No bar on making SC/ST promotions in accordance with law: SC

NEW DELHI: Giving some leeway to the government on the contentious issue of reservation in promotions for Scheduled Castes and Scheduled Tribes employees, the Supreme Court on Tuesday said it was not debarred from making promotions “in accordance with law”.

The top court took into account the Centre’s submissions that the entire process of promotion has come to a “standstill” due to the orders passed by various high courts and the apex court had also ordered for “status quo” in a similar matter in 2015.

Satya Prakash
Tribune News Service
New Delhi, June 5

Giving some leeway to the government on the contentious issue of reservation in promotions for Scheduled Castes and Scheduled Tribes employees, the Supreme Court on Tuesday said it was not debarred from making promotions “in accordance with law”.

The interim order came from a Vacation Bench headed by Justice AK Goel after Additional Solicitor General Maninder Singh who the entire process of promotion has come to a "standstill" due to the orders passed by various high courts. The Supreme Court too had ordered "status quo" in a similar matter in 2015, he said.

"It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter," the Bench clarified.

However, despite this seemingly favourable order it would be an uphill task for any government to give reservation in promotions “in accordance with law”, for the law as interpreted by the Supreme Court in M Nagraj’s case in 2006 prescribes certain pre-conditions for it.

While upholding the validity of four Constitutional Amendments in 2006, the top court had ruled State will have to show existence of "compelling reasons", including "backwardness", "inadequacy of representation" and overall "administrative efficiency” before making provisions for reservation in promotions for SCs and STs. The state concerned has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class, it had said.

Citing top court’s ruling in Nagraj’s case, several high courts, including Delhi and Bombay, have struck down decisions for reservation in promotions and most of such cases have reached the Supreme Court which has referred the entire issue to a Constitution Bench.

The Bench was hearing the Centre's petition against an August 2017 verdict of the Delhi High Court. which quashing government's order extending reservation in promotion to SC/ST employees beyond five years from November 16, 1992, when the Supreme Court declared reservation in promotions unconstitutional but allowed it to continue for five years. The high court had restrained the Centre from granting reservation in promotion without first collecting data on inadequacy of representation.

During the hearing, the ASG referred to a May 17 order passed by a Bench headed by Justice Kurian Joseph, which said pendency of petition before it shall not come in the way of taking steps for the purpose of promotion.

As the Bench sought to know how promotions were taking place, Singh said: "They are not. It is all standstill (sic). This is the problem… I am the government and I want to give promotion as per constitutional mandate." He said there were a large number of vacancies that needed to be filled through promotions.

The issue of quota in promotions has been coming to the top court for several years now. A three-judge Bench of the top court had in November 2017 agreed to consider if its ruling the Nagaraj case was needed to be re-visited.

Earlier, while hearing petitions against a Bombay High Court verdict quashing two state government notifications on quota in promotions terming them beyond the purview of Article 16(4A) of the Constitution, which enables the State to give quota in promotions to any backward class of citizens (read SC and ST employees). It had referred the matter to a Constitution Bench.

The precendents

November 1992: In Indra Sawhney’s case, SC declares reservations in job promotions "unconstitutional" but allows it to continue for five years
June 1995: 77th Amendment to the Constitution enables government to continue with reservation in promotions for SCs and STs even after expiry of the said five-year period
June 2000: 81st amendment permits government to treat backlog of reserved vacancies as a separate group to which 50% ceiling wouldn’t apply
September 2000: 82nd amendment allows relaxation of qualifying marks and other criteria for reservation in promotion for SC/ST candidates
January 2002: 85th Amendment gives benefit of consequential seniority to SC/ST candidates promoted through reservation.
October 2006: In M Nagraj’s case, SC upholds validity of 77th, 81st, 82nd and 85th Amendments but stipulated that in each case State will have to show existence of "compelling reasons", including "backwardness", "inadequacy of representation" and overall "administrative efficiency” before making provisions for reservation.
In Nagraj’s case, SC said if a state government wishes to make provisions for reservation to SC/STs in promotion, the state concerned has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class.
Citing SC ruling in Nagraj’s case, several high courts have struck down decisions for reservation in promotions Most of such cases have reached Supreme Court, which has referred the issue to a Constitution Bench
May 17, 2018: In another case, a Bench headed by Justice Kurian Joseph says pendency of the issue shall not stand in the way of taking steps for promotion from “reserved to reserved, unreserved to unreserved and ‘promotion on merits”.
June 5, 2018: SC says Centre not “debarred from making promotions in accordance with law, subject to further orders”.