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‘For states to implement’: SC no to again prescribing promotion quota policy

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New Delhi, Sep 14, 2021- The Supreme Court on Tuesday declined to prescribe again a policy for determining backwardness and emphasised that orders were passed in judgments, like M. Nagaraj (2006) and Jarnail Singh (2018), wherein issues in reservation in promotion have been settled.

A bench, headed by Justices L Nageswara Rao and comprising justices Sanjiv Khanna and B R Gavai said: “We are making it very clear that we are not going to reopen Nagraj or Jarnail Singh (cases).” It pointed out that the idea was only to decide these cases in accordance with the law laid down by the top court.

The Centre, led by Attorney General K.K. Venugopal, asked the top court to issue further clarifications, against the backdrop of promotion on 2,500 posts continuing to remain stalled due to orders passed by various high courts.

Venugopal also urged the top court to recall a contempt notice issued against the Union Home Secretary in connection with ad hoc promotions of 149 officers. It was claimed these promotions were done allegedly violating the order of April 15, 2019 on the maintenance of status quo. However, the bench declined to recall the contempt notice and said it would hear it along with the main case.

Senior advocates Indira Jaising and P.S. Patwalia had cited several ambiguities in the Nagaraj judgement, which led to different high courts interfering with the guidelines framed by the state governments on reservation in promotion.

Taking up over 130 petitions, the bench directed the advocate-on-record for various state governments to identify peculiar issues and submit a note on them within two weeks.

It noted that it is not going to permit any arguments for reopening of cases or arguing that law laid down from Indira Sawhney is wrong because the very scope of these cases is to apply the law, which was laid down by the top court.

The bench orally observed that the apex court has already passed orders on how to consider backwardness, and it 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 issue of Article 16(4) and 16(4a) of the Constitution,” it added.

The top court – in the Constitution bench decisions of Nagaraj and Jarnail Singh — had laid down conditionalities: data collection on inadequacy of representation, overall effect on efficiency in administration, and excluding creamy layers, while considering reservation in promotion for SC and STs employees.

Venugopal contended that Nagaraj ruling required interpretation and contended that judgment had left doubts in connection with reservations in promotions. He added 1,400 promotions were made on ad hoc basis and this was based on seniority without taking into consideration the principle of reservations. Justifying this decision, Venugopal said it was done to ensure the functioning of the departments is not affected.

Senior advocate Rajeev Dhavan and advocate Kumar Parimal and others, representing private parties, asked the court to ensure strict compliance of the conditionalities, which were laid down in Nagaraj judgement.

The top court has scheduled detailed hearing on the matter beginning October 5. (Agency)

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