U.P. Power
Corporation Ltd. Vs. Rajesh Kumar & Ors.
[Civil Appellate
Jurisdiction Civil Appeal No. 2608 of 2011]
[With Civil Appeal
No. 4009 of 2012 arising out of SLP (C) No. 10217/2011]
[With Civil Appeal
No. 4022 of 2012 arising out of SLP (C) No. 15114/2011]
[With Civil Appeal
Nos. 4027-4029_ of 2012 arising out of SLP (C) Nos. 20577-20579/2011]
[With Civil Appeal
Nos. 2605 of 2011, 2607/2011, 2609/2011, 2610/2011, 2614/2011, 2616/2011,
2629/2011, 2675/2011, 2676/2011, 2677/2011, 2678/2011, 2679/2011, 2729/2011,
2730/2011, 2737/2011]
[With Civil Appeal
No. 4023 of 2012 arising out of SLP (C ) No. 14188 of 2012 (Cc 4420/2011]
[With Civil Appeal
No. 4024 of 2012 arising out of SLP (C ) No.14189/2012 (Cc 4421/2011]
[With Civil Appeal
No. 4025 of 2012 arising out of SLP (C ) No.14190/2012 (Cc 4431/2011]
[With Civil Appeal
No. 4691 of 2011]
[With Civil Appeal
No. 4697 of 2011]
[With Civil Appeal
No. 4699 of 2011]
[With Civil Appeal
No.4026 of 2012 arising out of SLP (C ) No. 14191 of 2012 (Cc 5070/2011]
[With Civil Appeal
No. 4016 of 2012 arising out of SLP (C) No.14179/2012 (Cc 5580/2011]
[With Civil Appeal
No.4021 of 2012 arising out of SLP (C ) No.14184/2012 (Cc 6362/2011With Civil
Appeal No. 4017 of 2012 arising out of SLP (C ) No. 14181/2012 (Cc 6482/2011]
[With Civil Appeal
No. 4018 of 2012 arising out of SLP (C ) No. 14182/2012 (Cc 7037/2011]
[With Civil Appeal
No.4019 of 2012 arising out of SLP (C ) No. 14183/2012 (Cc 7042/2011]
[With Civil Appeal
No. 4020of 2012 arising out of SLP (C ) No.14184/2012 (Cc 7058/2011]
[With Civil Appeal
No.4030 of 2012 arising out of SLP (C) No. 30325/2011]
[With Civil Appeal
No. 4031 of 2012 arising out of SLP (C ) No. 30326/2011]
[With Civil Appeal
No.4032 of 2012 arising out of SLP (C ) No. 30327/2011]
[With Civil Appeal
No.4033 of 2012 arising out of SLP (C ) No. 30692/2011]
[With Civil Appeal
No.4034 of 2012 arising out of SLP (C ) No. 30696/2011]
State of U.P Versus Brij
Bhushan Sharma & Anr.
[Civil Appeal No.
2622 of 2011]
[With Civil Appeal
No. 2611 of 2011]
[With Civil Appeal
No. 2612/2011]
[With Civil Appeal
No. 2613 of 2011]
[With Civil Appeal
No. 2623 of 2011]
[With Civil Appeal
No. 2624 of 2011]
[With Civil Appeal
No. 2682-2683 of 2011]
[With Civil Appeal
No. 2684 of 2011]
[With Civil Appeal
No. 2881 of 2011]
[With Civil Appeal
No. 2884-2885 of 2011]
[With Civil Appeal
No. 2886 of 2011]
[With Civil Appeal
No. 2908 of 2011]
[With Civil Appeal
No. 2909 of 2011]
[With Civil Appeal
Nos. 2944-2945 of 2011 Civil Appeal No. 66 of 2012]
[With Civil Appeal
No.4067/2012 arising out of SLP (C ) No.14207/2012 (Cc 17243/2011]
J U D G M E N T
Dipak Misra, J.
1.
Leave
granted in Special Leave Petitions.
2.
The
controversy pertaining to reservation in promotion for the Scheduled Castes and
Scheduled Tribes with consequential seniority as engrafted under Articles
16(4A) and 16(4B) and the facet of relaxation grafted by way of a proviso to
Article 335 of the Constitution of India being incorporated by the Constitution
(Seventy-seventh Amendment) Act,1995, the Constitution (Eight-first Amendment)
Act, 2000, the Constitution(Eighty-second Amendment) Act, 2000 and the Constitution
(Eighty-fifth Amendment) Act, 2001 at various stages having withstood judicial scrutiny
by the dictum in M. Nagaraj v. Union of India[1], the issue of implementation
of the same through existing statutory enactment by the State Legislature and
the subsequent rules framed by the authorities of the State or concerned
corporation of the State of Uttar Pradesh, has, as the learned counsel
appearing for both sides in their astute and penetrating manner have pyramided
the concept in its essentiality, either appeared too simple that simplification
may envy or so complex that it could manifest as the reservoir of imbalances or
a sanctuary of uncertainties. Thus, the net result commands for an endeavour
for a detailed survey of the past and casts an obligation to dwell upon the controversy
within the requisite parameters that are absolutely essential for adjudication
of the lis emanated in praesenti. THE FACTUAL EXPOSE’
3.
Extraordinary
and, in a way, perplexing though it may seem, yet as the factual scenario pronouncedly
reveals, the assail in some of the appeals of this batch of appeals is to the
judgment and order passed by the Division Bench of the High Court of Judicature
at Allahabad in Writ Petition No. 63217 of 2010 (Mukund Kumar Srivastava vs.
State of U.P. and Another) upholding the validity of the provisions contained
in Rule 8-A of the U.P. Government Servants Seniority Rules, 1991 (for brevity ‘the
1991Rules’) that were inserted by the U.P. Government Servants Seniority (3rdAmendment)
Rules, 2007 by the employees-appellants and in some of the appeals, the challenge
by the State Government and the U.P. Power Corporation Ltd. (for short ‘the
Corporation’) is to the judgment and order passed by the Division Bench of the
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, in Writ Petition
No. 1389 (S/B) of 2007 (Prem Kumar Singh and others v. State of U.P. and others)
and other connected writ petitions holding, inter alia, that the decision
rendered by the Division Bench in the case of Mukund Kumar Srivastava (supra) at
Allahabad is perincuriam and not a binding precedent and further Section 3(7)
of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes,
Scheduled Tribes and other Backward Classes) Act, 1994 (for short ‘the 1994 Act’)
and Rule8A of the 1991 Rules, as brought into force in 2007, are invalid, ultravires
and unconstitutional and, as a necessary corollary, the consequential orders
relating to seniority passed by the State Government deserved to be quashed
and, accordingly, quashed the same and further clarified that incase the State
Government decides to provide reservation in promotion to any class or classes
of posts in the services under the State, it is free to do so after undertaking
the exercise as required under the constitutional provisions keeping in mind
the law laid down by this Court in M. Nagraj (supra). It has been directed that
till it is done, no reservation in promotion on any post or classes of posts
under the services of the State including the Corporation shall be made hence
forth. However, the Division Bench observed that the promotions already made as
per the provisions/Rules where the benefit of Rule 8A has not been given while making
the promotion shall not be disturbed.
4.
The
cleavage has invited immense criticism by the learned senior counsel appearing
for both sides on principles of judicial discipline, decorum, propriety and
tradition. Initially the debate centred around the concept of precedent and the
duties of the Benches but gradually it was acceded to, absolutely totally being
seemly, to decide the controversy on merits instead of a remit and,
accordingly, the learned counsel for the parties addressed the Court at length.
As advised, we shall dwell upon the merits of the controversy but we shall not
abdicate our responsibility todelve into the first issue, i.e., judicial
discipline as we are inclined to think that it is the duty, nay, obligation in
the present case to do so because despite repeated concern shown by this Court,
the malady subsists, making an abode of almost permanency. Ergo, we proceed to
state the facts on the first issue and our opinion thereon and, thereafter,
shall deal with the assail and attack on both the judgments on merits.
5.
One
Rajesh Kumar and two others, the private respondents in the appeal preferred by
the Corporation, filed Writ Petition No. 146 (S/B) of2009 at the Lucknow Bench
of the High Court of Judicature at Allahabad seeking declaration to the effect
that Rule 8A of the 1991 Rules and the resolution passed by the Corporation are
ultra vires. That apart, the assail was to the constitutional validity of Section
3(7) of the 1994 Acton the foundation that the State Government in gross violation
of the constitutional provisions enshrined under Articles 16(4A) and 16(4B) and
the interpretation placed thereon by the Constitution Bench in M. Nagraj (supra)
has framed the Rules and the Corporation has adopted the same by amending its
Rules and introduced the concept of reservation in promotion with accelerated
seniority.
6.
It
was contended before the Lucknow Bench that neither the State Government nor
the Corporation had carried out the exercise as per the decision in M. Nagraj (supra)
and in the absence of the same, the provisions of the Act and the Rules caused
discomfort to the constitutional provisions. The stand and stance put forth by the
writ petitioners was combated by the Corporation contending, inter alia, that the
Scheduled Castes and Scheduled Tribes were inadequately represented in the service
and the chart wise percentage of representation to direct recruitment of reserved
categories incumbents would clearly reflect the inadequacy.
We are not referring
to the pleadings in detail as that will be adverted to at a later stage. Suffice
to say at present, in view of the assertions made by the parties and the records
produced the Division Bench framed the question for determination whether Rule
8-A of the Rules is ultra vires and unconstitutional. During the course of hearing
of the writ petition, the Corporation brought to the notice of the Division Bench
at Lucknow the judgment dated 21.10.2010 passed by the Division Bench at
Allahabad in Writ Petition No. 63127 of 2010 (Mukund Kumar Srivastava v. State
of U.P. and another).
It was urged that the
same was a binding precedent and, therefore, the Division Bench was bound to
follow the same. But, the Bench hearing the writ petition declared the said
decision as not binding and perincuriam as it had not correctly interpreted,
appreciated and applied the ratio laid down in M. Nagraj (supra) and, on that base,
declared Section3(7) of the 1994 Act and Rule 8A of the 1991 Rules as unconstitutional
and issued the directions as have been stated hereinbefore.
7.
It
is the admitted position at the Bar that certain writ petitions were filed at
Lucknow Bench and they were being heard. They were filed one arlier point of time
and were being dealt with on merits by the concerned Division Bench. At that juncture,
the Division Bench at Allahabad entertained Writ Petition No. 63127 of 2010. The
Bench was of the viewthat without calling for a counter affidavit from any of the
respondents the writ petition could be decided. Be it noted, the petitioner there
in was an Executive Engineer in Rural Engineering Service at Sonebhadra Division
and had challenged the seniority list of Executive Engineers of Rural
Engineering Service published vide Office Memorandum No. 2950/62-3-2010-45-RES/2010
dated 8.9.2010 and further sought declaration of Rule 8Aof the 2007 Rules as
unconstitutional.
A prayer for issue of
a writ of mandamus was sought not to proceed with and promote any person on the
next higher post on the basis of the impugned seniority list of Executive Engineers
of Rural Engineering Service. The Bench, as is manifest from the order,
adverted to the facts and then dwelled upon the validity of the Rules. It
scanned Rules 6, 7, 8 and 8A and referred to the decision of this Court in
Indra Sawhney etc. v. Union of India and others[2], Section 3of the 1994 Act,
Article 335 of the Constitution and quoted in extenso from M. Nagraj (supra)
and came to hold as follows: -
“The Constitutional
validity of Amending Act 77th Amendment Act 1995 and 85th Amendment Act 2001
whereby clause (4A) has been inserted after clause (4) under the Article 16 of the
Constitution has already been upheld by the Constitution Bench of Hon’ble Apex
Court in M. Nagraj case (supra) holding that neither the catch up rule nor the Constitutional
seniority is implicit in Clause (1and Clause (4) of Article 16 rather the concept
of catch up rule and consequential seniority are judicially evolved concepts to
control the extent of reservation.
The source of these concepts
is in service jurisprudence. These concepts cannot be elevated to the status of
an axiom, like secularism, constitutional sovereignty, equality code etc.
forming basic structure of the Constitution. It cannot be said that by
insertion of concept of consequential seniority the structure of Article 16 stands
destroyed or abrogated. It cannot be said that equality code contained under Articles
14, 15, 16 is violated by deletion of catch-up rule. We are bound by the
aforesaid decision of Hon’ble Apex Court in M. Nagraj case (supra).
Therefore, there can be
no scope for doubt to hold that deletion of catch-up rule and conferring the
benefits of consequential seniority upon the members of SC and ST on account of
reservation in promotion in a particular service or grade or post has any way
obliterated the equality code contained under Articles 14, 15 and 16 of the Constitution
as concept of catch-up rule of seniority does not directly flow from Article
16(1and (4) of the Constitution of India. We are of the considered opinion that
Rule 8A of 1991 Rules has merely effectuated the provisions contained under Article
16(4A) of the Constitution of India whereby benefit of consequential seniority has
been given to the members of scheduled castes and scheduled tribes due to reservation/roster
in promotion by obliterating the concept of catch-up Rule of seniority.
Rule 8A of 1991 Rules
specifically stipulates that if any member of scheduled castes or scheduled tribes
is promoted on any post or grade in service earlier to other categories of persons,
the member of SC/ST shall be treated to be senior to such other categories of persons
who are promoted subsequently after promotion of members of SC/ST, despite anything
contained in Rules 6, 7 and 8 of 1991 Rules.
In our view Rule 8A
of 1991 Rules has constitutional sanctity of Article 16(4A) of the Constitution
and cannot be found faulty merely on account of violation of judicially evolved
concept of catch-up rule of seniority which has been specifically obliterated
by Article 16(4A) of the Constitution. Likewise the said rule can also not be
held to be unconstitutional or invalid on account of obliteration of any other judicially
evolved principle of seniority or any other contrary rules of seniority existing
under Rules 6, 7 and 8 of 1991 Rules, as Rule 8A of 1991 Rules opens with
non-obstante clause with overriding effect upon Rules 6, 7 and 8 of 1991 Rules,
therefore, we do not find any justification to strike down the provisions
contained under Rule 8-A of 1991 Rules on the said ground and on any of the grounds
mentioned in the writ petition.”After so stating, the Division Bench proceeded
to observe as follows: -
“27. In this
connection, we make it clear that deletion of the said concept of catch-up Rule
of seniority and addition of consequential seniority due to reservation in
promotion on any post or grade in service are applicable to the member of scheduled
castes and scheduled tribes only, whereas inter-se seniority of other
categories employees shall continue to be determined according to their existing
seniority rules as contemplated by the provisions of Rules 6, 7 and 8 of 1991 Rules,
subject to aforesaid limitations.
Thus the concept of catch-up
Rule of Seniority stands obliterated only to the extent of giving benefit of consequential
seniority to the members of scheduled castes and scheduled tribes on account of
their promotion on any post or grade in service due to reservation, therefore,
the scope of obliteration of concept of catch-up rule is limited to that
extent. In this view of the matter the petitioner is not entitled to get the
relief sought for in the writ petition questioning the validity of said Rule 8A
of 1991 Rules.
Thus we uphold the validity
of said Rules and the question formulated by us is answered accordingly.” It is
interesting to note that in paragraph 29 of the said judgment the Division
Bench expressed thus: - “29. However, since the petitioner did not challenge the
Constitutional Validity of Law regarding reservation in promotion in favour of scheduled
castes and scheduled tribes existing in State of Uttar Pradesh which is applicable
to the services and posts in connection of affairs of State of Uttar Pradesh
inasmuch as other services and posts covered by said Reservation Act 1994, in
our opinion, the petitioner shall not be permitted to raise this question by filing
any other writ petition again.
In given facts and
circumstances of the case, we are not inclined to issue any mandamus, commanding
the respondents, not to proceed with impugned seniority list for the purpose of
promotion on the next higher post without expressing any opinion on the merit
of said seniority list. We are also not inclined to issue any such restraint order,
staying any promotion on the next higher post, if the respondents are intending
to make such promotion on the basis of impugned seniority list.”
8.
We
have been apprised at the Bar that it was brought to the notice of the Division
Bench at Allahabad that certain writ petitions, where there was comprehensive challenge,
were part-heard and the hearing was in continuance at Lucknow Bench, but, as is
vivid from the first paragraph of the said judgment, the Bench heard the
learned counsel for the petitioner and the standing counsel for the State and
caveator and proceeded to decide the matter without a counter affidavit.
9.
Presently,
we shall advert to how the Lucknow Bench dealt with thisdecision.
10.
After
stating the basic pleas, the Division Bench at Lucknow proceeded to state as
follows:- “.......but before we proceed to decide the validity of the challenge
made and the defence put, we find it expedient to respond to the foremost plea
of the respondents that the aforesaid Rule 8-A of the U.P. Government Servants Seniority
Rules, 1991, (hereinafter referred to as ‘the Rules, 1991), was challenged
before a Division Bench (Hon’ble Sheo Kumar Singh and Hon’ble Sabhajeet Yadav,
JJ) at Allahabad in Writ Petition No. 63127 of 2010 in re: Mukund Kumar
Srivastava versus State of U.P. and another, which writ petition has been dismissed
upholding the validity of the aforesaid Rule 8-A, therefore, this Court is
bound by the said judgment passed by a Bench of equal strength and hence all
these petitions need be dismissed only on this ground.” Before the said Bench,
it was contended that the judgment rendered by the Division Bench at Allahabad is
per incuriam and is not a binding precedent.
11.
Various
grounds were urged to substantiate the aforesaid stand. The Division Bench,
after analysing the reasoning of the Allahabad Bench in great detail and after
referring to certain decisions and the principles pertaining to binding
precedent, opined as follows:- “The Division Bench at Allahabad, did not enter into
the question of exercise of power by the State Government under the enabling
provisions of the Constitution and upheld the validity of Rule 8-A only for the
reason, that there did exist such a power to enact the Rule, whereas the Apex Court,
very clearly has pronounced, that if the given exercise has not been undertaken
by the State Government while making a rule for reservation with or without
accelerated seniority, such a rule may not stand the test of judicial review.
In fact, M. Nagraj
obliges the High Court that when a challenge is made to the reservation in promotion,
it shall scrutinize the same on the given parameters and it also casts a corresponding
duty upon the State Government to satisfy the Court about the exercise
undertaken in making such a provision for reservation. The Division Bench did
not advert upon this issue, nor the State Government fulfilled its duty as
enumerated in M. Nagraj.
The effect of the
judgment delivered at Allahabad is also to be seen in the light of the fact that
though the Division Bench at Allahabad did not adjudicate on the dispute with
regard to the seniority for which the petitioner Mukund Kumar Srivastava has
been relegated to the remedy of State Public Services Tribunal, but upheld the
validity of Rule 8-A, which could not be said to be the main relief, claimed by
the petitioner. For the aforesaid reasons and also for the reason, that the
present writ petitions do challenge the very rule of reservation in promotion,
which challenge we have upheld for the reasons hereinafter stated, because of which
the rule of accelerated seniority itself falls to the ground, we, with deep respect,
are unable to subscribe to the view taken by the Division Bench at Allahabad
and hold that the said judgment cannot be considered as binding precedent
having been rendered per incuriam.”
12.
We
have reproduced the paragraphs from both the decisions in extensor to highlight
that the Allahabad Bench was apprised about the number of matters at Lucknow
filed earlier in point of time which were being part heard and the hearing was
in continuum. It would have been advisable to wait for the verdict at Lucknow
Bench or to bring it to the notice of the learned Chief Justice about the
similar matters being instituted at both he places.
The judicial courtesy
and decorum warranted such discipline which was expected from the learned Judges
but for the unfathomable reasons, neither of the courses were taken recourse to.
Similarly, the Division Bench at Lucknow erroneously treated the verdict of Allahabad
Bench not to be a binding precedent on the foundation that the principles laid
down by the Constitution Bench in M. Nagraj (supra) are not being appositely
appreciated and correctly applied by the Bench when there was reference to the
said decision and number of passages were quoted and appreciated albeit
incorrectly, the same could not have been a ground to treat the decision as per
incuriam or not a binding precedent. Judicial discipline commands in such a
situation when there is disagreement to refer the matter to a larger Bench. Instead
of doing that, the Division Bench at Lucknow took the burden on themselves to
decide the case.
13.
In
this context, we may profitably quote a passage from Lala Shri Bhagwan and
another v. Ram Chand and another[3]:- “18. .. It is hardly necessary to
emphasise that considerations of judicial propriety and decorum require that if
a learned single Judge hearing a matter is inclined to take the view that the
earlier decisions of the High Court, whether of a Division Bench or of a single
Judge, need to be reconsidered, he should not embark upon that enquiry sitting as
a single Judge, but should refer the matter to a Division Bench or, in a proper
case, place the relevant papers before the Chief Justice to enable him to
constitute a larger Bench to examine the question. That is the proper and traditional
way to deal with such matters and it is founded on healthy principles of judicial
decorum and propriety. It is to be regretted that the learned single Judge
departed from this traditional way in the present case and chose to examine the
question himself.”
14.
In
Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and
others[4] while dealing with judicial discipline, the two-Judge Bench has
expressed thus:- “One must remember that pursuit of the law, however, glamorous
it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges
are bound by precedents and procedure. They could use their discretion only when
there is no declared principle to be found, no rule and no authority. The judicial
decorum and legal propriety demand that where a learned single Judge or a
Division Bench does not agree with the decision of a Bench of co-ordinate
jurisdiction, the matter shall be referred to a larger Bench. It is a
subversion of judicial process not to follow this procedure.”
The aforesaid
pronouncements clearly lay down what is expected from the Judges when they are
confronted with the decision of a Co-ordinate Bench on the same issue. Any
contrary attitude, however adventurous and glorious may be, would lead to uncertainty
and inconsistency. It has precisely so happened in the case at hand. There are
two decisions by two Division Benches from the same High Court. We express our concern
about the deviation from the judicial decorum and discipline by both the Benches
and expect that in future, they shall be appositely guided by the conceptual
eventuality of such discipline as laid down by this Court from time to time. We
have said so with the fond hope that judicial enthusiasm should not obliterate
the profound responsibility that is expected from theJudges.
15.
Having
dealt with the judicial dictum and the propriety part, we shall now proceed to
deal with the case on merit as a common consensus was arrived at the Bar for
the said purpose. The affected employees have filed certain civil appeals
against the judgment of the Allahabad High Court and the employees who are
affected by the verdict of the Lucknow Bench have also preferred appeals. That
apart, the State of U.P. and the Corporation have also challenged the decision
as the rules framed have been declared ultra vires. The main controversy
relates to the validity of Section 3(7)of the 1994 Act and Rule 8A of the 1991
Rules. Thus, we really have to advert to the constitutional validity of the
said provisions.
16.
Prior
to the advertence in aforesaid regard, it is necessary to have a certain survey
pertaining to reservation in promotional matters. The question of reservation
and the associated promotion with it has been a matter of debate in various
decisions of this Court. After independence, there were various areas in
respect of which decisions were pronounced. Eventually, in the case of Indra
Sawhney and another v. Union of India and others (supra) the nine-Judge Bench, while
dealing with the question whether clause (4) of Article 16 of the Constitution provides
for reservation only in the matter of initial appointment, direct recruitment or
does it contemplate and provide for reservations being made in the matter of promotion
as well, recorded the submissions of the petitioners in paragraph 819 which
reads as follows: -
“The petitioners’
submission is that the reservation of appointments or posts contemplated by
clause (4) is only at the stage of entry into State service, i.e., direct
recruitment. It is submitted that providing for reservation thereafter in the matter
of promotion amounts to a double reservation and if such a provision is made at
each successive stage of promotion it would be a case of reservation being
provided that many times. It is also submitted that by providing reservation in
the matter of promotion, the member of a reserved category is enabled to leap-frog
over his compatriots, which is bound to generate acute heartburning and may well
lead to inefficiency in administration.
The members of the open
competition category would come to think that whatever be their record and performance,
the members of reserved categories would steal a march over them, irrespective
of their performance and competence. Examples are give how two persons (A) and
(B), one belonging to O.C. category and the other belonging to reserved category,
having been appointed at the same time, the member of the reserved category
gets promoted earlier and how even in the promoted category he jumps over the
members of the O.C. category already there and gains a further promotion and so
on. This would generate, it is submitted, a feeling of disheartening which
kills the spirit of competition and develops a sense of disinterestedness among
the members of O.C. category.
It is pointed out
that once persons coming from different sources join a category or class, they
must be treated alike thereafter in all matters including promotions and that no
distinction is permissible on the basis of their “birth-mark”. It is also pointed
out that even the Constituent Assembly debates on draft Article 10(3) do not indicate
in any manner that it was supported to extend to promotions as well. It is further
submitted that if Article 16(4) is construed as warranting reservation even in
the matter of promotion it would be contrary to the mandate of Article 335
viz., maintenance of efficiency in administration. It is submitted that such a provision
would amount to putting a premium upon inefficiency.
The members of the
reserved category would not work hard since they do not have to compete with all
their colleagues but only within the reserved category and further because they
are assured of promotion whether they work hard and efficiently or not. Such a course
would also militate against the goal of excellence referred to in clause (j) of
Article 51-A (Fundamental Duties).”
Thereafter, the Bench
referred to the decisions in General Manager, S. Rly. v. Rangachari[5], State
of Punjab v. Hira Lal[6], Akhil Bharatiya Soshit Karamchari Sangh v. Union of India[7]
and Comptroller and Auditor General v. K.S. Jagannathan [8] and did not agree
with the view stated in Rangachari (supra), despite noting the fact that
Rangachari has been a lawfor more than thirty years and that attempt to reopen the
issue was repelled in Akhil Bharatiya Soshit Karamchari Sangh (supra).
Thereafter, their
Lordships addressed to the concept of promotion and, eventually after adverting
to certain legal principles, stated thus: - “831. We must also make it clear that
it would not be impermissible for the State to extend concessions and relaxations
to members of reserved categories in the matter of promotion without compromising
the efficiency of the administration. The relaxation concerned in State of Kerala
v. N.M. Thomas [(1976) 2 SCC 310] and the concessions namely carrying forward
of vacancies and provisions for in-service coaching/training in Karamchari Sangh
are instances of such concessions and relaxations.
However, it would not
be permissible to prescribe lower qualifying marks or a lesser level of evaluation
for the members of reserved categories since that would compromise the efficiency
of administration. We reiterate that while it may be permissible to prescribe a
reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs –
consistent with the efficiency of administration and the nature of duties
attaching to the office concerned – in the matter of direct recruitment, such a
course would not be permissible in the matter of promotions for the reasons
recorded hereinabove.” In paragraph 859, while summarising the said aspect, it has
been ruled thus: - “859.
We may summarise our answers
to the various questions dealt with and answered hereinabove: .......... ..............
........... (7) Article 16(4) does not permit provision for reservations in the
matter of promotion. This rule shall, however, have only prospective operation and
shall not affect the promotions already made, whether made on regular basis or on
any other basis. We direct that our decision on this question shall operate
only prospectively and shall not affect promotions already made, whether on temporary,
officiating or regular/permanent basis.
It is further directed
that wherever reservations are already provided in the matter of promotion – be
it Central Services or State Services, or for that matter services under any Corporation,
authority or body falling under the definition of ‘State’ in Article 12 – such
reservations may continue in operation for a period of five years from this day.
Within this period, it would be open to the appropriate authorities to revise, modify
or re-issue the relevant rules to ensure the achievement of the objective of Article
16(4).
If any authority
thinks that for ensuring adequate representation of ‘backward class of citizens’
in any service, class or category, it is necessary to provide for direct recruitment
therein, it shall be open to it to do so (Ahmadi, J expresses no opinion on
this question upholding the preliminary objection of Union of India). It would
not be impermissible for the State to extend concessions and relaxations to
members of reserved categories in the matter of promotion without compromising the
efficiency of the administration.”
17.
After
the said decision, another decision, namely, Union of India andothers v. Virpal
Singh Chauhan and others[9] came to the field. In the said case, the two-Judge
Bench was concerned with the nature of rule and reservation in promotions
obtaining in the railway service and the rule concerning the determination of seniority
between general candidates and candidates belonging to reserved classes in the
promotional category.
The Bench referred to
the decision in R.K. Sabharwal v. State of Punjab [10],various paragraphs of the
Indian Railways Establishment Manual andparagraphs 692 and 693 of the Indra
Sawhney (supra) and opined that the roster would only ensure the prescribed
percentage of reservation but would not affect the seniority. It has been stated
that while the reserved candidates are entitled to accelerated promotion, they would
not been titled to consequential seniority.
18.
Thereafter,
in Ajit Singh Januja and others v. State of Punjab and others[11], the
three-Judge Bench posed the question in the following terms: - “The controversy
which has been raised in the present appeals is: whether, after the members of Scheduled
Castes/Tribes or Backward Classes for whom specific percentage of posts have
been reserved and roster has been provided having been promoted against those
posts on the basis of “accelerated promotion” because of reservation of posts
and applicability of the roster system, can claim promotion against general category
posts in still higher grade on the basis of their seniority which itself is the
result of accelerated promotion on the basis of reservation and roster?”
The Bench referred to
the decisions in Virpal Singh Chauhan (supra),R.K. Sabharwal (supra) and Indra
Sawhney (supra) and ultimately concurred with the view expressed in Virpal
Singh Chauhan by stating as follows: - “16. We respectfully concur with the view
in Union of India v. Virpal Singh Chauhan, that seniority between the reserved
category candidates and general candidates in the promoted category shall
continue to be governed by their panel position i.e. with reference to their
inter se seniority in the lower grade. The rule of reservation gives accelerated
promotion, but it does not give the accelerated “consequential seniority”.
If a Scheduled
Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster
and his senior belonging to the general category is promoted later to that
higher grade the general category candidate shall regain his seniority over
such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out
above that when a Scheduled Caste/ Tribe candidate is promoted earlier by
applying the rule of reservation/roster against a post reserved for such
Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors
belonging to the general category. In this process there was no occasion to
examine the merit of such Scheduled Caste/Tribe candidate vis-a-vis his seniors
belonging to the general category.
As such it will be
only rational, just and proper to hold that when the general category candidate
is promoted later from the lower grade to the higher grade, he will be
considered senior to a candidate belonging to the Scheduled Caste/Tribe who had
been given accelerated promotion against the post reserved for him.
Whenever a question
arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still
higher grade then such candidate belonging to Scheduled Caste/Tribe shall be
promoted first but when the consideration is in respect of promotion against
the general category post in a still higher grade then the general category
candidate who has been promoted later shall be considered senior and his case shall
be considered first for promotion applying either principle of seniority-cum-merit
or merit-cum-seniority.
If this rule and
procedure is not applied then result will be that majority of the posts in the
higher grade shall be held at one stage by persons who have not only entered
service on the basis of reservation and roster but have excluded the general
category candidates from being promoted to the posts reserved for general category
candidates merely on the ground of their initial accelerated promotions. This
will not be consistent with the requirement or the spirit of Article 16(4) or
Article 335 of the Constitution.”
19.
In
Jagdish Lal and others v. State of Haryana and others[12], a three-Judge Bench
opined that seniority granted to the Scheduled Caste and Scheduled Tribe
candidates over a general candidate due to his accelerated promotion does not
in all events get wiped out on promotion of general candidate. The Bench
explained the decisions in Vir Pal Singh Chauhan(supra) and Ajit Singh Januja
(supra).
20.
In
Ajit Singh and others (II) v. State of Punjab and others[13], the Constitution
Bench was concerned with the issue whether the decisions in Vir Pal Singh
Chauhan (supra) and Ajit Singh Januja (supra) which were earlier decided to the
effect that the seniority of general candidates is to be confirmed or whether
the later deviation made in Jagdish Lal (supra)against the general candidates
is to be accepted.
The Constitution Bench
referred to Articles 16(1), 16(4) and 16(4A) of the Constitution and discussed
at length the concept of promotion based on equal opportunity andseniority and
treated them to be facets of Fundamental Right under Article16(1of the
Constitution. The Bench posed a question whether Articles16(4) and 16(4A)
guarantee any Fundamental Right to reservation. Regard being had to the nature
of language employed in both the Articles, they were to be treated in the
nature of enabling provisions.
The Constitution Bench
opined that Article 16(1deals with the Fundamental Right and Articles 16(4) and
16(4A) are the enabling provisions. After so stating, they proceeded to analyse
the ratio in Indra Sawhney (supra), AkhilBharatiya Soshit Karamchari Sangh
(supra) and certain other authorities in the field and, eventually, opined that
it is axiomatic in service jurisprudence that any promotions made wrongly in
excess of any quota are to be treated as ad hoc.
This applies to
reservation quota as much as it applies to direct recruits and promotee cases. If
a court decides that in order only to remove hardship such roster-point
promotees are not to face reversions, - then it would, in our opinion be, necessary
to hold –consistent with our interpretation of Articles 14 and 16(1– that such promotees
cannot plead for grant of any additional benefit of seniority flowing from a
wrong application of the roster.
While courts can relieve
immediate hardship arising out of a past illegality, courts cannot grant additional
benefits like seniority which have no element of immediate hardship. Ultimately
while dealing with the promotions already given before 10.2.1995 the Bench
directed as follows: - “Thus, while promotions in excess of roster made before 10-2-
1995 are protected, such promotees cannot claim seniority.
Seniority in the
promotional cadre of such excess roster-point promotees shall have to be
reviewed after 10-2-1995 and will count only from the date on which they would
have otherwise got normal promotion in any future vacancy arising in a post previously
occupied by a reserved candidate. That disposes of the “prospectivity” point in
relation to Sabharwal.”
21.
At
this juncture, it is condign to note that Article 16(4A) and Article 16 (4B)
were inserted in the Constitution to confer promotion with consequential
seniority and introduced the concept of carrying forward vacancies treating the
vacancies meant for reserved category candidates as a separate class of vacancies.
The said Articles as
amended from time to time read as follows: - “16(4A) Nothing in this Article
shall prevent the State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of posts in
the services under the State in favour of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in the
services under the State. 16(4B) Nothing in this article shall prevent the
State from considering any unfilled vacancies of a year which are reserved for
being filled up in that year in accordance with any provision for reservation
made under clause (4) or (4A) as a separate class of vacancies to be filled up in
any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number of that
year.”
22.
The
validity of the said Articles were challenged under Article 32 of the
Constitution of India before this Court and the Constitution Bench in M. Nagraj
(supra) upheld the validity of the said Articles with certain qualifiers/riders
by taking recourse to the process of interpretation. As the controversy rests
mainly on the said decision, we will advert to it in detail at a later stage.
23.
Presently,
we shall dwell upon the provisions that were under challenge before the High
Court. The Legislative Assembly of Uttar Pradesh brought in a legislation, namely,
the Uttar Pradesh Public Services(Reservation for Scheduled Castes, Scheduled Tribes
and other Backward Classes) Act, 1994 (UP Act No. 4 of 1994) to provide for reservation
in public services and posts in favour of the persons belonging to Scheduled Castes,
Scheduled Tribes and other Backward Classes of citizens and formatters
connected therewith or incidental thereto. Section 3(7), which is relevant for
our present purpose, reads as follows: - “Reservation in favour of Scheduled Castes,
Scheduled Tribes and other Backward Classes. – ...... .......... .......... (7)
If, on the date of commencement of this Act, reservation was in force under
Government Orders for appointment to posts to be filled by promotion, such
Government Orders shall continue to be applicable till they are modified or
revoked.” Sub-section (7) of Section 3 was the subject-matter of assail before the
High Court.
24.
As
the factual matrix would reveal, the State of Uttar Pradesh brought into
existence the Uttar Pradesh Government Servants Seniority(First Amendment)
Rules, 2002 on the 18th of October, 2002 in exercise of the power conferred
under Article 309 of the Constitution whereby after Rule 8, new Rule 8-A was
inserted. The said Rule reads as follows: - “8-A. Notwithstanding anything
contained in Rule s6,7 or 8 of these rules, a person belonging to the Scheduled
Castes or Scheduled Tribes shall on his promotion by virtue of rule of reservation/
roster, be entitled to consequential seniority also.”
25.
It
is worth noting that on May 13, 2005, by the Uttar Pradesh Government Servants
Seniority (Second Amendment) Rules, 2005, Rule 8-A was omitted. However, it was
provided in the said Rules that the promotions made in accordance with the
revised seniority as determined under Rule 8-Aprior to the commencement of the 2005
Rules could not be affected. Thereafter, on September 14, 2007, by the Uttar
Pradesh Government Servants Seniority (Third Amendment) Rules, 2007, Rule 8-A
was inserted in the same language which we have already reproduced hereinabove.
It has been mentioned in the said Rule that it shall be deemed to have come into
force on June 17, 1995. It is germane to note here that the U.P. Power Corporation
Limited adopted the said Rules as there is no dispute about the fact that after
the Rules came into existence and have been given effect to at some places and
that is why the challenge to the constitutional validity of the Act and the
Rules was made before the High Court. We have already indicated how both the
Benches have dealt with the said situation.
26.
At
this stage, we may usefully state that though number of appeals have been
preferred, yet some relate to the assail of the interim orders and some to the
final orders. We may only state for the sake of clarity and convenience that if
Section 3(7) and Rule 8-A as amended in 2007 are held to be constitutionally valid,
all the appeals are bound to be dismissed and if they are held to be ultra
vires, then the judgment passed by the Lucknow Bench shall stand affirmed subject
to any clarification/modification in our order.
27.
As
has been noticed hereinbefore, the Allahabad Bench had understood the dictum in
M. Nagaraj (supra) in a different manner and the Division Bench at Lucknow in a
different manner. The learned counsel appearing forvarious parties have advanced
their contentions in support of the provisions in the enactment and the Rules. We
would like to condense their basic arguments and endeavour to pigeon-hole keeping
in view the facts which are requisite to be referred to at the time of analysis
of the said decision in the backdrop of the verdict in M. Nagaraj (supra).
28.
Mr.
Andhyarujina and Mr. Raju Ram Chandran, learned senior counsel criticising the
decision passed by the Lucknow Bench, have submitted that the High Court has fallen
into grave error by not scrutinising the materials produced before it, as a consequence
of which a sanctuary of errors have crept into it. If the counter affidavit and
other documents are studiedly scanned, it would be luminescent that opinion has
been formed as regards inadequate representation in promotional posts and, therefore,
it had become an imperative to provide for reservation.
The opinion formed by
the Government need not be with mathematical precision to broad spectrum and
such exercise has already been done by the State of U.P., since reservation in
promotional matters was already in vogue by virtue of administrative circulars
and statutory provisions for few decades. It is urged that the concept of inadequate
representation and backwardness have been accepted by the amending power of the
Constitution and, therefore, the High Court has totally flawed by laying
unwarranted emphasison the said concepts.
The High Court could
not have sat in appeal on the rule of reservation solely on the factual
bedrock. The chart brought on record would reflect department wise how the
persons from backward classes have not been extended the benefit of promotion and
the same forms the foundation for making the enactment and framing the rule and
hence, no fault could have been found with the same.
Once an incumbent belongs
to Scheduled Castes/ Scheduled Tribes category, it is conclusive that he suffers
from backwardness and no further enquiry is necessary. It has been clearly held
in the case of Indra Sawhney (supra) that the test or requirement of social and
educational backwardness cannot be applied to Scheduled Castes/ Scheduled Tribes
who indubitably fall within the expression ‘Backward Classes of Citizen’.
It is beyond any shadow
of doubt that Scheduled Castes/ Scheduled Tribes are a separate class by themselves
and the creamy layer principle is not applicable to them. It has been so held
in Avinash Singh Bagri and Ors. v. Registrar IIT Delhi and Another[14]. Article
16 (4A) uses the phrase ‘in the opinion of’ and the said word carries a
different meaning to convey that it is subjective in nature rather than objective.
The Report of the “Social Justice Committee” dated 28.06.2001 clearly
ascertains the need for implementation of reservation in promotional matters in
public service in U. P. and the said Report deserves acceptance. The State Government
was possessed of sufficient materials to implement the promotional provisions which
are enabling in nature and the same is justified by the
“Social Justice Committee
Report” which has examined the current status of implementation of Scheduled
Castes/ Scheduled Tribes and other backward classes in other public services with
respect to their quota, their participation and progress in various services,
the substantial backlog in promotional posts in category A, B and C posts and the
inadequacy of representation in promotional posts and various departments and State
owned corporations. The High Court has completely erred specially when there was
sufficient data available with the State Government.
Regard being had to the
factum that the said promotions were being given for few decades, a fresh exercise
regarding adequacy was not necessary. The concept of efficiency as stipulated
under Article 335 of the Constitution is in no way affected if the reservation
does not exceed 50%. The consequential seniority being vested by the
Constitution, it follows as natural corollary and hence, no further exercise
was required to be undertaken. The learned counsel for the State has drawn the attention
of this Court with respect to the percentage of representation to justify that
requisite data was available and no further exercise was needed and, therefore,
the decision of the HighCourt is fundamentally fallacious.
29.
Mr.
P. S Patwalia, learned senior counsel appearing in some appealsfor the corporation,
has submitted that the requirement of having quantifiable data is not a new
concept propounded in the case of M. Nagraj(supra) but is a reiteration of the earlier
view enunciated in Indra Sawhney case (supra) and, therefore, the provision could
not have been declared as ultra vires. The emphasis on backwardness is absolutely
misconceived, for Scheduled Castes/ Scheduled Tribes are duly notified as such
in the Presidential list by virtue of Articles 341 and 342 of the Constitution.
Their exclusion from
the list can alone be done by the amendment of the Presidential Order and
hence, any kind of collection of data as regards the backwardness is an
exercise in futility. The concept of creamy layer principle cannot be applied
to Scheduled Castes/ Scheduled Tribes as has been held in the case of Ashok Kumar
Thakur v. Union of India[15]. Learned senior counsel has placed reliance on the
decision in E. V. Chinniah v. State of Andhra Pradesh[16] to highlight that there
may be only one list of Scheduled Castes/Scheduled Tribes and this list constitutes
one group for the purpose of reservation and the same cannot be interfered
with, disturbed, re-grouped or re-classified by the State.
In essence, the
submission is that there may not be exclusion by engrafting the principle of backwardness
for the purpose of reservation in promotion. Commenting on the adequacy of representation,
it is urged by Mr. Patwalia that the data was immediately collected after the
1994 Act and thereafter, no fresh data was necessary to be collected after the
decision rendered by the Constitution Bench in M. Nagraj (supra).
It is further submitted
by the learned counsel that even if quantifiable data is not collected, the State
can be asked to do so in view of the order passed by this Court in S.B Joshi v.
State of Karnatka and Others in W.P. 259 of 1994 decided on13.07.2010. The
efficiency of service as encapsuled in Article 335 of the Constitution has been
duly respected by providing a uniform minimum standard of the matters of promotion
as far as the Corporation is concerned and, therefore, no fault can be found in
that regard.
30.
Mr.
P. P. Rao, learned senior counsel appearing for some of the private respondents
assailing the decision of the Lucknow Bench, has urged that when there was no
challenge to the orders issued prior the amendment for reservation in
promotion, no quantifiable data is necessary. Section3 (7) of the 1994 Act does
not make any change except recognising the earlier orders which lay down that
they shall continue to be applicable till it is modified or revoked and,
therefore, it has only been conferred statutory recognition.
The High Court has
misunderstood the decision in M. Nagraj (supra) while stating that the collection
of quantifiable data was not undertaken though the said decision clearly lays down
that a collection of quantifiable data showing backwardness for the class would
be required while demonstrating the same in Court to the extent of promotion when
it is under challenge.
In the case at hand, the
issue is not the extent of reservation or excessive reservation but reservation
in promotion. That apart, the principles laid down in M. Nagraj (supra) do not
get attracted if reservation in promotion is sought to be made for the first time
but not for continuing the reservation on the basis of assessment made by the
Parliament in exercise of its constituent powers.
The Constitutional
Amendment removed the base of the decision in Indra Sawhney (supra) that
reservation in promotion is not permissible and the Government in its wisdom
has carried out the assessment earlier and decided to continue the policy and,
therefore, to lay down the principle that in view of the decision in M Nagraj
(supra), a fresh exercise is necessary would tantamount to putting the concept
in the realm of inherent fallacy. The decision in Suraj Bhan Meena and Another v.
State of Rajasthan &Ors.[17] is not a binding precedent inasmuch as it takes
note of the contention (at paragraph 24 at page no. 474-475 of the Report) but does
not deal with it.
The 85th Amendment which
provides for consequential seniority wipes out the ‘catch up’ rule ‘from its inception
and the general principle of seniority from the date of promotion operates without
any break and for the same reason the said amendment had been given retrospective
effect’. The intention of the Parliament at the time of exercise of its
constitutional power clearly states that the representation of Scheduled
Castes/ Scheduled Tribes in the services in the States had not reached the
required level and it is necessary to continue the existing position of providing
reservation in promotion in the case of Scheduled Castes/ Scheduled Tribes.
The learned senior counsel
has laid immense emphasis on the intention of the Parliament and the
Legislature to continue the policy and, pyramiding the said submission, he has contended
that no fresh exercise is required. It is propounded by Mr. Rao that Article 16basically
relates to classes and not backward individuals and therefore, no stress should
be given on the backwardness. Alternatively, the learned senior counsel has
submitted that the matter should be referred to a larger Bench, regard being
had to the important issue involved in the case.
31.
Mr.
Rakesh Dwivedi, learned senior counsel who represents some of the petitioners
aggrieved by the Lucknow Bench decision, has urged that backwardness is
presumed in view of the nine-Judge Bench decision in Indra Sawhney (supra) and
the same has to be regarded beyond any cavil. The dictum in M. Nagraj (supra)
cannot be understood to mandate collection of quantifiable data for judging the
backwardness of the Scheduled Castes/Scheduled Tribes while making reservation in
promotion. But, unfortunately, the High Court has understood the Judgment in the
aforesaid manner.
There is no material produced
on record to establish that Scheduled Castes/ Scheduled Tribes candidates having
been conferred the benefit of promotion under reservation have ceased to be backward.
Though the decision in Indra Sawhney (supra) held that the promotion in reservation
is impermissible, yet it continued the reservation in promotion for a period of
five years and, therefore, the Constitution Amendment came into force in this
backdrop Section 3 (7) of the 1994 Act could not have been treated to be
invalid. But the stand that the refixation of seniority after coming into
existence of Rule 8-A of the Rules or the rule by the corporation is basically
fallacious, for persons who were promoted earlier to the higher post are
entitled to seniority from the date of promotion.
The learned senior
counsel has contended that after coming into force of the amendment of the Constitution
by inserting Article 16 (4A), the decisions in Rangachary (supra) and Akhil
Bhartiya Karmachari Sangh (supra)have been restored and the concept of ‘catch
up’ rule as propounded in Ajit Singh II (supra) has also been nullified. Article
16 (4A) only makes it explicit what is implicit under service jurisprudence in matters
of promotion and the said benefit was always enjoyed by the Scheduled Castes/Scheduled
Tribes people and M. Nagraj (supra) does not intend to affect the said aspect.
The learned counsel
has referred to paragraph 798 of Indra Sawhney (supra) to highlight the scope
of judicial scrutiny in matters which are within the subjective satisfaction of
the executive and are to be tested as per the law laid down in Barium Chemicals
v. Company Law Board[18]. In essence, the submission is that in adequacy of representation
is in the domain of subjective satisfaction of the State Government and is to be
regarded as a policy decision of the State.
The learned senior counsel
has distinguished the principle enunciated in Suraj Bhan Meena (supra). In that
case, the court was not dealing with an issue where the reservation had already
been made and was in continuance. It is highlighted by Mr Dwivedi that in the
present case the issue is not one where there is no material on record to
justify the subjective satisfaction, but, on the contrary, there is adequate
material to show that the State Government was justified in introducing the
provision in the Act and the Rule. As regards the efficiency in administration has
mandate under Article 335 of the Constitution, the submission of Mr. Dwivedi is
that the constitutional amendment has been made keeping in mind the decision in
Indra Sawhney(supra) and the amendment of Article 335 facilitates the reservations
in promotion.
The learned senior
counsel would contend that maintenance of efficiency basically would convey
laying a prescription by maintaining the minimum standard and in the case of the
Corporation it has been so done.It has been propounded by him that if
backwardness becomes the criterion, it would bring out the internal conflict in
the dictum of M. Nagraj (supra)and then in that case it has to be reconciled
keeping in view the common thread of judgment or the matter should be referred to
a larger Bench.
In any case, M.
Nagraj (supra) does not lay down that the quantifiable data of backwardness
should be collected with respect to eligible Scheduled Castes/ Scheduled Tribes
employees seeking promotion. Mr. Dwivedi has commended to the decision in Union
of India v. Rakesh Kumar [19] tohighlight that the proportion of population is
the thumb rule as far as the Scheduled Castes/ Scheduled Tribes are concerned and
that should be the laser beam to adjudge the concept of inadequacy of reservation.
Reservation in promotion involves a balancing act between the national need to
equalise by affirmative action and to do social justice on one hand and to
ensure that equality of opportunity as envisaged under Article 14 is not unduly
affected by the benefit of promotion which has been conferred by the Act and
Rules on the Scheduled Castes/ Scheduled Tribes as a balancing act and same has
always been upheld by this Court.
32.
Mr.
Shanti Bhushan, learned senior counsel, has submitted that the Constitution
Bench in M. Nagaraj (supra) has clearly laid down certain conditions, namely, that
there must be compelling reasons for making reservation in promotion; that the
State is not bound to make reservation for Scheduled Castes/ Scheduled Tribes
in matters of promotion; that if the State thinks that there are compelling
reasons to make such reservation in promotion, it is obligatory on the part of the
State to collect quantifiable data showing the backwardness of the class and inadequacy
of representation of that class in public employment and also by making such reservation
in promotion, the efficiency in administration is not affected; that the
exercise is required to be made before making any reservation for promotion;
that the State has not applied its mind to the question as to what could be regarded
as an adequate representation for Scheduled Castes/Scheduled Tribes in respect
of promotion; that the provision for reservation in matters of promotion has to
be considered in any class or classes of posts not adequately represented in
the services under the State but unfortunately, the exercise in that regard has
not at all been taken up but amendments have been incorporated; that the
concept of backwardness and inadequacy of representation as understood in the case
of M. Nagaraj(supra) has been absolutely misunderstood and misconstrued by the State
Government as a consequence of which the Rules of the present nature have come
into existence; that the overall efficiency as enshrined under Article335 of the
Constitution has been given a total go-bye which makes Section3(7) of the 1994
Act and Rule 8-A absolutely vulnerable and thereby invites the frown of the
enabling provision and the dictum in M. Nagaraj (supra);that Rule 8-A which
confers accelerated seniority would leave no room for the efficient general
category officers which is not the intention of the framers of the Constitution
and also as it is understood by various decisions of this Court.
33.
Dr.
Rajeev Dhavan, learned senior counsel, supporting the decision of the Division Bench
which has declared the Rule as ultra vires, has submitted that if M. Nagaraj
(supra) is properly read, it does clearly convey that social justice is an over
reaching principle of the Constitution like secularism, democracy, reasonableness,
social justice, etc. and it emphasises on the equality code and the parameters
fixed by the Constitution Bench as the basic purpose is to bring in a state of balance
but the said balance is destroyed by Section 3(7) of the 1994 Act and Rule8-A
inasmuch as no exercise has been undertaken during the post M. Nagaraj(supra) period.
In M. Nagraj (supra),
there has been emphasis on interpretation and implementation, width and
identity, essence of a right, the equality code and avoidance of reverse discrimination,
the nuanced distinction between the adequacy and proportionality, backward class
and backwardness, the concept of contest specificity as regards equal justice and
efficiency, permissive nature of the provisions and conceptual essence of guided
power, the implementation in concrete terms which would not cause violence to
the constitutional mandate; and the effect of accelerated seniority and the
conditions prevalent for satisfaction of the conditions precedent to invoke the
settled principles.
The learned senior counsel
further submitted that M. Nagaraj (supra) deals with cadre and the posts but
the State has applied it across the board without any kind of real quantifiable
data after pronouncement of the M. Nagaraj (supra). It is his further
submission that after Section 3(7) of the 1994 Act and Rule 8-A are allowed to stand,
the balancing factor which has so far been sustained by this Court especially
pertaining to reservation would stand crucified. It is urged by him that the
chart supplied by the State only refers to the number and, seniority of officers
but it does not throw any light on the core issue and further, a mere
submission of a chart would not meet the requisite criteria as specified in M.
Nagaraj (supra).
34.
Mr.
Vinod Bobde, learned senior counsel, has submitted that if accelerated seniority
is confirmed on the roster by the promotees, the consequences would be
disastrous inasmuch as the said employee can reach the fourth level by the time
he attains the age of 45 years and at the age of 49, he would reach the highest
level and stay there for nine years whereas a general merit promotee would
reach the third level out of the six levels at the age of 56 and by the time he
gets eligibility to get into the fourth level, he would reach the age of superannuation.
It is urged by him that
if reservation in promotion is to be made, there has to be collection of quantifiable
data, regard being had to the backwardness and in adequacy of representation in
respect of the posts in a particular cadre and while doing so, the other condition
as engrafted under Article 335 of the Constitution relating to the efficiency
of administration has to be maintained. It is his further submission that in M.
Nagaraj (supra),Articles 16(4A) and 16(4B) have been treated to be enabling provisions
and an enabling provision does not create a fundamental right.
If the State thinks
to exercise the power, it has to exercise the power strictly in accordance with
the conditions postulated in the case of M. Nagaraj(supra). The State of U.P.
has totally misguided itself by harbouring the notion that merely because there
has to be representation of Scheduled Castes and Scheduled Tribes in the services,
the State is obliged to provide for reservation in promotion under Article 16(4A).
The learned senior counsel would vehemently contend that nothing has been brought
on record to show that after pronouncement of M. Nagaraj (supra), the State had
carried out an exercise but has built a castle in Spain by stating that the
provision being always there, the data was available.
It is canvassed that
the stand of the State runs counter to the principles laid down in M.Nagaraj (supra)
which makes Section 3(7) and Rule 8-A sensitively susceptible. The
consequential seniority was introduced on 18.10.2002 but was obliterated on 13.5.2005
and thereafter, it was revived on 14.9.2007with retrospective effect and the reason
is demonstrable from the order/circular dated 17.10.2007 which is based on total
erroneous understanding and appreciation of the law laid down by this Court. It
is argued by him that the Act and the Rules were amended solely keeping in view
the constitutional provision totally ignoring how the said Articles were
interpreted by this Court.
It is propounded by Mr.
Bobde that the State has referred to certain data and the “Social Justice Committee
Report” of 2001 but the same cannot save the edifice of the impugned statutory
provision and the Rules as the State could not have anticipatedwhat this Court was
going to say while upholding the constitutionalvalidity.
35.
Mr.
Ranjit Kumar, learned senior counsel, has laid immense emphasison paragraphs
121 to 123 of M. Nagaraj (supra) to buttress the stand that reservation in
promotional matters is subject to the conditions enumerated in the said
paragraphs. The learned senior counsel has drawn inspiration from an order
dated 11.3.2010 passed by a two-Judge Bench in Writ Petition(civil) 81 of 2002
wherein the direction was given that the validity may be challenged and on such
challenge, the same shall be decided in view of the final decision in M. Nagaraj
(supra).
The learned senior counsel
has placed reliance on Ashok Kumar Thakur v. Union of India and others[20] to highlight
that any privilege given to a class should not lead to inefficiency. Emphasis
has also been laid on the term backwardness having nexus with the reservation
in promotion and collection of quantifiable data in a proper perspective. He
has drawn inspiration from various paragraphsin M. Nagaraj (supra) to show that
when an enabling provision is held valid, its exercise can be arbitrary and in the
case at hand, the provisions are absolutely arbitrary, unreasonable and
irrational.
36.
To
appreciate the rival submissions raised at the bar and the core controversy, it
is absolutely seemly to understand what has been held in M. Nagraj (supra) by the
Constitution Bench. While assailing the validity of Article 16(4A) of the Constitution
which provides for reservation in promotion with a consequential seniority, it was
contended that equity in the context of Article 16(1connotes accelerated promotion
so as not to include consequential seniority and as consequential seniority has
been attached to the accelerated promotion, the constitutional amendment is
violative of Article 14 read with Article 16(1of the Constitution.
Various examples were
cited about the disastrous affects that would be ushered in, in view of the
amendment. After noting all the contentions, the Constitution Bench addressed
to the concept of reservation in the context of Article 16(4) and further proceeded
to deal with equity, justice and merit. In that context, the Bench stated thus:
-
“This problem has to
be examined, therefore, on the facts of each case. Therefore, Article 16(4) has
to be construed in the light of Article 335 of the Constitution. Inadequacy in representation
and backwardness of Scheduled Caste and Scheduled Tribes are circumstances
which enable the State Government to act under Article 16(4) of the
Constitution. However, as held by this Court the limitations on the discretion
of the Government in the matter of reservation under Article 16(4) as well as Article
16(4A) come in the form of Article 335 of the Constitution.”
While dealing with reservation
and affirmative action, the Constitution Bench opined thus: - “48. It is the equality
"in fact" which has to be decided looking at the ground reality. Balancing
comes in where the question concerns the extent of reservation. If the extent
of reservation goes beyond cut-off point then it results in reverse discrimination.
Anti-discrimination legislation has a tendency of pushing towards de facto
reservation. Therefore, a numerical benchmark is the surest immunity against charges
of discrimination. 49. Reservation is necessary for transcending caste and not for
perpetuating it.
Reservation has to be
used in a limited sense otherwise it will perpetuate casteism in the country. Reservation
is under-written by a special justification. Equality in Article 16(1is individual-
specific whereas reservation in Article 16(4) and Article 16 (4-A) is enabling.
The discretion of the State is, however, subject to the existence of "backwardness"
and "inadequacy of representation" in public employment. Backwardness
has to be based on objective factors whereas inadequacy has to factually exist.
This is where judicial review comes in.
However, whether reservation
in a given case is desirable or not, as a policy, is not for us to decide as
long as the parameters mentioned in Articles 16(4) and 16(4-A) are maintained.
As stated above, equity, justice and merit (Article 335)/efficiency are
variables which can only be identified and measured by the State. Therefore, in
each case, a contextual case has to be made out depending upon different circumstances
which may exist Statewise.”
37.
The
Bench referred to the cases of Indra Sawhney (supra), R.K. Sabharwal (supra),
Vir Pal Singh Chauhan (supra), Ajit Singh (I) (supra)and Ajit Singh (II)
(supra) and opined that the concept of catch-up rule and consequential
seniority are judicially evolved concepts to control the extent in reservation
and the creation of this concept is relatable to service jurisprudence. Thereafter,
the Constitution Bench referred to the scope of the impugned amendment and the Objects
and Reasons and, in paragraph 86, observed thus: - “Clause (4-A) follows the
pattern specified in Clauses (3) and (4) of Article 16. Clause (4-A) of Article
16 emphasizes the opinion of the States in the matter of adequacy of representation.
It gives freedom to
the State in an appropriate case depending upon the ground reality to provide for
reservation in matters of promotion to any class or classes of posts in the
services. The State has to form its opinion on the quantifiable data regarding
adequacy of representation. Clause (4-A) of Article 16 is an enabling
provision. It gives freedom to the State to provide for reservation in matters
of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause
is carved out of Article 16(4). Therefore, Clause (4-A) will be governed by the
two compelling reasons - "backwardness" and "inadequacy of representation",
as mentioned in Article 16(4). If the said two reasons do not exist then the enabling
provision cannot come into force.
The State can make provision
for reservation only if the above two circumstances exist. Further in Ajit
Singh (II) , this Court has held that apart from “backwardness” and “inadequacy
of representation” the State shall also keep in mind “overall efficiency” (Article
335). Therefore, all the three factors have to be kept in mind by the
appropriate Government in providing for reservation in promotion for SCs and
STs.” Thereafter, the Bench referred to the 2000 Amendment Act, the Objects and
Reasons and the proviso inserted to Article 335 of the Constitution and held
thus: -
“98. By the
Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the
end of Article 335 of the Constitution which reads as under: “Provided that
nothing in this article shall prevent in making of any provision in favour of the
members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying
marks in any examination or lowering the standards of evaluation, for reservation
in matters of promotion to any class or classes of services or posts in connection
with the affairs of the Union or of a State.”
99. This proviso was added
following the benefit of reservation in promotion conferred upon SCs and STs
alone. This proviso was inserted keeping in mind the judgment of this Court in
Vinod Kumar which took the view that relaxation in matters of reservation in promotion
was not permissible under Article 16(4) in view of the command contained in Article
335. Once a separate category is carved out of Clause (4) of Article 16 then
that category is being given relaxation in matters of reservation in promotion.
The proviso is confined to SCs and STs alone.
The said proviso is compatible
with the scheme of Article 16(4-A).” In paragraph 102, their Lordships have
ruled thus: - “Clause (4) of Article 16, however, states that the appropriate Government
is free to provide for reservation in cases where it is satisfied on the basis
of quantifiable data that backward class is inadequately represented in the
services. Therefore, in every case where the State decides to provide for reservation
there must exist two circumstances, namely, “backwardness” and “inadequacy of representation’.
As stated above, equity, justice and efficiency are variable factors. These
factors are context- specific.
There is no fixed
yardstick to identify and measure these three factors, it will depend on the facts
and circumstances of each case. These are the limitations on the mode of the
exercise of power by the State. None of these limitations have been removed by
the impugned amendments. If the concerned State fails to identify and measure backwardness,
inadequacy and overall administrative efficiency then in that event the
provision for reservation would be invalid. These amendments do not alter the structure
of Articles 14, 15 and 16 (equity code).
The parameters mentioned
in Article 16(4) are retained. Clause (4-A) is derived from Clause (4) of Article
16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does
not change the identity of the Constitution.”After so stating, it was observed
that there is no violation of the basic structure of the Constitution and the
provisions are enabling provisions. At that juncture, it has been observed as
follows: - “Article 16(4) is enacted as a remedy for the past historical discriminations
against a social class.
The object in enacting
the enabling provisions like Articles 16(4), 16(4-A) and 16(4- B) is that the
State is empowered to identify and recognize the compelling interests. If the
State has quantifiable data to show backwardness and inadequacy then the State
can make reservations in promotions keeping in mind maintenance of efficiency
which is held to be a constitutional limitation on the discretion of the State
in making reservation as indicated by Article 335. As stated above, the concepts
of efficiency, backwardness, inadequacy of representation are required to be identified
and measured. That exercise depends on availability of data.
That exercise depends
on numerous factors. It is for this reason that enabling provisions are required
to be made because each competing claim seeks to achieve certain goals. How best
one should optimize these conflicting claims can only be done by the administration
in the context of local prevailing conditions in public employment. This is
amply demonstrated by the various decisions of this Court discussed
hereinabove. Therefore, there is a basic difference between “equality in law”
and “equality in fact” (See Affirmative Action by William Darity).
If Articles 16(4-A)
and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision
then Articles 16(4- A) and 16(4-B) are also enabling provisions. As long as the
boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and
efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as
controlling factors, we cannot attribute constitutional invalidity to these enabling
provisions.
However, when the State
fails to identify and implement the controlling factors then excessiveness comes
in, which is to be decided on the facts of each case. In a given case, where
excessiveness results in reverse discrimination, this Court has to examine
individual cases and decide the matter in accordance with law. This is the theory
of “guided power”. We may once again repeat that equality is not violated by mere
conferment of power but it is breached by arbitrary exercise of the power
conferred.”In paragraph 108, the Bench analyzed the concept of application of the
doctrine of guided power under Article 335 of the Constitution and, in that context,
opined thus: -
“Therefore, the
question before us is - whether the State could be empowered to relax qualifying
marks or standards for reservation in matters of promotion. In our view, even after
insertion of this proviso, the limitation of overall efficiency in Article 335
is not obliterated. Reason is that "efficiency" is a variable factor.
It is for State concerned to decide in a given case, whether the overall efficiency
of the system is affected by such relaxation. If the relaxation is so excessive
that it ceases to be qualifying marks then certainly in a given case, as in the
past, the State is free not to relax such standards. In other cases, the State may
evolve a mechanism under which efficiency, equity and justice, all three
variables, could be accommodated.
Moreover, Article 335
is to be read with Article 46 which provides that the State shall promote with special
care the educational and economic interests of the weaker sections of the people
and, in particular, of the scheduled castes and scheduled tribes, and shall protect
them from social injustice. Therefore, where the State finds compelling
interests of backwardness and inadequacy, it may relax the qualifying marks for
SCs/STs. These compelling interests however have to be identified by weighty and
comparable data.” Thereafter, the Constitution Bench proceeded to deal with the
test to judge the validity of the impugned State Acts and opined as follows: -
“110. As stated
above, the boundaries of the width of the power, namely, the ceiling-limit of 50%
(the numerical benchmark), the principle of creamy layer, the compelling reasons,
namely, backwardness, inadequacy of representation and the overall administrative
efficiency are not obliterated by the impugned amendments. At the appropriate
time, we have to consider the law as enacted by various States providing for reservation
if challenged. At that time we have to see whether limitations on the exercise
of power are violated. The State is free to exercise its discretion of providing
for reservation subject to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation in a class of post(s) keeping
in mind the overall administrative efficiency.
It is made clear that
even if the State has reasons to make reservation, as stated above, if the
impugned law violates any of the above substantive limits on the width of the power
the same would be liable to be set aside.”In paragraph 117, the Bench laid down
as follows: - “The extent of reservation has to be decided on facts of each case.
The judgment in Indra Sawhney does not deal with constitutional amendments. In our
present judgment, we are upholding the validity of the constitutional
amendments subject to the limitations.
Therefore, in each
case the Court has got to be satisfied that the State has exercised its opinion
in making reservations in promotions for SCs and STs and for which the State concerned
will have to place before the Court the requisite quantifiable data in each
case and satisfy the Court that such reservations became necessary on account
of inadequacy of representation of SCs/ STs in a particular class or classes of
posts without affecting general efficiency of service as mandated under Article
335 of the Constitution.”In the conclusion portions, in paragraphs 123 and 124,
it has been ruled thus: - “123.
However, in this
case, as stated above, the main issue concerns the "extent of reservation".
In this regard the State concerned 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 SCs/STs 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 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. 124. Subject to the above, we uphold the constitutional
validity of the Constitution (Seventy-Seventh Amendment) Act, 1995; the
Constitution (Eighty-First Amendment) Act, 2000; the Constitution (Eighty-Second
Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.”
38.
From
the aforesaid decision and the paragraphs we have quoted hereinabove, the
following principles can be carved out: - i) Vesting of the power by an
enabling provision may be constitutionally valid and yet ‘exercise of power’ by
the State in a given case may be arbitrary, particularly, if the State fails to
identify and measure backwardness and inadequacy keeping in mind the efficiency
of service as required under Article 335. ii) Article 16(4) which protects the
interests of certain sections of the society has to be balanced against Article
16(1which protects the interests of every citizen of the entire society.
They should be harmonized
because they are restatements of the principle of equality under Article 14.
iii) Each post gets marked for the particular category of candidates to be appointed
against it and any subsequent vacancy has to be filled by that category
candidate. iv) The appropriate Government has to apply the cadre strength as a unit
in the operation of the roster in order to ascertain whether a given class/group
is adequately represented in the service. The cadre strength as a unit also
ensures that the upper ceiling-limit of 50% is not violated. Further roster has
to be post-specific and not vacancy based. v) The State has to form its opinion
on the quantifiable data regarding adequacy of representation. Clause (4A) of Article
16 is an enabling provision.
It gives freedom to
the State to provide for reservation in matters of promotion. Clause (4A) of Article
16 applies only to SCs and STs. The said clause is carved out of Article 16(4A).
Therefore, Clause (4A) will be governed by the two compelling reasons –
“backwardness” and “inadequacy of representation”, as mentioned in Article
16(4). If the said two reasons do not exist, then the enabling provision cannot
be enforced. vi) If the ceiling-limit on the carry-over of unfilled vacancies is
removed, the other alternative time-factor comes in and in that event, the
time-scale has to be imposed in the interest of efficiency in administration as
mandated by Article 335. If the time-scale is not kept, then posts will
continue to remain vacant for years which would be detrimental to the
administration.
Therefore, in each case,
the appropriate Government will now have to introduce the duration depending
upon the fact-situation. vii) If the appropriate Government enacts a law
providing for reservation without keeping in mind the parameters in Article
16(4) and Article 335, then this Court will certainly set aside and strike down
such legislation. viii) The constitutional limitation under Article 335 is relaxed
and not obliterated. As stated above, be it reservation or evaluation, excessiveness
in either would result in violation of the constitutional mandate.
This exercise,
however, will depend on the facts of each case. ix) The concepts of efficiency,
backwardness and inadequacy of representation are required to be identified and
measured. That exercise depends on the availability of data. That exercise depends
on numerous factors. It is for this reason that the enabling provisions are
required to be made because each competing claim seeks to achieve certain goals.
How best one should optimize these conflicting claims can only be done by the administration
in the context of local prevailing conditions in public employment. x) Article
16(4), therefore, creates a field which enables a State to provide for
reservation provided there exists backwardness of a class and inadequacy of representation
in employment. These are compelling reasons. They do not exist in Article
16(1). It is only when these reasons are satisfied that a State gets the power to
provide for reservation in the matter of employment.
39.
At
this stage, we think it appropriate to refer to the case of Suraj Bhan Meena
and another (supra). In the said case, while interpreting the case in M.
Nagaraj (supra), the two-Judge Bench has observed: - “10. In M. Nagaraj case, this
Court while upholding the constitutional validity of the Constitution
(77thAmendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified
the position that it would not be necessary for the State Government to frame
rules in respect of reservation in promotion with consequential seniority, but
in case the State Government wanted to frame such rules in this regard, then it
would have to satisfy itself by quantifiable data, that there was backwardness,
inadequacy of representation in public employment and overall administrative inefficiency
and unless such an exercise was undertaken by the State Government, the rule relating
to reservation in promotion with consequential seniority could not be
introduced.”
40.
In
the said case, the State Government had not undertaken any exercise as
indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions
in the said judgment. It was canvassed before the Bench that exercise to be
undertaken as per the direction in M. Nagaraj (supra)was mandatory and the State
cannot, either directly or indirectly, circumvent or ignore or refuse to
undertake the exercise by taking recourse to the Constitution (Eighty-Fifth
Amendment) Act providing for reservation for promotion with consequential seniority.
While dealing with the contentions, the two-Judge Bench opined that the State
is required to place before the Court the requisite quantifiable data in each case
and to satisfy the court that the said reservation became necessary on account
of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates
in a particular class or classes of posts, without affecting the general
efficiency of service. Eventually, the Bench opined as follows: - “66.
The position after
the decision in M. Nagaraj case is that reservation of posts in promotion is
dependent on the inadequacy of representation of members of the Scheduled Castes
and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining
as to whether such reservation was at all required. 67. The view of the High
Court is based on the decision in M. Nagaraj case as no exercise was undertaken
in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy
of representation of the Schedule Caste and Scheduled Tribe communities in
public services. The Rajasthan High Court has rightly quashed the notifications
dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential
seniority and promotion to the members of the Scheduled Caste and Scheduled
Tribe communities and the same does not call for any interference.”After so
stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan.
41.
As
has been indicated hereinbefore, it has been vehemently argued by the learned
senior counsel for the State and the learned senior counsel for the Corporation
that once the principle of reservation was made applicable to the spectrum of promotion,
no fresh exercise is necessary. It is also urged that the efficiency in service
is not jeopardized. Reference has been made to the Social Justice Committee
Report and the chart. We need not produce the same as the said exercise was done
regard being had to the population and vacancies and not to the concepts that
have been evolved in M. Nagaraj (supra).
It is one thing to think
that there are statutory rules or executive instructions to grant promotion but
it cannot be forgotten that they were all subject to the pronouncement by this Court
in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm
view that a fresh exercise in the light of the judgment of the Constitution
Bench in M. Nagaraj (supra) is a categorical imperative.
The stand that the
constitutional amendments have facilitated the reservation in promotion with
consequential seniority and have given the stamp of approval to the Act and the
Rules cannot withstand close scrutiny in as much as the Constitution Bench has clearly
opined that Articles 16(4A) and16(4B) are enabling provisions and the State can
make provisions for the same on certain basis or foundation.
The conditions precedent
have not been satisfied. No exercise has been undertaken. What has been argued with
vehemence is that it is not necessary as the concept of reservation in promotion
was already in vogue. We are unable to accept the said submission, for when the
provisions of the Constitution are treated valid with certain conditions or
riders, it becomes incumbent on the part of theState to appreciate and apply
the test so that its amendments can be tested and withstand the scrutiny on
parameters laid down therein.
42.
In
the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act
and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum
in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra
Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A
shall remain undisturbed.
43.
The
appeals arising out of the final judgment of Division Bench at Allahabad are
allowed and the impugned order is set aside. The appeals arising out of the
judgment from the Division Bench at Lucknow is affirmed subject to the modification
as stated hereinabove. In view of the aforesaid, all other appeals are disposed
of. The parties shall bear their respective costs.
......................................................J.
[Dalveer Bhandari]
......................................................J.
[Dipak Misra]
New
Delhi;
April
27, 2012
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