New Delhi, Nov. 15 (IANS): The Supreme Court on Wednesday said a five-judge Constitution Bench will examine whether there is need to reconsider its 2006 judgement which said it was not mandatory for states to give reservation in promotions to Scheduled Castes and Scheduled Tribes (SCs/STs).
“The state is not bound to make reservation for SCs/STs in matter of promotions. However, if they 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 with Article 335 of the Constitution,” the top court’s order of October 19, 2006, said.
“It is made clear that even if the state has compelling reasons, as stated above, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely,” read the 2006 judgement in what is known as Nagaraj case.
A bench of Chief Justice Dipak Misra, Justice A.K. Sikri and Justice Ashok Bhushan said that the five judges will hear the matter following a two-judge bench referring the matter to the five-judge Constitution Bench.
Referring the matter to the five-judge bench, a bench of Justice Kurian Joseph and Justice R. Banumathi by a November 14 order had said that the question raised before it requires “further and finer interpretation on the application of Article 16 (4A)....”
Article 16 (4A) provides for reservation in promotions for the SCs/STs with consequential seniority which, in the opinion of the state, are not adequately represented in the state services.
The petitioners had urged the two-judge bench for a “re-look at the Nagaraj case order specifically on the ground that the test of backwardness ought not to be applied to SCs/STs”.
The petitioner also raised the issue of “application of principle of creamy layer in situations of competing claims within the same races, communities, groups, or parts thereof of SCs/STs notified by the President under Articles 341 and 342 of the Constitution of India”.
The bench headed by Chief Justice Misra was apprised by Attorney General K.K. Venugopal about the November 14 orders on Tuesday.
In fact, the bench headed by Chief Justice Misra had assembled to hear a Maharashra government plea to challenge a Bombay High Court order that set aside the state government’s May 25, 2004, rule giving 33 per cent reservation to SCs/STs, denotified tribes, different categories of nomadic groups, and special backward categories.
The rule was struck down by the Maharashtra Administrative Tribunal and later the Bombay High Court upheld the decision. Besides Maharashtra, the court was moved by many associations of SCs/STs.
