Pronouncement of Judgment: Reservation in Promotion (Clarifications)

On January 28th 2022, Justices Nageswara Rao, Sanjiv Khanna and B.R. Gavai delivered a Judgment reaffirming that State governments must justify reservation in promotion policies for SC/ST candidates through quantifiable data. The Bench declined to answer many of the State governments’ questions about the implementation of the 5-Judge Bench decision in Jarnail Singh (2018). Rao J, pronouncing the Judgment for the Bench, provided some clarity by stating that promotional reservation policies must be based on data of inadequate representation in the specific post sought to be reserved, not the entire service. He also clarified that State governments must devise a system of reviewing data in a reasonable time period. 

In 2018, Justice R.F. Nariman, writing for a 5-Judge Bench, held that State governments could only formulate reservation in promotions policies after obtaining credible data proving inadequacy of representation. Many State governments have seen their reservation in promotion policies stayed by High Courts since 2018 due to their inability to meet the data requirements set out in Jarnail Singh (2018). Today’s Judgment was expected to clarify the meaning of ‘adequacy in representation’ for State governments. Given the Bench’s reluctance to engage with many of the queries raised, State governments may continue to struggle to make sense of the Court’s data requirements. 

Yardstick For Inadequacy In Representation Cannot Be Determined By SC

In keeping with Nariman J’s 2018 Judgment, Rao J’s Bench stated that the Court cannot determine the ‘yardstick’ for inadequacy in representation—Article 16(4) mandates that the yardstick should be determined by the State government. 

In the course of the hearing, Attorney General K.K. Venugopal had stated that much of the current confusion had occurred because different State governments use different methods to determine inadequate representation. This means that in some States that follow a particular kind of roster system, SC/ST candidates have to wait years before their chance as a reserved vacancy in high ranking offices arises. 

Mr. Venugopal had urged the Bench to decide which method was most efficient and to order its uniform application. The Bench’s refusal to do so leaves the confusion to continue. The Bench will hear arguments on the validity of specific yardsticks devised by different State governments starting in March 2022. The decisions on these specific policies may provide clarity on the issue. 

Adequacy of Representation In the Specific Cadre Matters, Data From The Whole Service Is Meaningless

The Bench held that data on inadequate representation must be collected for the specific cadre or post in which reservation is planned. The Union government, during the hearings, had argued that reservations in promotion should be granted only if the group was underrepresented in the whole service, not just in the reserved post. The Bench rejected this argument today. Khanna J had earlier stated that SC/ST candidates could be denied reservations in higher ranking posts within the service if their representation in lower paying posts made the data indicate that they were well-represented in the service. 

The Bench’s detailed reasoning for this decision is expected later in the day.