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The Supreme Court has orally observed that it will not reopen the issues settled by it in its 2018 judgment on the reservation in promotions in government jobs for Scheduled Castes (SCs) and Scheduled Tribes (STs).

A bench of Justices L Nageswara Rao, Sanjiv Khanna, and BR Gavai said Tuesday that it is for the states to chart out how to implement its directions. “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…”, Justice Rao remarked, conveying the court’s no to reopening the Jarnail Singh ruling.

The court was hearing pleas by states highlighting the issues in connection with the implementation of the 2018 judgment. The states and Centre urged the court to hear the matters at the earliest saying that many appointments had been stalled due to ambiguities in the norms for applying the 2018 verdict.

In the Jarnail Singh case, the apex court had dealt with a batch of appeals which arose from two reference orders, first by a two-judge bench and second by a three-judge bench on the correctness of the top court’s 2006 judgment in the case M Nagaraj & Others Vs Union of India.

The SC had held in the Nagaraj case that “the State is not bound to make a reservation for SC/ST in the 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. 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”.

The Centre had urged the top court to revisit the Nagaraj Judgment on two grounds — firstly, asking states “to collect quantifiable data showing backwardness is contrary to the nine-Judge Bench in Indra Sawhney v. Union of India where it was held that Scheduled Castes and 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 SC’s and ST’s all over again” and secondly, the creamy layer concept has not been applied in Indra Sawhney case to the Scheduled Castes and the Scheduled Tribes and Nagaraj “has misread” Indira Sawhney judgment to apply the concept to the SCs and STs.

The five-judge Constitution bench headed by the then Chief Justice Deepak Misra however rejected the prayer to send Nagaraj to a larger bench. However, it held as “invalid” the requirement laid down by the Nagaraj verdict that states should collect quantifiable data on the backwardness of SCs and STs in granting quota in promotions, but said they will have to back it with data to show their inadequate representation in the cadre. It said that the creamy layer principle — of excluding the affluent among these communities from availing the benefit — will apply.

Senior Advocate Indira Jaising said the Centre had not framed any rules for implementing the Nagaraj so that there would be a clear idea on what constitutes adequacy in representation and that in some cases, High Court has been striking down the provisions framed by states for the same.

Attorney General K K Venugopal too added that the Nagaraj ruling left several ambiguities and that recently, the Centre was constrained to make several promotions on an ad-hoc basis to ensure that the functioning of the departments is not affected and that contempt notices have been issued to the Secretary, Ministry of Home Affairs over these promotions.

The AG sought recall of the contempt notices, but the court said it will not pass any order now and will hear the contempt matter along with the main matter on October 5.

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