The Supreme Court ordered the registration of the promotion reserve case on Wednesday October 6 and asked Attorney General KK Venugopal to answer the Court’s question: “How did you (the Center) do the arrangement of the figure of SC and ST and is it on the basis of the local population proportional to the total population?
The bench of Judge L. Nageswara Rao, Judge Sanjiv Khanna and Judge BR Gavai have also clarified that they will not reconsider the decisions rendered in the cases of M. Nagraj of 2006 and Jarnail Singh of 2018 and that they will only consider whether The decisions of the High Court followed the principles set out in the two previous Supreme Court judgments.
The GA underlined the last paragraphs of the Indira Sawhney judgment rendered by a formation of 9 judges that there can be no reservation for promotion and that it is a reservation which resulted in the amendment constitutional introducing Article 16 (4) (a).
Article 16 (4) (a) is limited to the initial appointment only and cannot extend to the question of the reservation on promotion. We direct this to be in effect prospectively and will not carry out any promotions already made, whether on a temporary or permanent basis. It is further stated that wherever reservations are already made in matters of promotion should not be disturbed for a period of 5 years and during this period it will be open to the competent authorities to review and modify the relevant rules for ensuring the achievement of the goal, which means advocacy for representation if an authority thinks so.
He further argued that the principle of proportional representation is only accepted in Articles 330 and 332 for a limited period. These articles speak of reserving seats in Lok Sabha and state legislatures in favor of listed castes and tribes in proportion to that population, but these are only temporary and special arrangements, so it is not possible to accept the proportional representation although the proportion of the OBC population to the total population would certainly be relevant.
The 27% reserve provided for by the memorandum in favor of CBOs is in line with the ratio. To obtain a reservation in favor of the listed castes and tribes, a total of 10.5% is reached. In this regard, references can be made to the decision of the High Court of Andhra Pradesh in the case of Narain Rao v. State of the PA canceling the increase in the reserve from 25% to 45% for CBOs.
What is relevant here is that the Indira Sawhney set is only with CBOs and not with listed castes and tribes. Second, the question was whether the proportion of reservations for the total class of CBOs should be proportional to their population or not.
The Court accepted the arguments raised by the Attorney General and raised a question to clarify: “An adequate reserve is not proportionate representation”.
Venugopal responded that it should be noted that the total population of OBCs is around 44-45% and of SCs and STs is 15% and 7% and now 19% and 27%. The question then arises: “Should we reserve for each category in proportion to its population?” The answer is no, because if you give each category a reservation in proportion to their percentage, it will exceed 50%. So, to keep it at 50%, OBCs are limited to 27%.
Venugopal added that a candidate belonging to the general category is not entitled to be considered for the post booked. On the other hand, candidates in the reserved category may compete for the non-reserved post and in the event of appointment for said post, their number cannot be added together and taken into consideration for the establishment of the reservation percentage.
The attorney general said the question is whether the total class of the CBO should be proportional to the total population or not. But it had also gone up to around 37% percent, and so it has nothing to do with the planned class, the number of positions in the framework should be proportional to the proportion of members of the planned class to the population. total state and filling the position in the sense has nothing to do with the list system. The reservation on state government for scheduled castes and tribes has been increased to 57%, so it has nothing to do with paragraph 807.
Venugopal further argued that Article 161 requires equality of state representative services, henceforth, regardless of the listed tribe, the listed caste was also considered equal to the rest of the community. The important point followed several times is why would the listed castes get more percentage of their total number of their population. The expert lawyer argues that before promoting in an individual case, two things must be fulfilled. The first is to produce data regarding a particular group of scheduled classes that are suffering from delay (the scheduled classes were considered among the laggards), the second is quantifiable data to decide whether so far the promotion is valid, but a problem arises in identifying the data. He gave the example of the Nagraj case where it was clearly mentioned that quantifiable data should be collected by state and metrics and averaged over under-representation, which can be tested by courts.
He returned the 1997 office memorandum, which was struck down on the basis of this quantifiable data in an attempt to uncover vacancies and the rights of scheduled castes and tribes? How was the data of 1997, 2002, 2005 and 2006 put aside, and no one could conceive of the question of quantifiable data and later it was promoted without quantifiable data based on a list of 100 or 200 points. He further stated on the basis of BK Pavithra v Union of India, “without expressing any reservation that this must be based on the list and the proportion below the population, so this no longer exists as far as the data quantifiable are concerned. ‘
ASG Balbir Singh had also appeared before the Court and argued that after the RK Sabharwal case, the DOPT drafted an office memorandum which was circulated to all the offices of the ministries, depending on the vacancies, how particular seats had to be reserved and the reservation was 15% and 7.5%. He further argued that in the Sabharwal case the subsequent appointments were made by promotion. The learned counsel said the Sabharwal case came first when the Roster Point system was approved, which was also approved in the Nagraj case. Although, in the Nagraj case later it was said that data should be collected on 3 bases, i.e. adequacy, efficiency and backwardness of caste. The particular department promoting it goes through the list system, which is prescribed by July 2, 1997. In this case, the data would be the existence of two hundred positions and the thing should be removed from that due to transfers or any other method of filling these positions.
The Supreme Court said at the last hearing that central and state governments must fulfill all of these conditions in SC / ST employee promotion reserve policies. Which were decided by the various constitutional benches of the highest jurisdiction in the last two decisions?
The Supreme Court, in its orders in these two cases, asked the Center and the States to collect quantitative data showing insufficient representation of the SC / ST category, to assess the impact of the reservation on administrative efficiency and public employment, prior to granting the promotion reservation to the Center and the States was made mandatory.
In this case, previously, the court has requested all states to bring the state’s particular cases to court within two weeks. The court said there are different types of cases in different states. Consequently, their hearing will be done separately by State. In fact, numerous petitions have been filed with the Supreme Court regarding reservation for promotion in jobs across the country. In these requests, the Center and the States requested an emergency hearing on approximately 133 cases filed on the basis of decisions of 11 different High Courts related to the reservation policy in the promotion. It was said in the case that due to conflicting orders from different High Courts, appointments to many posts could not be made.