State to conduct review determining representation before implementing reservation quota in the promotion: Supreme Court

The Supreme Court on Friday delivered its judgment in the case of Jarnail Singh over the issue of reservation in promotion, holding that the states are obligated to collect quantifiable data for determining the representation of Scheduled Castes and Scheduled Tribes (SCs and STs) in the state in the issue of extending reservation in promotions. [Jarnail Singh Vs. Lachhmi Narain Gupta].

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 the Jarnail Singh case.

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

The issues covered by the apex court in this matter were:

1. What is the yardstick by which, according to M. Nagaraj (supra), one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment?
2. What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected?
3. 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 for the purposes of Article 16(4-A)?
4. Should there be a time period for reviewing inadequacy of representation?
5. Whether the judgment in M. Nagaraj (supra) can be said to operate prospectively?
6. 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 & Ors. v. Union of India & Ors. 7 (“B.K. Pavitra II”)?

Yardstick

Over the issue of yardstick, the bench noted that it cannot set a yardstick to determine inadequacy in the representation of SCs and STs while observing that "There is no fixed yardstick to identify equality, justice, and efficiency which are variable factors and it depends on the facts and circumstances of each case."

Whereas, The exercise of identifying and measuring concepts of efficiency, backwardness, and inadequacy of representation on the basis of data depends on numerous factors. "It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals," the bench added.

Attorney General KK Venugopal argued that it is important to decide the yardstick applicable for arriving at quantifiable data showing the inadequacy of representation of SCs and STs to avoid multiple litigations.

In response to which the bench stated, "It is well-established that it is neither legal nor proper for the Courts to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within their domain under the Constitution"

"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," the bench added.

It was further noted that it was a conscious decision of the apex court to leave it to the States to fix the criteria for determining inadequacy of representation in the cases of M. Nagaraj (supra) and Jarnail Singh (supra).

Unit for Quantifiable Data

In this regard, the bench referring to the case of M. Nagaraj noted that "the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service."

However, the bench noted that it is important to understand what cadre means, in this regard, the bench noted that the cadre is to be construed as the number of posts in a particular grade. "It is made clear that rosters have been prepared grade-wise which are reviewed on a yearly basis and that reservation in promotions is implemented on the basis of these rosters, which operate grade-wise.," the bench added.

It was further noted, "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."

The bench also clarified that the Collection of information regarding the 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," the court added.

Test to Determine Adequacy

Over the issue, the bench while referring to the judgment in the case of M Nagaraj said, "this Court was of the considered view 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."

Whereas, it was also said that "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."

However, AG Venugopal argued that the proportion of SCs and STs in the population of India should be taken as the test for determining whether they are adequately represented in promotional posts, did not yield results. In relation to which the bench said, "we are not persuaded to express any opinion on this aspect."

Rejecting the contention raised by AG Venugopal, the bench observed 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."

Time Period for Reviewing Inadequacy in Representation

Considering unanimity among the counsels of both the parties the bench observed that the "data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically."

Senior Advocate Indira Jaising appearing for the reserved categories and AG Venugopal had submitted that a review should be conducted every 10 years.

Whereas, Senior Advocate Gopal Sankaranarayanan contended that it is time for reservation in public employment to be discontinued. In response to which the bench noted, "We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive.

However, over the issue of deciding a time period for review, the bench said, "The period for review should be reasonable and is left to the Government to set out."

Operation of Judgment in M. Nagaraj

In this regard, the bench noted that 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.

Basis for Collection of Quantifiable Data

The bench noted that the conclusion of the apex Court in B.K. Pavitra II approving the collection of data on the basis of 'groups’ and not cadres is contrary to the law laid down by this Court in M. Nagaraj and Jarnail Singh.

However, for the purpose of collection of quantifiable data to assess the 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.

Whereas, the bench further said that "Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data."

In addition to the issues dealt with by the Court in this judgment that bench made clear that they have not expressed any opinion on the merits of any individual case as they have only answered the common issues that were formulated after hearing the parties.

The bench has listed the matters for hearing over the individual issues on February 24, 2022.

Earlier, The Supreme Court had reserved its judgment in the case after hearing Attorney General KK Venugopal, Additional Solicitor General Balbir Singh, Senior Advocate Paramjit Patwalia for the State of Bihar, Senior Advocate Rajeev Dhawan, Senior Advocate Indira Jaising for Unreserved Category, Senior Advocate Gopal Sankaranarayanan, Senior Advocate Rana Mukherjee, Senior Advocate Dinesh Dwivedi for Association of SC/STs and others Counsels. Arguments may be read here.

Case Title: Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors.