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NEW DELHI: The Supreme Court Friday refused to “lay down any yardstick” for granting reservation in promotion to Scheduled Castes and Scheduled Tribes in government jobs saying determination of their inadequate representation is the discretion of the State.

The top court said it is neither legal nor proper for the Courts to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within their domain under the Constitution.

“Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage.

Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments.

In addition, the prevailing local conditions, which may require to be factored in, might not be uniform,” a three-judge bench headed by Justice L Nageswara Rao said.

The apex court said it should leave “the decision-making to other branches of government after directing their attention to the problems rather than itself entering into the remedial field.”

Referring to its verdict in the M Nagaraj case, the bench said that this Court made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-to-case basis to establish whether the inadequacy of representation is supported by quantifiable data.

“Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation,” said the bench, also comprising Justices Sanjiv Khanna and B R Gavai.

The top court said the percentage of posts reserved for Backward Classes, as prescribed by the State, has to be strictly followed and cannot be varied or changed simply because some members of the Backward Class have already been appointed/promoted against the general seats.

The vacancies arising in the cadre, after the initial posts are filled, will have to be filled from amongst the category to which the post belonged in the roster, it said.

The bench said that it had observed in earlier judgements that the appropriate Government has to apply cadre strength as a unit in the operation of the roster to ascertain whether a given class/group is adequately represented in the service.

“The entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade.

Promotion is made from one grade to the next higher grade, in relation to which cadres are constituted,” the bench said.

It said before providing for reservation in promotions to cadre, the State is obligated to collect quantifiable data regarding the inadequacy of representation of SCs and STs.

“Collection of information regarding the inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/’group’ but it should be relatable to the grade/category of posts to which promotion is sought.

“Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to the representation of SCs and STs is with reference to the entire service,” the bench said.

The top court noted that there is near unanimity amongst the counsels that the data collected to establish the inadequacy of representation, which forms the basis for providing reservation for promotions, should be reviewed periodically.

“We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive.

As regards review, we are of the opinion that data collected to determine inadequacy of representation for the purpose of providing reservation in promotions need to be reviewed periodically.

“The period for review should be reasonable and is left to the Government to set out,” it said.

The bench said collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions and the State should justify reservation in promotions concerning the cadre to which promotion is made.

“Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made.

Rosters are prepared cadre-wise and not group-wise,” the bench said.

The top court had earlier said that it would not reopen its decision on the issue of the grant of reservation in promotion to SCs and STs and said it was for the states to decide how they are going to implement the same.

Attorney General K K Venugopal had referred to the apex court judgements right from the Indra Sawhney verdict of 1992, popularly known as the Mandal Commission case to the Jarnail Singh verdict of 2018.

The Mandal judgement had ruled out quota in promotions.

Venugopal had said that till 1975, 3.5 per cent SCs and 0.62 per cent of STs were in government employment and this is the average figure.

In 2008, the figure of SCs and STs in government employment rose to 17.5 and 6.8 per cent respectively, which are still low and justified such quota, he had said.