Reservation In Promotions – M Nagaraj Judgment To Have Prospective Application To Avoid Chaos; Quantifiable Data Collection To Remain, SC Refuses To Lay Down Yardstick
In a landmark judgment, a three-judge bench of the Supreme Court comprising of Justice L Nageswara Rao, Justice Sanjiv Khanna, and Justice BR Gavai has held that the conclusion arrived at by the Court in B.K. Pavitra & Ors. vs. Union of India & Ors., (2019) 16 SCC 129 approving the collection of data on the basis of 'groups' and not cadres is contrary to the law laid down by the Court in M. Nagaraj & Ors. v. Union of India & Ors, (2006) 8 SCC 212 and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors., (2018) 10 SCC 396.
The Court culled out the following issues for its consideration:
1)What is the yardstick by which, according to M. Nagaraj (supra), one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment?
2)What is the unit with respect to which quantifiable data showing the inadequacy of representation is required to be collected?
3)Whether the proportion of the population of SCs and STs to the population of India should be taken to be the test for determining the adequacy of representation in promotional posts for the purposes of Article 16(4-A).
4)Should there be a time period for reviewing inadequacy of representation.
5)Whether the judgment in M. Nagaraj (supra) can be said to operate prospectively.
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 & Ors. v. Union of India & Ors.7 ("B.K. Pavitra II").
The Court noted Articles 16(4) and 14(4-A) are enabling provisions. The Court noted that it was held in M. Nagaraj that the discretion of State to provide reservation is subject to the existence of backwardness and inadequacy of representation in public employment.
It was also held that it was incumbent on the State to satisfy the Court that decision is supported by quantifiable data showing backwardness of the class and inadequacy of representation of that class in addition to Article 335 compliance.
The Court noted that it was established that it is neither legal nor proper for the Courts to issue directions or advisory sermons to the execute in the sphere that is exclusively in their domain under the Constitution.
The Court noted that the determination of inadequate representation of SCs and STs in services is left to the discretion of the State as the determination depends upon myriad factors. The Court noted that a conscious decision was taken in M. Nagaraj and Jarnail Singh to leave the fixing of criteria determining inadequacy of representation to the States.
The Court made the following crucial observations:
"Moreover, in M. Nagaraj (supra), this Court made it 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. Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation."
On the second issue, the Court noted that while it is clear that the unit for collection of quantifiable data is with respect to a cadre, it was quintessential to understand what cadre means. The Court noted that civil posts under government are organized into different services.
The Court held that before providing reservation in promotions to a cadre, State is obligated to collect quantifiable data regarding the inadequacy of representation of SCs and STs.
The Court noted, "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."
On the third issue, the Court was not persuaded to express any opinion. The Court noted that it was for the State to assess inadequacy of representation in promotional posts by taking into account relevant factors.
On the fourth issue, the Court noted that the data collected to determine inadequacy of representation for the purpose of providing reservation in promotions need to be reviewed periodically and the period should be reasonable that is left to the Government to set out.
On the fifth issue, the Court noted that the duty of the Court is not to pronounce a new law but to maintain and expound the old one. The Court noted that the doctrine of prospective overruling was invoked in I.C. Golak Nath & Ors. v. State of Punjab & Anr., (1967) 2 SCR 762 to save the past transactions.
The Court noted that power under Article 142 of the Constitution is transcendental to statutory prohibition. The Court noted that the doctrine of prospective overruling is in essence a recognition of the principle that the Court moulds reliefs claimed to meet the justice.
The Court noted, "There cannot be any manner of doubt that this Court can apply its decision prospectively, i.e., from the date of its judgment to save past transactions."
The Court noted that the purpose of holding that M Nagaraj would have a prospective effect is only to avoid chaos and confusion that would ensure from its retrospective operation as it would have a debilitating effect.
On the final question, the Court made the following observations:
"Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this court in M. Nagaraj (supra). The unit for the purpose of collection of data is a cadre, according to M. Nagaraj (supra) and Jarnail Singh (supra). … 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."
The Court concluded that the decision in Pavitra II is contrary to law in Nagaraj and Jarnail's Case