M. Nagaraj v. Union Of India, (2006) 8 SCC 212

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors., [CIVIL APPEAL NO.10972 OF 2013]
Alok Kumar Pandit vs State Of Assam & Ors., [CIVIL APPEAL NO.8499 OF 2012]
Union Of India vs Ramesh Ram & Ors., [CIVIL APPEAL NOS.4310-4311 OF 2010]
G. Srinivas Rao vs Union Of India & Ors., [CIVIL APPEAL NO. 1911 OF 2006]
U.P.Power Corp.Ltd vs Rajesh Kumar & Ors., [CIVIL APPEAL No. 2608 OF 2011]
K. Krishna Murthy & Ors vs Union Of India & Anr on 11 May, 2010
Pramati Educational & Cultural ... vs Union Of India & Ors., [WRIT PETITION (C) No. 416 OF 2012]
Yakub Abdul Razak Memon vs State Of Maharashtra Th:Cbi ..., [CRIMINAL APPEAL No. 1728 of 2007]
Bhim Singh vs U.O.I & Ors., [WRIT PETITION (CIVIL) NO.21 OF 1999]
Indian Medical Association vs Union Of India & Ors., [CIVIL APPEAL NO. 8170 OF 2009]
C.M. Thri Vikrama Varma vs Avinash Mohanty & Ors., [CIVIL APPEAL NO. 2550 OF 2010]
Faculty Association Of Aiims vs Union Of India & Ors., [CIVIL APPEAL NO. 4500 of 2002]
Society For Un-Aided P.School Of ... vs U.O.I & Anr., [WRIT PETITION (C) NO. 95 OF 2010]
Rekha vs State Of T.Nadu Tr.Sec.To Govt.& ... on 5 April, 2011

These Writ Petitions, under Article 32, have been filed challenging Constitution(Eighty Fifth) Amendment Act, 2001. In terms of the said amendment, the State of Karnataka passed an enactment giving benefit to its employees. The said enactment was also challenged subsequently by amending the Writ Petitions. The main challenge against various Constitutional amendments was dealt with reported in (2006) 8 SCC p.212. The said Constitutional amendment 2 was upheld by this Court with certain observations vide the above judgment. During the course of the pendency of these Writ Petitions, on 08.04.2002, this Court passed the following order:

"......Insofar as interim relief is concerned, the respondents shall not revert the petitioners nor affect their standing in the seniority list and promotion, pay etc. At the same time, it shall be open to the respondents to promote those who are benefited by the impugned amendment but so that it does not affect the petitioners in any manner and subject to the result of the writ petitions...."

The State of Karnataka and some of the respondents moved for variation/modification of this interim order and this Court passed the following order on 11.11.2002, in supersession of the earlier order :

"....These writ petitions involve the constitutionality of Article 16(4A). The Court, by an interim order, has directed not to revert any of the petitioners from their existing placement nor affect their standing in the seniority list, but at the same time the provisions of Article 16(4A) can be implemented and by virtue of that provision if some of the reserve category candidates are entitled to promotion, they shall be promoted. The obvious idea being the Court should not stay the operation of a constitutional provision. The State finds difficulty in implementing the order on the ground that there does not exist sufficient vacancy of posts in a particular cadre to give effect to the provisions contained in Article 16(4A). This being an interim arrangement, we direct that they should apply to the number of vacancies available in a cadre to give effect to the promotional policy and undoubtedly, such a promotion can be granted only when the State makes a provision for reservation in terms of Article 16(4A). In view of the fact that the implementation of interim order may cause a lot of chaos in the service, it is just and proper that the matter should be finally heard and disposed of and we, therefore, direct that this batch of writ petitions be listed before a Constitution Bench in the month of February,2003....."

3 We have made it clear in the judgment of Nagaraj (supra) that "We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case". Therefore, in our opinion, it is desirable that these matters be considered by the High Court in the light of the above observations. In view of the above, we transfer these matters to the file of the Division Bench of High Court of Karnataka at Bangalore to be dealt with by it in accordance with law. The interim orders of 08.04.2002 and 11.11.2002 shall hold good for a period of four weeks from the date of receipt of records.

The Registrar is directed to send all connected records to the High Court of Karnataka at Bangalore immediately. Needless to say that the High Court will consider the same as expeditiously as possible. In the meanwhile, the petitioners would be at liberty to move the High Court within four weeks for appropriate interim relief, if any, in these proceedings.

All these matters are disposed of accordingly.

At the centre of the current controversy is a judgment delivered by a two-judge bench of the Supreme Court in U.P Power Corporation Ltd. v. Rajesh Kumar in April 2012. It had already been held in M. Nagaraj v. Union of India (October 2006) that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions. However, what the U.P Power Corporation did for the first time was to strike down reservation in promotions for not meeting these criteria.

Reservation in promotions has been a sphere of intense disagreement between Parliament and the Supreme Court. To overcome the decision of a nine-judge bench in Indra Sawhney and other judgments that disallowed reservation in promotions and consequential seniority, Parliament enacted three constitutional amendments in 1995, 2000 and 2002. While upholding the constitutional validity of the amendments, the Supreme Court in Nagaraj made it very clear that Article 16 (4A), which was inserted through these amendments, was only an enabling provision. In essence, every time a government or the legislature sought to provide reservation in promotions under Article 16 (4A), it would have to pass constitutional muster. While justifying each attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of representation and maintenance of efficiency. The U.P. Government Servants Seniority Rules challenged in the U.P Power Corporation case was one such attempt.

The three conditions laid down in Nagaraj raise a number of concerns. It must be remembered that Article 16 (4A) permits reservation in promotions only for the SCs/STs and not for the OBCs. In this context, the first condition in Nagaraj requiring the state to demonstrate backwardness of the beneficiaries is problematic. It is problematic because it amounts to bringing in the ‘creamy layer’ test for SCs/STs through the backdoor. It has been held numerous times by the Supreme Court, including in the judgment in Indra Sawhney, that the test of ‘creamy layer’ is not applicable to SCs/STs. The settled position of law is that all members of recognised SC/ST groups automatically satisfy the condition of backwardness and there is no burden on the state to further establish the backwardness of those individuals benefiting from reservation. While this requirement exists for the OBCs in terms of the ‘creamy layer’ test, Justice (as he then was) Kapadia’s opinion in Nagaraj does not provide any justification for not following the position endorsed by a larger bench in the context of the SCs/STs.

On the question of inadequacy of representation, the text of Article 16 is clear that it is a matter for the state to determine. While it must base its determination on some material, the question as demonstrated in the U.P Power Corporation case is about the nature of the empirical evidence that is required. The Supreme Court provides no justification for using the cadre as a unit for determining inadequacy of representation and the method could well distort the picture on adequacy of representation. There is no reason why the state cannot make its determination on the basis of a particular group of services or certain ranks across services or even public employment as a whole. The Supreme Court has also failed to address certain other aspects of adequacy of representation. It has not discussed whether achieving proportional representation would be the standard to determine adequacy or whether it considers proportional representation irrelevant in this context. It has also not clarified the period over which adequacy must be determined.

Dr. Ambedkar demonstrated tremendous foresight in the Constituent Assembly when he called for deleting the phrase — “is in the opinion of the state, not adequately represented” — from Article 16(4). He believed that it would become a matter of litigation and the courts could substitute their judgment on adequacy of representation by holding that a reservation was being made despite being adequately represented.

In many ways it is the efficiency question that has always been at the heart of the debate concerning reservation in promotions. Prabhat Patnaik, while making a strong argument for viewing reservation in employment as promoting efficiency, has accurately observed that the supporters of reservation in public employment rarely rebut the ‘loss in efficiency’ argument and appear to counter it only by resorting to arguments about social justice and inclusion. Ever since the early days of the Supreme Court, it has been a constant refrain that reservation in employment leads to a loss in efficiency. The basis for that argument has never been articulated in any of the Supreme Court’s judgments and has always been stated as a self-evident truth.

The ‘loss in efficiency’ argument, apart from not being grounded in any sort of empirical study, is largely the result of an extremely conservative understanding of ‘merit’. There has been no judicial discussion about the role of efficiency across different categories of public employment. What does it really mean to talk about efficiency in the context of a railway ticket inspector, an IAS officer, a Group D employee, a nuclear scientist, etc.? The quality of discourse on this issue, in terms of the arguments from the government’s side and the Supreme Court’s judgments, leaves a lot to be desired.

The way forward

The government’s response, as reflected in the 117 Constitution Amendment Bill introduced in the Rajya Sabha, is unsatisfactory. While the proposal remedies the error in Nagaraj on the issue of backwardness of the SCs/STs, its approach to ‘adequacy of representation’ and efficiency is counterproductive. The proposed Article 16 (4A), which seeks to substitute the existing Article 16 (4A), has done away with concerns of efficiency by stating that nothing in Article 335 can be an impediment, and the reference to ‘adequacy of representation’ has been deleted.

Anomalous situation

This leads to the anomalous situation where the above two factors continue to be relevant for the OBCs and the SCs/STs as far as initial appointments are concerned since Article 16(4) will not be similarly amended. The proposed amendment offers us no insight into why these factors are irrelevant in the particular case of reservation in promotions for the SCs/STs. It would have been far more legitimate to argue for a more meaningful understanding of efficiency before the Supreme Court rather than completely negating it as a factor through a constitutional amendment. Similarly, removing the reference to ‘adequacy of representation’ will only further question the legitimacy of reservation in promotions.

The Supreme Court must give the state room for manoeuvre on what is acceptable empirical data. It also cannot remain silent on some critical normative questions and keep the government guessing about the terms on which it will permit the exercise of power under Article 16 (4A). Reservation in promotions at the entry level does not ensure that the project of equality of opportunity is complete. We could argue endlessly whether reservation in promotions would take that project further but, in terms of governance, we have already made a political and constitutional choice. It cannot be the judiciary’s task to indirectly undo that choice having already upheld it and it must be the government’s task to make legitimate use of it. The envisaged constitutional amendment is the least legitimate option because any political consensus will be based on electoral compulsions. Governments, State and Central, must present the country with hard facts to derive legitimacy — hard facts confirming the lack of presence of India’s most marginalised sections in the upper echelons of bureaucratic power. It is this evidence of the lack of presence that will expose the hollowness of the claims concerning equality of opportunity in public employment.

The reservation has always been a dicey and volatile issue in Indian democracy. One group argues that it has faced numerous hardships since time immemorial and deserves certain relief as compensation for that. On the other hand, another group claims that India is a secular and democratic country, and its Constitution suggests that everyone is equal. They call it discrimination if any particular group enjoys any additional benefits. But the same Constitution also lays down provisions for reserving seats in different areas of life, such as education, government jobs, judiciary, etc. Hence, for a layman, this is a conflicting situation.

The Hon’ble Supreme Court of India has, through various judgments, given its opinion on this matter. These decisions reflect the behavior of judiciary in such matters. One of such important decisions, which have been a landmark in the field of reservation, is the case of M. Nagaraj v. Union of India.[1], where the idea of reservation in promotion in the government departments was challenged on the basis of the policies on which it was based claiming such policies to be discriminatory and illegal in nature. The Madhya Pradesh Government provided reservation in promotion to the Scheduled Castes and Scheduled Tribes in the public department. The decision was criticized for being an ultra-vires action and breaching the law of equality and provisions laid down in the Nagaraj case.

To place this in context, it should be remembered that in Indra Sawhney case, it had been held that Article 16(4), because it then stood, wasn’t wide enough to bring inside its fold reservation in matters of promotion. However, the Court declared that this might not have an effect on promotions that had already been created and, in fact, granted the extra protection that wherever reservations have already been provided for in Central or State Services, a similar position might continue for an additional amount of 5 years. After that, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, that did offer for reservations in promotions. To recapitulate, this provision presently reads:

“(4A) 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 favour 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.”

It was later said in Supreme Court’s judgment M. Nagaraj, where the Court, while upholding the constitutional validity of the improvements and changes bought up in Article 16, also set out certain conditions and standard for the State to implement corrective measures under Articles 16(4A), as also 16(4B) (that deals with carrying forward of vacancies reserved for backward classes such as OBC/SCs/STs).[2]

Broad issue raised was –

Validity

Interpretation

Implementation of – firstly 77th amendment act 1995, 81st Amendment act 2000, 82nd amendment act 2000, 85th amendment act 2001 and secondly action was taken in pursuance there from which obtain to reverse choices or decisions of Supreme Court in matters concerning promotion and their application with retrospective impact.

Petitioners also challenged 82nd amendment act with Article 16(4A) and (4B) which had essentially deprived article 335.

Another issue was all these amendments destroy the basic structure of constitution about article 14, 15, 16.

Description

77th amendment act 1995 – through the 77th Amendment, Article 16(4A) had been inserted into the Constitution, which read, in relevant part: “[The State can] make any provision for reservation in matters of promotion to any class or classes of posts… For the Scheduled Castes or Scheduled Tribes.”[3]

81st Amendment Act 2000- also, via the 81st Amendment, the government had also inserted Article 16(4B) into the Constitution, which read, in relevant part:

“[The State may consider] any unfilled vacancies of a year which are reserved for being filled up in that year… as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year”.[4]

82 amendment act further added a clause to Article 335 – “…nothing in this article shall prevent in making of any provision in favor of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts.”

85th amendment Act 2001- “In article 16 of the Constitution, in clause (4A), for the words “in matters of promotion to any class”, the words “in matters of promotion, with consequential seniority, to any class” shall be substituted.”[5]

Held

Amendments were held as constitutionally valid. Article 16(4A and B) are inserted into the flow of article 16, and they do not alter the structure of Article 16(4).

Current Petitions

The Madhya Pradesh government provided reservation for the Scheduled Casts and Scheduled Tribes in the promotion in government jobs. Through the present writ petitions the validity of the decision of providing reservation in promotion by the Madhya Pradesh Public Services (Promotion) Rules, 2002 has been challenged in the Madhya Pradesh High Court. On the ground that the government’s actions violated the principle of law laid down in the M. Nagaraj Case.

The High Court of the State, responding to the writ petitions, quashed the Madhya Pradesh Public Services (Promotion) Rules, 2002 which provided for reservation for depressed casts in promotions in Government services. The division bench comprised of CJ. Ajay Khanwilkar and J. Sanjay Yadav observed that the rules violated the law laid down in M. Nagaraj v. UOI and were against the public policy, and thus they ruled that “the plea for prospective overruling of the provisions relating to reservation in promotion in the Rules of 2002 is negative”.[6]

Highlights of the current judgment

The current judgment the main question for which answer was to be sought was whether or not the current Rules, framed in 2002, can be said to be workable. The court ruled that the existing provision relating to a reservation, backlog vacancies, carry-forward of backlog vacancies and the operation of a roster, as laid down by Rules of 2002, are contrary to Art. 16(4) (A) and (4) (B) and Art. 335 of the Constitution. Further, it violated the law laid down in the Nagaraj case.

On an analysis of the provisions of Rules of 2002, one major problem can be traced. As per the rules, “The reserved posts which remain unfilled due to non-availability of suitable public servants of the category for which the post is reserved despite consideration of the names of all public servants eligible for consideration as per the Recruitment Rules shall be carried forward, that is to say, shall be kept vacant until the suitable public servants belonging to that reserved category is available. In no circumstances, any vacancy of reserved category shall be filled up by promotion from the public servant belonging to any other category”.[7]

This itself poses a problem as the unfilled vacancies are not included in the ceiling of 50% and are taken separately. If any posts are left vacant in the next year also, this number of unfilled vacancies will increase and will never be included in the ceiling limit. The number will keep increasing every year.

If this judgment of the High Court is implemented, more than 50,000 officials of various ranks may have to be reverted.[8]

The court ruled that various promotions of SC’s/ST’s category made by these Rules are non-est in the eyes of the law and persons promoted have to be reverted.

Obviously, the Madhya Pradesh Government is hurt after losing the battle for reservation in promotion. If the government reverts the promotion of the people promoted, an agitation against such an action will not be considered unusual. But as per the law, the Right to Appeal under Article 136 is not taken away. The Madhya Pradesh government can file a Special Leave Petition u/a 136 of the Constitution. This SLP can be filed in the period of 90 days from the date of judgment of the High Court. So given that the High Court decided the case on 30.04.2016, the SLP can be filed till 30.07.2016.

Conclusion

The decision will surely have an effect on the government job in the Madhya Pradesh on a large scale. A close reading of the SC verdict in Nagaraj case reveals the fact that the Court used the expression “creamy layer” while interpreting Article 16(4), 16(4A) and 16(4B) and in the process of specifying limitations on the amending power of Parliament regarding social reservations.

Reservation is a hot topic in any democracy. Though the laws have been laid down in this regard, the procedural requirements and workability of the provisions must be carefully scrutinized before awarding reservations. Grounds like inadequacy in representation, backwardness are to be carefully examined. The inadequacy of representation, the text of Article 16 clearly lies down that it is a matter of the state to determine. While it must base its determination on some materials, the importance is given to empirical evidence that is required.[9]Proper studies must be conducted by the state to determine the correct number.

RELATED Blog

Your Message

0 comments

Load more comments