Reservation In Promotion [Day-2]: Can Adequacy Of Representation Be Determined Solely On The Basis Of Percentage? Supreme Court Asks Centre, States

The Supreme Court on Wednesday 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 appointment 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.On Tuesday, the Bench had heard Attorney General of India K.K.Venugopal. The Supreme Court on Tuesday told the Attorney General for India that the Centre will have to place figures and data would have to be placed before the Court showing that decision to continue with reservation in promotion was based on quantifiable data on adequacy of representation. On Wednesday, the Bench heard the AG K.K.Venugopal, Additional Solicitor General Balbir Singh, Senior Advocate Advocate Paramjit Patwalia, Senior Advocate Rajeev Dhawan, Senior Advocate Indira Jaisingh and Senior Advocate Gopal Sankaranarayanan. The Bench led the hearing by asking this question to the AG: "Whether adequacy can be only on the basis of the fixation of percentage for reservation in promotion and if that is so, if SCs were in excess of the percentage you have fixed, then whether there is any need for continuance of reservations? We want you to clarify." At another instance too, the bench asked if percentage can only be the only yardstick to determine the adequacy.The bench made the following observations in that regard during the hearing :"Determination of reservation by fixing percentage- can it be the only criteria to be looked into for the purpose of looking into adequacy?" "You have said there might be some other criteria which can be taken into account in cases like Group C and Group D where they have gone beyond the 15% limit, what is that criteria that the government can look into? What is the yardstick?""Determination of percentage of representation might not be the only criteria for finding out adequacy of representation. You might have to look into other details.. also whether posts are filled up, how many people are working in each class. This is what we want to know." The full account of the hearing is given below :AGI K.K.Venugopal Leading his arguments, AG pointed out that as far the Union of India was concerned there were 53 departments and about 5000 cadres. He submitted that: "If there are 53 departments and 5000 cadres and for each cadre before any selection is made therefore you have to go into quantifiable data is a big exercise. Everytime an appointment is to be made if you have to look into each cadre and have a quantifiable data exercise that is inbuilt in the 15% and 7.5% reservation." Every post which should go into a particular category is earmarked. Therefore there is no method by which this can be violated. Reiterating the submission made previously AGI submitted, that roster points according to Sabharwal case should be a parameter to determine adequacy of representation. In response to this, the Bench asked: " At the ground level for a long number of years if the posts are not filled up and the roster is broken…in such cases is there not a requirement for the government to take note of inadequacy of representation?" The AG responded that the inadequacy of representation would be apparent by looking at the percentage at the end of the year by looking at the number of posts filled up by SC,STs. Explaining the under-representation in Group A and Group B posts and over-representation in Group B & C, the AG pointed out that in Category A, reservation is only there at the entry level. Thereafter there is no reservation because "efficiency is looked into and backwardness is not relevant." On the question of periodical review for determining adequacy of reservations, AG submitted that it could be undertaken after every Census because 15% and 7.5% would remain constant for the entirely of 10 years. On the issue of prospective applicability, AG again pressed to the Court that if retrospective application is to be made, then the result would be to take back pension, salary from people who had already retired, resulting in "total chaos." On the question of efficiency of administration, AG pointed out that the ACR of persons is looked into and with respect to Group A posts only entry level reservation is permitted. On the issues of whether a person would be entitled to the benefit of reservation for next higher posts, the AG submitted that "it would be a matter of policy for the government to decide on the nature of the post." Additional Solicitor General Balbir Singh ASG began his submissions by leading the Court through the data on representation at the Centre level showing data from 1965 to 2017 in case of Group A,B,C,D showing ...

Reservation In Promotion [Day-2]: Can Adequacy Of Representation Be Determined Solely On The Basis Of Percentage? Supreme Court Asks Centre, States

Sneha Rao

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