Jarnail Clarifications Day #1: AG Venugopal argues, no process for determining under-representation

October 5th 2021

On October 5 2021, a three- judge bench comprising Justices Nageswara Rao, Sanjiv Khanna and B.R. Gavai heard the  130 petitions regarding the implementation of the Court’s decision in M Nagaraj v Union of India (2006).

In M Nagaraj (2006), the Court held that State governments had the discretion to provide SC/ST candidates reservations in promotion after fulfilling three conditions:First, the State must show the backwardness of the group through quantifiable data;second, it must show that the class is inadequately represented in the position/service for which reservations in promotion will be granted; and finally, it must show that the reservations are in the interest of administrative efficiency.

The Union asked the Court to reconsider Nagaraj  in Jarnail Singh v Lacchmi Narain Singh (2018). Writing for a five-judge Bench, Nariman J refused to do so. However, the Bench decided that the requirement of States demonstrating backwardness when granting reservation in promotion violated Indira Sawhney v Union of India (1992). In Indira Sawhney, it was presumed that once a group is added to the ‘Presidential List’ under Articles 341 and 342 of the Constitution of India, there is ‘no question’ of showing backwardness of the Scheduled Castes and the Scheduled Tribes all over again. However, Jarnail Singh required the government to demonstrate under-representation in the specific department through quantifiable data before providing reservation in promotion.

At the first hearing on September 15, 2021,  the Court had refused to reconsider  Jarnail Singh. Senior Advocate Indira Jaising had submitted that the Union government’s failure to frame rules for the implementation of Nagaraj led to confusion over what constituted ‘adequacy in representation’ in public employment.

What ‘Yardstick’ Should Be Used to Determine Inadequate Representation? 

Attorney General (AG) K.K. Venugopal took the Court through the existing jurisprudence on reservations in promotion. He read out relevant excerpts from Indira Sawhney (1992), R.K. Sabharwal v State of Punjab (1995), M Nagaraj (2006), Jarnail Singh (2018), B.K. Pavitra II (2019) and Mukesh Kumar (2020).

He then set out the first four issues in the present group of petitions.

First, he stated that the Court must decide what ‘yardstick’ should be adopted to arrive at quantifiable data for actual representation. The requirement for quantifiable data was laid down in M Nagaraj (2006), and upheld in Jarnail Singh (2018).

AG Venugopal stated that courts have not inquired into the process of determining under-representation. According to him, the present contentions have arisen because different departments and State governments have been using different methods for this determination.  In Jarnail Singh, Nariman J observed that Article 16(4)(a) deliberately left this determination up to the concerned State governments, and refused to interfere. However, in B.K. Pavitra v Union of India-II (2019), Chandrachud J held that the roster points system from RK Sabharwal (1995) may still be followed, and that reserved seats must be calculated against the total number of posts in the cadre, not against the number of vacancies. Finally, in Mukesh Kumar (2020), Rao J had held that the process of determination must be left up to State governments, but it was not beyond judicial review.

AG Venugopal submitted that the percentage of SC/ST individuals in the total national population is preferred by the Union government as  ensure that the 50% limit on reservation is not breached.

Next, he argued that the number of reserved seats should be computed by taking each ‘cadre’ as a unit. Hence, the percentage of reserved seats would be calculated against the total strength of the department. The alternative would be to calculate reserved seats against vacant positions only. The AG argued that RK Sabharwal provided for using the entire cadre as a unit, and more recently, Jarnail Singh upheld it.

The third issue raised by the AG was concerned with the criteria to determine whether efficiency in administration was maintained.

The fourth issue was whether the Court’s directions from Nagaraj onwards should have  retrospective effect. AG Venugopal stated that subordinate courts had been applying Nagaraj retrospectively. He gave the example of the Delhi High Court’s directions in All India Equality Forum v Union of India (2017). The Delhi High Court had quashed all appointments made under an Office Memorandum (OM) from the Union’s Department of Personnel and Training. The OM, passed in 1997, extended the policy of reservation in promotions beyond the 5 year limit set out in Indira Sawhney. The Delhi High Court held that the OM did not meet the M Nagaraj (2006) conditions, and so, was unlawful. AG Venugopal stated that such retrospective application would cause reconsideration of thousands of candidates’ promotions over nearly twenty years. Many retired officers would suddenly be notionally demoted, and their pensions would be adversely impacted.

Khanna J stated that  the Union government had issued the 1997 OM based on its interpretation of Article 16(4). In 2006, the Nagaraj bench had provided the correct interpretation of the provision, requiring data to prove under-representation for reservation in promotion. If the Union decided to continue offering reservation in promotion after 2006, it should have acquired data to back up the decision. The reservation in promotions policy is based on the assumption that eventually, SC/ST categories will be adequately represented in public employment, making the continuation of the policy unnecessary. Hence, the 1997 OM should have been modified after Nagaraj.

Rao J asked if the Union government had collected any data to prove under-representation since 2006. AG Venugopal argued that the government had continued to follow the roster posts system, and this had ensured that the 50% limit was not breached.

Additional Solicitor General (ASG) Balbir Singh submitted that the Union had continued to make appointments under the 1997 OM even after Nagaraj , since the roster system was not struck down by the Nagaraj bench.

Rao J clarified that the roster system dealt with the modalities of reservation. The bench was inquiring into adequacy. The question at issue was not if the Union can use the roster system to implement reservation in promotion, but on what basis it had decided to continue such reservation in the first place. After Nagaraj, this basis had to be proved in data.

AG Venugopal submitted that limited data existed for the Central Administration, which stated that SC/ST candidates were under-represented in Group A and B posts. However, they exceeded the required percentage of reservation in Group C and D. AG Venugopal stated that this may be because Group C and D are clerical and ‘labour’ posts.

The bench asked the Union government to use the Central Administration data as a case study, and establish an adequacy test for representation. Khanna J stated that the Court cannot come up with this test since it is unaware of the details of each department’s functioning.

ASG Venugopal will continue his arguments tomorrow (October 6th, 2021). The bench has directed him to submit details of any data collected for reservation in promotions after Nagaraj.