The Supreme Court’s recent judgment in Jarnail Singh & Ors. vs. Lacchmi Narain Gupta & Ors. is welcome to the extent that it clarifies the mist surrounding quantifiable data relating to backwardness pertaining to reservation in promotion, but it remains silent on its enforceability through issuing mandamus to the appropriate government, write RAVI PRAKASH and DIVYA SINHA.
LAST week, a three judge bench of the Supreme Court of India pronounced a judgment in bunch of petitions relating to the issue of ‘reservation in promotion’ as a fundamental right in favour of Constitutionally protected classes, that is, Scheduled Castes (SCs), Scheduled Tribes (STs) and backward classes [BCs] of citizens as per Article 16(4) of the Constitution of India. The primary issue involved in the present batch of petitions related to whether there should be quantifiable data with regard to adequacy of representation as mandated by a five-judge Constitution bench of the Supreme Court in M. Nagaraj vs. Union of India (2006) and its enforceability by issuing a proper mandamus in appropriate cases.
The Supreme Court upheld the constitutional validity of the Constitution (77th Amendment) Act, 1995; the Constitution (81st Amendment) Act, 2000, the Constitution (82nd Amendment) Act, 2000 and the Constitution (85th Amendment) Act, 2001 in M. Nagaraj, which reads as under:
“The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.” [emphasis added]
Because there are existing backlog vacancies and less percentage of representation, none of the departments of the union and state governments has reached a level where the roster has had to be extinguished so far. Hence, the question of collection of quantifiable data does not arise before implementing the reservation in promotion in favour of the constitutionally protected class of citizens.
The primary issue which had been determined by the three judge division bench of the Supreme Court in the present case is on ‘adequacy of representation’ as one of the controlling factors, which essentially entails the in-built approved mechanism of roster system that is in vogue. Another issue – whether the rights of reservation in promotion in favour of constitutionally protected classes will remain an enforceable right by way of issuance of mandamus or not – was also considered.
Also read: Should there be reservation in job promotions? Supreme Court hears arguments to reconsider M Nagaraj verdict | Read Senior Advocate Indira Jaising’s Written Submissions
Meaning and constitutional significance of mandamus
Mandamus is one the specific writs mentioned in the Article 32 of the Constitution of India by which the Supreme Court has the power to issue directions or orders or writs, including the writ of mandamus for the enforcement of any of the rights conferred by Part III of the Constitution of India.
As per Black’s Law Dictionary, the latin word ‘mandamus’ means – ‘A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or a body usually to correct a prior action or failure to act.’ This is one of the most sought writs for the enforcement of fundamental rights. The directions issued by the Supreme Court in exercise of its writ jurisdiction has been often referred to as ‘sentinel on the qui vive’.
Also read: Constitutional History of Reservation in Promotions in India
Controversy in the present set of petitions
The instant case of Jarnail Singh & Ors. vs. Lacchmi Narain Gupta & Ors. involves similar substantial issue for determination, that is, the adequacy of representation in services by constitutionally protected classes. The issue of adequacy is considered only in one specific situation, that is, to check that whether the constitutionally protected classes and identified marginalized section of the society (SCs and STs) are adequately represented in public services or not. Presently, the roster system which is in vogue ensures that there cannot be excessive representation in any such given case.
It is pertinent to reproduce here the following extract from the judgment of a Constitution Bench of the Supreme Court in R.K. Sabharwal (1995):
“When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non- reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation.”
The nine-judge bench in Indira Sawhney held that Article 16(4) is not an exception to Article 16(1), but it is only an emphatic way of stating the principle inherent in the main provision itself.
In this case, the Supreme Court laid down some important principles of law with regard to reservation in public service appointments:
(i) a reserved category candidate can only be appointed against the reserved vacancy in roster system.
(ii) a reserved category candidate once appointed in ‘merit’ in open category, cannot be counted for the purpose of percentage of reservation.
However, today even if a candidate belonging to constitutionally protected class tops the merit list in any recruitment examination, they are counted for the purpose of percentage of reservation.
Also read: SC strikes down Maharashtra’s Maratha reservation law
Working of roster system and key concepts
To maintain and implement the percentage of reservation in favour of constitutionally protected classes of citizens, namely SCs, STs and BC of citizens – the Union Department of Personnel and Training came up with a 100-point roster system. That means in a lot of 100 vacancies occurring from time to time, those falling at serial numbers 7, 15, 20, 27, 35, 41, 47, 54, 61, 68, 74, 81, 87, 94 and 99 will be necessarily filled by SCs, and serial numbers 14, 28, 40, 55, 69, 80 and 95 will be filled with STs. This roster is maintained in each department of the union and state governments, more or less, in the form of a running account from year to year. The purpose of the running account is to make sure that the SCs, STs and BCs get their percentage of reserved posts. This running account has to operate only till the quota provided under the impugned instructions is reached. Once the prescribed percentage of posts is filled, the numerical test of adequacy is satisfied and thereafter the roster does not survive.
Now, because there are existing backlog vacancies and less percentage of representation, none of the departments of the union and state governments has reached a level where the roster has had to be extinguished so far. Hence, the question of collection of quantifiable data does not arise before implementing the reservation in promotion in favour of the constitutionally protected class of citizens. Hence, the dictum of M. Nagaraj to that extent seeks an exercise to be conducted which has no relevance in reality.
R.K. Sabharwal lays down the proposition of law in most emphatic manner as under:
“Therefore, the only way to assure equality of opportunity to the backward classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the “running account” must come to an end thereafter.”
R.K. Sabharwal has, significantly, stated the test of adequacy as under:
“When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/ Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong.”
The mere fact that today in every department and cadre of the union and state governments, the backlog vacancies exists makes it crystal clear that the reservation based on roster system has not reached its ‘adequacy level’ – as permitted and approved by the Supreme Court in R.K. Sabaharwal.
Also read: Unfolding the Enigma of Reservation
Mandamus or not?
The Supreme Court of India should have issued mandamus and laid down the law correctly for following reasons:
(1) The provisions relating to Article 16(4), 16(4A) and 16(4B) of the Constitution are integral and as per the scheme of Part III of the Constitution.
(2) The nine-judge bench in Indira Sawhney held that Article 16(4) is not an exception to Article 16(1), but it is only an emphatic way of stating the principle inherent in the main provision itself. Subsequently, the provisions relating to reservation in promotion for constitutionally protected classes, as incorporated through 77th, 81st and 85th Constitution Amendment Acts were upheld by a Constitution Bench of the Supreme Court in M. Nagaraj.
(3) The theory of ‘enabling provision’/‘enabling right’ in relation to reservation in promotion is a minority/dissenting opinion of Justices K.T. Thommen and R.M. Sahai on the nine-Judge bench in Indira Sawhney, which reads as under:
The ‘enabling right with a discretionary remedy’ principle is in accord with the minority/ dissenting view of Indra Sawhney and against the true dictum laid down by the majority of the judges, that is, accepting the reservation provisions as an instance of classification of Article 16(1) and not an exception.
“Article 16 deals with equality of opportunity in matters of public employment…. it is an enabling provision conferring a discretionary power on the state.” [emphasis added] (As per Justice Thommen}
Similarly, Justice Sahai opined:
“Article 16(1) is a fundamental right of a citizen whereas Article 16(4) is an obligation of the State. The former is enforceable in a court of law; whereas the later is ‘not constitutional compulsion’ but an enabling provision… one is mandatory and operates automatically whereas the other comes into play on identification of backward class of citizens and their adequate representation”.
Hence, the proposition of law as misunderstood that ‘reservation in promotion’ is an enabling right and discretionary remedy is wrong.
Also read: Rethinking the Debate on Reservations
(4) The Supreme Court has issued mandamus in subsequent decisions relating to reservation in promotion in tune with the constitutional scheme, such as:
- B.K. Pavitra (II) vs. Union of India (2019), which relates to the consequential seniority in promotion in favour of SCs and STs.
- Rohtas Bhankhar vs. Union of India (2014), which dealt with reservation in promotion and relaxed standards in favour of SCs and STs.
- Rajeev Kumar Gupta vs. Union of India (2016), relating to disabled people, where a special provision for reservation in promotion was made in the concerned statute.
- Siddharaju vs. State of Karanataka (2021), related to the promotion of disabled people.
- Sudhakar Baburao Nangure vs. Noreshwar Raghunathrao Shende (2019), which dealt with issue of consequential seniority in pursuance of the 85th Constitutional Amendment.
(5) Because it is constitutionally incorrect to refuse mandamus and appropriate direction in cases of SCs and STs – a constitutionally identified and protected class of citizens, despite upholding the amendments thereto in Part III of the Constitution.
(6) Because a constitution bench of the Supreme Court, in its Jarnail Singh decision in 2018, observed that the dictum in M. Nagaraj is incorrect and not in tune with Indira Sawhney as under: –
“Thus, it is clear that when Nagaraj requires the States to collect quantifiable data on backwardness, insofar as Scheduled Castes and Scheduled Tribes are concerned, this would clearly be contrary to Indra Sawhney(1) and would have to be declared on this ground.”
Thus, Jarnail Singh (2018) concluded:
“[T]he conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and Scheduled Tribes, being contrary to the nine- judge Bench in Indra Sawhney (1) is held to be invalid to this extent.”
(7) Thus far, Jarnail Singh (2018) takes care of one of the defects of M. Nagaraj, both Constitution bench decisions. However, the ‘enabling right with a discretionary remedy’ survives; nevertheless, the same is in accord with the minority/ dissenting view of Indra Sawhney and against the true dictum laid down by the majority of the judges, that is, accepting the reservation provisions as an instance of classification of Article 16(1) and not an exception. Hence, there was an opportunity in the instant case for the Supreme Court to state the proposition of law correctly on the strength of majority decision in Indira Sawhney.
(8) Because the decisions of the Supreme Court in Suresh Chand Gautam vs. State of Uttar Pradesh (2016) and Mukesh Kumar vs. State of Uttarakhand (2020) are bad in law and are aberrations to the precedential values and jurisprudence around this position of law. They ought to have been overruled by the Supreme Court in the instant case.
(9) Because the Supreme Court has rightly categorized Mukesh Kumar as an ‘unreportable’ judgment, as it does not advance or lay down any proposition of law.
(10) Because the mere use of certain paragraphs of M. Nagaraj being referred to in larger bench decision like I.R. Coelho (2007) on the limited point of law relating to the width of amendment powers of the Parliament and Basic Structure, does not make it a good decision as far as it approves the minority theory/dictum of ‘enabling power with discretionary remedy’.
(11) Because the Supreme Court has emphatically directed in another Constitution Bench decision of Rohtas Bhankhar:
“The respondents (Union of India) are directed to modify the results in the Section officer/stenographers (Grade B/ Grade I) Limited Departmental Competitive Examination, 1996 by providing for reservation and extend all consequential reliefs to the appellants, if not granted so far.”
Also read: Lateral entry in civil services: An attempt to circumvent the system of reservations
Analysis of instant judgment in Jarnail Singh
The judgment dated January 28, 2022 by a three-judge bench held that laying down criteria for determining the inadequacy of representation would result in curtailing the discretion given to the state governments or appropriate government. It emphasized the importance of prevailing local conditions, which may require to be factored in. It also held that the validity of law made by the state governments providing reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data or not.
As far as the unit for collecting quantifiable data is concerned, the cadre should be the basis unit for the purpose of collection of quantifiable data in relation to the promotional posts. It held that the entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade.
The court held that no yardstick can be laid down by it for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation. As far as the unit for collecting quantifiable data is concerned, the cadre should be the basis unit for the purpose of collection of quantifiable data in relation to the promotional posts. It held that the entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade.
Hence, the judgment clarifies and paves the way for reservation in promotion for the constitutionally protected class of SCs and STs based on the roster system. The decision is welcome to the extent that it clarifies the mist surrounding quantifiable data, as reservation in promotion was mainly questioned on the aspect that the State has not collected the quantifiable data to show the backwardness. On the other hand, the decision remains silent on its enforceability through issuing mandamus to the appropriate government.
Also read: OBC Reservations: Investigating caste, backwardness and representation
However, the decision falls short of expectations. It fails in laying down the law with a clarity on ‘its enforceability by issuing mandamus or any other appropriate writ’. The enforcement of the rights as constitutionally guaranteed to the weaker section of the society is left wide open to the mercy of the executive branches of the State.
It is important to note that a provision appearing in Part III of the Constitution, the constitutionality of which has been upheld, cannot be left to the regime of ‘discretionary remedy’. It has to be enforceable and any such acquiescence by the court approving ‘enabling right theory’ will dilute the very purpose for which Part III exists. The constitutionally protected classes remain hopeful of getting proper mandamus to the State and its instrumentalities when the individual petitions will be heard next by the division bench of the Supreme Court.
(Ravi Prakash is an Advocate on Record at the Supreme Court. Divya Sinha is a third year B.A., LL.B. (Hons.) student at the University of Petroleum and Energy Studies, Dehradun. The views expressed are personal.)