New Delhi: The central government on Friday made a strong pitch in Supreme Court for reservation in promotion for employees belonging to the SC/ST community.
Attorney General KK Venugopal, appearing for the Centre, argued that affirmative action would remain an illusion if the most backward classes are deprived of reservation as he contended that they should get 23 per cent quota in promotion.
He said that the reservations were given to SCs and STs categories to correct a wrong as they had suffered for more than 1000 years.
To this, a five-judge bench headed by Chief Justice Dipak Misra asked why states have not yet come forward with any quantifiable data to decide the inadequacy of representation of SC/STs in government services even 12 years after its verdict on the ‘creamy layer’.
The 2006 M Nagaraj verdict had ruled against quotas in promotions for the creamy layer, ordering that SC/ST employees could only get guaranteed promotions if the government presents data to justify the quota.
The Centre said that the verdict has virtually stopped the promotions by putting criteria like backwardness, inadequate representation and overall administrative efficiency, and it requires reconsideration by a larger bench.
Venugopal said these criteria should be done away with as SCs and STs are presumed as backward and there was no need to have a quantifiable data to prove that such categories of employees suffered from backwardness.
The bench, also comprising justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra, said that if the Centre’s stand is that 2006 verdict requires reconsideration, it should prove that the judgment was wrong in asking the states to first get quantifiable data to prove backwardness of SCs and STs before granting reservation in promotions in government jobs.
“Why no state after the 2006 verdict till now, have not undertaken any exercise of collating the quantifiable data about inadequacy of SCs and STs representations in promotion for each cadre of government jobs,” the bench said.
The AG replied that such data is not static but dynamic as people keep retiring or they die and the data keeps fluctuating.
He also argued that SC/STs are presumed as backward and there was no need to have a quantifiable data to prove that such categories of employees suffered from backwardness.
“The 1992 verdict in Indra Swahney case (popularly called Mandal Commission verdict), had said that test of backwardness cannot be applied on SCs and STs as they are presumed to be backward,” he said.
The bench, said that Article 16(4) of the Constitution deals with considerable representation and if there is a quantifiable data then state is within its right to grant reservations in appointments.
It said that the 2006 verdict said that accelerated promotion to SCs/STs can only be given by the state, if they are inadequately represented and it is necessary for overall efficiency of administration. “These all should be based on quantifiable data,” it said.
Article 16(4) says “nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.
The hearing remained inconclusive and would continue on August 16. The five-judge Constitution bench is examining whether its 12-year-old verdict that had dealt with the issue of ‘creamy layer’ for reservations to SC and ST categories in government job promotions needs to be re-visited by a seven-judge bench.