Cites historical deprivation, calls on Supreme Court to revisit 2006 Nagaraj ruling

Citing “1000 of years of deprivation” suffered by Dalit communities, the government on Friday began its push for providing “accelerated promotion with consequential seniority” for Scheduled Castes/ Scheduled Tribes (SC/ST) members in public employment.

Following a 2006 judgment of the Supreme Court, the government cannot introduce a quota in promotion for its SC/ST employees unless they prove that the particular Dalit community is backward, inadequately represented and such a reservation in promotion would not affect the overall efficiency of public administration. The opinion of the government should also be based on quantifiable data.

The 2006 Nagaraj judgment was pronounced by a five-judge Constitution Bench.

Now, the government wants another five-judge Constitution Bench led by Chief Justice Dipak Misra to refer the 2006 verdict to a larger Bench for a re-examination. It had said that the 2006 verdict had effectively created an “impossible situation” for providing accelerated promotions with consequential seniority for SC/ST communities in government services.

Besides the Chief Justice, the Bench comprises Justices Kurian Joseph, Rohinton Nariman, Sanjay Kishan Kaul and Indu Malhotra.

Presumed backward

Attorney-General K.K. Venugopal submitted that the SC/ST communities have faced centuries of deprivation at the hands of society. They have been deprived of access to temples, schools and the basic facilities of life. Even today, Dalit grooms cannot ride horses.

“They are presumed backward,” Mr. Venugopal submitted.

The Attorney-General added that the State needs to show “affirmative action” by giving them equality of opportunity.

The government objected to a creamy layer concept among the SC/ST. “You cannot dissect the SC/ST and see those who are worthy (of quota) and those who are not,” Mr. Venugopal submitted.

As far as the qualifier “inadequate representation” was concerned, Mr. Venugopal asked, “How do you establish inadequacy of representation? Who will establish it? Is it for each post or the entire department?”

Government said it wanted a total of 22.5% (15% for SC+7.5% for ST) posts reserved for promotion for SC/ST in public employment. Only this quantum would satisfy their need for adequate representation.

Mr. Venugopal said it was not possible comply in every case the conditions laid down by the Nagaraj judgment in 2006.

“But most States did not prepare quantifiable data to show inadequacy/adequacy of representation. Why?” asked Chief Justice Misra asked Mr. Venugopal.

The AG replied that this was because “people die, retire… data keeps fluctuating". He said quantifiable data is not static and filling up vacancies was a dynamic and continuous process.

During the hearing, Chief Justice Misra said the three criteria — backwardness, inadequacy and administrative efficiency — were “compelling reasons” so that reservation by government was not excessive. The three qualifiers were meant to prevent reservation from making an inroad into the right of equal opportunity in public employment.

The Nagaraj judgment was mean to find “a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system”. In fact, the Nagaraj judgment said the three qualifiers were meant to prevent “reverse discrimination” by State.

"It is made clear that even if the state has compelling reasons, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend reservation indefinitely,” the Constitution Bench led by then Chief Justice Y.K. Sabharwal, had observed in the Nagaraj verdict.

In November 2017, a two-judge Supreme Court Bench led by Justice Kurian Joseph, had re-opened the issues of creamy layer and quota in promotions for SC/ST by referring them to a Constitution Bench.

The two-judge Bench’s referral was based on a series of questions of law, including clarity on Article 16 (4), which deals with the State's powers for providing for appointments or posts for “any backward class of citizens”; on Article 16 (4A), which arms the state with power to make provisions for quota in promotion with consequential seniority to SC/ST communities; and finally Article 16 (4B), which deals with unfilled vacancies of a year reserved for SC/ST kept from being filled up.