The Supreme Court on Tuesday sought to know from the Centre what exercise it undertook to ascertain adequacy of representation as per the mandate by the Constitution bench decision in Nagaraj case in 2006 for granting reservations in promotion for SC/ST employees.
Hearing a batch of petitions related to reservation in promotion for SC and STs in public employment, a bench presided over by Justice L Nageswara Rao said that it would decide a contentious issue whether the reservation should be on the basis of proportion or adequacy of representation as enjoined in the Nagaraj case.
"The question that we are asking is what is the exercise done after Nagaraj to find out of the inadequacies of representation. If we go by population to determine adequacy of reservations, it may have its big flaws. The Centre should have applied mind as to what is meant by adequacy," the bench said.
Additional Solicitor General Balbir Singh, appearing for the Centre, said this is why the proportionality test was not applied but adequacy of representation was stated in the Nagaraj Judgment.
Considering the Nagaraj judgement, the government was under obligation to show it was meeting the reservation in the Cadre, he said.
"Roster should be prepared on Post. That can be a criteria. But unfortunately, figures have not been given anywhere, we want to see what justification you have for continuing the reservation," the bench said.
Attorney General K K Venugopal, for his part, agreed to come back with statistics and reasons for continuing reservations.
Senior advocate Rajeev Dhavan and advocate Kumar Parimal, appearing for one of the parties, contended that the reservation in promotion can't continue indefinitely after adequacy of representation was achieved.
The top court had earlier made it clear the issues relating to reservation in promotion has already been decided in Nagaraj and Jarnail Singh (2018) cases and required no reconsideration.
On Tuesday, senior advocate Gopal Sankaranarayanan, appearing for one of the parties contended that States have said that they haven't undertaken the exercise as mandated in the Nagaraj case like collections of quantifiable data, adequacy of representation and overall impact on efficiency of administration for granting reservations.
The bench said individual state case would be taken up at later stage.
Venugopal, in his submissions, said the number of posts in the cadre should be in proportion to the percentage of population.
"Article 16(1) requires equality in representation. So far as SC/STs are concerned, they may not be at the disadvantage, people will not say why are you giving because that is what their population is, whether it is 17% or 18%," he said.
Referring to the Indra Sawhney judgment (Mandal case) Venugopal said, it was not for the court to decide whether reservation was to be given or not, it is for the State to decide it in accordance with the policies.
He maintained that as per judgements of Sabharwal and Pavitra cases, the proportion was the relevant consideration and the Jarnail Singh also did not rule it out.
He also said the decisions of this court should have to operate prospectively without affecting the 1997 Office Memorandum to provide reservation in promotion for the SC and STs.
"As far as the DoPT is concerned, no promotions are made. About 1000 odd posts were lying vacant. So I filed the an application, but this court said that it will be taken up finally," he said.
"Let us take this as a test case. Let us find out whether there is adequacy cadre wise. We should have the data with us," the bench said.
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