Reservation in promotion: The 6 issues settled by Supreme Court on collection of quantifiable data on inadequacy of representation  

Supreme Court: The 3-judge bench of L. Nageswara Rao*, Sanjiv Khanna and BR Gavai has answered following 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts:

1)What is the yardstick by which, according to M. Nagaraj v. Union of India, (2006) 8 SCC 212, one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment?

In M. Nagaraj, the Court held that the State is not bound to make reservation for SCs and STs in matters of promotion. However, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335 of the Constitution of India. It was further made clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data.

Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage. Hence, no yardstick can be laid down for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation.

2)What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected?

Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The Union of India submitted that there are around 90 Ministries/Departments under the Government of India in which 30 lakh employees are working. Referring to information received from 44 Ministries/Departments out of the 90, the Union of India has stated that there are around 3800 cadres. Thousands of reservation rosters are being maintained in the various offices/units/sub-units of the Departments and Ministries in the Government of India.

Civil posts under the Government are organised into different services. A service constitutes ‘classes’/ ‘groups’ of posts. A ‘class’/‘group’ is further bifurcated into grades. Though the nomenclature might be different, the structure of services under the Union and the States is similar. According to the instructions issued by the Union of India, cadres are constituted for each grade.

The entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade. Promotion is made from one grade to the next higher grade, in relation to which cadres are constituted.

Before providing for reservation in promotions to a cadre, the State is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs. Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/‘group’ but it should be relatable to the grade/category of posts to which promotion is sought. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service

3)Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Article 16(4-A)?

In M. Nagaraj, the Court held that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, the Court declined the invitation of the learned Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test for determining inadequacy of representation in promotional posts.

Therefore, in the present case the Supreme Court refused to express any opinion on this aspect and reiterated that it is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors.

4)Should there be a time period for reviewing inadequacy of representation?

While Senior Advocate Indira Jaising, appearing for members of the reserved categories, supported the submissions of the learned Attorney General for India that a review should be conducted every 10 years, Senior Advocate Gopal Sankaranarayanan submitted that it is time for reservation in public employment to be discontinued. Additionally, he submitted that the lion’s share of reservation for members of SCs and STs accrued to the benefit of a select few within these categories, which further strengthened the requirement for review to appraise whether certain groups/classes within these categories had achieved the desired representation.

The Court did not express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive but it agreed with the submission that the data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out.

5)Whether the judgment in M. Nagaraj (supra) can be said to operate prospectively?

The judgment of M. Nagaraj was delivered in 2006, interpreting Article 16(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagaraj should be declared to have prospective effect.

This would avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj. Most of them would have already retired from service on attaining the age of superannuation.

6)Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by this Court in B.K. Pavitra v. Union of India, (2019) 16 SCC 129 (“B.K. Pavitra II”)?

In BK Pavitra II, it was held that the expression ‘cadre’ has no fixed meaning in service jurisprudence and hence, the collection of data on the basis of ‘groups’ is valid. On the contrary, in M. Nagaraj it was held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra II.

The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a ‘group’, is the unit and the data has to be collected with respect to each cadre.

Therefore, the conclusion in B.K. Pavitra II approving the collection of data on the basis of ‘groups’ and not cadres is contrary to the law laid down by this Court in M. Nagaraj and Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.

[Jarnail Singh v. Lachhmi Narain Gupta, 2022 SCC OnLine SC 96, decided on 28.01.2022]


*Judgment by: Justice L. Nageswara Rao

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