SC go-ahead for reservation in promotions, as per law

New Delhi :  The Supreme Court on Tuesday permitted the Centre to go ahead with reservation in promotions to certain categories of staff in accordance with law but did not stay a Delhi High Court judgment that quashed an office memorandum on such reservation.

“It is made clear that the Union of India is not debarred from making promotions in accordance with law,” a vacation bench of Justice Adarsh Kumar Goel and Justice Ashok Bhushan said, holding that it would be subject to further orders of the apex court.

The Centre had sought an ‘ex parte ad interim’ stay on the High Court’s verdict dated August 23, 2017 wherein the office memorandum dated August 13, 1997 for reservation in promotions to Scheduled Castes and Scheduled Tribes was quashed since it did not conform to the conditions stipulated in the top court’s Constitution Bench judgment in M. Nagaraj case in 2006.

The office memorandum was based on Article 16 (4A) of the Constitution, which says that the State can make provisions for reservation in matter of promotions with consequential seniority in favour of the SCs/STs.

Holding that nothing came in the way of the government going ahead with reservation in promotions, the court tagged the Centre’s plea with another pending matter that would be heard by the Constitution Bench.

Arguing the matter, Additional Solicitor General Maninder Singh placed before the vacation bench an order passed on May 17 by a bench headed by Justice Kurian Joseph which said that the government could go ahead with the promotions in all categories.

“It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merit,” said the May 17 order.

The top court’s Tuesday order came on the Centre’s plea that challenged the High Court’s August 23 order of last year whereby the latter had restrained the Union government from granting any reservation in promotion to SCs/STs, in exercise of the power conferred by Article 16(4A) of the Constitution without acquiring quantifiable data indicating inadequacy of representation of SCs/STs and other relevant factors.

The top court’s order on Tuesday noted that “the Union of India is not debarred from making promotions in accordance with law… has resulted in both the government counsel and those appearing for the respondent NGO All India Equality Forum making conflicting interpretation of that part of the order which reads ‘in accordance with law'”.

The Additional Solicitor General asserted that the order had cleared the deck for the government to go ahead with the promotions which were on hold for the last several years. He said that the May 17 interim order can also be read as law.

However, advocate Kumar Parimal, who assisted NGO’s senior counsel Shanti Bhushan, said the part of the order saying “in accordance with law” would mean the August 23, 2017 High Court judgment by which the Centre was restrained from granting reservation in promotions.

He said the Centre had come to the top court to challenge the order dated August 23, 2017, and the same had not been stayed on Tuesday and was the law of the land.

Sharing Parimal’s stand, Maharashtra’s chief standing counsel Nishant Ramakantrao Katneshwarkar said that “in accordance with law” can only be read to mean that the August 23 ruling of the High Court had not been stayed by the top court.

Defending ASG Maninder Singh’s position, government counsel R. Balasubramanian said the government could rely on Tuesday order and issue fresh office memorandum to restore reservation in promotions to certain categories of employees.

Published on: Jun 5, 2018 at 18:52 IST

IANS