New
Delhi:
The Supreme Court Tuesday said it would not reopen its decision on granting
reservation in promotions to Scheduled Castes (SCs) and Scheduled Tribes (STs)
as it was for the states to decide how they implement it.
Taking
up various pleas pertaining to alleged hurdles in granting reservation in
promotions to SCs and STs in various states, a three-judge bench headed by
Justice Nageswara Rao directed the Advocate on Records of state governments to
identify issues peculiar to them and submit those within two weeks.
“We
are making it very clear that we are not going to reopen Nagraj or Jarnail
Singh (cases) because the idea was only to decide these cases in accordance
with the law laid down by the court,” said the bench, also comprising Justices
Sanjiv Khannna and BR Gavai.
The
top court noted that in its earlier order, the state governments were directed
to finalise the issues which are peculiar to them so that court can proceed in
the matter.
The
issues framed by the Attorney General KK Venugopal and the ones circulated by
others are enhancing the scope of cases, it said.
“We
are not willing to do that. There are certain issues which are already decided
in Nagraj that also we are not going to take up. We are very clear that we are
not going to permit any arguments for reopening of cases or arguing that law
laid down from indira sahney is wrong because the very scope of these cases is
to apply the law as laid down by this court.” the court said.
Mr
Venugopal submitted before the top court that nearly all these issues have been
covered by judgements of the top court and he would give a background of all
the cases on issue of reservation since the Indira Sawhney case.
Senior
advocate Indira Jaising contended that the issue which remains open is
benchmarks for adequacy on how a state will decide on which groups are backwards.
“It
is not a question of disputed facts any more. In some cases HCs have struck
down on the ground that backwardness has not been shown. How any state will
establish that representation is adequate and in that sense there will have to
be benchmarks for adequacy which will require detailed consideration,” she
said.
Responding
to the submission, the bench said, “We are not here to advise the government
what they should do. It's not for us to tell the government how to implement
policy. It has been specifically held as to how the states have to implement it
and consider backwardness and representation. States have to decide what to do
subject to judicial review.”
Senior
advocate Rajeev Dhavan said he does not want to get into the question of
representation as Indira Sawhney judgment is clear that it's not proportionate
representation.
“In
the Madhya Pradesh case it's very that you cannot rely on the census. This is
not the first time that a large batch of cases has come. In each case let
written submission be given to the court. The State of Maharashtra says we have
set up a committee to decide on ''adequacy of representation''. Why was this
not done earlier? As far as the principles are concerned they were enumerated
in the Nagraj judgment,” he said.
The
Attorney General said the problem of Union of India is that there are three
interim HC orders passed out which two say that promotions can continue to be
made, while one HC has issued status quo orders on promotions.
“The
Government of India has 1,400 posts (secretariat level) stagnating where no
promotions could be made on a regular basis because all three orders dealt with
regular promotions. The issue is whether the promotions for regular
appointments can be continued to be made, and whether it affects the reserved
seats.
“There
are another 2,500 posts stagnating for years due to status quo orders relating
to regular promotions. Government wants to make those promotions on ad hoc
basis without any rights,” Mr Venugopal said while seeking a stay on a contempt
plea against the government official.
Senior
advocate Meenakshi Arora said if the matter is being kept after two weeks then
the contempt plea can be heard on that date.
Senior
advocate PS Patwalia, appearing for Maharashtra and Bihar, said the court will
have to examine how you arrive at what is the quantifiable data, adding that 60
per cent posts are lying vacant in Bihar.
The
top court said it has already passed orders on how to consider backwardness and
it cannot prescribe policy further.
The
top court then ordered, “Pursuant to earlier orders passed by this court, AG
has circulated a note on the issues that arise for consideration in these
matters. Issues identified by the states of Maharashtra and Tripura were also
placed before this court. Issues have been given separately to AG by Sr Lawyer
Indira Jaising and Rajeev Dhavan. The AG submitted that there is no need for
reopening the law laid down by this court.
“In
respect of interpretation of Article 16 and 16(4)(a) it is submitted that
judgment delivered by this court would clear all issues which arise for
consideration. It has been brought to our notice that issues peculiar to states
can be grouped in 11 categories. There is an order already on order passed by
this court that states have to identify the issues which arise in each state
and furnish a copy to AG”.
The
bench directed the AoRs of state governments to identify issues peculiar to the
states and submit the same before this court in two weeks from today.
It
directed the counsels to submit written notes not exceeding five pages citing
judgments within two weeks and posted the matter for hearing on October 5.
Earlier,
Maharashtra and other states had said the promotions have been made in
unreserved categories, but promotions have not been granted in reserved
categories for SC and ST employees.
In
2018, a five-judge Constitution bench had paved the way for grant of quota for
promotions in the government jobs to SCs and STs, holding that the states were
not required to “collect quantifiable data” reflecting the backwardness among
these communities.
The
top court said that there was no need to revisit its 2006 verdict in the M
Nagaraj case on the issue.
It
had held however that the conclusion arrived at in the Nagaraj case that the
states have to collect quantifiable data showing backwardness of SCs and STs
was “contrary” to the nine-judge bench judgement in the Indra Sawhney verdict
of 1992, popularly known as Mandal Commission case.
“Thus,
we conclude that the judgment in Nagaraj does not need to be referred to a
seven-judge bench. However, the conclusion in Nagaraj that the state has to
collect quantifiable data showing backwardness of the Scheduled Castes and the
Scheduled Tribes, being contrary to the nine-judge bench in Indra Sawhney, is
held to be invalid to this extent,” the bench had held.
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