The Centre Tuesday asked the Supreme Court to lay down a definite and decisive ground for the Union of India and the states to implement reservation in promotions to the Scheduled Castes (SCs) and Scheduled Tribes (STs) in government jobs. Attorney General K K Venugopal, appearing for the Centre, told a bench headed by Justice L Nageswara Rao that SC/STs have been sidelined from the mainstream for years and “we have to bring an equaliser (in form of reservation) in the interest of the country to give them an equal chance”.
“If you don’t lay down a definite decisive ground that the states and union will follow, there’ll be a multitude of litigations. There will never be an end to this issue as to what is the principle on which reservation has to be made… “We can’t fill the seats unless merit is the criteria but there is a class that has been sidelined from the mainstream for centuries. In which case, in the interest of the country and in the interest of the constitution, we have to bring an equaliser, and that in my view is proportional representation. That gives the right to equality,” Venugopal told the bench also comprising Justices Sanjiv Khanna and B R Gavai which reserved its verdict on the issue.
He said, “we need a principle on which reservations are to be made”. “If it is left on the State, how will I know when adequacy is satisfied? What is inadequate. That is the great problem,” he said. The AG said there is no dispute that so far as SC/STs are concerned, due to hundreds of years of suppression, they have to be given, by affirmative action, an equal chance to get over the absence of merit.
“This has resulted in exemptions being given regarding qualifications, exceptions to marks regarding selections and similarly so that they can get seats in education and because of the nature of the jobs, they’ve been performing for hundreds of years like manual scavenging, etc. They were considered untouchables and they could not compete with the rest of the population. Therefore the reservation,” he said. The apex court was hearing arguments on the issue relating to reservation in promotions to the employees belonging to SCs and STs.
The top law officer said the issue of adequacy of representation arose in 1950 itself. “What has been done in the last seven decades by the union of India and the states in education and jobs? Your lordships have to see if those things have worked. If that is not satisfactory then it is the duty of the court to suggest an alternative method and direct a method by which a standard or yardstick is laid down. which is certain and definitive. “These opportunities for these unfortunate people are an equaliser. But equalisers don’t work overnight. This may take decades and decades. So far as SCs/STs are concerned they are still suffering to get into the mainstream of life,” the AG said.
Citing statistics collected from nine states, Venugopal said all of them have followed one principle to equalise them so that absence of merit does not deprive them of getting into the mainstream. He said the total percentage of backward classes in the country is 52 per cent. “If you take proportion, then 74.5 per cent of reservations would have to be given but we set the cut off to 50 per cent,” he said.
Venugopal submitted that if the top court leaves the decision on the reservation to the states by taking quantifiable data and adequacy of representation then would be going back to square one. The AG had earlier submitted that it is more difficult for those belonging to the SCs and STs to get a higher post in group A category of jobs and the time has come when the apex court should give some concrete basis for SCs, STs, and Other Backward Classes (OBCs) to fill up vacancies.
The bench had earlier said it would not reopen its decision on the issue of the grant of reservation in promotion to the Scheduled Castes (SCs) and Scheduled Tribes (STs) and said it was for the states to decide how they are going to implement the same. Venugopal had referred to the apex court judgements right from the Indra Sawhney verdict of 1992, popularly known as the Mandal Commission case to the Jarnail Singh verdict of 2018.
The Mandal judgement had ruled out quota in promotions. The law officer had said that till 1975, 3.5 per cent SCs and 0.62 per cent of STs were in government employment and this is the average figure.
Now in 2008, the figure of SCs and STs in government employment has come to 17.5 and 6.8 per cent respectively which are still low and justify such quota, he had said. The top court had on September 14 said that it would not reopen its decision on granting reservation in promotions to the SCs and STs as it was for the states to decide how they implement it.
Earlier, Maharashtra and other states had said the promotions have been made in unreserved categories, but promotions have not been granted in reserved categories for SC and ST employees. In 2018, a five-judge Constitution bench had refused to refer to the 2006 judgement in the M Nagraj case, in which the creamy layer concept was extended to the SCs and STs to a larger seven-judge bench for reconsideration.
It had also paved the way for a grant of quota for promotions in the government jobs to SCs and STs and had modified the 2006 judgement to the extent that the states will not be required to “collect quantifiable data” reflecting the backwardness among these communities to justify the quota in promotions.
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