Editor’s Note: This is a move that should indeed be seen as a “milestone”, as senior advocate Dr K.S. Chauhan notes in a recent letter to CJI Gavai. Previously, Dr Chauhan had written to CJI Gavai on June 2 requesting for a direction for reservation in promotions. Only 0.5 percent of the cadre of Branch Officer and Deputy Registrar were from SC/ST communities in the Supreme Court, and none so from posts such as Assistant Registrar, Additional Registrar and Registrar, according to Dr Chauhan. As Justice K Chandru also notes in this piece, while former CJI K.G. Balakrishnan had implemented reservations in the Supreme Court in 2007, there had been no effective implementation of it. Now, with the roster publication, that is possible, and it is on CJI Gavai to issue comprehensive directions to see through this exercise.
JUSTICE KULDIP SINGH, SPEAKING ON BEHALF of a Constitution Bench thirty years ago emphasised the need to adopt a roster system as a better method to distribute posts so that there could be an equitable distribution and the purpose of reservation will be achieved.
It exhorted “if the roster is permitted to operate till the total posts in a cadre are filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained.” (R.K.Sabharwal v. State of Punjab, 1995 (2) SCC 745).
Finally, the Master of the Roster of the Supreme Court thought fit to adopt a roster for appointment of Scheduled Caste and Scheduled Tribe candidates to the Supreme Court. It took three decades for the Supreme Court Chief Justice to announce a 200 point roster system to be adopted in the matter of filling up of posts.
On July 1, 2025, Chief Justice B.R.Gavai said that the identification of posts have been completed and the vacancies against each reserved post shall be filled from candidates belonging to that category. However, this roster will be operated only for the benefit of the Scheduled Castes and Scheduled Tribes and there is no immediate reservation provided for Other Backward Classes (‘OBCs’).
In Indra Sawhney (1992) a larger bench upheld the reservation of posts in central services up to 27 percent for the OBCs. However, the Supreme Court did not choose to make any reservation in favour of OBCs despite this judgement. For long, the Supreme Court Collegium has patted itself on the back every time there has been a recommendation of a judge from a Scheduled Tribes or Backward Classes category for elevation to the Supreme Court and High Courts, stating that such an appointment would bring diversity to the Court. Of late, in the Collegium recommendations uploaded on the Supreme Court website, one can see the considerations that weighed with the collegium while making such representations.
The Court, in the initial fifty years of its existence, refused to accept the concept of reservation in the matter of appointment of judges to the higher judiciary. In 2013, when the Madras High Court recommended names of twelve candidates for elevation to the High Court, none of whom were from a reserved category, , the Bar opposed such a biased recommendation and also filed a Public Interest Litigation challenging the consideration of such names.
As against the interim order, when the High Court came on appeal, the Supreme Court in 2014 endorsed the need for diversity and observed: -
“The issue of a broad representation has also to be looked into from the point of view that it is necessary to ensure that a more representative Bench does not become a less able Bench.”
However, the said statement was qualified further and virtually the concept of reservation was ruled out by making the following observation: -
“Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions.” (R.G High Court of Madras v. R. Gandhi, 2014 (11) SCC 547)
Leaving aside, for a moment, the issue of judges appointment, what is the status of reservation in the matter of appointment of staff of the Supreme Court?
Article 146 (2) enables the Chief Justice of India to frame rules in the absence of any law made by the Parliament, the conditions of service of all the officers and servants of the Supreme Court. These rules if they relate to salaries, allowances, leave or pension alone require the approval of the President. The larger question is when the entire government services (both central and state) have already adopted a roster system (initially 100 point roster), a method that was approved thirty years back, why is that the Supreme Court never thought of introducing the roster system in the matter of following reservation in appointments?
Was it needful for us to wait for the present CJI, who hails from a scheduled caste community, to think on these lines? In fact, after the Sabharwal decision (1995) Chief Justice K.G.Balakrishnan, who also hailed from the same community and had a longer tenure, did not think it fit to implement the adoption of the roster system. However, the Supreme Court had seen enough litigations regarding the following of the quota/rota rules.
From reports regarding the present 200 point roster system, one can see that the Supreme Court has enumerated 1280 posts, majority of which comprise Junior Court Attendants (600 posts), and Junior Court Assistants (437 posts). Out of these 1280 posts, 191 posts will be earmarked for scheduled castes and 93 posts will be for Scheduled Tribes and the remaining 996 will be occupied by General Categories.
The central government introduced the roster system as early as July 1997, and over this period, due to non-adoption of the roster system, many would have lost the opportunity to get into the posts as per the roster system. Candidates from OBC communities will have to wait for some more time to come within the roster system and, for the moment, would have to compete with the general candidates.
When this news was announced by Chief Justice Gavai, most media reports claimed that the CJI has announced reservation in promotion for the staff in the Supreme Court. They were yet to grasp the concept of roster system.
Notwithstanding the introduction of Article 16(4A) into the Constitution by virtue of the 77th amendment, which came into effect from June 17, 1995, providing for reservation in promotion in various classes of posts in the services of the State, if the Supreme Court, in its opinion, felt that the Scheduled Castes and the Scheduled Tribes were not being adequately represented in the services, it could have undertaken any exercise to implement the constitutional amendment enacted three decades ago. But it did not.
From June 9, 2000, Article 16(4B) came into effect, which provided for filling of backlog vacancies through reservation. While upholding Articles 16(4A) and 16(4B), in M.Nagaraj v. Union of India (2006), the Supreme Court also put a rider for its implementation and held that the provision was only an enabling provision and if the states “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.”
Far from implementing any social justice scheme , in at least two of its judgments, the Supreme Court has put spokes in the implementation of reservation in promotion on the ground that the State did not supply adequate data about the inadequacy in the representation in higher posts due to lack of promotion.
The Uttarakhand government appointed a committee under a retired judge to find out the adequacy of representation for the members of SC and ST communities. The committee’s recommendation stated that the representation was inadequate. This was then given effect to by the government when it provided for reservation in promotion. However, when a case was filed to enforce a recommendation, the Supreme Court not only threw the case out, but also observed that no mandamus could be issued to provide reservation in light of the law laid by the court. (Mukesh Kumar v. State of Uttarakhand 2020 (3) SCC 1).
Therefore, when it comes to reservation in promotion for the staff of the Supreme Court, there must be another battle not only for its implementation, but also to convince the Court about the concrete data that is required to make such reservation possible. Perhaps, by then, we may be celebrating the centenary of the apex judiciary.
Till then, there is another crucial issue lurking. Lately, CJI Gavai has gone around extensively advocating the application of ‘creamy layer principle’ in reservations for SC/STs, claiming that it is essential for refining social justice. If the vision is to incorporate the creamy lawyer principle into the present 200 point roster introduced by him in the Supreme Court, there may be another challenge to endeavour on.