Tag Archives: Constitution Bench

“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).

 

Centre bats for reservation in promotion for SC/ST in Supreme Court

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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.

Supreme Court allows Central Government to provide reservation in promotion for SCs and STs till issue is disposed off by Constitution Bench

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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.

Reservation in Promotion: Constitution Bench to hear the case, Request for Interim relief denied

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New Delhi: The Reservation in Promotion case (CA no. 005247/2016 and SLP (C) No 013954/2016 both registered on 9 May 2016) was on Tuesday (14 November 2017) referred to the Constitution Bench by an order passed by a two Judge Bench comprising of Justice Kurian Joseph and Mrs. Justice R. Banumathi.

Supreme Court Order yesterday passed by the two judge Bench comprising of Justice Kurian Joseph and Justice R Banumathi says: The questions posed in these cases involve the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution of India in the backdrop of mainly three Constitution Bench decisions:

  1. Indra Sawhney and others v. Union of India and others
  2. E.V Chinnaiah v. State of A.P. and others, and
  3. M. Nagaraj and others v. Union of India and others

 

One crucially relevant aspect brought to the notice of the Bench is that Nagaraj and Chinnaiah, both cases deal with the “disputed subject namely backwardness of the SC/ST but the Chinnaiah case which came earlier in time has not been referred to in Nagaraj case. The question of further and finer interpretation on the application of Article 16(4A) has also arisen in this (reservation in promotion) case. Extensive arguments have been advanced from both sides. The petitioners have argued for a re-look of the order in the Nagaraj case specifically on the ground that test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney case and the Chinnaiah case.

The counsel for the respondents have referred to the cases of Suraj Bhan Meena and Another v. State of Rajasthan and others to contend that the request for a revisit cannot be entertained ad nauseam. However, apart from the clamour for revisit, further questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, communities, groups or parts thereof of SC/ST notified by the President under Articles 341 and 342 of the Constitution of India.

The latest order of the Supreme Court goes on to add: “Having regard to the questions involved in this case, we are of the opinion that this is a case to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India. Ordered accordingly. The order says that the files be placed before the Chief Justice of India immediately.

The November 14 2017 order by the two Judge Bench further says that though the counsel have pressed for interim relief, we are of the view that even that stage needs to be considered by the Constitution Bench. The parties are free to mention the urgency before the Chief Justice of India.

 

Recent hearing in Supreme Court: Timeline and orders passed

26-10-2017

UPON hearing the counsel the Court made the following
O R D E R
Heard the learned counsel appearing for the parties.
Arguments remained unconcluded.
List on 31.10.2017 as Part Heard.

25-10-2017

UPON hearing the counsel the Court made the following
O R D E R
Arguments heard, which remained inconclusive.
For further hearing list tomorrow i.e. on 26.10.2017 as Part
Heard.

24-10-2017

Heard the learned counsel appearing for the parties.
Arguments remained unconcluded.
List tomorrow i.e. on 25.10.2017 as Part Heard.

10-10-2017

UPON hearing the counsel the Court made the following
O R D E R
List tomorrow i.e. on 11.10.2017 at 11.30 AM for preliminary
hearing.

10-08-2017

UPON hearing the counsel the Court made the following
O R D E R
List on 7th September, 2017 on top of the list
subject to overnight part-heard and earlier orders on
top.

 

07-09-2017

UPON being mentioned the Court made the following
O R D E R
List on 10.10.2017 as 10.30 a.m.