“Reservation in promotion for SCs and STs is against fundamental right to equality”

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New Delhi: The five-Judge Constitution Bench of Supreme Court of India hearing arguments linked with the 2006 apex court judgment in the M Nagaraj case was told by senior advocate Rajeev Dhawan during the hearing in this matter today that the ordinary citizens belonging to the Scheduled Castes (SCs) and Scheduled Tribes (STs) category cannot be compared with those from the same category who have already secured government jobs.

Dhawan is representing in Supreme Court the Madhya Pradesh government officers and employees from the general, OBC and minority communities, who are suffering due to the reservation in promotion rule, and SAPAKS (a registered society formed by the Madhya Pradesh government employees belonging to the general, backward and minority category). The BJP Government in Madhya Pradesh has challenged the Jabalpur High Court order of 30 April 2017 which declared as null and void the 2002 Rule which provides for Reservation in Promotion for the SC and ST officers and employees. The outcome of the case now before the Constitution bench will have a direct bearing on the Madhya Pradesh rule for reservation in promotion.

Continuing his argument, Dhawan underscored the point before the Constitution Bench that a government employee cannot consider himself as backward only if he/she belongs to the SC/ST category. After taking the full benefit of reservation, when someone from the SC/ST category secures a government job, that person should be treated at par with all others, he pointed out adding hence only when the conditions specified for backwardness by the Supreme Court in the M Nagaraj case are fulfilled, one should be entitled for more benefits. Under no circumstances, a government employee should cite social inequality as reason to claim any special benefit, Dhawan emphasised. He also went on to observe that no officer or employee should use for his own benefit the discrimination and injustice being done to the commoners from the SC/ST category. This is against the Fundamantal Right to equality as guaranteed under Articles 14, 15 and 16 of the Constitution, Dhawan told the Bench.

Representing the respondents, Rakesh Dwivedi focused attention on Article 16(4A) of the Constitution which does not 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 with the condition that the state has to ensure while granting such promotion that in the opinion of the State, the beneficiaries of such promotion are not adequately represented in the services under the State. Hence, he pointed out that the argument that it is not necessary to examine the backwardness of SCs and STs as in the case of other backward classes, lacks any basis and is not the correct position.

Hearing in this case will continue on Thursday (30 August 2018).


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