SC to revisit its 2006 verdict barring reservation in promotion

New Delhi :  A seven judge constitution bench of the Supreme Court will hear, as a routine exercise, the Centre’s plea seeking a re-look at 2006 judgment that had barred reservation in promotion on the grounds that a large number of posts are lying vacant due to it.

A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud on Wednesday said that the seven judge constitution bench would hear the plea by the Centre and others as Attorney General K.K.Venugopal urged the court to hold an early hearing of the matter as thousands of vacancies are lying vacant for the lack of promotion in wake of the 2006 judgment.

The court said that the hearing will commence on August 3 and asked all the contesting parties to submit their written submissions.

It had earlier said that both the sides those seeking a re-look at 2006 judgment by five judge constitution bench and those opposing it would get two hours each to make their submission.

At the outset of the hearing, senior counsel Rajeev Dhawan referred to May 17 order of the bench comprising Justice Kurian Joseph and Justice Mohan M. Shantanagoudar by which directed that the Centre would take “steps for the purpose of promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merits”.

He told the court the matter needs to heard at the earliest, a suggestion supported by Venugopal who told the court that 2006 judgment also known as Nagaraj judgment was coming in the way of promotions and affecting administration.

Giving the numbers of positions in railways and other department awaiting to be filled up, the Attorney General said: “It requires immediate consideration, it is effecting the administration.”

However, the plea was opposed by senior counsel Shekhar Naphade who wanted the Centre and other seeking a re-look at 2006 judgment to spell out the grounds for such a reconsideration of the matter.

Taking exception to two judge bench directing the reconsideration of the issue decided by five judge constitution bench 12 years back in 2006, Naphade said that “this institution (Supreme Court) should function as unified court and not as many Supreme Courts. This practice of referring ba matter to a larger bench must stop merely if some bench feels a matter needs reconsideration.”

“Let them specify on what grounds Nagaraj needs reconsideration. We must know on what grounds they are attacking Nagaraj,” he said, asserting that he would show to the constitution bench that “Nagaraj had considered every aspect.”

While upholding the 2001 Constitution’s Eighty-Fifth Amendment by which Article 16(4A) was inserted providing for reservation in promotion was inserted with retrospective effect from June 16, 1995, the top court’s five judge constitution bench had described it as an enabling provision holding that the State is not bound to make reservation for SC/ST in matter of promotions.

“However if they wish to exercise their discretion and make such 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,” the 2006 constitution bench judgment had said.

“It is made clear that even if the State has compelling reasons, …, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely,” it added.

Published on: July 11, 2018 at 22:02 IST

IANS