Reservation in Promotion: Constitution Bench will consider on August 3 whether M Nagaraj Verdict needs to be re-looked at
New Delhi: The Constitution Bench of the Supreme Court will take up the hearing in the matter of “reservation in promotions” on 3 August 2018.
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.
After today’s hearing in the Jarnail Singh and 52 other related cases, a Bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud took the decision that these cases and all other related matters will be taken up by a 7-Judge Constitution Bench in the first week of August. The Bench refused to pass any interim order saying that the Constitution Bench is seized of the matter,
Almost 100 cases relating to “reservation in promotion” from Madhya Pradesh, Bihar, Tripura, Maharashtra and connected with Government of India are pending before the Supreme Court. The Constitutional Bench will open the way for a final verdict in all these cases.
The Constitution Bench will hold a day-long sitting and decide whether or not the decision in the 2006 M Nagaraj case is valid. If not, it would review the decision. If the Nagaraj verdict gets declared as constitutionally valid on 3 August, all reservation in promotion matters will be settled on the basis of M Nagraj decision.
On he basis of a recent Supreme Court order passed in a specific Government of India related case, the Department of Personnel of Government of India even went ahead and directed the State Governments to go ahead with the promotion of SC and ST employees and officers as per the law. Consequently, the Madhya Pradesh Goverment even started planning to go ahead with promotions on the basis of the old rules. This despite the fact that the Supreme Court has ordered that status quo be maintained in the case of Madhya Pradesh.
On April 30, 2016, the Jabalpur High Court had declarted the 2002 Madhya Pradesh Reservation in promotion the Rule as unconstitutional. The High Court order said that the provision for reservation for promotions granted to the SC/ST category under Madhya pradesh Rules 2002 runs contrary to the constitutional provisions contained in clause (4A) and (4B) of Article 16 and Article 335 of the Constitution and and all actions taken in furtherance of this rule must be reverted to status quo ante.
Instead of implementing the High Court order, the Madhya Pradesh Government went in appeal to the Surme Court. As the Apex Court has ordered that status quo be maintained in this case, about 50, 000 Government employees have retired without promotion and in the interim, important posts are being held by officers who have been given additional charge. This is adversely affecting administrative efficiency. Artcile 335 of the Constitution which relates to “Claims of Scheduled Castes and Scheduled Tribes to services and posts” says in categorical terms that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.