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Reservation in Promotions: Supreme Court Holds Cadre As Unit For Collecting Quantifiable Data On Adequacy Of Representation; Collection Of Data On Entire Service Meaningless [Updated With Judgment]

Sohini Chowdhury
28 Jan 2022 5:25 AM GMT
Reservation in Promotions: Supreme Court Holds Cadre As Unit For Collecting Quantifiable Data On Adequacy Of Representation; Collection Of Data On Entire Service Meaningless [Updated With Judgment]
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The Supreme Court on Friday delivered the judgment in the issue relating to reservation in promotions for Scheduled Castes and Scheduled Tribes. 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...

The Supreme Court on Friday delivered the judgment in the issue relating to reservation in promotions for Scheduled Castes and Scheduled Tribes. 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 had reserved judgment on October 26, after hearing the matter following the reference answered in 2018 by a 5-judge bench in the case Jarnail Singh v. Lachhmi Narain Gupta.
The bench made the following pronouncements today :
  1. Court cannot lay down any yardstick to determine inadequacy of representation.
  2. State is obligated to collect quantifiable data regarding adequacy of representation.
  3. Cadre should be unit for collection for quantifiable data for reservation. The collection cannot be with respect to the entire class/class/group, but it should be relatable to Grade/Category of post to which promotion is sought. Cadre should be the unit for collecting quantifiable data. it would be meaning less if collection of data is w.r.t the entire service.
  4. Nagaraj  judgment of 2006 would have a prospective effect.
  5. The conclusion in BK Pavitra (II) approving the collection of data on the basis of groups and not cadres is contrary to the dictum in Jarnail Singh.


Justice Nageswara Rao, the presiding judge of the bench, pronounced the operative portions of the judgment today morning as follows :

"On the basis of arguments,  we have divided submission into 6 points. One is yardstick. In the light of Jarnail Singh and Nagaraj, we have said we cannot lay down any yardstick. With respect to the unit for collecting quantifiable data, we have said that the State is obligated to collect quantifiable data. The collection cannot be with respect to the entire class/class/group, but it should be relatable to Grade/Category of post to which promotion is sought. Cadre should be the unit for collecting quantifiable data. It would be meaningless if the collection of data is with respect to the entire service.

We have held that Nagaraj would have prospective effect and thereafter pertaining to the judgment of B.K. Pavitra II,  we have held that the conclusion in B.K. Pavitra II approving the collection of data on the basis of groups and not cadres is contrary to the law laid down in Nagaraja and Jarnail SIngh.

For Proportionate representation and test of adequacy - As Jarnail Singh refused to go into that aspect we have not gone into it, we have left it to the state to assess inadequacy of representation of SCs/STs in promotion of post by taking into account relevant factors".

Time period of review - We said review has to be conducted regarding data for the purpose of determining inadequacy of representation and for providing reservation in promotion. And the period of review should be reasonable and left to the Government to set the period of review".

Justice Rao further said, "We have not expressed any opinion on the merits of individual cases. We have answered only the common issues formulated after hearing the parties. We are listing the matter on 24th Feb. We already have groups given by the Attorney General. Matters of some groups will come upon 24th Feb. We will list the Central Government matters first, we will take up the Contempt Petition against Home Secretary on that day".

Reasons given by the Court

For not laying down a yardstick to determine backwardness :

It is well-established that it is neither legal nor proper for the Courts to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within their domain under the Constitution".

Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage.

Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments. In addition, the prevailing local conditions, which may require to be factored in, might not be uniform.

Therefore, 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 reservation.

Unit for collecting quantifiable data

Collection of quantifiable data regarding inadequacy of representation as stipulated by M. Nagaraj (supra) is relatable to the cadre concerned,

While it is clear that the unit for collection of quantifiable data is with respect to a cadre, it is necessary o understand what cadre means.

The present structure of the Central Civil Services is that a particular Service is divided across Groups, which further consist of grades.

The right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength.

According to para 4(c) of the Office Memorandum 02.07.1997 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training,, "cadre", for the purpose of a roster, shall mean a particular grade and shall comprise the number of posts to be filled by a particular mode of recruitment in terms of the applicable recruitment rules.

It is clear from the above statutory regime and the law laid down by this Court that civil posts under the Government are organised into different services. A service constitutes 'classes'/ 'groups' of posts. A 'class'/'group' is further bifurcated into grades. Though the nomenclature might be different, the structure of services under the Union and the States is similar. According to the instructions issued by the Union of India, cadres are constituted for each grade.The Union of India submitted that there are 3800 cadres in 44 Ministries/Departments. Fundamental Rule 9(4) defines "cadre" to mean the strength of a service or part of a service sanctioned as a separate unit. It is the choice of a State to constitute cadres. The entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade. Promotion is made from one grade to the next higher grade, in relation to which cadres are constituted.

In the Office Memorandum dated 02.07.1997, the Union of India set out the principles for making and operating post-based rosters, in which it has been expressly stated that cadre is to be construed as the number of posts in a particular grade. It is made clear that rosters have been prepared grade-wise which are reviewed on a yearly basis and that reservation in promotions is implemented on the basis of these rosters, which operate grade-wise. In M. Nagaraj (supra), this Court approved that the percentage of reservation in promotions was to be applied to the entire cadre strength, as held in R.K. Sabharwal (supra). While doing so, this Court in M. Nagaraj (supra) made it clear that the unit for operation of the roster would be the cadre strength.

Proportionate representation as a test of adequacy

This Court in Jarnail Singh (supra) found no fault with M. Nagaraj (supra) regarding the test for determining the adequacy of representation in promotional posts in the State. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, this Court declined the invitation of the learned Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test for determining inadequacy of representation in promotional posts. Therefore, we are not persuaded to express any opinion on this aspect. It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors.

Time Period for Review

There is near unanimity amongst the counsel for both sides that the data collected to establish inadequacy of representation, which forms the basis for providing reservation for promotions, should be reviewed periodically.

We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive. As regards review, we are of the opinion that data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out.

The bench had heard Attorney General for India KK Venugopal, Additional Solicitor General Balbir Singh and many other senior lawyers appearing for States and government servants.

Issues relating to how the adequacy of representation must be determined, whether it should be determined in proportion to the population percentage of different castes, whether there should be reservation in higher posts in A and B categories, whether a person in reserved category who got appointed on the basis of merit in entry level is entitled to reservation in promotions etc were raised during the hearing.

The Attorney General had 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.

While reserving the judgment, the bench had made it clear that it will not re-open the issues settled by the 5-judge bench in Jarnail Singh.
Background

In 2006 in M.Nagaraj vs Union of India, a Constitution Bench of the Supreme Court had upheld the constitutional validity of the 85th Constitutional Amendments Acts providing for reservation in promotion. The Apex Court in Nagaraj had laid down conditionalities such as collection of data on the inadequacy of representation, the overall effect on the efficiency on administration and removing creamy layers while considering reservations in promotions.

In 2018, a 5-judge Bench in Jarnail Singh answered the reference holding the the 2006 judgment in M. Nagaraj v. Union of India case to be wrong to the extent it had stated that quantifiable data showing backwardness of SC/STs was necessary for giving them reservation in promotions. With this clarification, the 5-judge bench turned down the plea to refer Nagaraj decision to a 7-judge bench.

The present batch of 144 pleas were filed by the Central Government and various state governments urging the Supreme Court to urgently hear the issues relating to reservation in promotions as several appointments have been stalled due to the ambiguities in the norms for applying reservation in promotions.

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

Citation : 2022 LiveLaw (SC) 94

Click here to read/download the judgment

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



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