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Can A Person Selected On Merit Claim Reservation In Promotions? Supreme Court Asks Centre [Hearing Day 5]

Sneha Rao
26 Oct 2021 4:03 PM GMT
Can A Person Selected On Merit Claim Reservation In Promotions? Supreme Court Asks Centre [Hearing Day 5]
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The bench reserved judgment after hearing the parties.

The Supreme Court on Tuesday continued hearing the petitions relating to reservation in promotions. Centre and States had urged the Supreme Court to settle the confusion regarding the norms for reservation in promotions saying that several appointments have been stalled due to ambiguities.A Bench of Justices L Nageswara Rao, Sanjiv Khanna and B.R.Gavai is hearing the matter after a 5-judge...

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The Supreme Court on Tuesday continued hearing the petitions relating to reservation in promotions. Centre and States had urged the Supreme Court to settle the confusion regarding the norms for reservation in promotions saying that several appointments have been stalled due to ambiguities.

A Bench of Justices L Nageswara Rao, Sanjiv Khanna and B.R.Gavai is hearing the matter after a 5-judge bench answered the reference in 2018 in the case Jarnail Singh v. Lachhmi Narain Gupta.

It is duty of the court to suggest and direct a method by which a standard or a yardstick is laid down which is certain and definite for the purpose of deciding the data which has to be looked into: Attorney General For India

AG K.K.Venugopal submitted that while Nagaraj said that there should be quantifiable data with regard to adequacy of representation, it should should not have left it at that. "They should have specified what data to look for….if your lordships do not lay down a definite and decisive ground which states and Union will follow, there will be a multitude of litigation..and there will never be any end to the issue on what the principle be on which reservation has to be made. Jarnail Singh had left it to the states but that means we are going back to square one. Because nobody knows what it is that satisfies adequacy" - ASG submitted.Further, AG relied on Akhil Bhartiya Soshit Karamchari Sangh v Union of India 1981 1 SCC 246 and R K Sabharwal to argue that percentage of reservation should be the desired representation of the backward classes in the state services and is consistent with the demographic estimate worked out in relation to the population.

"If Sabharwal has specifically said the total percentage of reservation based on the population of the particular weaker section is to be the yardstick and that has been approved in Nagraj...my respectful submission is so far as Nagraj as concerned it affirms the principle of proportion of population to the total population of SCs in the country."-ASG submitted.

AG further submitted that it is the census which is the data that is to be relied upon, as has been followed in Akhil Bhartiya, Sabharwal and Nagraj. He also urged the court to clarify whether the Bench's order would be prospective or retrospective in application.

ASG Balbir Singh made a submission on the question of whether a candidate selected on merit be counted as a reserved category candidate for the purpose of the adequacy of representation.
Justice Nageswara Rao posed two questions for the ASG:
  1. "If a person belonging to a reserved category is selected on merit, at the entry-level, would he/she be counted for the purpose of representation?"

  2. "Whether he/she would be precluded from claiming reservation in promotion?"

ASG Balbir Singh submitted that if somebody at the entry stage has claimed benefit of reservation and then at subsequent stage obtained merit on promotions, he/she would be counted for the purpose of the adequacy of representation. On the question of whether a person who has not claimed any benefit at the entry stage or the promotion stage, ASG said he would get back to court after taking specific instructions.

Other submissions

Senior Advocate K.S. Chavan argued that the adequacy principle is satisfied as soon as the post-based roster is applied as done in R.K.Sabharwal. He further submitted that the data placed by the Union of India showing excess representation was incorrect as it did not take into account backlog vacancies.

Senior Advocate Rupinder Singh Suri argued that weightage has to be given to Art.335 and Art.16."If one gives weightage to efficiency alone it would have a different kind of reservation and in promotion also and if one gives primacy to Art.16 then efficiency would have a different concept altogether. Efficiency is not on the basis of merit alone but it also be that how would the representation be there by keeping all the diverse sections of society together"- he submitted. Further SA Suri pressed upon the court that weightage has to be given to both has to be given by the court.
Advocate Dhananjay Garg, Counsel for the State of MP argued that the difficulty lies in collecting the data for the purpose of implementing reservation in promotion. Advocate advanced some arguments on the issue of collection of data on efficiency and composition of committee which examines the data collected. The Bench responded that it was irrelevant for the purpose of the case at hand.
The bench reserved judgment after hearing the parties.


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