New Delhi Sept 14(ILNS): The Supreme Court today said it is not going to decide again policy, for determining backwardness which was already been decided in the previous laid down judgments in the case of M Nagaraj and Jarnail Singh.
The Court while hearing the batch of over 130 petitions regarding implementation of the Reservation Policy said, we have already passed orders on how to consider backwardness, we cannot prescribe policy further. It is for the States to implement policy and not for us to prescribe. We are not going to decide on the issue of Articles 16(4) and 16(4a) of the Constitution.
A three-judge bench comprising of Justice L Nageswara Rao, Justice Sanjiv Khanna, and Justice BR Gavai told the Attorney General that they will not reopen the issues already decided in the M Nagaraj Judgment. Attorney General KK Venugopal appearing for the Centre asked to separate the issues that are applicable to the Center and to the states.
The Attorney General informed the Court that 4100 promotions have been done on an ad-hoc basis subject to the outcome of the case, with no reservation. Another 2500 posts have been lying vacant due to the status quo orders which are for regular promotions.
He asked to separate the issues that are applicable to the Center and to the states.
Senior Advocate, Indira Jaising appearing for the Petitioner submitted that how would the states decide as to which groups are backward and shall establish the fact that such representation is adequate that is provided by them.
The bench said, it not for us to tell the government how to implement policy. Directions have been passed in the Nagaraj judgment that it is for each state to finalize how they will implement.
Jaising replied but the high courts are interfering with how the states are implementing. A ruling from this court is needed on what is considered “adequacy” in law.
Senior Advocate Rajeev Dhavan submitted that this is not the first time that a large batch of cases has come before this court on this issue. Multiple states have come to the court. It Can divide them into batches and Let them submit the written submissions.
The Supreme Court agrees and said, the suggestion of Mr. Dhavan seems adequate to us. we can divide the cases into batches.
The Court directed that Within 4 weeks written submissions be filed by the parties with all the precedent authorities they are relying upon.
The law laid down in M.Nagraj case akin to a reservation in Public employment law that currently holds is the 2006 judgment of the Supreme Court in M Nagaraj & Others vs Union of India. The Justices upheld the validity of Article 16 (4A) — a special provision which provides for reservation for promotion only to SCs and STs and the government can provide reservation in promotions provided it is backed by persuasive reasons such as proof of backwardness and inadequacy of representation and to make sure that it does not affect the overall efficiency of administration.
In M.Nagaraj case, it was also held that the states should gather quantifiable data showing backwardness and such observation is in contravention of Indra Sawhney Judgment which was passed by 9 benches of the Supreme Court. The constitution bench of 5 Judges, however, expressed their opinion since Article 16(4a) and left for the states to make adequate representation in the post of promotion to Scheduled Caste and Scheduled Tribes Category.
That on September 26, 2018 decided by the five judge Constitution Bench comprising the then CJI Deepak Misra, former Justice Kurian Joseph, former Justice RF Nariman, Justice Sanjay Kishan Kaul and Former Justice Indu Malhotra reached the conclusion that judgment in Nagaraj need not to be referred to a seven–Judge Bench./ILNS/KR/SNG