In SC, Centre pleads for SC/ ST promotion quota

Court had put curbs on such reservation in 2006

Ahead of the 2019 Lok Sabha polls, the government on Friday pleaded in the Supreme Court for providing a quota in promotions for SC/ ST employees in government jobs and sought reconsideration of its 2006 verdict that rejected such reservations in promotions.

Attorney- general K. K. Venugopal urged a Constitution Bench of Chief Justice Dipak Misra and Justices Kurian Joseph, Rohinton Nariman, Sanjay Kishan Kaul and Indu Malhotra to revisit the Nagaraj verdict that had imposed three conditions — identification of backwardness, compelling reasons and inadequate representation — for grant of quota for SC/ ST in promotions.

The A- G referred to the conditions in the Nagaraj ruling and said it was a “situation of impossibility” to comply in every case with the conditions set in that judgment. When the CJI asked the A- G on adequacy of reservation, he said in promotions too the SC/ ST should together account for 23 out of every 100 promotions in a year. Affirmative action would otherwise remain an illusion.

He said there was no need for testing the backwardness of SC/ ST employees while granting promotions as the Supreme Court itself in the Indra Sawhney case in 1992 had said the test of backwardness does not apply to SC/ STs as they are presumed to be backward.

When the CJI wanted to know why did the states, for all this time, not prepare quantifiable data to decide the adequacy/ inadequacy of representation of SC/ STs in a cadre of government service, the AG replied: “Why? Because people die, retire. The data keeps fluctuating. Filling up of vacancies is a dynamic, continuous process.”

He said only this quantum would satisfy the adequacy of their representation. He said there had to be a presumption of backwardness for SC/ STs and the 2006 judgment should not have stipulated satisfaction about backwardness in providing reservation in promotions.

The A- G submitted that there was no need for further quantifiable

data for showing backwardness. He told the court the community as a whole had been facing discrimination from upper castes and the intent of giving reservation in promotions to SC/ STs was to provide affirmative action for a socially disadvantaged group. He said the Nagraj judgment was unclear on what it meant by quantifiable data and how it should be determined. “What is inadequacy? How is it determined? Your Lordships have to decide,” Mr Venugopal said.

He pointed out that reservation had been given to SC/ ST communities to right a wrong they suffered for more than 1,000 years. Atrocities on them happen even today, he added. The AG pitched for overturning the Nagaraj ruling by seven judges, which he said would meet the ends of justice for SC/ STs.

In October 2006, a five- judge Constitution Bench in the case of Nagaraj vs Union of India has concluded the issue by holding that the state was not bound to make reservations for SC/ STs in the matter of promotions. However, if they wish to exercise their discretion and make such provision, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.

There must be compelling reasons, namely, backwardness and inadequacy of representation, which enables the states to provide for reservation, keeping in mind the overall efficiency of the state administration.

The CJI said: “We will first examine whether the Nagaraj judgment has to be revisited and reservation in promotion in government jobs for SC/ STs can be provided without data of inadequacy of their representation in various cadres or services. The court will examine this issue in the light of the controversy over several orders passed by different high courts cancelling promotions to SC/ STs in government jobs.

Several states and employees’ associations had moved the Supreme Court challenging the high court orders. They argued that once the President of India through a notification has determined the backwardness of SC/ STs, the backwardness couldn’t be determined further. The arguments will continue before the bench on August 16.