Case study: Jarnail Singh v. Lachhmi Narain Gupta & Ors.

By Anubha Chaturvedi 20 Minutes Read

Quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj Judgement, on the inadequacy of representation and not on backwardness of Scheduled Castes & Scheduled Tribes, whenever the promotions are to be made by the state.

Citation: (2018) 10 SCC 396

Date of Judgement: 26th September 2018

Bench: Former Chief Justice of India Deepak Misra, Justice Kurian Joseph, Justice R F Nariman, Justice Sanjay Kishan Kaul and Justice Indu Malhotra

Background of the case

The case is popularly known as the ‘Reservation in Promotion Case’. A constitution Bench of the Supreme Court delivered the judgement on 26th September 2018. The case settled the controversy regarding the M. Nagraj Judgement and interpretation of Articles 16(4), 16(4A), 16(4B), 335, 341 and 342 of the Constitution of India.

The Nagaraj Judgement – The judgment in M. Nagaraj V. Union of India[1] was delivered in 2006 where the validity, interpretation and implementation of the 77th, 81st, 82nd and 85th Constitutional Amendment Acts was in question. These Amendment Acts collectively enabled the State to make reservations for SCs & STs in promotions and permitted the State under Art. 16 (4B) to carry forward the vacancies from the past one-year to any following years which would not be coupled with the posts of that particular year implying that the cap of fifty percent, as mentioned in the Indra Sawhney case[2], was nullified and done away with by the Act of the Parliament. ‘Consequential Seniority’ to SCs & STs and ‘The Carry Forward Rule’ were the result of these amendments. So, the legal issue that arose for determination was, whether by virtue of impugned constitutional amendments, the power of parliament was so enlarged so as to obliterate any or all of the constitutional limitations and requirements. This was also a Constitutional Bench judgement where the Court held that the impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4) and form a composite part of it. As long as the parameters mentioned in those Articles are complied with by the states, the provision of reservation cannot be faulted. Thus, the constitutional validity of the impugned amendment Acts was upheld.

The judgement stated that to provide reservation to the SCs and STs, the state had to show, by collecting quantifiable data, that the Scheduled Caste and Scheduled Tribe were economically, socially and educationally backward, there exists inadequate representation of those belonging to Scheduled Caste (SC) and Scheduled Tribes (ST) and that the reservation will increase administrative efficiency.

The Court stated – “in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST 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 of Article 335. 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% or obliterate the creamy layer or extend the reservation indefinitely.”[3]   

Now coming back to the present case, the judgement and order in Lachhmi Narain Gupta v Jarnail Singh[4] ,passed by the Punjab & Haryana High Court gave rise to the present controversy regarding the correctness of the decision in M. Nagaraj Case and the Supreme Court in the present case, decided upon the legality of the decision given in Nagaraj Case.

The petitioner believed that the judgment given in M. Nagaraj case should be referred to a seven-judge bench. However, a division bench decided that the judgment does not need to be reviewed by a seven-judge bench but instead it was reviewed by a five-judge bench instead.

Facts of the case

  1. This case arose out of impugned final judgement and order dated 15-07-2011 passed by the High Court of Punjab & Haryana.
  2. Main contention of the petitioners was that the Nagaraj judgement needs to be revisited on following points-

Arguments by the petitioners

3. First, when Nagaraj states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the nine-Judge Bench in Indra Sawhney v. Union of India[5] as it has been held therein that the Scheduled Castes and the Scheduled Tribes are the most backward among backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the Scheduled Castes and the Scheduled Tribes all over again.

4. the creamy layer concept has not been applied in Indra Sawhney to the Scheduled Castes and the Scheduled Tribes and Nagaraj has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes.

5. Nagaraj does not indicate any test for determining adequacy of representation of SCs and STs in service to the population in India, at all stages of promotion, and for this purpose, the roster that has been referred to in R.K. Sabharwal v. State of Punjab[6], can be utilized.

6. As held by Nagaraj, Article 16(4-A) and 16(4-B) flow from Article 16(4), is wrong.

7. Further, sub classification within SCs and STs is impermissible.

8. The Judgement has the effect of amending the Presidential Order relating to SCs and STs, which would violate Articles 341 and 342 of the Constitution of India, as Parliament alone can amend a Presidential Order.

9. Reading down a constitutional amendment to make it valid is constitutionally impermissible.

Arguments by the respondents

10. Respondents contended that the backwardness of “class” as mentioned in the Nagaraj, refers to class of posts and not SCs and STs and backwardness in relation to class of posts would require quantifiable data.

11. Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay North[7] was also cited to contend that a Constitution Bench judgment which has stood the test of time, ought not to be revisited, and if the parameters of Keshav Mills are to be applied, it is clear that Nagaraj ought not to be revisited.

12. Since Nagaraj has applied the 50% cut- off criterion, creamy layer, and no indefinite extension of reservation which are the facets of the equality principle so it does not violate the basic structure doctrine and thus, it ought not to be revisited.

13. Article 16(4-A), as contended by the respondents require that the SC ST employee should continue to be “backward” in order to get reservation and if it is observed that the employee has reached a fairly high stage in service, then they will not be considered to be “backward” anymore and there will be no further reservation.

Judgement 

Hon’ble J. R.F.Nariman authored the judgement. The Court discussed the Nagaraj Judgement and held, in the terms of Chinnaiah Judgement, that both the judgements dealt with different matters so the issue of Nagaraj being contrary to Chinnaiah does not arise. Further, Court considered the other grounds on which Nagaraj Judgement was being questioned. It was held that when the Court in Nagaraj judgement stated that the state has to collect quantifiable data showing backwardness of the Scheduled castes and Scheduled tribes, that specific part was contrary to what was held by the nine-judge bench in Indra Sawhney v Union of India.

On the other hand, the Court reviewed the judgement on the ground of creamy layer principle. It was observed that the whole purpose of the reservation is nullified if the creamy layer of that class, who has come out of backwardness or untouchability, keeps availing the benefits of the reservation whereas the other backward members of that class still continue to be backward. Thus, it was held that when the Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, that does not amount to interference with the Presidential List under Articles 341 or 342 of The Constitution of India. 

Therefore, when Nagaraj applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or Article 342.

The creamy layer principle was held to be a principle of equality and failing to apply this principle would amount to violation of right to equality. So, the Court held that this part of the judgement does not need revisiting and there is no need to refer this case to a seven-judge bench.

The Court ordered that the quantifiable data be collected by the states but on the inadequacy of representation instead of “backwardness” of the Scheduled Castes and Scheduled Tribes. The test for determining adequacy of representation in promotional posts has been rightly left to the State by the Nagaraj judgement in order to maintain the efficiency of administration, every time the promotions are made.

Conclusively, the Nagaraj judgement was only held to be invalid to the extent where it ordered the state to collect quantifiable data showing “backwardness” of the SCs and STs.

Key Law positions established

  1. Whether M. Nagaraj v. Association of India required re-visiting as it conflicted with E. V. Chinnaiah v. State of A.P.?

It was held that it was not necessary for Nagaraj to refer to Chinnaiah.

 Chinnaiah’s judgment in essence held that the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, could not further sub-divide Scheduled Castes into four categories, as that would be violative of Article 341(2) of the Constitution of India for the simple reason that it is Parliament alone that can make any change in the Presidential List and not the State Legislatures. This was the true ratio of the judgement. The Court held that, …

“This being the case, as Chinnaiah does not in any manner deal with any of the aspects on which the constitutional amendments in Nagaraj’s case were upheld, we are of the view that it was not necessary for Nagaraj to refer to Chinnaiah at all.”[8]

2. Whether Nagaraj case is contrary to Indra Sawhney when it requires the States to collect quantifiable data on backwardness so far as SCs & STs are concerned?

Yes, the Nagaraj Judgement was held to be contrary to Indra Sawhney and was declared to be bad on this ground.

The respondents in their arguments, while defending the Nagaraj judgement contended that when the judgement mentions backwardness of “class”, it refers to the class of posts and not a “class” in the Scheduled Castes and Scheduled tribes. And the quantifiable data to be collected was in terms of the class of posts and not “class” of SCs and STs but this argument was rejected by the Court. It was held that the term “class” was used in the context of Scheduled Castes and Scheduled Tribes. Referring to the Chennaiah Judgement, the Court held that the SCs are considered to be the most backward among the backward classes and that is the reason that is why the Presidential list contains only the castes that are untouchables and refers to the tribes that are extremely socially backward.   

“The reference to “class” is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. We are afraid that this portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney.”[9]

“Thus, it is clear that when Nagaraj (supra) requires the States to collect quantifiable data on backwardness, insofar as Scheduled Castes and Scheduled Tribes are concerned, this would clearly be contrary to the Indra Sawhney (1) (supra) and would have to be declared to be bad on this ground.”[10]  

3. Whether applying creamy layer principle to SCs and STs would amount to tinkering with the Presidential List under Articles 341 or 342 of the Constitution of India?

No, when the Court applies the creamy layer principle to the Scheduled Castes and Scheduled Tribes, it does not amount to tinkering with the Presidential List under Articles 341/342 of the Constitution of India.

“The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation…….. Therefore, when Nagaraj applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj to a seven-Judge Bench.”


[1]  (2006) 8 SCC 212

[2]  1992 Supp (3) SCC 217

[3]  M.Nagaraj v Union of India, (2006) 8 SCC 212, para 123

[4] 2011 SCC Online P&H 8144

[5] 1992 Supp (3) SCC 217

[6] (1995) 2 SCC 745

[7] (1965) 2 SCR 908

[8] M.Nagaraj v Union of India, (2006) 8 SCC 212, para 22

[9] Jarnail singh v Lachhmi Narain Gupta, (2018) 10 SCC 396

[10] Id, 9

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