The Central Government and various state governments have urged 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.
On Tuesday, a total number of 133 petitions arising from various states were listed before a bench comprising Justices L Nageswara Rao, Sanjiv Khanna and BR Gavai.
The Attorney General for India KK Vengupal and senior advocates appearing for different states told the Court that several appointments in governments posts have been stalled due to unsettled issues relating to reservation in promotions.
The bench is hearing the case Jarnail Singh v Lacchmi Narain Gupta and connected matters. Certain issues in the matter were earlier referred to a 5-juge bench. In 2018, a 5-judge bench 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 5-judges bench comprising the then CJI Dipak Misra, Justices Kurian Joseph, R F Nariman, S K Kaul and Indu Malhotra had also observed that creamy layer concept will apply to SC/STs as well.
Today, the bench led by Justice L. Nageswara Rao made it clear that they will not reopen the issues settled in Nagaraj and Jarnail Singh cases.
Senior Advocate Gopal Sankaranarayanan appearing for one of the petitioners submitted before the Court that the directions enumerated in the M. Nagaraj judgment had not been implemented by all State governments.
Senior Advocate Indira Jaising advanced before the Bench that there exists several 'ambiguities' in the Nagaraj ruling especially because no guidelines had been framed by the Centre pursuant to the judgment.
"How does one come to the conclusion that States are functioning efficiently? How does any State establish that representation is adequate? There has to be some kind of a benchmark to show adequacy", senior counsel Jaising contended.
Jaising further apprised the Bench that various High Courts are interfering with the guidelines framed by State governments on reservations in promotions and that many such guidelines have also been struck down. She also contended that there was no uniformity in the rulings of the Supreme Court and the High Courts on this issue. She said that the State of Maharashtra had de-reserved reserved posts and had accordingly filled the posts with people from unreserved categories.
"Under Article 16(4) of the Constitution, what is adequacy when it comes to reservations in promotions? States are doing whatever they think fit. Some High Courts are upholding..some High Courts are striking it down", senior counsel Jaising further argued.
Senior Advocate Rajeev Dhavan submitted that the State of Maharashtra has set up a committee to decide on adequacy of representation. "Why was it not done earlier?", he asked.
Attorney General K K Venugopal submitted that the ruling in Nagaraj requires interpretation as the judgment had left a lot of ambiguities when it comes to reservations in promotions. The AG added that recently, the Centre was constrained to make nearly 1400 promotions on an ad-hoc basis based on seniority without taking into consideration the principle of reservations, to ensure that the functioning of the departments are not affected. He said that contempt petitions have been filed against the Secretary of the Ministry of Home Affairs over these ad-hoc promotions, although they were made on the basis of a written opinion given by the Attorney General.
Saying this, the Attorney General requested the Court to recall the contempt notice issued against the Home Secretary in April 2021 by a Bench comprising Justices L. Nageswara Rao and Vineet Saran for allegedly violating the Apex Court's order of April 15, 2019. The Apex Court vide its April 15 order had directed for the maintenance of status quo in regards to the promotion of officers. However, the Department of Personnel and Training had on December 11, 2020 issued promotion orders in favour of 149 officers on an ad-hoc basis.
"The government of India's problem is that there are three HC orders passed which say that promotions can continue to be made, while one HC has issued status quo orders on promotions. This opens up government for contempt.The issue is whether the promotions for regular appointments can be continued to be made, and whether it affects the reserved seats", the AG submitted.
The AG added that around 2500 posts have been lying vacant due to the status quo orders which are for regular promotions.
Senior Advocate Meenakshi Arora, appearing for the petitioner in the contempt case, objected to the request for recall of the notice, saying that the contempt matter can be heard along with the main case.
The bench said that it will not pass any order to recall the contempt notice and will hear the contempt petition along with the main matter.
Senior advocate Paramjit Singh Patwalia appearing for the States of Maharashtra and Bihar also echoed similar concerns as senior counsel Jaising. "What is the quantifiable data vis-a-vis adequacy?", he argued. He said that in Bihar, around 60% posts are lying vacant due to this issue.
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.
The Bench observed that it would hear detailed arguments from all parties on the next date of hearing, October 5.
The bench noted that the States seek urgent hearing on Cases relating to reservation in promotion policy as several posts are lying vacant due to conflicting orders from High Courts.
The Bench said that the issues raised by the states can be placed under 11 categories. The Bench further directed all parties to submit their written submissions not exceeding 5 pages within 2 weeks. It was also categorically mentioned that no adjournment would be granted on the next date of hearing under any circumstances.
The order dictated by the bench after the hearing reads as follows :
As being brought to our notice, issues peculiar to the states can be grouped into 11 categories. There is already an order passed by this court that the state governments have to identity the issues that arise in the cases from each state and provide the same to the learned AG. We direct the Advocates- on-Record of the State Governments to identify the issues peculiar to the States and submit the same to the court within a period of 2 weeks.
Learned counsel appearing fo the parties are permitted to circulate a written note of submissions not exceeding 5 pages, along with judgments they seek to rely upon. List this on 5.10.2021"
Case Title: Jarnail Singh v. Lachhmi Narain Gupta and other connected matters, SLP(c) No.30621/2011