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Reservation in promotion for SCs/STs: Constitution Bench will re-examine whether or not the M Nagaraj case judgement needs a relook despite a 2014 standing order

Lalit Shastri

The Supreme Court on 15 November 2017 took the decision to consider whether it’s 2006 judgment in the M Nagraj case dealing with the issue of application of the “creamy layer” for reservation to Scheduled Castes (SC) and Scheduled Tribes (ST) categories in promotion in government jobs needs to be revisited.

A Supreme Court bench of Chief Justice Dipak Misra and compriding justices AK Sikri and Ashok Bhushan stated that it was not going into the correctness of the verdict. It ordered that a five-judge Constitution bench will examine the limited issue whether or not the 2006 verdict in M Nagaraj and others versus the Union of India case was required to be re-looked at.

This verdict has come after a five-judge Bench of the Supreme Court has already validated the Judgement in the M Nagaraj case.

A five Judge Constitution Bench of the Supreme Court passed an order about four 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.

Significantly, while pointing out in its 2014 order that the conclusions recorded in M. Nagaraj case were relevant, 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 Rohtas Bhankar and others versus Government of India and others case.

When reservation in promotion cases from different States were being heard by appropriate bench, several cases were clubbed together, including those from Madhya Pradesh, Tripura and Bihar and after a long gap the matter was referred to the Chief Justice leading to the November 2017 decision that a five-judge Constitution bench will examine the limited issue whether or not the 2006 verdict in M Nagaraj and others versus the Union of India case was required to be re-looked at. 

Thousands of government employees are retiring without promotion while the case is before the Supreme Court and the hearing by the Constitution Bench in the case as decided by by the Supreme Court in November 2017 is yet to begin.

Also read: Constitution Bench of the Supreme Court has already upheld the judgement in M Nagaraj case.

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