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

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?"

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 percentage of representation of SC and STs for 19 ministers. He submitted that the that data is available on representation of SC,STs and the figure of 15% and 7.5% is sacrosanct and kept in mind while making promotions.

Justice Khanna asked whether data regarding promotional posts separately could be produced. Further he sought clarification whether those reserved category candidates selected via merit and have been inducted and appointed in the general category list. The Bench had noticed previously that there was overrepresentation of SC/STs in Group C and D, possibly because reserved category candidates who had entered via merit were being counted in the SC/ST list.

Today, when the ASG was explaining the specific figures and percentages of SC/ST reservation across Group A,B,C and D, the Bench asked him a specific question whether those who entered on merit were also being counted as SC/ST for the purpose of adequate representation.

ASG responded that they are included in the SC/ST list and that could be one of the reasons for their over-representation.

Justice Rao asked: "Is it your case that roster points are identified and determination of reservation being after detailed exercise by the government, no further data need be collected and on this basis. the government can take decision for providing reservation in promotion?"

To which ASG Balbir Singh answered in affirmative.

Justice Rao further observed: "The problem would be the provision under the Constitution is that reservation are made for a class or classes. From the data you have given, there are certain classes where figures are more than what is prescribed. So if you solely go by this, then there is an imperative need for discontinuing reservation for those classes. Is it not?"

"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?"

In response, the ASG submitted that while making reservation, the inadequacy in representation has to be looked at the larger population level and not a granular level of going by vacancy by vacancy. Further he submitted that, the 10 year period is the right period to assess changes in society and therefore the numbers of 15% and 7.5% can be varied accordingly.

Justice Rao observed that there is a difference between how the roster system works in theory and in practice.

"At the ground level it doesn't happen. You see thousands of cases of breaking of quota, rota, etc...in which case whether we strictly go by 15% and 7.5% roster or you also see whether actually how many people are working as and when review is conducted. 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."

ASG submitted that specific instruction would be sought in this regard.

Further, relying on B.K.Pavitra, the ASG argued that unless there is arbitrariness reflecting in the manner and methodology adopted by the government, there is no need for the court to intervene.

"If the Court is satisfied with the manner and method with which the government has collated the data, which has links with the overall population in terms of representation, in that case the test is met and in my submission that the court should not get into examination of data on the granular details whether there is under-representation or over-representation unless there is arbitrariness."

The Bench observed that this reasoning maybe problematic for instead of ensuring adequate representation in Group A and B, the government is accommodating the adequate representation in Group C and D. "This is not fair!", the bench said.

Senior Advocate Paramjit Patwalia

Senior Advocate Paramjit Patwalia, appearing for the State of Bihar and Maharashtra, submitted that the entire process of introducing and implementing reservation had three stages: 1) Introduction of reservation whether there should at all be reservation in promotion, 2) working of reservation to ensure it does not exceed the limits and 3 ) Review of what is introduced.

He further submitted that the present batch of pleas were concerned with the introduction of reservation in promotion whereas Sabharwal dealt with the working out of reservation.

He further submitted that scrutiny by the HCs had been so rigorous that reservation could not be implemented. One the question of inadequacy of representation, he argued that, according to Pavitra an exercise was conducted to see what was the percentage of representation of the categories in all the cadres of the state. Exercise was not conducted cadre wise.
He further submitted that, implementing reservation cadre wise will be difficult.

To which Justice Rao quipped, "Whether there are 5000 or 6000 cadres, in the age of computerisation, is it difficult to find out how many people are working in a cadre and how many are belonging to SCs or STs?"

The Senior Advocate submitted that looking at cadres is an unworkable way of having reservation and that department or entire service as a whole should be looked into for the quantum of reservation. Further, he submitted, applying the Sabharwal principle, wherever there is excess representation no further reservation be allowed until correction takes place.

"The Court is at the stage of introduction, if after introduction there is any excess and state is not correcting excess then that is a ground for individual challenge. But that excess cannot be a disqualification at the very outset to not introduce reservation": he argued.

A discussion ensued between Bar and Bench on the meaning of 'class and classes' used under Art.16 and whether it meant cadre or service.
Justice Gavai wondered if entire state service is taken as base for reservation, what happens to the words "class or classes" used in Art.16.

The Senior Advocate argued that Class is not cadre.

Justice Rao responded: "Your submission that it should be basis of service and not class might not be correct because Constitution contemplates reservation for promotion class-wise."

To which, the Senior Advocate responded that "while accumulating data, data of each cadre has to be seen but when you have that data then you have to take a view on the state as a whole or an entire class for example Group A, B, C, D. And then if within a cadre if there is still excess, that is cause for separate action."

Mr.Patwalia concluded his submissions by pressing that having reservations cadre-wise is a complete non-starter and an unworkable solution. He pointed out that High Court's have been striking down such reservation and posts have been lying vacant. Introduction of reservation has to be class-wise, according to B.K.Pavitra. Implementation of reservation has to be on the basis of Sabharwal whereby an excess has to be stopped.

Senior Advocate Rajeev Dhawan

Senior Advocate Rajeev Dhawan led his submission by arguing that according to Nagraj and subsequent judgements, the State is not bound to provide reservations in promotion. If state wishes to exercise its discretion, state has to collect data showing inadequate representation of that class in public employment in addition to compliance with Art.333, he argued.

With respect to meaning of class, he submitted that class cannot mean group. " Every litigation that comes before the Court is between two groups. Clases can only mean the classes between whom the Court or government is deciding. So it boils down to cadre, it cannot be group and it cannot be general" : he submitted.

Further, relying on Nagraj, he pressed that reservations can't be continued indefinitely, the 50% limit could not be crossed and the creamy layer could not be obliterated. He further made reference to the Theory of Guided Power discussed in S.K.Sabharwal, to argue that the theory was the basic principle behind the enabling provisions created in Art.16 4A and Art.16 4B.

Further, he argued, that the Court by way of its decisions in Indra Sawhney, Nagraj and Jarnail Singh have emphasised on the need to maintain balance.

"There cannot be an unswerving commitment to reservation because the commitment is to positive discrimination." He submitted.

Further, he argued that the emphasis of Nagraj was the data relied on to seek a departure from should be weighty and comparable in nature.

In reference to AGI's reliance on Barium Chemicals decision, Dr. Rajeev Dhawan argued that Barium Chemicals applies only with respect to OBCs.

"Barium Chemicals does not apply. The responsibility on Your Lordships is not subjective satisfaction. It is to make sure that this guided power is not used arbitrarily." He submitted.
Thus on the question of justiciability, he argued, the Court's power is much wider than Barium Chemicals. Judicial review is not just on subjective satisfaction for that was only when OBCs were to be selected.

Further, Dr.Dhawan argued extensively on the flaws in the Pavitra case since much reliance was being made on B.K.Pavitra by other counsels. Averring to the fact that the Ratna Prabha Committee relied on samples from 31 out of 61 departments, he argued that general sampling cannot form the basis of providing reservation in promotion.

Summarising his arguments, Dr.Dhawan submitted that the whole of Para 123 of Nagraj will have to be met including compelling interest and excessiveness. Second, power that is exercised by Court is guided power therefore Barium Chemicals does not apply. Third, according to Jarnail Singh reservation cannot be done by class or groups, it must go by cadre. Fourth, on the issue of justiciability the Court's power was much wider than that prescribed in Barium Chemicals. Fifth, if you've had the benefit of reservation, you cannot claim consequential seniority. Sixth, rigorous methods rather than sampling method must be relied on to gather data on adequate representation.

Senior Advocate Indira Jaising

Senior Advocate Indira Jaising commenced her submissions by distinguishing between reservation and affirmative action and formal and substantive equality. She argued that the prevailing view has to be the majority view taken in Indra Sawhney that Art.16 (4) is a part and parcel of Art.16 (1) is the correct view.

"No single state has made reservation in promotion after 2006, the reason being the Nagraj judgement required quantifiable data on adequacy of data on representation and efficiency": she submitted.

"Nagraj is..an inchoate and incomplete judgement" she argued because there is no articulation on the meaning of adequacy of representation and how it is to be measured and by what criteria to measure efficiency of administration.

Submitting that "The government of India has no tool to measure the efficiency of a government. Unless you get an answer to that question what measure of efficiency will be adopted other than looking at ACR." She further argued that "any other method to calculate efficiency will be a biased method." She urged that the Court must decide on an unbiased and objective method to calculate efficiency to get out of this deadlock.

Further, she put into question the concept of 'merit' being averred to by other Counsels. Making a reference to Michael Sandel's book 'On the Tyranny of Merit' she argued that "the concept of merit has been used to privilege the privileged and to deny benefits to the unprivileged." She urged the Court to use the word 'merit' carefully.

On the argument that reservation in promotions were "enabling provisions" and that "compelling reasons" need to be provided, Ms.Jaising submitted that "compelling reasons and enabling provisions do not find any mention in the Constitution of India and the text of Art.16."

On the issue of class or classes of service, Ms.Jaising submitted that at the policy level the unit of consideration is the Union of India or the State. The benchmark of adequacy should be the demography of the State, she argued.

"The distribution of SC/ST in the general community from which you draw a percentage and from which you arrive at a figure of what, as a policy decision, you consider adequate representation": she submitted.

Adequacy of reservation is a mathematical exercise and the State must produce the data before Court, she argued. She urged the Court to lay it down as a proposition of law that the burden of proof of providing data on adequacy of representation lay with the State as they are privy to the data.

Concluding her submissions, Ms.Jaising submitted that the issue of backlog and over-representation arise because DPCs aren't done periodically. Ms.Jaising urged the Court to pass an order directing DPCs on an annual basis.

Senior Advocate Gopal Sankaranarayanan

He began his submissions by pointing out that Nagaraj in its conclusion made it very clear that had it not been for these anchoring conditions of adequacy of representation and efficiency, the Amendments would have failed the Basic Structure test.

"The Balance that has to be maintained is key in understanding the kind of granular exercise that has to be carried out": he argued.

Further, on the argument that collection of data on adequacy of representation would be an 'overwhelming and difficult task', he submitted that "it must be an overwhelming and difficult task because you are upsetting the constitutional balance and the equality code. It must be a very clear and doubtless exercise which can then be reviewed if necessary."

Further, he argued that "the question that the state must ask itself, when choosing to implement the discretion under Art.16 (4) is not we will give reservations how do we justify. The questions they have to ask themselves is there inadequate representation of SC and ST in a class/classes of persons."

Explaining further, he submitted that "If it is found that it is inadequate at this stage, there are three things the State must do, first, decide on extent of reservation to fill up that inadequacy. Second, to make an understanding of which posts or classes have inadequacy and so that efficiency in administration will not be affected if they were to bring in reservation. Third, the fact that there is a deadline to reservations in promotions."

Senior Advocate Gopal Sankaranarayanan is to continue with his submissions on Thursday.

Case Title: Jarnail Singh v. Lachhmi Narain Gupta and Other Connected Matters, SLP(c) No.30621/2011