Lalit Shastri

A plea has been made by the Madhya Pradesh Government before the Supreme Court, presently hearing the Reservation in Promotion case for a review by a Constitution Bench of an earlier order passed by the apex court in the M Nagaraj case which forms the basis of the Jabalpur High Court order declaring as unconstitutional a State provision for reservation in promotion for SCs and STs.

The present petition arises out of an appeal filed my by the Madhya Pradesh Government against the High Court order. The Madhya Pradesh Government made the plea for referring the matter before a bigger Constitution Bench during the hearing in the Reservation in Promotion case last week.

The Madhya Pradesh Government is either ignorant or is pretending to be ignorant of the fact that a five Judge Constitution Bench of the Supreme Court has already passed an order more than three years ago reiterating that 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 above order was passed by a five Judge Constitution Bench of the Supreme Court, comprising Chief Justice of India R.M. Lodha, and Justices Jagdish Singh Khehar (the present Chief Justice of India), J Chelameswar, AK Sikri and Rohinton Fali Nariman on July 15 2014 in the Rohtas Bhankar and others versus Government of India and others case. This order also stamped the ceiling limit of 50% for reservation.

In the July 2014 order, Supreme Court said it is important to note that the constitutional validity of Article 16(4A) had come up for consideration before the Constitution Bench in the case of M. Nagaraj case.

The Constitution Bench had observed:

“Clause (4-A) of Article 16 is carved out of clause (4) of Article 16. Clause (4-A) provides benefit of reservation in promotion only to SCs and STs. In S. Vinod Kumar v. Union of India this Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney.”

By the Constitution (eighty-second Amendment) Act, 2000 a proviso was inserted at the end of Article 335 of the Constitution which read as under:

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

The Apex court also noted in the 2014 order that this proviso was added keeping in view the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of the apex Court in Vinod Kumar case which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4-A).

Significantly, the Constitution Bench also pointed out in its 2014 order that the conclusions recorded by the Constitution Bench in M. Nagaraj case were relevant.

They read as under:

“The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal case.”

The Supreme Court in its order of 11 March 2010 ordered that the batch of writ petitions, pending before the Supreme Court, challenging various orders/notifications issued under Article 16(4)(A) of the Constitution, were disposed of, by the Supreme Court vide order dated 11th March, 2010, in the following terms:-

“The Constitution of India was amended by the Seventy-Seventh Amendment Act, 1995, Eighty-fifth Amendment Act, 2001 and Eighty-first Amendment Act, 2000. By these Acts Article 16(4), (4-A) and 16(4-B) were amended. Thus Seventy-Seventh Amendment Act, 1995 and Eighty-fifth Amendment Act, 2001 came into effect w.e.f. 16.06.1995 and Eighty-first Amendment Act, 2000 came into effect on 09.06.2000.

Subsequent to these Amendments of the Constitution various State Government issued order/notifications to implement the provisions of the Constitution.
These notifications/orders were challenged in various writ petitions and special leave petitions before this Court. In these proceedings the constitutional amendments were also challenged. By the decision of the Constitution Bench of this Court in M. Nagaraj and others vs. Union of India and others reported in (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4-A) and (4-B) was upheld. In the judgment it was directed that various individual writ petitions would be considered by appropriate Bench in accordance with the law laid down in this decision.

As various state orders and notifications have been challenged in these writ petitions be considered by the respective High Courts. The validity of the same be decided in view of the final decision of the Constitution Bench of this Court in M. Nagaraj and others vs. Union of India and others (supra).

Therefore, we permit the petitioners in these writ petitions to withdraw these writ petitions with liberty to move the High Court and in the event of writ petitions are filed before the High Court the same may be considered by the High Court in the light of the observations made by this Court in M. Nagaraj and others vs. Union of India and other (supra). The petitioners would be at liberty to seek appropriate interim relief in the High Court. The writ petitions as well as contempt petitions are disposed of accordingly”.

Earlier in the M Nagraj case, the Supreme Court on 19 October 2006 had ordered:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney case , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal case.

The Supreme Court has upheld the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

In 2014, since the Constititution Bench of the Supreme Court did not examine the validity of individual enactments of different States, it specifically said in its order that questions will be gone into in individual writ petitions by the appropriate bench in accordance with law laid down by the Constitution Bench in the in the Rohtas Bhankar and others versus Government of India and others case.