At a time when the issue of reservation for Scheduled Castes and Scheduled Tribes in promotion is pending before a Constitution Bench, a Vacation Bench on Tuesday gave a major relief to the Centre by allowing it to proceed with such reservation “in accordance with law”.
Additional Solicitor General (ASG) Maninder Singh claimed that all promotions under the Department of Personnel and Training (DoPT) had stopped after the apex court ordered status quo in a pending appeal filed by the Centre in a matter related to SC/ST reservation in promotion. Though this order was passed on February 3, 2015, subsequently, a two-judge Bench of the apex court in the same case on May 17, 2018, allowed the Centre to proceed with reserved category promotion. The ASG had sought a clarification on whether to follow the first order or the subsequent order.
The Vacation Bench of Justices Adarsh K Goel and Ashok Bhushan pointed out that while the Centre is free to proceed with reservation in promotion, this is governed by a Constitution Bench decision of this court in the M Nagaraja vs Union of India decided on October 19, 2006. This judgment required the State or the Centre to provide quantifiable data on the backwardness, inadequacy of representation in public services and efficiency of administration without extending reservation in promotion to any caste, tribe or community under Article 16(4A) of Constitution. The Bench said, “You (Centre) can go ahead with promotion but we will clarify that promotion must be in accordance with law.”
On what is the law, the Bench said, “The order of May 17, 2018 does not stay the judgment in the Nagaraj case. Can there be reservation in promotion without complying with the mandate of Nagaraj.”
The Bench told ASG Singh that the State or the Centre has to present data on the above criteria as laid down under Nagaraj judgment and implement promotion.
While passing its order, the Bench further clarified, “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 matter is expected to be heard after vacation.
The Centre’s appeal (Jarnail Singh v lachmi Narain Gupta) on which the May 17 order was passed is yet to be referred to the Constitution Bench. Interestingly, similar matters about promotion of SC/ST in reservation were referred to a Constitution Bench by a three-judge bench in State of Maharashtra vs Vijay Ghogre on November 15, 2017.
In granting reservation in promotion to SC/ST, the Nagaraj decision is definitely a stumbling block. Realising this, the Centre had moved the Constitution (117th Amendment) Bill, 2012 that sought to nullify Nagaraj decision and do away with the procedure of quantifying data on backwardness of SC/ST is yet to be passed by Parliament. The Bill was passed by the Rajya Sabha on December 17, 2012 and awaits clearance from the lok Sabha. Meanwhile, the Constitution Bench that is to reconsider Nagaraj decision has also not been constituted.