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The Supreme Court on Tuesday reserved its judgment in the case of Jarnail Singh over the issue of extending reservation in promotions as well provided to the Scheduled Castes and Scheduled Tribes [Jarnail Singh Vs. Lachhmi Narain Gupta].

A division bench of Justice L Nageswara Rao, Justice Sanjiv Khanna and Justice BR Gavai has concluded the hearing and reserved its judgment on limited issues suggested by the Attorney General of India KK Venugopal.

Several states had approached the Supreme Court in a Special Leave Petition as many High Courts had struck down the provisions providing reservation in promotion along with an application seeking clarification in Jarnail Singh case.

Submissions in short:

Attorney General KK Venugopal:

DAY 1

• The whole Indira Sawhney judgment is concerned with backward classes and not SC/STs, the number of posts in the cadre should be in proportion to the percentage of the population"
• Article 16(1) requires equality in representation, before giving the reservation a quantifiable data must be there to show that they are entitled to the promotion
• It is not for the Court to decide whether the reservation is to be given or not, it is for the state to decide in accordance with the policies.
• All the promotions and directions were made in lieu of this 1997 Memorandum (Speaking of reservation for SC/STs). Many people will lose their existing position, hence, Nagaraj should be prospective.
• Over the question raised by Justice Rao, Venugopal said once it is a post based roster, the reservation cannot exceed 15% that as far as the DOPT is concerned, no promotions are made

Day 2

• There are 53 Departments and Maharashtra has 6000 Cades and we asked the Centre that how many Cadres are there, they said 5000, there for each Cadre you’ll have to go into quantifiable data which is a huge exercise and Karnataka Government has even appointed a committee for this.
• The Court said, “In cases is it not the responsibility of the State Governments to look into the inadequacies in the representation.”
• The time has come for You Lordships to give something concrete for the SC/ST promotions. Your Lordships may also consider that as per the roaster the posts are filled automatically.

Day 4

• Whatever the methods we have followed till date will have to be seen by You Lordships, if it is considered right then the data collected till date may be considered. Otherwise, Your Lordships will have to suggest how the limit has to be fixed.
• So far as SC/ST are concerned, they are still struggling with getting into mainstream of life, therefore, Your Lordships will have to look into the failure in Nagraj.
• If Your Lordships do not lay down the decisive way, then there will be a multitude of Litigations.
• In earlier Jarnail Singh it was said that we will leave it to the States, but then it will again go to zero.
• The alternative is that Your Lordships will have to frame some other method for deciding representation.

Additional Solicitor General Balbir Singh

Day 1

• DOPT in 1997 issued an OM to shift from vacancy-based to post-based. It indicates that how the posts had to be filled, which was 15% and 7.5%, it provided a mathematical provision.
• Over the question raised by Justice Rao that what is the exercise done after the Nagaraj judgment to find out the inadequacies, Singh said, the proportionality test was not and adequacy test was applied in the Nagaraj.

Day 2

• The data from 1965 to 2007 shows larger percentage of SC/ST and OBCs in case of Group A, B, C, and D in Group A there is a shortage and in Group B and C there is an excess.
• Answering the Court over the cap on the roaster system ASG said, this is for the anomaly that was addressed in Nagraj and once the representation is appropriate and posts are filled up the roster stops.

Day 3

• We have filed an affidavit that how we are Nagaraj compliant. In addition to that, I have filed an affidavit just to say that post Sabarwal what Government of India has done.
• We had instructed all the Ministries to monitor and implement the roaster. We got in writing from all the Ministries that they are compliant.

Senior Advocate Paramjit Patwalia for the State of Bihar

Day 2

• Things that have to be looked into were backwardness, inadequacies in the representation.
• Pavitra Judgment has to be understood in a holistic view, the committee examined the data from all departments, the percentage was not satisfying that brings out to working out to reservation where Sabarwal comes into play.
•  Sabarwal was not on initiation but was on implementation, once it is fulfilled roaster shall be stopped.

Senior Advocate Rajeev Dhawan

Day 2

• Referring to the judgment in the case of Nagaraj, Dhawan said, “it is that the states are not bound to make reservations, it is not like some Jats will start the protests.”
• The idea is to maintain a balance because the reservation it to a positive discrimination.
• When you are dealing with cadre and even if you are dealing with the post, sampling cannot be relied upon because the data has to be complete.
• We cannot bring equality but enhance the people so that they can join the race.

Senior Advocate Indira Jaising for Unreserved Category

Day 2

• India’s Constitution is unique in the world in entertaining the provision of reservation, I don’t know about any Country with this.
• I don’t know what the tool to measure efficiency is and if there is let the AG tell what they use to measure the efficiency of the Government that what is the efficiency of the Government.
• We need to keep 9in mind the demography of every State, there are States that have an extraordinary population of Tribal, and this has to be for the States to decide.
• It is whose responsibility to show the data, Central Government through SG comes on record and says we won’t show the data as we believe it is not accurate.
•  In Nagarah I beg to defer that it said equality is a basic feature of the Constitution.

Senior Advocate Gopal Sankaranarayanan

Day 3

• On the basis of representation in the houses reservation of Anglo’s’ has been done away with and the SC/ST continues, that is why Article 334 has provided a timeline. There has to be some sort of timeline with reference to a reservation in promotion also.
• I hope that this branch of the law will come to an end, it has been 80 years now and we are still continuing.
• The endpoint has to be clear, we have National Commission for the SCs and STs in 338 and 338A, these Commissions should perform the review, whatever the reservation in promotion to ensure the adequacy is being achieved.

Senior Advocate Rana Mukherjee

Day 3

• The Government has to weigh its interest without losing sight of Article 336.

Senior Advocate Dinesh Dwivedi FOR Association of SC/STs

Day 3

• Dwivedi arguing over the Retrospective and Introspective effect said, it’ll lead to great difficulty all over the country, but everywhere there is a huge amount of reservation the whole system will be upset.
• Jarnail was not a case in which the issue of inadequacy was addressed, it is not very fair to pick out a word and then build a castle. If all of this is so accurate the why does this court say that this is a matter of subjective analysis.

Parties not represented by Senior Advocates

Day 4

• The data in reports they have shown is the data of the selective departments, data placed before the bench is not correct.
• If a roaster is applied and no inquiry is done then it will result in disastrous results.

Background

The Apex Court in Jarnail Singh on September 26, 2018, held that the judgment in Nagaraj does not need to be referred to a seven–hudge bench but stated that 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 (1) (supra) is held to be invalid to this extent.

The bench in its judgment dated September 26, introduced the principle excluding the creamy layer, while further directing States to refrain from extending reservation to SC/STs falling into the category of creamy layer.

The judgment of Nagaraj had said, "We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."

"The main issue concerns the "extent of reservation". In this regard the concerned State would have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The state is not bound to make reservations for SCs/STs in matter of promotions.

However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, 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 the reservation indefinitely," the Nagaraj judgment had penned.