india

Updated: Feb 09, 2020 12:42 IST

The government is not bound to provide reservation for appointments and promotions to public posts, and courts cannot give directions compelling states to reserve jobs or positions for Scheduled Castes and Scheduled Tribes (SC/STs), the Supreme Court has said in a judgment.

The top court also said that an individual does not have a fundamental right to claim reservation, and it is for the government to decide whether reservations are required in appointments and promotions.

“…there is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations”, the February 7 judgment by justices L Nageswara Rao and Hemant Gupta said.

The court, therefore, set aside an Uttarakhand high court ruling quashing a 2012 state government decision to fill up all posts in public services in the state without providing any reservations to SC/STs.

The court reaffirmed the law in this regard, holding that constitutional provisions contained in Article 16 regarding reservation are only enabling provisions, and it is up to the government to decide whether it should provide reservations in exercise of those powers under the Constitution.

“Article 16 (4) and 16 (4-A) empower the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes if in the opinion of the State they are not adequately represented in the services of the State. It is for the state government to decide whether reservations are required in the matter of appointment and promotions to public posts of the State”, the judgment said.

The court held that the state, while deciding whether to provide reservation or not, can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a commission, committee, person or authority.

However, the court also said that if the government wishes to exercise its discretion and make provisions for reservation for a class of people, it has to collect quantifiable data showing the inadequacy of representation of that class in public services. If the decision of the state government to provide reservations in promotion is challenged, the state concerned shall have to place before the court the requisite quantifiable data and satisfy the court that such reservations were necessary on account of inadequacy of representation.

The top court placed reliance on its earlier judgments in the Indra Sawhney (1992), Ajit Singh (1999), M Nagaraj (2006) and Jarnail Singh (2018) cases, in which it had ruled that Articles 16 (4) and 16 (4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of SC/STs in public service is essential for providing reservations in promotions.

Such data, the court said, needs to be collected only when the government is providing for reservation, and is not required when the state government has decided not to provide reservation.

“Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Schedules Tribes in state services,” the judgment stated.

Thus, the court held that even if the underrepresentation of SC/STs in public services is brought to the notice of the court, no direction can be issued by the court to the state government to provide reservation.

Therefore, the court also set aside the direction by the high court that the state government should first collect data regarding the adequacy or inadequacy of representation of SC/STs in government services on the basis of which it should decide whether or not to provide reservation in promotion.

The issue of reservation for SC/STs has been a contentious topic. A petition arguing that the “creamy layer” among SC/STs should be excluded from the benefits of reservation available to those communities is pending in the Supreme Court.

The petitioner in that case, NGO Samta Andolan Samiti, has contended that benefits accorded to SC/STs in reservation and other government schemes do not reach people who are actually in need of the benefits and are restricted to the “creamy layer” of those communities.

The central government opposed the petition, arguing that the creamy layer principle should not be applied to SCs/STs since they have been disadvantaged for centuries. It added that the principle, which is based on economic parameters, need not necessarily translate into sociocultural upliftment.

In 2018, the Supreme Court, in the judgment in Jarnail Singh & Ors. v Lachhmi Narain Gupta & Ors. had held that the principle of creamy layer, previously applicable to Other Backward Classes (OBCs), should be applied to SC/ST communities as well for reservation in promotions.

For OBCs, the creamy layer comprises households with annual income in excess of ~8 lakh a year.

The central government has requested the Supreme Court to re-examine the Jarnail Singh judgment.

“The object of reservation is to do away with sociocultural discrimination that SC/ST communities have faced for the past thousands of years. Even today, we see that many students from SC/ST communities who are not in financially disadvantaged position face systemic discrimination in prestigious public educational institutions. In such a scenario, the request by the Centre to reconsider Jarnail Singh cannot be faulted,” assistant professor at National Law University, Delhi, Sophy KJ, told HT.