New Delhi: A vacation Bench of the Supreme Court today issued an order allowing the Government of India to provide reservation in promotion to the Scheduled Caste and Scheduled Tribe employees till the issue linked with conditions prescribed by the Supreme Court in the M Nagaraj case of 2006 is settled by the Constitution Bench.
Today’s decision, in response to an appeal by the Union Government against an order of the High Court of Delhi, was taken by the vacation Bench of the Supreme Court, comprising of Justices Adarsh Kumar Goel and Ashok Bhushan.
Today’s order by the Supreme Court categorically allows only the Union Government to provide reservation in promotion for SC/ST employee as per law, till the issue is disposed off by the Constitution bench. The law in this matter has been established by the 2006 Supreme Court judgement in the M Nagraj case. The apex court order of 2006 is the law of the land as the Constitution Bench is yet to commence hearing in this matter. It is also significant that no stay had been granted with regard to the order of the High Court of Delhi against which the Government of India went in appeal. On the other hand, a stay already has been granted by the apex court in the reservation in promotion matter relating to Madhya Pradesh. This case is before the Supreme Court since the State Government went in appeal against the Jabalpur High Court order of 30 April 2016, declaring as null and void the MP Government provision for reservation in promotion. Hence today’s Supreme Court order will not have any implication vis-a-vis Madhya Pradesh.
The High Court of Delhi, on 23 August 2017, had quashed and set aside an Office Memorandum (OM) issued by the Department of Personnel and Training on 13 August, 1997 asking all Government of India ministries, departments, their subordinate offices, public sector undertakings and statutory bodies to continue the reservation in promotion for the Scheduled Castes and the Scheduled Tribes in the service posts under the Central Government beyond 15 November 1997 till such time as the representation of each of the above two categories reaches the prescribed percentage of reservation whereafter the reservation in promotion shall continue to maintain the representation to the extent of prescribed percentages for the respective categories in pursuance of Article 16(4A).
The judgement by a two judge Bench, comprising the acting Chief Justice and Justice C. Hari Shankar of the Delhi High Court had come in response to a petition by the All India Equality Forum and others versus the Union of India.
The High Court order underscored that the Central Government, in its counter affidavit, did not disclose that the requisite exercise of collecting quantifiable data and determining the aspects of backwardness, inadequacy of representation and overall efficiency of the administration was ever undertaken before “blindly” extending the provision for reservation, in promotion, favoring SCs and STs.
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 comprising 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.
The 15 November 2017 decision of the Supreme Court came after a five-judge Bench of the Supreme Court had already validated the Judgement in the M Nagaraj case.
A five Judge Constitution Bench of the Supreme Court had passed an order 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.