June 06, 2018
In a case (The State of Maharashtra v. Vijay Ghogre & ors.) taken up by the Supreme Court yesterday, the Bench has directed that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter.
The Supreme Court’s direction was made in a case challenging Delhi High Court’s judgment passed in August last year, whereby the Court had struck down Circular issued by the Department of Personnel and Training (DoPT) in 1997. The Circular in question states that in furtherance of Constitution Bench judgment in the case of Indra Sawhney v. Union of India (AIR 1993 SC 477) and in pursuance of insertion of Article 16(4A) it has been decided to continue the reservation in promotion, as at present, for the Scheduled Castes and the Scheduled Tribes in the services/posts under the Central Government beyond 15.11.1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation whereafter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages far the respective categories.
Thus, in view of the Apex Court’s direction the Government can make reservations for SC/STs in promotion in accordance with law. The law pertaining to reservation in promotion was pronounced by Five-Judge Bench of the Supreme Court in the case of M. Nagraj v. Union of India (2006)8 SCC 212 , whereby the Bench made the following key observations in context of “extent of reservation”:
- That the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
- That with respect to the “extent of reservation” the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.
- That even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
The case can be accessed here.