Reservation in Promotion #2: SC Keen To Resolve Lingering Data Question

On March 30th 2022, Justices Nageswara Rao and B.R. Gavai granted respondents from the General Category two weeks to respond to the Union Government’s latest affidavit defending its reservation in promotions policy for SC/ST candidates. 

Currently, the Court is reviewing the criteria used to devise the Union Government’s reservation policy. The High Courts of Punjab and Haryana and Delhi found two different Office Memorandums (OMs) reserving promotional posts for SC/ST candidates unconstitutional due to lack of reliable data. The Courts quashed the OMs, after which the Union Government challenged their decisions.

These proceedings arise from long standing disputes surrounding reservation in promotions for SC/ST government employees. In 2018, a five-Judge Bench headed by former CJI Dipak Misra affirmed M Nagraj (2006). The Court upheld the validity of four constitutional amendments made between 1995 and 2001 which combined to extend reservations in promotions for SC/ST candidates. 

Governments, as per Nagraj, are expected to use contemporary and reliable data to show that SC/STs are under-represented in the posts sought to be reserved. They must also prove, using data, that the reservation will not affect administrative efficiency. 

Since the Judgment, both the Union and State governments have struggled to provide data to justify reservations in promotion policies. The Union and State Governments approached the SC after 2018 seeking clarity on two broad questions. First, what does inadequate representation in a class of posts mean and how can it be proved by data? Second, what does maintaining efficiency in administration mean and how can it be guaranteed by the State?

In January 2022, Justices Nageswara Rao, Sanjiv Khanna, and B.R. Gavai delivered a Judgment on the clarifications sought. Notably, the Bench stated that governments must devise their own criteria for determining whether SC/STs were adequately represented in the posts proposed for reservation. The Court may review the government’s yardstick, but it cannot dictate it. Today’s hearings are a step towards such a review. 

Union States That Quashing OMs Will Affect 4.5 Lakh SC/ST Employees

In an affidavit submitted on March 28th 2022, the Union Government informed the Court that the quashed OMs were based on data collected from the relevant ministries. It further argued that quashing the OMs would affect nearly 4.5 lakh SC/ST employees adversely. It would lead to the retrospective revision of their positions, salaries, and pensions. 

Chastising the Union Government for filing the affidavit the day before the hearing was scheduled, Justice Rao stated that the Bench and the lawyers appearing for the General Category candidates—in whose favour the High Courts had ruled—needed more time to understand the Union’s argument. The General Category candidates were given one week to reply to the affidavit. 

Displeased with Request for Review, Justice Rao Keen To Resolve Case Before Retirement

Senior Advocate Rakesh Dwivedi, appearing for General Category employees, mentioned that he had filed a petition for the Court to reconsider its January 2022 ruling. The Court stated in January that Nagraj (2006) would apply prospectively, an effort at minimising the chaos of reconfiguring promotional reservations granted between 1995 and 2006. 

The Bench appeared disinclined to entertain the request for revision, stating that there must be some conclusion to this dispute. Justice Rao noted that he had prioritised this case, which has been pending for years, over many other urgent matters since it was clear that a large number of government employees would be affected by the outcome. Justice Rao appears keen to resolve the dispute before he retires in June 2022—assigning the case to a new Bench is likely to cause further delays. 

The case will be heard next in two weeks.

To access court documents and to read more of SCO’s incisive journalism on past hearings of this case, click here.