Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Union Of India vs Vinod Sharma on 3 January, 2018

                                1
     HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
                         M.P. No.1483/2017
 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.)



Indore dtd.: 03.01.2018 :-
      Shri H.Y. Mehta with Ms. Swati Mehta, learned counsel
for the petitioners.
      Shri    Yashpal   Rathore,    learned    counsel   for   the
respondents.
      Heard.
                           ORDER

This writ petition under Article 227 of the Constitution of India has been filed by the Union of India against the order dated 02/08/2017, passed in O.A. No.200/00199/2014 by which the learned Tribunal relying on the landmark decision of Hon'ble five Judges Bench of Apex Court in the case of M. Nagaraj & Ors. Vs. Union of India & Ors.(2006) 8 SCC 212 and in the case of Union of India vs. Pushpa Rani & Others, C.A. No.6934-6946 of 2005 decided on 29.07.2008 quashed the order dated 4.12.2014 (Annexure A-1) impugned therein, providing reservation and further directed to carry out promotion without including the element of reservation in promotion under restructuring as per mandate in the case of M. Nagaraj (supra).

2. Para - 12 of O.A. No.200/00199/2014 wherein relevant observations made by the Apex Court in the case of M. Nagaraj (supra) reads as under :-

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.)

12. A doubt has come to be entertained on the basis of decision of the Hon'ble Apex Court in the case of Union of India vs. Pushpa Rani & Others, C.A. No.6934-6946 of 2005 decided on 29.07.2008 by a two Judges Bench, that it is a decision subsequent to the view taken by Apex Court in the case of M. Nagraj (supra) and in this case the concept of reservation in restructuring has been upheld by their Lordships of Hon'ble Apex Court. The relevant observations are as under :-

"25. Once it is recognized that the additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst the employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of the policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion. In Fateh Chand Soni's case, this Court interpreted the provisions contained in the Rajasthan Police Service Rules, 1954, which regulate appointment to the Selection Scale in the service and held that such appointment constitutes promotion. The Court then considered two earlier judgments in Lalit Mohan Deb vs. Union of India [1973 (3) SCC 3 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.) 862] and Union of India vs. S.S. Ranade [1995 (4) SCC 462] and declared that the High Court was in error in holding that appointment to the Selection Scale does not constitute promotion.

3. This Court relying on the aforesaid two Apex Court decisions, decided W.P. No.1919/2016 filed by the Union of India in the case of Union of India & Ors vs. Dayal Bist & Ors. and upheld the order on 22/06/2016. Order dated 22/06/2016 reads as under :-

22.06.2016 Shri H. Y. Mehta, learned counsel for the petitioners.

Shri Amit Pal, learned counsel for the respondent Nos.1 to 5, 7 to 9, 12, 13 & 15 to 20.

Heard on the question of admission. The question before the Central Administrative Tribunal was as to whether there can be reservation in restructuring of a cadre, when the Courts including the Apex Court of the country have held that even the reservation even in promotion is not permissible unless State shows the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.

2. Learned Tribunal relying on the decision of Apex Court in the matter of M. Nagraj & Others vs. Union of India & 4 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.) others reported in 2006 (8) SCC 212 has held that the State is not bound to make reservation for SC/ST 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 of Article 335 and held the following in Paras-16, 17, 19, 23 and 24, which reads as under :-

16. Hon'ble High Court of Punjab and Haryana had an occasion to deal with the issue in CWP No.13218 of 2009 (Lachhmi Narain Gupta & Others Vs. Jarnail Singh and Others) decided on 25.07.2011 while carrying out judicial review of an order passed by Chandigarh Bench of the Tribunal. The Court quashed the action of authorities in providing reservation in promotion w.e.f. 2.7.1997, as no exercise had been carried out by the relevant dispensation in providing reservation in view of the various judgments of the Hon'ble Supreme Court of India.

17. The issue came to be considered by Chandigarh Bench of this Tribunal in O.A. No.38/CH/2011 -

Rajesh Rai & Another Vs. Union of India & Others, decided on 02.05.2012 in which it was held as under :-

"4. There can be no dispute about the contours of the law laid down by the Hon'ble Apex Judicial Dispensation in M. Nagraj case. There was a categorical 5 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.) pronouncement therein that the reservation in promotion will be available to the members of the SC/ST only if the relevant exercise has been undertaken by the competent authority to conclude that there are compelling reasons for reservation concerning backwardness --of Scheduled Caste category which would warrant grant of promotion to the Members of the Scheduled Castes/Schedules Tribes; and (b) the grant of promotion to them would not in any way adversely affect the administrative efficiency and working of the office.

5. The applicants herein made a precise averment in the course of para 4 (12) to the effect that no exercise has been undertaken by the respondent-State as directed by the Hon'ble Supreme Court in the case of M. Nagraj's case. The further averment, in the course of that para, is extracted hereunder:

19. It would be pertinent to note that the view aforementioned has been reiterated by the Hon'ble Apex Court in the case of U. P. Power Corp. Ltd. Vs. Rajesh Kumar & Others (C.A. No.2608 of 2011). Recently their Lordships of Apex Court have reiterated this view in the CIVIL APPEAL NOS.6631-6632 of 2015 (Arising out of SLP (Civil) Nos.8366-8367 of 2012) titled S. PANNEER SELVAM & ORS. Versus GOVERNMENT OF TAMIL NADU & ORS. & bunch of petitions on 27.8.2015, though case related to determination of seniority on the basis of catch-up principle.

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.)

23. In so far as plea of respondents qua non challenge to the relevant circular is concerned, it is reiterated that same is an administrative decision and not a statutory enactment, whereas judicial pronouncements have binding force and act a statutory directions and as such would have to prevail over the administrative decision.

24. In any case we can take judicial notice of the fact that identical plea was raised that reservation is permissible in terms of DoP&T instructions dated 07.01.2014 before the Allahabad Bench of this Tribunal in the case of Sunil Kumar Rajpoot & Ors. v. Union of India & Ors., (OA No.1502/2012) decided on 15.11.2014, but the same was rejected holding, inter-alia, as under :-

"27. Having regard to the argument advanced on behalf of respondents that in preparation of the impugned panels and promotion order, the respondents have merely followed the contents of the letter dated 07.01.2014 written by the DOP&T to the U.P.S.C., New Delhi, wherein it has been stated that the Government of India in principle has decided to continue with the policy of reservation in promotion and do away with the conditions which have been laid down in the case of M. Nagaraja (Supra) in relation to section 16(4-a). For this purpose the required constitutional amendment has been introduced and passed in Rajya Sabha. So far as this argument is concerned, the 7 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.) contents of letter of the DOP&T dated 07.01.2014 itself admits that the Apex Court has laid down certain pre-conditions for undertaking reservation in promotion which has been sought to be done away in the proposed amendment bill. In the face of this admission of the department as well as the fact that amendment bill is yet to assume the form of an Act, the contents of letter cannot be said to have a binding effect particularly in the face of specific dictum of the Apex Court in this matter. Therefore, this argument cannot be accepted.

29. Having regard to the clear, consistent and explicit view held by the Apex Court with regard to the question of reservation in promotion, it is apparent that unless the controlling factor of the compelling reasons stated in article 16(4) are met, no reservation in promotion can be proceeded with by the State. In case they take up such exercise then in each case the State would have to require to place before the court the quantifiable data and satisfy the court that such reservation has become necessary on account of inadequacy of representation of SCs/STs without affecting general efficiency in service. The concept of efficiency, backwardness and inadequacy of representation have to be identified and measured and that would be contingent upon the availability of relevant data. This would depend on numerous factors. Apparently, it is for this reason that the enabling provisions are required to be made because each 8 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P. No.1483/2017 (Union of India & Ors. vs. Vinod Sharma S/o Ashok Kumar & Ors.) competing claim seeks to achieve certain goals. How best these claims can be optimized, can only be done by the administration in the context of prevailing local conditions in public employment. If the State concerned fails to identify and measure the backwardness, inadequacy and affecting of efficiency then even in the face of existing enabling provisions, reservation in promotion cannot be under taken."

3. Learned counsel for the petitioners have drawn our attention to the relief clause and submitted that circular was challenged by the private respondents but learned Tribunal while making observations in Para-23 came to the conclusion that the judicial pronouncement have binding force and act as statutory directions and as such would have to prevail over the administrative decision.

4. On due consideration of the aforesaid and the law laid down by the Apex Court in the case of M. Nagraj (Supra), we are of the view that no case to interfere with the impugned order, as prayed in this writ petition is made out. The writ petition filed under Article 227 of the Constitution of India has no merit and is accordingly, dismissed.

4. On due consideration of the aforesaid, we are of the view that no case for any interference, as prayed for, is warranted.

              (P.K. Jaiswal)                      (Virender Singh)
                  Judge                                Judge
Aiyer*

                                                          Jagdishan Aiyer
                                                          2018.01.09 00:32:06
                                                          +05'30'