Data a must for quota in promotion, says SC

New Delhi: The Supreme Court on Friday turned down the Union government’s plea to dilute the requirement of collecting quantifiable data by the Centre and states to determine the representation of people belonging to Scheduled Castes (SCs) and Scheduled Tribes (STs) while implementing reservation in promotion.

A three-judge bench, headed by justice L Nageswara Rao, declared that the government shall have to collect empirical data with respect to each cadre of the public employment, emphasising that adequacy of representation cannot be gauged either on the basis of data on representation of SCs/STs with reference to the entire service or in proportion of their population.

“Before providing for reservation in promotions to a cadre, the state is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs. Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or class/group but it should be relatable to the grade/category of posts to which promotion is sought,” held the bench, which also comprised justices Sanjiv Khanna and BR Gavai. A cadre should represent a grade or category of posts to which promotion is sought, it said.

The court further ruled that there should be a periodic review of the data collected to determine inadequacy of representation for the purpose of providing reservation in promotions, leaving it to the Centre and states to decide what should be a “reasonable” time gap for such an exercise.

The top court was hearing a clutch of petitions arising out of judgments from 11 different high courts, which had delivered rulings on various pertinent reservation policies in the last 10 years. Some of the states from where these judgments arose included Maharashtra, Bihar, Delhi, Uttar Pradesh, Tripura, Madhya Pradesh, and Punjab.

Meanwhile, declaring cadre as a unit for the purpose of collecting quantifiable data in relation to promotional posts, the court on Friday negated a 2019 judgment by the two-judge bench, which upheld the validity of a reservation law in Karnataka , and the method of taking a sample or the entire service as the unit to determine adequacy of representation for SCs/STs. The three-judge bench held that the 2019 judgment in BK Pavitra-II case was contrary to the law laid down by Constitution bench judgments in M Nagaraj (2006) and Jarnail Singh (2018).

In 2006, a Constitution bench ruling in the M Nagaraj case made it incumbent upon the state to collect quantifiable data showing inadequacy of representation of a section of people in public employment in addition to maintaining overall administrative efficiency. The aspect of quantifiable data was endorsed by another Constitution bench in its 2018 ruling in the Jarnail Singh case which also mandated the exclusion of the “creamy layer” before providing for reservation in promotions.

Lending credence to the two Constitution bench judgments, the court further declined the Centre’s request to lay down judicial yardsticks for determining inadequate representation of SCs/STs, stating that it should be left to the discretion of the state since such determination depends upon myriad factors which a court cannot envisage.

“Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the state governments. In addition, the prevailing local conditions, which may require to be factored in, might not be uniform,” highlighted the court, adding that the validity of laws or policies made by state governments to provide reservation in promotions shall be decided on a case-to-case basis to ascertain whether the inadequacy of representation is supported by quantifiable data.

Another submission by attorney general KK Venugopal on behalf of the Union government regarding proportionate representation as the test of adequacy failed to cut ice with the bench. “The attempt of the learned Attorney General to impress upon this court that the proportion of SCs/STs in the population of India should be taken as the test for determining whether they are adequately represented in promotional posts, did not yield results,” noted the bench.

In its judgment, the court also clarified that the Nagaraj judgment would have a prospective effect in order to “avoid chaos and confusion” that could ensue from unsettling seniority of thousands of employees who availed reservation in promotions without there being strict compliance of the conditions prescribed in this judgment.

That judgment was delivered in 2006, interpreting Article 16(4-A) of the Constitution (which introduced the provision of reservation in matters of promotion with consequential seniority) that came into force in 1995. Between 1995 and 2006, thousands of employees in central government and state services had been promoted without complying with the conditions laid down in this verdict.

“Making principles laid down in Nagaraj effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time. It is necessary that the judgment of Nagaraj should be declared to have prospective effect,” held the court.

The bench refused to express any opinion on discontinuing reservation, as was pressed by some petitioners representing general category candidates. “We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive,” said the court, adding it is in favour of a periodic review of the data on inadequacy of representation.

“Collection of quantifiable data for determining the inadequacy of representation of SCs/STs is a basic requirement for providing reservation in promotions, as laid down by this court in Nagaraj. The unit for the purpose of collection of data is a cadre, according to Nagaraj and Jarnail Singh. For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated,” concluded the court in its judgment.

After laying down the principles of law, the court said that it would consider examining individual cases arising from the high courts on February 24.

During the arguments of the case, the Union government pressed for reservation in promotion proportionate to the population of SCs and STs as per a 1995 judgment by the top court in the RK Sabharwal case.

Venugopal argued that it should be left open to the Centre and states to decide on promotional avenues for SCs and STs, contending the condition regarding collection of quantifiable data to show inadequacy of representation of SCs/STs is “vague”.

According to Venugopal, there was a roster system in place in every cadre of the government departments to ascertain the posts required to be filled up by SCs/STs, and therefore the prerequisite of quantifiable data, as was laid down by two Constitution bench judgments of the apex court, should not remain – a plea shot down by the bench in its judgment.

When asked what should be a time period for the government to revisit the reservation policy after ascertaining the percentage of posts occupied by SCs/STs, the AG said that a periodic review should happen after every 10 years when a census is done. The court, in its judgment, has left it to the Centre and states to determine the time period for review.

Representing general category candidates, senior advocates Rajeev Dhavan, Meenakshi Arora, Gopal Sankaranarayan and lawyer Kumar Parimal argued that the reservation cannot be for an indefinite period and that it must stop as soon as the upper ceiling has been reached.

Further, they emphasised that reservation in promotion should be cadre-based only after quantifiable data is collected and the creamy layer has been excluded. Additionally, the general category candidates have said that posts meant for SCs/STs cannot be kept vacant indefinitely and should be filled up by other candidates after three years, as laid down in the Nagaraj judgment.