Reservation in promotions: SCs/STs faced social exclusion, Centre tells SC

Aug 16, 2018New Delhi: The Centre on Thursday pushed for reservation in promotions in government jobs for Scheduled Castes and Scheduled Tribes as it told the Supreme Court that members of these communities had suffered social exclusion for centuries and can’t be excluded from the benefit as they are backward.

Referring to their social status, Attorney General K.K. Venugopal said: “They don’t have inter-caste marriage. They have to marry within their own caste. They can’t ride a mare for their wedding.”

The Centre’s stand was made before a five-Judge Constitution Bench headed by Chief Justice Dipak Misra which is hearing a plea for the reconsideration of a 2006 top court judgment that said that reservation in promotion for SCs/STs can take place only if there is a quantifiable data showing inadequacy of their representation, coupled with overall efficiency of the administration.

The Centre is seeking reconsideration of the 2006 judgment by a seven-Judge bench. The earlier verdict — knows as Nagaraj judgment based on petitioner M. Nagaraj’s name — was delivered by a five-Judge bench and it can only be reconsidered by a larger bench.

Venugopal told the bench also comprising Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Sanjay Kishan Kaul and Justice Indu Malhotra that “(The) Nagaraj (judgment) is admittedly erroneous as it says that you require quantifiable data for reservation in promotion”.

The court had upheld in 2016 the validity of Constitution’s 85th Amendment by which Article 16 (4A) – providing for reservation in promotion with consequential seniority – was inserted in the Constitution.

The reservation in promotions was to come into effect retrospectively from June 17, 1995.

The judgment pronounced on October 19, 2006, said: ” … the State will have to show in each case the existence of compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation in promotion.”

Seeking its reconsideration, the Attorney General referred to constitutional provisions and said that if any change has to be made in the Presidential list showing them as backward caste or to carve out a creamy layer among them it can only be done by Parliament and not the court, a point accepted by Justice Nariman.

Justice Nariman said that the reconsideration could also be sought on the ground that it was Parliament alone and not the court which can tinker with the list of backward communities.

Even as Justice Joseph asked if there could be some limit to benefits of reservation for SCs/STs so that others within the community could take advantage, The Attorney General said that “it is a great stigma, it can’t be erased” by having the benefit of reservation for two or more generations.

The bench was told that a Scheduled Caste person converting to Christianity carried along with him the caste baggage, as Justice Joseph observed: “Conversion is a matter of faith, but it does not erase caste.”

Justice Nariman said that no community or religion remained immune to the caste classification in India, pointing out that the world over any Parsi (Zoroastrian) can be a priest but in India among the Parsi community only a child born in a priest family could be a priest and no other.

Senior counsel P.S. Patwalia, appearing for Tripura and Bihar, supported the Centre’s stand. He will continue his submission on August 22 when hearing resumes.


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