Oct 06, 2021
Sankaranarayanan: The State has to ask itself, is there inadequacy of representation of SCs or STs in a class or classes of posts.
If they find it inadequate, there are three considerations-
1.The extent of reservation. 15 and 7.5 have taken almost as a gospel.
2.Make an understanding of classes of posts where there is inadequacy.
Senior Advocate Gopal Sankaranarayanan continues,
3.The fact that there is an end time to this. There is an impression that when you give reservation in promotions, it goes on forever.
Bench rises. Hearing to continue.
Oct 06, 2021
Sr. Adv. Jaising: I just want to say, in the Madhya Pradesh judgment has even struck down the roster system.
SupremeCourt: Thank you, Ms. Jaising. Get well soon!
Senior Advocate Gopal Sankaranarayanan begins submissions.
Sankaranarayanan: Because you are upsetting the Constitutional balance, if it has to be sustained it must be a very clear exercise. Article 16 fell for consideration in Indira Sawhney.
The phraseology in 16 (4) is important and is almost identical to 16 (4)(a)
Oct 06, 2021
Sr. Adv. Indira Jaising appearing from a hospital room: Mr. Dhavan I can only see you! I cant see the judges.
Court: Can you not see us?
Jaising: No, I can only see Mr. Dhawan. He haunts me!
Oct 06, 2021
Sr. Adv. Jaising: If you don’t want over and under representation, then hold the DPC on an annual basis.
Sr. Adv. Jaising: Now we come to interpretation of Article 335. Again, Dr. Dhavan’s classic strategy in argument is allow the tail to wag the dog.
Sr. Adv. Jaising: Your Lordship has an onerous task before you. I only request, don’t foreclose the decision before taking into consideration all points of view.
Supreme Court to continue hearing the Jarnail Singh case wherein a constitution bench held that the issue relating to reservation in promotion has already been decided in Nagraj’s case & needs no reconsideration.
AG brings to the Court’s attention the constitution bench judgment in Sabarwal, a five-judge bench.
Discusses another five judge bench decision in Nagaraj: "We uphold the classifications.. do not obliterate equality." Sabarwal is fully upheld.
AG: This could be one method of reservation made for SCs and STs while maintaining equality, in compliance with the Constitution.
AG: I had told your Lordships yesterday, even in Madras it provided for a roster. There is a 200-point roster. (Reads out rules)
We have counted number of schedule castes, it comes to 36 which comes to 18% of the total.
AG: So far from the inception, the roster system has been the basis at the centre and in Tamil Nadu.
AG quotes a Delhi High Court Special Leave Petition where the 1997 memorandum was set aside: It was quashed on the ground that adequacy of representation was not looked into.
AG Venugopal reads out relevant extracts. Bench discusses amongst themselves.
AG continues: Therefore, your Lordships will be pleased to know that even though you can pin point and say 2.5% are the occupied posts because of the roster based.. we are able from 65 onwards following this procedure where you have accuracy. There are 53 dept.s in the Union.
AG: The Counsel for Maharashtra told me that they have 6000 cadres. The centre has about 5000, if there are 53 dept and 5000 cadres before a selection is made, you have to go into quantifiable data which was done in Karnataka by a committee.
AG: Here we will have to go into each cadre, this exercise is inbuilt into the reservation. I have to explain how the average, how did that come about?
Justice Rao: We appreciate that roster points according to Sabarwal.. but at the ground level for a long number of years, those posts are not filled up, in such cases is there not a requirement for the State to take into account inadequacy of representation?
AG: It is a fact of life. In 75 years, we have not been able to bring the SCs and STs to the same level of merit. They are admitted at entry-level, thereafter there is no reservation.
The time has come to that so far as quantifiable data is concerned is not very concrete.
AG: The time has come for your Lordships to give a concrete basis for SCs STs and OBCs to fill up posts.
Supreme Court: We are not concerned with OBCs right now, this is reservation in promotions.
Supreme Court: What else do you want to submit?
AG: There are four more issues, My Lord that I have not covered.
AG: In a roster system, automatically posts can get filled up. I sincerely say that Your Lordships may consider whether this is not an appropriate method.
Supreme Court: we wanted to ask you, what should the periodic review be?
AG: I think it can only be after a census.
Court: So, 10 years..
AG: This may be a matter of policy for govt. to decide.. such as from a maintenance man to a clerk.
SupremeCourt: According to your OA, there is no reservation for promotion in reservation within Group A. So, a person coming from C, will be entitled to B and even A, thereafter
AG: But he can’t get reservation for direct, and thereafter to junior or deputy secy. Efficiency is looked into.
AG: To what extent should reservations held for SCs STs that remain unfilled, be carried forward? Sabarwal says, “just and reasonable manner”
So, maybe two or three years.
That’s all I had to say.
Additional Solicitor General Balbir Singh begins submissions.
Singh: The data from 1965-2007 has been given in case of Groups A, B, C, D. It gives what the larger percent of SC ST and OBC.
It shows that in Group A there is a shortage and in B & C there is an excess.
SupremeCourt: No, there cannot be over reservation.
This is data regarding initial joining as well as promotional posts. Do you have data for promotional post alone and secondly, what about data post 2017?
Singh: There is a comprehensive annual data by the DOPT. If we see..
SupremeCourt: One minute.
Singh: How the annual statement is prepared, showing SC STs and OBCs at the beginning of the calendar year, in January.
Just to give a sample, I had emailed a chart pertaining to data as on 1 Jan, 2021 to give an explanation of data available.
SupremeCourt: This pertains to 19 ministries. How many more are there?
Singh: If we look at departments etc. more than 5000. I will see, Milord. What I was trying to point out is, there is data available. SC in this case is 15.34 and ST is 6.18
Singh: there are three anomalies. The reserve category is being identified on merit. Second, group D there are higher occupancy that is going to bring the number higher up and general category promotions may be lower. Third, there may be certain depts where reserve number is high
SupremeCourt: The problem with this is, the provision in the Constitution is that reservation in promotions is made for certain class or classes. If you solely go by this, then there is an imperative need to discontinue reservation in excess classes.
Singh: it has to be seen at a larger level rather than going down to vacancy to vacancy.
SupremeCourt: But larger level can't be seen based on assumptions, that’s why data.
What is the other criteria that the govt. can go into to think excess is okay?
SupremeCourt: If we accept the roster system applies, then there is a cap in reservation of promotion. If you come on the merit, fine. Then the question of adequacy will come in.
Singh: I think this is why the roster point system was identified.
SupremeCourt: No, no. You are not correct. The roster stops after all these posts are filled up then there is a replacement theory. There is no need for any further exercise to be done, it is already in place.
ASG Balbir Singh takes SupremeCourt through B.K. Pavitra vs Union Of India.
ASG Singh reads out relevant portions and submits: Unless there is arbitrariness in the picture coming out from the method being taken by Centre.
ASG: If my data today reflects that there is inadequate representation..
SupremeCourt: If we accept this reasoning, there will a problem. We are finding that in Grp. A, representation is low. Instead of correcting that, we are ensuring adequate representation in Grp B & C.
SupremeCourt: That is not fair.
Therefore, where there is inadequate representation in A, you are saying we have satisfied the constitutional requirement by meeting the representation in B & C!
ASG: I'm saying the govt is free, but how do we rectify an excess. Whether roster point is an answer to that?
ASG: While even identifying these factors, the Court said cannot follow penny by penny. If there is an individual error, the Court can look into it.
Senior Advocate Paramjit Patwalia begins submissions: Jurisprudentially, let me just say.. there are three stages.
One, introduction of reservation. Second, working- that if it is 15%, should not exceed the same. Third, review of what you have introduced.
Patwalia: This batch deals with the introduction whereas, Sabarwal dealt with working.
All that your Lordship now needs to see the inadequacy of representation. Pavitra has correctly decided this.
Patwalia: The scrutiny by the High Courts has been so rigorous, 2006 onwards, reservation was not there.
Only now in Karnataka has been implemented.
Patwalia: Pavitra has to be seen in its holistic sense. If we go cadre wise, it will become impossible. In the police dept..
SupremeCourt: Whether there are how many cadres, in the age of computerisation is it hard to see how many SCs etc.?
Patwalia: Its just not workable.
SupremeCourt: That’s what the Court and AG said, that it should be cadre wise.
Patwalia: What is workable? This- you examine the dept. or service as a whole and then apply strictly the Sabarwal principle.
SupremeCourt: You are yourself saying cadre wise is to be undertaken..
Patwalia: Every govt when it conducts the exercise, it calls for information, from evert dept. from each cadre. It will always happen, like in Bihar, that in 99% cadres they were under-represented.
SupremeCourt: If your contention is that the entire service is taken as a base, what happens to “class” or “classes” in the Constitution.
Patwalia: Class should be interpreted as “Class A”, Class B” etc.
SupremeCourt: Your submission that the entire dept. must be taken, the Constitution itself says “class”.
Patwalia: While accumulating data, each cadre to be seen then you have to take a view for a state as a whole for example, "Group A" and "Group B"
Patwalia: Dealing with Sabarwal. It was a judgment on implementation of reservation and said you cannot excess, stop roster when you have excess.
Patwalia: Second thing, person who comes on merit, not to be considered in reservation and Pavitra also accepts. In fact, much of your Lordships exercise has already been done by Pavitra.
Patwalia: On the issue of creamy layer, no one has addressed. This is an important issue. Pavitra has discussed this issue.
Patwalia: It was a case of consequential seniority. They said that the concept of creamy layer does not come in case of consequential seniority.
SupremeCourt: In view of Jarnail Singh, can we go into this?
SupremeCourt: We will restrict this hearing.. lets not broaden the scope.
Senior Advocate Rajeev Dhavan makes submissions, reads from Nagraj.
"In this regard the State concerned will have to show
in each case the existence of the compelling reasons,
namely, backwardness, inadequacy of representation and overall administrative efficiency before..."
Senior Advocate Rajeev Dhavan submits that there are other more recent judgments that he will come to after taking the Court through Nagaraj.
Sr. Adv. Dhavan: Class can only mean- classes between whom the Court or govt. is deciding. It has to come down to cadre, it cannot be grouped or general.
Sr. Adv. Dhavan: There is a recent judgment that reintroduces the catch-up rule. (Prabhakar 2020 SCC 297).
Sr. Adv. Dhavan: There is a new article in the Constitution introduced by the 103rd amendement- Article 16 (6).
It does not apply to 16(4)(a) & (b).
Sr. Adv. Dhavan takes Court through judgment in BK Pavitra vs. UOI.
There are deputy or chief engineer posts, if there are 15 posts, 14 are occupied because of this, submits Sr. Adv. Dhavan.
Sr. Adv. Dhavan: Such a general survey resulted in the Court ordering that the judgement act retrospectively even though there was no data.
SupremeCourt: Mr. Dhavan, can you please adjust your mic? You go off sometimes and then we cant hear.
Sr. Adv. Dhavan: Ahh, yes. I’ve been known to do that! (laughs)
Sr. Adv. Dhavan: When you’re dealing with cadres, sampling can never be the basis.. If it is quantitative data, when does sampling come in?
Sr. Adv. Dhavan: The data has to be weighty and comparable. Groups include cadres. Two people in the same cadre competing with each other for a post.
The ultimate result that comes, is done on the basis of groups taken across the years.
Sr. Adv. Dhavan: There was retrospectivity since 1978, there was no data even at that point. Data also came in 1984.
To the question that should it always be prospective..
Sr. Adv. Dhavan: If it is only prospective, those people who’ve been fighting the case for several years, their interests will be prejudicially affected.
Sr. Adv. Dhavan submits that the Court in Pavitra held even if there’s neutral criteria available, it may not be enough.
He reads, “Reservation is encompassed within the special provision but the universe of the latter is wider.”
Sr. Adv. Dhavan: I have always taken the view that I am neither in favour of reservation nor merit and this is consistent with the Court’s view. Balance.. we have to maintain balance.
Sr. Adv. Dhavan: Consequential seniority is also an aspect Your Lordships should look at. Efficiency is not a narrow issue.
Reject an SC ST, and they are marginalised! This is not quite a correct reading of Article 335, its proviso and its purpose.
Sr. Adv. Dhavan: Instead of concentrating on reservations and amending the Constitution. In your Library, there is my book...
(Sr. Adv. Dhavan loses network)
Sr. Adv. Dhavan summarises: The first point is that the whole of Para 123 is important.
No. 2, the power that is exercised is necessarily a guided power.
Sr. Adv. Dhavan summarises: No. 3, can’t be done by class or groups. Has to be done by cadre. If not, Your Lordship will have to overrule at least 16 decisions I have argued.
Next is, justiciability and the catch-up rule.
Sr. Adv. Dhavan summarises: Finally, Pavitra is a decision your Lordship might consider as inadequate data, premises, based on groups rather than cadres with a very wide width of retrospectivity and using the sampling method rather than the rigorous method.
Senior Advocate Indira Jaising begins submissions.
SupremeCourt: Before you start, how are you Ms. Jaising?
Jaising: I am much better. I am grateful for your indulgence.
Sr. Adv. Jaising: Now, before I start I must bring it on record, I am appearing for the Reserved category.
Sr. Adv. Jaising: India’s constitution is unique in the world in providing reservation for services. In Indra Sawhney, the difference between reservation and affirmative action was explained.
Reservation is where you have separate ques, affirmative action is any other action in furtherance of introducing schemes towards equality such as scholarships etc. But if you read the Court’s judgments there is a confusion, explains Sr. Adv. Jaising.
Sr. Adv. Jaising: No state in India has made reservations in promotions after 2006, the reason being the Nagaraj judgement wanted quantifiable data. Everyone is struggling to understand what this means.
Sr. Adv. Jaising: 16(4) after all uses the word "representation" qualified by “adequate”. Why? Why do we have this right? Because it is a goal in itself in a democratic republic for moving towards an inclusive society. A society in which people share State power.
Sr. Adv. Jaising: The question has been raised on what basis one draws demographic figures. By law, there is a difference between a census and showing figures of representation in a cadre.
The difference was on methodology.
Sr. Adv. Jaising: One thing on periodicity. It occurs every 10 years for a reason, since in anthropological, sociological terms, 10 years is considered one generation.
There is a logic for the figure of 10 years.
Sr. Adv. Jaising: Where does that leave us? It has been repeatedly harped that Nagraj held that equality is a basic feature of the Constitution, I beg to differ.
Whatever was held in Kesavananda Bharati, I am willing to accept that.
Sr. Adv. Jaising: At the stage of making actual reservation, what is the unit? It is the cadre, I agree. The concern here is that I must not grab the benefit of what has gone to the unreserved category.
Sr. Adv. Jaising: If you accept the argument by Mr. Dhavan, in effect the reservations for SC ST will be denotified.
I know what they want, in a given year if you cant find an SC ST, the vacancy will be filled up by an unreserved.
Sr. Adv. Jaising: For adequacy, it is a mathematical exercise.
Once Sabarwal is implemented in letter and spirit, there can never ever be over representation of SC & ST, nor will there be under.