Reservation In Promotions [Day-2] - Figures & Data Need To Be Placed On Adequacy Of Representation: Supreme Court Tells AG

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.A bench compriisng Justices L Nageswara Rao, Sanjiv Khanna and B.R.Gavai is hearing a number of petitions relating to reservation in promotions as several appointment have been stalled due to ambiguities in the norms for applying reservation in promotions. Centre and States had urged the Supreme Court to settle the confusion regarding the norms for reservation in promotions. In the previous hearing the Bench led by Justice L.Nageswara Rao had made it clear that it will not reopen the law given in M.Nagaraj vs Union of India and Jarnail Singh vs Lacchmi Narain Gupta. The Bench on Tuesday heard the Attorney General for India K.K.Venugopal who led his submissions by recalling the various judgements on the given issue of reservation in promotions- Indra Sawhney, R.K.Sabharwal, M.Nagraj and Jarnail Singh. The AGI opined that the issues that arose for the Court's consideration in the current batch of pleas were 1) Yardstick to be adopted to arrive at quantifiable data for adequate representation, 2) whether cadre should be taken as a unit, 3) The determination of criteria of 'efficiency' of administration and 4) whether the various directions issued by the Court would operate prospectively or retrospectively. On the question of the yardstick to be adopted to arrive as quantifiable data for adequacy of reservation in public employment, AGI submitted according to R.K.Sabharwal vs State of Punjab, 1995 AIR 1371 the correct basis would be in proportion to the population. He specifically relied on the following para of the R.K.Sabharwal case: "The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their populations." He submitted that the difficultly lies in choosing the yardstick to determine adequacy. "Perhaps any yardstick will result in arbitrariness" he submitted. He also pressed upon the Bench that there maybe some posts, keeping in mind the requirements of the job, which may have to be kept beyond reservation. He relied on following observations made in Jarnail Singh vs Lacchmi Narain Gupta to back his submission. " According to us, Nagaraj (supra) has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) (supra), there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question." Further, AGI made reliance on B.K. Pavitra vs Union of India, to argue that the specific modalities of the quantum of reservation in promotion were a matter of policy. Averring to the following paragraphs: "Once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record." AGI further made reliance on the Supreme Court's judgement in Mukesh Kumar vs Uttarakhand. Averring to the following paragraph, the AGI submitted that providing reservation in promotion is a matter of policy and the satisfaction required is the subjective satisfaction of the government. " It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16...

Reservation In Promotions [Day-2] - Figures & Data Need To Be Placed On Adequacy Of Representation: Supreme Court Tells AG

Sneha Rao

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