Murali Krishnan and Aditya AK.The Supreme Court is set to reopen the debate on reservations in promotion once again, in view of a challenge relating to the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution..A three-judge Bench of Chief Justice of India Dipak Misra and Justices AK Sikri and Ashok Bhushan today referred the matter in State of Tripura & others vs Jayanta Chakraborty to a Constitution Bench to decide specifically on whether the 2006 Supreme Court judgment in M Nagaraj v. Union of India should be reconsidered..This Constitution Bench will decide the limited question of whether the decision in M Nagaraj v. Union of India should be reconsidered or not and will not go into the merits of the matter..Yesterday, the Bench of Justices Kurian Joseph and R Banumathi had opined that the matter be placed before a Constitution Bench, and therefore referred the matter to the Chief Justice..Attorney General KK Venugopal today brought the above order of the Division Bench to the notice of the Chief Justice. Lawyers appearing for various respondents submitted that a Division Bench cannot directly refer a matter to a Constitution Bench..Today’s Bench, however, did not go into that aspect, instead holding that it would constitute a Constitution Bench to decide whether to reconsider M Nagaraj v. Union of India or not..In the order passed yesterday, the Bench noted that the issue of interpretation of Article 16 – especially in the context of three apex court cases on reservations, namely, Indra Sawhney and others v. Union of India, EV Chinnaiah v. State of AP and M Nagaraj and others v. Union of India and others – was under debate..It was further noted that there were calls to revisit M Nagaraj, given the fact that it failed to refer to Chinnaiah, which preceded it. Moreover, it was argued that the test of backwardness for the SC/ST community, as mandated by M Nagaraj, requires a relook..In its 2006 judgment of M Nagaraj, the Supreme Court had held that the state is not bound to make reservations for SC/ST in matter of promotions. However, if they wish to exercise their discretion and make such a 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..It was also held that even if the state has compelling reasons, it will have to see that its reservation provision does no breach the ceiling-limit of 50%, or obliterate the creamy layer, or extend the reservation indefinitely..A plethora of Senior Counsel, including Indira Jaising, PS Patwalia, A Mariarputham, Sanjay Hegde, Subramanium Prasad, Rajiv Dhavan, and Nidhesh Gupta appeared for various parties..The Division Bench also noted that questions surrounding the creamy layer principle for reservations articulated in Indra Sawhney were raised by the lawyers during the course of hearing. The Constitution Bench has been called upon to dive into all of these aspects..The matter is an appeal against a judgment of the Tripura High Court filed by the state government in 2015. The petitioners before the High Court had challenged the vires of Section 4(2) of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of vacancies in services and posts) Act, 1991 and Rule 9(2) of the SC/ST Rules..The petitioners had argued that by virtue of these provisions, persons belonging to the general category had been deprived of their right to equality, as the state granted promotions to the reserved category candidates in violation of the law laid down by the Supreme Court in M Nagaraj..That case laid down a three-fold test to guide the state’s reservation policy for the SC/ST category; the factors being.(i) backwardness of the class;.(ii) inadequacy of representation in service; and.(iii) overall administrative efficiency..Further, the 5-judge Constitution Bench in M Nagaraj also held that the state has to gather quantifiable data to determine adequacy of representation and extent of backwardness of a certain class..The petitioners contended that without assessing the backwardness or inadequacy of reservation, promotions have been made much in excess of the cap of 50% ordained by law. The state, on the other hand, argued that the 50% ceiling limit laid down by the Apex Court in Indra Sawhney’s case was relaxable in states like Tripura, where SCs and STs together constitute 48% of the population..The judgment delivered by the High Court heavily relies on M Nagaraj, and the impugned provisions were read down in context of the same. It held,.“…only those SC and ST candidates who have qualified solely on the basis of merit and have never taken the benefit of reservation will be treated to be own merit candidates and entitled to occupy the posts meant for the general category.”.It was further held that reservation must be made cadre-wise and not department-wise, and that where the SCs and STs are adequately represented in the cadre, reservation cannot continue any longer..An appeal against this judgment was filed in 2015, and two years later, the same has finally been referred to a larger bench..Read yesterday’s Supreme Court order:
