217 held that Article 16(4) of the Constitution of India does not provide for reservation in proportion. It directed the reservation granted in promotion in Central and State services to continue for a period of five years. Article 16(4-A) was inserted into the Constitution to provide for reservation in promotion as the State was of the view that there still existed inadequacies of representation of Scheduled Castes and Scheduled Tribes in public employment. Article 16(4-A) read as under - "Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State". However, 'consequential seniority' to accelerated promotions was denied by the Apex Court in Union of India And Ors. v. Virpal Singh Chauhan And Ors. (1995) 6 SCC 684. Subsequently, Article 16(4-A) was further amended to include the benefit of consequential seniority. Article 16(4-A) reads as under - "(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State." It so happened that, often the reserved vacancies for the present year could not be filled due to non-availability of candidates and the same was carried forward. Indra Sawhney (supra) clarified that reservation under Article 16(4) cannot exceed 50%. In compliance an Office Memorandum was issued on 29.08.1997 to make the 50% limit applicable to current as well as backlog vacancies. This arrangement was short lived, since upon consideration of representation from the SC/ST community Article 16(4-B) was inserted which clarified that the vacancies carried forward shall not be clubbed with the current vacancies to determine the ceiling of 50%. Article 16 (4-B) reads as under - "(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year." The validity of Articles 16(4-A) and 16(4-B) were challenged and upheld as enabling provisions in M. Nagaraj And Ors. v. Union of India And Ors. (2006) 8 SCC 212. The Apex Court held that, though States were not bound to make reservations in promotion, if they chose to do so, in addition to compliance under Article 335, they have to collect quantifiable data to show backwardness of the class and inadequacy of their representation in services. Upon challenge, M. Nagaraj was sent to a larger bench, and finally the request to refer it to a 7-Judge Bench was rejected in Jarnail Singh And Ors.v. Lachhmi Narain Gupta And Ors. (2018) 10 SCC 396. However, the Supreme Court set aside the requirement to collect quantifiable data to show backwardness of the SCs and STs as their backwardness had already been established in Indra Sawhney. In the meanwhile, different High Courts have considered matters pertaining to reservation in promotion being violative of law laid down in Nagaraj, which is the subject matter of challenge in the present batch of petitions. The Six Broad Points Culled Out For Determination Yardstick For Arriving At Quantifiable Data The Court held - "…we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing...

Before Providing Reservation In Promotions To A Cadre, State Obligated To Collect Quantifiable Data Regarding Inadequacy Of Representation Of SC/STs : Supreme Court

Sohini Chowdhury

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Sohini Chowdhury

Before Providing Reservation In Promotions To A Cadre, State Obligated To Collect Quantifiable Data Regarding Inadequacy Of Representation Of SC/STs : Supreme Court

Sohini Chowdhury

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Sohini Chowdhury

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