New Delhi: After a five Judge Bench of the Supreme Court has already taken into consideration the constitutional validity of Article 16(4A) in the M. Nagaraj case and pointed out in its order of July 2014 that the conclusions recorded by the Supreme Court in M. Nagaraj case were relevant, the matter again came up for hearing before the Constitution Bench of the Supreme Court today (3 August 2018).
The arguments in this matter will continue on 16 August.
Article 16 (4A) states: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
The constitution bench now visiting the M Nagaraj case comprises of Chief Justice of India Dipak Misra, Justice Kurien Joseph, Justice RF Nariman, Justice Sanjay Kishan Kaul and Justice Indu Malhotra.
Earlier on 14 November 2017, the case arising out of the appeal in Supreme Court by Madhya Pradesh Government against the April 30 2016 Jabalpur High Court order declaring as null and void the 2002 State government provision for reservation in promotion to SC/ST officers and employees was referred to the Constitution Bench.
Prior to that, in the second fortnight of October 2017, a plea was made by the Madhya Pradesh Government before the Supreme Court, during the hearing in the Reservation in Promotion case, for a review by a Constitution Bench of the apex court order in the M Nagaraj case that forms the basis of the Jabalpur High Court order declaring as unconstitutional the State provision for reservation in promotion for SCs and STs.
The apex court in its subsequent order referring the matter to the Constitution Bench underscored Article 145(3) which states that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
This is where the legal dilemma lies. Presently the five-Judge Constitution Bench is not just visiting but it is revisiting the Apex Court’s decision in the M Nagaraj case after a five Judge Constitution Bench of the Supreme Court, comprising the then Chief Justice of India R.M. Lodha, and Justices Jagdish Singh Khehar (who later became Chief Justice of India), J Chelameswar, AK Sikri and Rohinton Fali Nariman has already passed an order in this matter in July 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. The Five Judge Constitution Bench reiterated in 2014 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.
In a related development two months ago, a vacation Bench of the Supreme Court, comprising of Justices Adarsh Kumar Goel and Ashok Bhushan, had issued the 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 was settled by the Constitution Bench. This decision by the vacation Bench of the Supreme Court, comprising of Justices Adarsh Kumar Goel and Ashok Bhushan, was in response to an appeal by the Union Government against an order of the High Court of Delhi.
The outcome of a number of reservation in promotion cases linked to different States and the Centre that are pending before the Supreme Court hinges on the verdict of the Constition Bench now hearing the matter that came up for hearing before the Constitution Bench of the Supreme Court on Friday (August 3). The constitution bench now hearing this matter comprises of Chief Justice of India Dipak Misra, Justice Kurien Joseph, Justice RF Nariman, Justice Sanjay Kishan Kaul and Justice Indu Malhotra.
Attorney General of India KK Venugopal submitted before the Supreme Court today (3 August 2018) that the order in the M Nagaraj case is coming in the way of the progress of the SCs/STs. When told by the apex Court bench that the M Nagaraj judgment made it incumbent on the state to provide them reservation in promotion on the basis of data throwing light on their representation, the attorney General told the court that due to historical reasons, it would be difficult to conclude whether or not their representation was adequate.
Senior lawyer Rajeev Dhavan, representing petitioners opposing the quota system, said that reservation in promotion for SC/ST employees was against the Constitutional Right to Equality.