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Bhim Army Chief Chandra Shekhar Aazad has moved the Supreme Court seeking a review of its recent decision in the case of Mukesh Kumar and Anr vs the State of Uttarakhand, by which it had held that reservation in promotions is not a fundamental right and that states are not bound to provide the same.
On February 7, a Division Bench of Justices L Nageswara Rao and Hemant Gupta rendered the judgment which held, among other things, that state governments are not bound to provide reservation in promotions in public services. Reservation in promotions, is not a fundamental right, the Court had held.
Amidst the furore over this decision, a review has been sought on the grounds that the judgment has "diluted constitutional provisions" and that the interpretation of the same has been done in a manner contradictory to the settled law and judicial propriety.
Ambedkarite activist and lawyer Chandrashekhar Aazad, along with the General Secretary of Shia organization Anjuman-e-Haideri, Bahadur Abbas Naqvi, has moved the Apex Court seeking review.
The review petition claims that this judgment will lead to a position where the states are given "a free hand" to completely do away with reservations for the Scheduled Castes, Scheduled Tribes, and Other Backward Classes. This is against the constitutional protection extended to them, the plea claims.
The judgment will not only allow the states to ignore the criteria concerning collection of quantifiable data for assessment of inadequacy of representation, but will also be "detrimental to the interests of the weaker sections", the review petition argues.
"The impugned judgment is not only sweeping in its scope, but has intermingled various propositions and laid down principles that are erroneous on the face of the record and severely detrimental to the interests of the SC, ST which as per the judgment of the Constitutional Bench in Indira Sawhney are the most backward amongst backward classes."
Review petition filed by Aazad and Naqvi
Amomg other things, the judgment under question had also stated that the collection of quantifiable data is not required when the state government has decided not to provide reservations. In such a scenario, the state governments cannot even be compelled to provide reservation in promotion, the Court had held.
This, the review petition states, will lead to higher level of inequality. It is also contended that the same is in the teeth of Article 16 of the Constitution, which provides for equality in opportunity.
Invoking the Supreme Court's decision in the M Nagaraj case, the review petition says that the February 7 ruling is in direct violation of the legal principle laid down in Nagaraj case and has failed to take the same into account.
The judgment also does not factor in the mandatory provisions under Article 335 or Article 46 of the Constitution of India and overlooks the amendments made to Article 15(6) and 16(6), the review petitioners have claimed.
The review petition is drawn by Advocate Mandoor Ali and filed by Advocate Mehmood Pracha.