JARNAIL SINGH V. LACHHMI NARAIN GUPTA, (2018) 10 SCC 396. 

L. NAGESWARA RAO, SANJIV KHANNA AND BR GAVAI

28.01.2022

LAW POINTS

• The provision that the State has to accumulate quantifiable data manifesting backwardness of the Scheduled castes and Scheduled tribes is contradictory to the nine Judge in Indira Sawhney case, making this provision invalid.
• The discussion on the ‘creamy layer’ has no relevance in the context of Scheduled castes and the Scheduled tribes.
• Further the Apex Court certified the implementation of creamy layer to promotions of the Scheduled caste and the Scheduled tribes, as held in the Nagraj verdict.

BACKGROUND

A decision was made  in  the M. Nagraj and Others vs. Union of  India and Others in 2006 which was challenged by various states and the Centre. It was the petitioner’s view that the Nagraj Judgement had made it unjustly difficult to grant reservations in promotion for government jobs and public services. With this view, it felt necessary to analyze the conditions established in the Nagraj case and refer it to a seven-judge bench.  Reservation  is seen  as a  serious  topic  in India.  The   constitution  laid down Article 16 providing for Equality of opportunity in matters of public employment and this provision originally did not contain anything related to the reservation until the Indra Sawhney case of 1992. Few observations were made in this case starting with Article 16 (4) which allows the state to make provisions for reservation of any backward class of citizens in appointments or posts but this did not apply to the promotions. This clearly affected the Scheduled Castes and the Scheduled tribes and in order to continue the promotions, Clause 4A was introduced saying that nothing in the mentioned article shall prevent the State from making any reservation in matters related to the promotion. Through the 81st Amendment, Articles 16(4A) and 16(4B) were added.

The constitutional validity of these provisions was challenged in the Nagraj Case and delivered by a five-judge bench was a verdict stating that if the State wanted to make a provision for reservation in promotions for the Scheduled Castes and Scheduled Tribes then it will have to collect ‘quantifiable data’ enough to show the backwardness of the class and inadequacy of representation of that class in public employment. The state also has to see that it’s reservation provision does not, in any case, breach the ceiling limit of 50 per cent or even wipe out the creamy layer. Since the need to collect quantifiable data to show backwardness is in contradiction to the Indira Sawhney case, it was seen as unconstitutional. Even the application of the creamy layer to Scheduled castes and tribes seemed off because it was only restricted to the other backward classes. Introducing the concept of the creamy layer to promotions also raised questions on equality. Finally, a petition was filed to review the Nagraj verdict.

ISSUES:

1. Whether the Nagraj Judgement needed reconsideration by a seven-judge bench.
2. Whether the States had to collect quantifiable data to prove the backwardness and inadequacy of the class while being promoted.
3. Whether the creamy layer among the scheduled castes and the scheduled tribes should be barred from obtaining promotions through the reservation.

OBSERVATIONS BY HON’BLE SUPREME COURT

WHAT IS THE YARDSTICK TO ARRIVE AT QUANTIFIABLE DATA SHOWING INADEQUACY OF REPRESENTATION OF SCS AND STS IN PUBLIC EMPLOYMENT

In M. Nagaraj, the Court  held  that the  State  is  not bound  to  make reservation for SCs and STs in matters of promotion.  However,  if  it  wishes  to  exercise  its  discretion,  the State has to collect quantifiable data showing the backwardness of the  class  and inadequacy of representation of that class in  public  employment,  in  addition  to compliance with Article 335 of the Constitution of  India. It  was  further made  clear that the validity of law made by  the  State  Governments  providing  reservation  in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data.

Determination of inadequate representation  of  SCs  and  STs  in  services  under  a State is left to the discretion  of  the  State,  as  the  determination  depends  upon  myriad factors which this Court cannot envisage. Hence, no yardstick can be laid down for determining the adequacy of representation of SCs  and  STs  in  promotional  posts  for the purpose of providing reservation.

WHAT IS THE UNIT WITH RESPECT TO WHICH QUANTIFIABLE DATA SHOWING INADEQUACY OF REPRESENTATION IS REQUIRED TO BE COLLECTED

Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The Union of India submitted that there are around 90 Ministries/Departments under the Government of India in which 30 lakh employees are working. Referring to information received from 44 Ministries/Departments out of the 90, the Union of India has  stated that there are around 3800 cadres. Thousands of reservation rosters are being maintained in the various offices/units/sub-units of the Departments and Ministries in the Government of India.

Civil posts under the Government are organised into different services. A service constitutes ‘classes’/ ‘groups’ of posts. A ‘class’/group’ is further bifurcated into grades. Though the nomenclature might be different, the structure of services under the Union and the States is similar. According to the  instructions  issued  by  the Union of India, cadres are constituted for each grade.

The entire service cannot be considered to be a cadre for  the  purpose  of  promotion from one post to a higher post  in  a different grade. Promotion is  made  from one  grade to the next higher grade, in relation to which cadres are constituted.

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. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service.

WHETHER PROPORTION OF THE POPULATION OF SCS AND STS TO THE POPULATION OF INDIA SHOULD BE TAKEN TO BE THE TEST FOR DETERMINING ADEQUACY OF REPRESENTATION IN PROMOTIONAL POSTS F OR THE PURPOSES OF ARTICLE 16(4-A)?

In M. Nagaraj, the Court held that the exercise of collecting  quantifiable  data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, the Court declined the invitation of the learned Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test  for determining inadequacy of representation in promotional posts.

Therefore, in the present case the Supreme Court refused to express any opinion on this aspect and reiterated that it is for the State to assess the inadequacy  of representation of SCs and STs in promotional posts, by taking into account relevant factors.

A TIME PERIOD FOR REVIEWING INADEQUACY OF REPRESENTATION

While Senior Advocate Indira Jaising, appearing for members of the reserved categories, supported the submissions of the learned Attorney General for India that a review should be conducted every 10 years, Senior Advocate Gopal Sankaranarayanan submitted that it is time for reservation in public employment to be discontinued. Additionally, he submitted that the lion’s share of reservation for members of SCs and STs accrued to the benefit of a select few  within  these categories, which further strengthened the requirement for review to appraise whether certain groups/classes within these categories had achieved the desired representation.

The Court did not express any view  on  discontinuation  of  reservations  in  totality, which is completely within the domain of the  legislature  and  the  executive  but  it agreed with the submission that the data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out.

WHETHER THE JUDGMENT IN M. NAGARAJ, CAN BE SAID TO OPERATE PROSPECTIVELY

The judgment of M. Nagaraj was delivered in 2006, interpreting Article 16(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. 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 M. Nagaraj should be declared to have prospective effect.

This would avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj. Most of them would have already retired from service on attaining the age of superannuation.

WHETHER QUANTIFIABLE DATA SHOWING INADEQUACY OF REPRESENTATION CAN BE COLLECTED ON THE BASIS OF SAMPLING METHODS, AS HELD BY THIS COURT IN B.K. PAVITRA V. UNION OF INDIA, (2019) 16 SCC 129 (“B.K. PAVITRA II”)?

In BK Pavitra II, it was held that the expression ‘cadre’ has no fixed meaning in service jurisprudence and hence, the collection of data on the basis of ‘groups’ is valid. On the contrary, in M. Nagaraj it was held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra II.

The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters  are  prepared cadre-wise  and not group-wise.  Sampling  method  which  was  adopted  by  the  Ratna  Prabha Committee might  be  a statistical  formula appropriate  for collection  of data. However, for the purpose of collection of quantifiable data  to  assess  representation of  SCs  and STs for the purpose of providing reservation in promotions, cadre, which is a part of a ‘group’, is the unit and the data has to be collected with respect to each cadre.

DECISION-The  court concluded that the judgment in the Nagraj case  does not need to be referred to a seven-Judge bench. Along with this, the provision that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes is contrary to the nine-Judge Bench in Indra Sawhney case making this provision invalid. It was also seen in the Indra Sawhney Case that any discussion on the ‘creamy layer’ has no relevance in the context of Scheduled castes and Scheduled tribes. Further, the Supreme Court confirmed the Application of creamy layer to promotions for Scheduled castes and Scheduled tribes as held in the Nagraj Judgement. It had resulted in thousands of employees being denied their due promotions. The court viewed the principle of the creamy layer as a principle of identification and not of equality.