Thursday, November 16, 2017

SC/ST promotion quota verdict under Supreme Court lens

The Supreme Court on Wednesday decided to examine if there was a need to reconsider its decade-old constitution bench judgment making it virtually impossible for the Centre and states to provide reservation in promotion for SCs and STs in government employment.

Within 24 hours of a two-judge bench making a reference on the need for reconsideration of the 2006 judgment in M Nagaraj case to Chief Justice Dipak Misra under Article 145(3) of the Constitution, a three-judge bench of the CJI and Justices A K Sikri and Ashok Bhushan agreed to place the matter before a five-judge bench to examine the bunch of petitions filed by some states and SC/ST employees' associations.

Reconsideration of the five-judge bench judgment in Nagaraj case was sought mainly on the ground that the SC had erred by seeking test of backwardness before grant of reservation in promotion. On Tuesday, a bench of Justices Kurian Joseph and R Banumathi had said in its referral order, "Petitioners have argued for a relook of Nagaraj specifically on the ground that test of backwardness ought not to be applied to SCs/STs.

"Apart from the clamour for revisit, further questions were raised about application of the principle of creamy layer (which was applied only to OBC quota by Indra Sawhney-Mandal judgment) in situations of competing claims within the same races, communities, groups and parts thereof of SC/ST notified by the President under Articles 341 and 342 of the Constitution of India."

The three-judge bench headed by the CJI said it was not going into the procedural irregularity alleged by counsel in a two-judge bench referring the matter directly to a five-judge bench. The bench said it was acceding to the two-judge bench's request and a five-judge bench would examine these petitions on the narrow ambit — "whether Nagaraj requires reconsideration".

A five-judge bench in 2006 had laid down stiff conditions for governments to provide reservation in promotion to SC/ST communities under Articles 16 (4A) and 16 (4B). Article 16 (4B) provided accelerated promotion to SC/ST employees on roster point system, which could give six-year advantage to such employees to reach top positions in departments compared to general category employees.

The Nagaraj judgment said, "In this regard, the concerned state will have to show in each case the existence of the compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency, before making provision for reservation.
"The impugned provision [Articles 16 (4A)] is an enabling provision. The state is not bound to make reservation for SC/ST in 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 in addition to compliance of Article 335. It is made clear that even if the state has compelling reasons, as stated above, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."

Till date, no state government or the Centre has neither collected "quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment" nor carried out any survey to find out whether efficiency was compromised through such reservations. Governments have been intending to carry forward vacancies for backward classes to the next year.

Source:-The Times of India

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