Reservation in Promotions #3: Bihar Gov Inclined to Withdraw Appeal on Old Reservation Policy

On April 21 2022, Justices L Nageswara Rao and B.R. Gavai heard the Bihar government’s challenge to the Patna High Court’s July 2015 decision declaring Bihar’s reservations for SC/ST candidates in government promotions unconstitutional. 

Senior Advocate P.S. Patwalia, appearing for the State of Bihar, stated the government’s intention to withdraw the appeal. The State government admitted that its policy was not based on data of caste representation in each ‘cadre’ of the State public services. 

Senior Advocate Indira Jaisingh, appearing for a group of SC/ST servicepersons in Bihar, vociferously opposed the withdrawal. She stated that the Bihar government’s website indicates that data was collected according to caste representation in each cadre. 

Bihar Government Wishes to Withdraw Old Policy Challenge and Restart With Clean Slate

In January 2022, while clarifying the 2018 5-Judge Supreme Court Judgment that upheld SC/ST reservations in public sector promotions, Justices Rao, Sanjiv Khanna, and Gavai held that reservation policies must be based on data of underrepresentation in the specific cadre sought to be reserved. Caste data for the entire service cannot be used to justify a reservations policy. 

The Bihar government conceded that its policy was based on the data of the service at large. It sought permission to withdraw its petition. In conformity with the 2022 clarifications, Mr. Patwalia communicated that the State government would start the data collection exercise afresh. 

Withdrawal Will Harm SC/ST Beneficiaries of Old Reservation in Promotion Policy

An agitated Ms. Jaisingh argued that the Bihar government’s concession would harm SC/ST candidates promoted based on the challenged policy. She said they would lose their promotions and consequential seniority. Justice Rao interjected, stating that the Court’s earlier stay order was sufficient to prevent this from happening until the validity of the policy was determined. . 

She further submitted that a report on the government’s website indicated that Bihar had in fact collected data based on representation within cadres. 

Mr. Patwalia argued that Ms. Jaisingh’s clients could continue to challenge the Patna High Court’s decision even after the government withdrew its appeal. He stated that Ms. Jaisingh was a busybody petitioner who was not harmed in any way by the withdrawal. 

Ms. Jaisingh continued to insist that the withdrawal was unnecessary. If the Bihar government wished to collect fresh data, it could do so while continuing to challenge the High Court’s decision. 

Unconvinced by Ms. Jaisingh’s arguments but inclined to study the report she mentioned in closer detail, the Bench directed Ms. Jaisingh to file a note explaining how the SC/ST beneficiaries would be harmed by the withdrawal. 

The matter will now be heard in May 2022.