Reservation In Promotions : Supreme Court Continues Hearing States On Criteria For Adequacy Of Representation [Hearing Day 4]

The Supreme Court on Thursday continued hearing the petitions relating to reservation in promotions. Centre and States had urged 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.

The bench heard submissions of Senior Advocates Nidhesh Gupta, Rakesh Dwivedi, Ranjit Kumar, Krishnan Venugopal, Sanjay Hegde, Meenakshi Arora and Maneka Guruswamy on the issues that arose for consideration as laid down by the Attorney General for India.

The Attorney General for India opined that the issues that arose for the Court's consideration in the current batch of pleas were 1) Yardstick to be adopted to arrive at quantifiable data for adequacy of representation in public employment, 2) whether cadre should be taken as a unit, 3) The determination of criteria of 'efficiency' of administration and 4) whether the various directions issued by the Court would operate prospectively or retrospectively.

Reserved Category Candidates Who Were Selected On Their Own Merit Could Not Be Included In The Quota Of The Reserved Category: Senior Advocate Nidhesh Gupta

Appearing for the State of Madhya Pradesh, Senior Advocate Nidhesh Gupta on the scope of judicial review with regard to the data concerning adequate representation, submitted that the use of the expression, "in the opinion of the State" in Article 16(4) and 16(4A) made it clear that the issue of adequate representation was a matter, "within State's subjective satisfaction."

Senior Counsel relied on Top Court's judgements in Indra Sawhney v. Union of India (1992) Supp.3 SCC 217, Barium Chemicals Ltd. & Anr. v. Company Law Board & Ors. AIR 1967 SC 295 in which it was observed that it was clear that only "the existence of the circumstances in question" were open to judicial review and not the opinion formed by the Government. In this regard he thus contended that there must be some material based on which the executive's opinion is formed. Reliance was also placed on BK Pavitra vs. Union of India, (2019) 16 SCC 129 to submit that the Court was to examine whether there was any material available with the Government on the basis of which it's opinion could have been formed.

On the aspect of collection of quantifiable data with regards to cadre, Senior Counsel firstly relied on Article 16(4A) which dealt with, "any class or classes of posts" to submit that the same referred to a "class" or "group" of posts and not to a "cadre". He further submitted that reservation was to be provided if in the State's opinion, SC/ST were not adequately represented in services under the State and that inadequacy of representation was to be seen in the services under the State and not only in a particular cadre.

It was also Senior Advocate Nidhesh Gupta's contention that since cadre strength was to be taken as a unit in the operation of roster the ascertainment of the same could be made by collecting the data in the manner in M Nagraj's judgement.

To contend that Reserved category candidates who were selected on their own merit could not be included in the quota of the reserved category he submitted that the reserved quota was the extent of affirmative action that was decided by the State. To further substantiate his contention, Senior Counsel argued that those who made it on their own merit could obviously not be included in the said affirmative action.

Collection Of Quantifiable Data Not Required If Roster System Which Determines Percentage Is Being Followed: Senior Advocate Ranjit Kumar

Senior Advocate Ranjit Kumar, also appearing for the State of MP, submitted that with regards to determination of criteria of "efficiency" of administration submitted that the State had a Departmental Committee which was assigned with the task of considering whether a person is fit to be promoted or not by taking into consideration the overall administrative efficiency.

Senior Counsel on the aspect of collection of quantifiable data on inadequacy of representation of SC/ST in public employment submitted that a roster was being followed which determined the percentage

In light of this submission, he thus contended that there was no requirement of data as long as the roster was being followed.

"Since E V Chinnaiah vs State of Andhra Pradesh has been referred to a larger bench, any reference to the same should not be considered," Senior Advocate contended.

Given Lack Of Clarity For Determining Adequacy, All Promotions Made After M Nagraj Judgement Should Not Be Invalidated: Senior Advocate Krishnan Venugopal

Appearing for the State of Madhya Pradesh, Senior Advocate Krishnan Venugopal emphasised on the lack of clarity for determining adequacy and submitted that all the promotions made after Nagraj and up to now should not be invalidated.

"From 1985 there have been reservations in terms of proportion. It's not possible to assess the ex ante position. Given lack of clarity on how to apply the test, all promotions made after Nagraj & upto now should not be invalidated," Senior Counsel submitted.

Highlighting on the element of determining adequacy of representation based on the proportionality test of population, Senior Counsel submitted that if the state considered the same then there was nothing wrong in that. To substantiate his contention, Senior Counsel also relied on Article 16(4A), Article 330 and Article 332 of the Constitution of India, 1950.

Adequacy Is A Determination Which Is To Be Made From Time To Time: Senior Advocate Sanjay Hegde

Senior Advocate Sanjay Hegde appearing for the State of Madhya Pradesh commenced his submission by quoting a quote, "People ask me sometimes… 'When will there be enough women on the court?' And my answer is: 'When there are nine.' by Ruth Bader Ginsburg.

With regards to adequacy of representation, Senior Counsel submitted that,

"Adequacy is a determination which is to be made from time to time. It may also be that people belonging to SC/ST's are absolutely inadequately represented. Administrations have to work from time to time depending on the ground situation. If in the state's opinion a class is not adequately represented, then there should be adequate representation and there should not be any mathematical percentage for the same."

Adequacy Of Representation To Be Considered Based On Cadre: Senior Advocate Meenakshi Arora

Representing the general category in the State of Bihar, Senior Advocate Meenakshi Arora in support of her proposition that inadequacy of representation should be considered on the basis of cadre relied on the Top Court's judgement in R.K.Sabharwal vs State of Punjab, 1995 AIR 1371. It was also her contention that, "Cadre wise determination of adequacy would lead to how long you want the representation."

Reality Of This Country In 2021 Is That 40% SC/ST Children Are Stunted: Senior Advocate Maneka Guruswamy

Representing Maharashtra Officer's Forum, Senior Advocate Maneka Guruswamy referred to Indira Sawhney and Barium Chemical's judgement to emphasise on the aspect of Constitutional Philosophy and judicial deference.

Senior Counsel further relied on the Top Court's judgement on BK Pavitra II wherein the Court had held that sampling was a permissible means of determining adequacy provided the samples were relevant and representative. The Court in this case had also observed that identifying errors in data collection do not lead to necessary finding of unconstitutionality due to absence of data suggesting inadequate representation.

"When your lordships are assessing these questions of methods and how often must data be collected, your Lordships must refer to the constitutional mandate. There must be that deference with the executive for they are the experts when it comes to data collection. They have the expertise, skill and manpower to make those assessments of adequacy, inadequacy," Senior Counsel further submitted.

The matter is now slated to be heard on October 26, 2021.

Case Title: Jarnail Singh v. Lachhmi Narain Gupta and Other Connected Matters, SLP(C) No.30621/2011

Click here to read/download the order

Reports of previous hearings :

Reservation In Promotions [Day-1] - Figures & Data Need To Be Placed On Adequacy Of Representation: Supreme Court Tells AG

Reservation In Promotion [Day-2]: Can Adequacy Of Representation Be Determined Solely On The Basis Of Percentage? Supreme Court Asks Centre, States