Reservation In Promotions : Should Adequacy Of Representation Be Proportionate To Population?Supreme Court Discusses [Hearing Day 3]

The Supreme Court on Wednesday continued hearing the petitions relating to reservation in promotions. Centre and States had filed numerous petitions urging the Supreme Court to settle the confusion regarding the norms for reservation in promotions saying that several appointments have been stalled due to ambiguities.

A Bench of Justices L Nageswara Rao, Sanjiv Khanna and B.R.Gavai is hearing the matter after a 5-judge bench answered the reference in 2018 in the case Jarnail Singh v. Lachhmi Narain Gupta.

On Tuesday and Wednesday, the Bench had heard AGI K.K.Venugopal, ASG Balbir Singh, SA Paramjit Patwalia, SA Rajeev Dhawan, SA Indira Jaisingh and SA Gopal Sankaranarayanan. On Thursday, the Bench continued hearing SA Gopal Sankaranarayanan, SA Rana Mukherjee and SA Dinesh Dwivedi.

Highlights of the hearing

The main points raised during today's hearing were whether adequacy of reservation should be proportionate to population of the backward classes and whether the reservation should apply cadre-wise.

The bench opined that the "proportionate to population" argument was already rejected by the 5-judge bench and said that it was not going to re-examine it.

"When 5-judges have declined the invitation, should we then go into that consideration?"", the bench remarked. The bench noted that the 5-judge bench in Jarnail Singh has left it to the States to determine adequate representation depending upon the promotional post that is in question

Here is a full account of today's hearing :

Senior Advocate Gopal Sankaranarayanan

Senior Advocate Sankaranarayanan on Thursday began his arguments by pointing out that adequacy of representation and efficiency of administration were the "anchoring conditions" on which the constitutionality of the 85th Amendment Act hinged. Further, he had argued that the State must first satisfy whether there is inadequate representation of SC/STs in public employment before introducing reservation in promotions. If the answer to that was in affirmative, he argued, then the State must undertake three exercises- first, decide on extent of reservation, second, identify which posts/classes have inadequacy and third, assess whether efficiency in administration would be affected by introducing reservation in promotion.

Continuing with his submissions, on Wednesday, he argued that there must be an end point to reservation which must be indicated. On the question of adequacy vs proportionate, relying on Indra Sawhney, he submitted that adequacy should not be read as proportionate.

"I understood the Learned AGs argument to be that that (Indra Sawhney) was in the context of OBC. I would beg to respectfully differ because Para 807 is dealing with Art.16 (4) which talks about Backward Classes of citizens which includes within it SCs, STs and OBCs": he submitted.

He argued that the principle of adequacy laid down in Indra Sawhney would apply equally to SCs and STs so adequacy has to be less than proportionate.

Justice Rao pointed out that the "proportionate to the population" argument was raised by AG in Jarnail Singh and rejected there.

Continuing his arguments, he tried to contrast the reservation provided to Anglo-Indians under Art.331, right to representation in legislatures under Art.334 with Art.15 and Art.16 of the Constitution. Emphasising that post made to Art.334 post the 104^th Amendment, reservation for Anglo-Indians has come to an end but SC/ST representation continues for another 8 years, he submitted:

"There is no timeline with reference to Art.16 and Art.15 and there is a very clear answer why that is so. Because the only right with respect to SC/STs is in representation politically in parliament and legislature."

He argued that the reason by Art.334 provides a timeline and Art.15 and Art.16 do not is because Art.15 and Art.16 do not provide a right.

"If the state exercises the enabling power only then does the right arise. That is why the text does not provide a timeline….I will argue that a timeline has to be implicitly read with respect to reservations also."

Second, referring to the 50% limit laid down in Indra Sawhney, he submitted that it is important to note that 50% is less than proportionate.

"SCs. STs and OBCs would be more than 50% clearly. One aspect is that it imbalances the equity in the equality code the other aspect is that in sheer numbers it would be less than proportionate. And that aspect has not been considered in Jarnail Singh": he submitted.

Justice Rao intervened to ask how Sankarnarayanan would deal with the law laid down in Sabharwal that the State may take the total population of a particular Backward Class into consideration while reaching a conclusion that a class is not adequately represented.

[ Justice Rao was referring to Paragraph 4 of S.K.Sabharwal which reads as follows:

"It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services.")

SA GS replied: "This is only with reference to understanding how you will determine inadequacy."

Justice Rao: "You say that it can be one of the several factors?"

Justice Rao continued: "If we read Para 4 of Sabharwal, are we correct in saying, this is at the stage of determination of percentage of reservation?"

Gopal Sankaranarayanan: "I would say at the stage of the determination of inadequacy of representation."

He further submitted that population was a necessary part of the exercise to know how much representation there could be at some point and whether whatever percentage of reservation in cadres is adequate or not. Giving the example of difference in proportion of SCs in Punjab, Mizoram and Meghalaya, Goa the SA argued that, "the proportion is necessary to for the determination of reservation at the threshold."

"That is what Sabharwal says, it does not say adequacy is proportionate. It merely says the population has to be borne in mind at the threshold of the exercise and once that is done you can determine what the rate and that can change state-wise": he submitted.

He pointed out that we have 27% OBCs reservation despite 1931 Census saying that 51% of the population is backward class.

"50% of the proportion in the population is reasonable within which you can have span of adequacy. The same should be done for done for SCs and STs"; he submitted.

Further, he argued that some portions of B.K.Pavitra (Pavitra II) were inconsistent with the positions laid down earlier. Referring to Para 107 of the judgement, he argued the conclusion drawn that "it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population" did not follow from Para 4 and Para 5 of Sabharwal.

On the issue of B.K.Pavitra's inconsistency with precedents, he argued that Para 109 of Pavitra in holding that "Nagaraj requires the collection of quantifiable data inter alia, on the inadequacy of representation in services under the state" missed out the middle worlds of Art.16 4A- class or classes of posts in the services under the state.

"That is where the distinction is from Art.16 (4). 16 (4)A says class or classes of posts in the services under the state. If you miss that you miss the entire history of cadre being used as the method of classification under 16 4A": he argued.

He further argued that this was inconsistent with what has been laid down in Nagraj.

Further on the question of limits to reservation in promotion, SA Sankaranarayan relied Para 152 of B.K.Pavitra, to argued that because reservation in promotion seeks to bridge the gap, once you fill the gap the reservation should come to an end.

[ Para 152 of B.K.Pavitra reads as follows:

"On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SC's and ST's has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively" ]

Further, Sankaranarayanan pointed out that Para 108 of Nagraj laid emphasis on the need for weighty and comparable data because it was a challenge based on the equality code under the Constitution. He submitted that the duty lay on the State to find the cadre-based data on adequacy as failure to "do so would mean State is not discharging its duty under Art.14."

He highlighted statistics to show that "there are a handful that are garnering the reservation what is being given." He argued that in light of this reality there was a need to conduct a periodic review of adequacy of representation. He submitted that the National Commission for SCs and STs under Art. 338 and 338A should also discharge a function to similar to NCBC to review promotions being given in a fashion to ensure adequacy is being achieved.

He concluded his submissions by stating that while severe discrimination continues yet some sort of balance should be achieved.

Senior Advocate Rana Mukherjee

Senior Advocate Rana Mukherjee begam his submission by arguing that Art.334 of Constitution has nothing to do with Art.335. He argued that while there were just 1-2 seats in Lok Sabha for Anglo-Indians in case of SCs and STs they form a majority of the population is backward and oppressed. There was no case for equity between Art.334 and Art.335 as was argued by SA Sankaranarayanan, he submitted.

Further, Mukherjee argued that as per Jarnail Singh the adequacy has to be in proportion to the population and determination has to be on the basis of Census.

To which Justice Khanna enquired: "At initial joining you take into account proportion of population as per Sabharwal. If that is the principle, then at promotion also we know the proportion of reservation, therefore that will be replicated at the stage of promotion. It is no one's case that Reservation in promotion is meant for accelerated promotion.

Further, Justice Khanna continued, " Now, the issue that will come up and where the government will have to apply their mind is when on merit itself if people are able to secure seats. That's where application of mind by the state is required."

Continuing with his arguments, Mukherjee argued that the Court in Jarnail Singh "does not give a positive finding that you cannot have proportion of population as a yardstick."

[ Reference was being made to following Para 35 of Jarnail Singh:

"According to us Nagaraj (supra) has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) (supra), there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. (Para 35, Jarnail Singh)]

Justice Rao intercepted to say that the import of the above Paragraph was clear that one cannot follow proportionality.

"What it says is even if a proportionality test to the population a whole is taken into account, it may be necessary, to reduce the number of SC and ST in promotional posts as one goes upwards. So that does not have a direct connection for you to decide as to how you provide reservation in promotions. That's why the sentence says it is left to the government to decide.

Justice Rao continued, "When 5-judges have declined the invitation, should we then go into that consideration?"

Further, Mukherjee argued that the Court will have to put into clear terms the formula for determining these percentages while working our Art.16 4A.

To which Justice Rao quipped. "In Nagraj and Jarnail Singh the Court said you decide as to whether the procedure and judicial review will be done. Because it is done in the specific context of a state and then decision should be on the basis of each case is what Nagraj has said."

Senior Advocate Dinesh Dwivedi

SA Dinesh Dwivedi clarified that he would argue on the issues of representation, retrospectivity and efficiency of administration.

With respect to representation, SA argued that in terms of Art.16 4A, the terms "opinion of the State" and "in the services under the state" are important.

Justice Rao quipped: "You have to read services of state with previous words class or classes of posts in services. Which gives the power to the State to decide which is the class where there is inadequate representation."

Senior Advocate Dwivedi further argued that reservation has to be in service, on the basis of class or classes basis and not cadre. Elaborating further he explained that services has been classified into A B C and D. Cadres are within classes and classes cut across cadres, he explained.

"If we start taking cadre then it will be difficult and chaotic..and therefore adequacy has to be in reference to service under the state", he argued.

Justice Rao noted that "Art.16 (4) in contradistinction uses the term service and not class."

SA Dwivedi responded that in the context of Art.16 (4) "The question of class will not arise."

Justice Rao responded: "Some significance has to be given to the use of the term class under Art.16 (4A)"

Further, in response to SA Dwivedi's argument that class cannot be reduced to cadre, Justice Rao responded: "We cannot go behind Jairnail Singh because they say Cadre."

To which Senior Advocate argued that Jarnail Singh did not emphasise on adequacy vis a vis cadre.

[ Reliance was made on the following Para 30 of the Jarnail Singh judgement:

"Thus, we may make it clear that quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj (supra) on the inadequacy of representation, which can be tested by the Courts. We may further add that the data would be relatable to the concerned cadre." ]

SA Dwivedi argued that the use of the term 'relatable' implies that it should only relate to and not be with respect to the cadre concerned. "They could've said data should be cadre-wise but they've said relatable", he submitted.

The Bench quipped "That's too far-fetched!"

Senior Advocate further argued that if the test of adequacy is so precise then why should the Court then say that it is a matter of subjective satisfaction?

The Bench concluded hearings for the day. The hearing has been adjourned to a date after the Dussehra vacations.