Rajbir Singh vs State Of Haryana And Ors on 14 November, 2014

[Cites 14, Cited by 16]

Punjab-Haryana High Court

Rajbir Singh vs State Of Haryana And Ors on 14 November, 2014

This order will dispose of CWP Nos. 25512 of 2012, 5551, 8058, 9523, 16963, 16977, 17156, 17755, 19930, 20398, 21064, 21183 and 21274 of 2013 and 12460 of 2014, involving the issue regarding reservation in promotion.

In the bunch of petitions, challenge has been made to the instructions dated 28.2.2013 (hereinafter referred to as 'the 2013 policy'), issued by the Government of Haryana, providing 20% reservation in promotion in Class-III and Class-IV posts to Scheduled Castes employees. A direction has also been sought for taking appropriate action in terms of the judgment of this Court in CWP No. 17280 of 2011--Prem Kumar Verma and others v. State of Haryana, decided on 7.8.2012, affirmed in LPA No. 1352 of 2012--Devender Sachdeva and others v. Kurukshetra University, Kurukshetra and others, decided on 10.10.2012, vide which the earlier instructions on the subject dated 16.3.2006 (hereinafter referred to as 'the 2006 policy') were set aside, but still the benefits granted to some of the employees on the basis of the 2006 policy, which had been set aside, were not withdrawn.

Learned counsel for the petitioners submitted that vide Eighty- Fifth Constitutional Amendment, Article 16 (4A) was added in the Constitution of India, which provided that nothing in this Article shall MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [3] 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. The validity of the constitutional amendment was under

consideration before Hon'ble the Supreme Court in M. Nagaraj and others v. Union of India and others, (2006) 8 SCC 212, wherein while referring to earlier judgments on the issue of reservation, Hon'ble the Supreme Court opined that the impugned provision of Article 16 (4A) of the Constitution of India is an enabling provision. The State is not bound to make provision for reservation for Scheduled Castes/Scheduled Tribes in the matter of promotion. However, if this discretion is to be exercised, the State has to first collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public appointment in addition to compliance of Article 335 of the Constitution of India. The submission is that the State Government had issued the 2006 policy providing for reservation in promotion and as a consequence accelerated promotions were granted to the members of Scheduled Castes category. The same were challenged before this Court in Prem Kumar Verma's case (supra), wherein while referring to judgment of Hon'ble the Supreme Court in M. Nagaraj's case (supra), this court set aside the 2006 policy. It was opined in the aforesaid judgment that the State had not carried out any exercise in conformity with the observations made by Hon'ble the Supreme Court in M. Nagaraj's case (supra) for grant of accelerated seniority and promotion to reserved category employees.

It was further submitted that despite there being no exercise for collection of quantifiable data and information or compliance of Article 335 of the Constitution, the 2013 policy providing for 20% reservation in promotion to Scheduled Castes employees for Class-III and Class-IV posts was issued. This fact is even admitted by the State in the reply, wherein it has been stated that though a Committee had been constituted but final report is still to be submitted. The same is totally contrary to the judgments of Hon'ble the Supreme Court in M. Nagaraj's case (supra) and this Court in Prem Kumar Verma's case (supra), as upheld in Devender Sachdeva's case MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [4] (supra). The action of the State is rather contemptuous. The view expressed in M. Nagaraj's case (supra) was followed in Suraj Bhan Meena and another v. State of Rajasthan and others, (2011) 1 SCC 467 and U. P. Power Corporation Ltd. v. Rajesh Kumar and others, (2012) 7 SCC 1.

In CWP No. 8058 of 2013, additionally challenge has been made to order dated 25.1.2013 (Annexure P-4), whereby respondent No. 5

-Subhash Chander was promoted by giving benefit of accelerated promotion. In the seniority list, he is junior to the petitioner. Earlier one Ramesh Chand was promoted by giving him accelerated promotion, however, he sought reversion. Against him, respondent No. 5 was promoted on the principle that a post vacated by a candidate of reserved category has to be filled in by the candidate of same category. That principle was not applicable in the case in hand, as the roster was still operative and had not been completed.

While referring to the orders placed on record in different writ petitions, learned counsel for the petitioners submitted that there are certain orders of accelerated promotion passed by the State after the 2006 policy. Some were passed even after the aforesaid policy was quashed by this Court in Prem Kumar Verma's case (supra), whereas some have been passed after the 2013 policy was issued, hence, all deserve to be quashed.

On the other hand, learned counsel for the State submitted that the 2006 policy, which was quashed by this court, merely provided for accelerated promotion. The 2013 policy is meant for grant of reservation in job as well as the admission to Government aided Educational/Technical/ Professional Institutions. The same is not meant for grant of reservation in promotion. Though learned counsel for the State did not dispute the fact that in the aforesaid policy, 20% reservation has been provided for Scheduled Castes candidates in promotion in Class-III and Class-IV posts, however, he submitted that the same is merely an enabling provision to be applied after the report of the Committee constituted in terms of the judgment of Hon'ble the Supreme Court in M. Nagaraj's case (supra) is received. While referring to the stand taken in the reply filed, he submitted that report of the Committee is yet to be received.

MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [5]

Learned counsel for the private respondents in CWP No. 19930 of 2013 submitted that the private respondents herein have not been granted the benefit of accelerated promotion. They have merely been granted the benefit of promotion, which was due to them in terms of their placement in the seniority list prepared at the time of appointment as Patwari. He further submitted that the petitioners do not have locus to file the present petition as even if the promotion of the private respondents is set aside, the petitioners are not even in the zone of consideration, hence, cannot be promoted.

In CWP No. 5551 of 2013, learned counsel for the private respondents submitted that after the judgment of this Court in Prem Kumar Verma's case (supra), a Committee was constituted by the State, which had even given its report recommending reservation in promotion. This fact is concealed by the State. The 2013 policy was issued thereafter. He further submitted that once the 2013 policy was issued, there is a presumption that while framing the policy, whatever exercise was required to be done in terms of the judgment of Hon'ble the Supreme Court in M. Nagaraj's case (supra) was carried out. However, learned counsel could not point out from the documents placed on record as to what is the date of the report of the Committee constituted, which has been placed on record as Annexure R-6/2 and further what is the source thereof. All what has been pointed out that the same has been down-loaded from the website.

In CWP No. 20398 of 2013, the submission made by learned counsel for the private respondents was that Article 16(4A) was added in the Constitution of India for upliftment of Scheduled Castes and Scheduled Tribes. No doubt, in M. Nagaraj's case (supra), Hon'ble the Supreme Court opined that for granting the benefit, as envisaged under Article 16 (4A) of the Constitution of India, a quantifiable data is to be collected and compliance of Article 335 of the Constitution of India is to be ensured, but still even in the absence of quantifiable data, whosoever has been granted promotion either in terms of the 2006 policy or the 2013 policy should not be disturbed, as with the coming into force of the new policy after the report is submitted by the Committee, many of the persons may still get the promotion. He relied upon a judgment of Hon'ble the Supreme Court in H. MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [6] P. Scheduled Tribes Employees Federation and another v. Himachal Pradesh S. V. K. K. and others, (2013) 10 SCC 308, while submitting that similar directions were given by Hon'ble the Supreme Court in the aforesaid judgment.

In CWP No. 21274 of 2013, learned counsel for the private respondents submitted that in the case in hand, the issue is not for grant of reservation in promotion. The private respondents have merely been sent for a school course. The 2006 policy, earlier quashed, has no relevance. The same dealt with the issue of accelerated seniority and not promotion granted first time.

In CWP No. 17755 of 2013, learned counsel for the private respondents submitted that orders of promotion impugned in the present petition were passed prior to the judgment of this Court in Prem Kumar Verma's case (supra), hence, cannot be set aside. Even if the promotions had been granted without there being any quantifiable data, still the same should not be set aside while disturbing the entire cadre as after the report is submitted by the Committee, many of the employees, who had been granted reservation in promotion, may still get the benefit and may not have to be reverted back.

Heard learned counsel for the parties and perused the paper book.

Before the issue is dealt with on merits, it would be appropriate to refer to the order dated 6.8.2013 passed by this Court in CWP No. 16963 of 2013, wherein while noticing the contentions raised by learned counsel for the petitioners, it was observed that the State Counsel shall apprise the Chief Secretary, Haryana, regarding the necessity of issuing a circular amongst reserved category candidates across all Departments as the matter under consideration touches the issue of reservation in promotion. The same is extracted below:

"The challenge in this petition is to the policy circular dated 28.2.2013 issued by the Government of Haryana in the General Administration Department, General Services-III Branch. In cases of promotion in Class-III and IV posts a MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [7] quantum of 20% reservation has been fixed for the Scheduled Caste category. Reserve roster points have been enumerated. The circular has been made applicable retrospectively w.e.f. 1.4.1989.

Learned counsel for the petitioners submits that this circular should not have been issued except after carrying out the mandate of M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212, that is, to first collect quantifiable data in order to justify reservation in promotion for members of the Scheduled Caste read with Article 335 of the Constitution consistent with the efficiency of administration. The circular issued by the Haryana Government in 2006 has been struck down by this Court by order dated 7.8.2012 (P-8). The order of the learned Single Judge has been upheld in Intra Court Appeal (P-9) besides the Government has also accepted the legal position and issued instructions accordingly (P-10). Therefore, without removing the base of the judgment, there can be no executive overruling of judicial decision and, therefore, learned counsel submits that these impugned instructions are ultra vires the Constitution and the laws.

Notice of motion.

Mr. Harish Rathee, Sr. DAG, Haryana, accepts notice on behalf of the respondent-State and waives service on them.

Learned counsel for the petitioners undertakes to supply three sets of the paper book in the office of Advocate General, Haryana and one set of the paper book to Mr. Rathee during the course of the day.

The matter is of substantial public importance. Mr. Rathee prays for six weeks' time to place on record the stand of the State in support of the impugned instructions.

Let the private respondents be served through the office of the Chief Secretary given the importance of the matter so that these proceedings are not delayed for want of service.

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Mr. Rathee would apprise the Chief Secretary, Haryana of this matter and of the necessity of issuing a circular amongst the reserved category candidates across all Departments that issues raised in this case are in judicial review which touch upon reservation in promotion.

List on 12.11.2013.

A copy of this order be given to the learned counsel for the parties under signatures of the Bench Secretary."

Hence, it is evident that intimation of pendency of the present petition with reference to the issue regarding reservation in promotion must have been brought to the notice of all concerned by the Chief Secretary.

Legal Aspects The validity of Article 16 (4A) of the Constitution of India, inserted retrospectively from 17.6.1995, providing for reservation in promotion with consequential seniority, was considered by a Constitution Bench of Hon'ble the Supreme Court in M. Nagaraj's case (supra), wherein while upholding the vires of Article 16 (4A) of the Constitution of India, it was opined that the same is merely an enabling provision. The State is not bound to make reservation for Schedule Castes and Schedule Tribes in the matter of promotion. However, if the State wishes to exercise the discretion and make such provision for promotion, it has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. In addition thereto, it was opined that compliance of Article 335 of the Constitution of India providing for maintenance of efficiency of administration while granting reservation is to be ensured. Relevant paras thereof are extracted below:

"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 has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [9] 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 (1) is 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.

xx xx xx

87. Clause (4A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4A) 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 (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 (4). Therefore, clause (4A) will be governed by the two compelling reasons -

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"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) 3, 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 by providing for reservation in promotion for SCs and STs.

xx xx xx

103. ........ 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 (4A) is derived from clause (4) of Article 16. Clause (4A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution.........

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108............ 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 (4A) and 16 (4B) 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 (4A) and 16 (4B) flow from Article 16 (4) and if Article 16 (4) is an enabling provision then Articles 16 (4A) and 16 (4B) 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 (4A) and 16 (4B) 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 MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [12] 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.

xx xx xx

122. The impugned constitutional amendments by which Articles 16 (4A) and 16 (4B) have been inserted flow from Article 16 (4). They do not alter the structure of Article 16 (4).

They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article

335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R. K. Sabharwal.

123. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

124. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [13] enabling provision. 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. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."

The issue was subsequently considered by Hon'ble the Supreme Court in Suraj Bhan Meena's case (supra), wherein judgment of Rajasthan High Court quashing the notification providing for reservation in promotion to Schedule Castes and Schedule Tribes communities was set aside in the absence of a quantifiable data prepared in terms of the judgment of Hon'ble the Supreme Court in M. Nagaraj's case (supra).

The aforesaid judgments of Hon'ble the Supreme Court in M. Nagaraj's case (supra) and Suraj Bhan Meena's case (supra) were followed in U. P. Power Corporation Ltd.'s case (supra), where the principles laid down in M. Nagaraj's case (supra) were summed up, inter-alia, in the following terms:

"i) Vesting of the power by an enabling provision may 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 (1) which 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.

xx xx xx MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [14]

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 freredom 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.

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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.

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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 MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [15] employment."

Thereafter, the matter came up for consideration before this Court in Prem Kumar Verma's case (supra), whereby the 2006 policy, issued on 16.3.2006, providing for accelerated seniority and promotion to Schedule Castes employees was under challenge. This Court, while relying upon the judgments of Hon'ble the Supreme Court in M. Nagaraj, Suraj Bhan Meena and U. P. Power Corporation Ltd.'s cases (supra), struck down the aforesaid policy. The judgment was upheld in appeal in Devender Sachdeva's case (supra).

What can be culled out from the aforesaid judgments on the issue of reservation in promotion is that Article 16 (4A) of the Constitution of India is an enabling provision, however, the powers conferred under that Article can be exercised only after the State forms an opinion on the basis of quantifiable data regarding inadequacy of representation of the members of Schedule Castes/Scheduled Tribes in the service. However, the power can be exercised keeping in view over-all efficiency in service as envisaged under Article 335 of the Constitution of India.

The judgment of this Court in Prem Kumar Verma's case (supra) was circulated by the Government on 20.2.2013 for necessary action.

The facts, which have come before the court, are that despite quashing of the 2006 policy providing for accelerated promotion and seniority to the members of reserved categories, steps were not taken in all the departments for withdrawing the promotions given on the basis of the instructions which had already been quashed.

A day prior to the aforesaid memo dated 20.2.2013, vide which the judgment in Prem Kumar Verma's case was circulated, a Committee, under the Chairmanship of P. Raghavendra Rao was constituted to assess/examine the backwardness and inadequacy of representation of Schedule Castes in promotion in State Government services keeping in view the directions given by Hon'ble the Supreme Court in M. Nagaraj's case (supra). It is an admitted fact on record in the reply filed by the State that no final report has yet been received from the Committee concerned, as the MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [16] query raised by the Committee is under consideration with the Government. Despite this fact and clear mandate of Hon'ble the Supreme Court in M. Nagaraj's case (supra), on 28.2.2013, the State Government issued the 2013 policy for grant of reservation in jobs and admission in Government/Government aided Educational/Technical/Professional Institutions, which provided for 20% reservation in promotion in Class-III and Class-IV posts to Schedule Castes employees. Even roster points were also fixed. There was no mention in the aforesaid policy, which has been impugned in the present bunch of petitions, regarding any report received on the basis of quantifiable data in terms of the directions by Hon'ble the Supreme Court in M. Nagaraj's case (supra). Relevant paras of the policy circulated by the State on 28.2.2013 providing for reservation in promotion to Class-III and Class-IV employees are extracted below:

"xx xx xx Subject: Grant of reservation in Jobs under Government/ Government Undertakings & Local Bodies as well as in admission in Government/Government aided educational/ technical/ Professional institutions.

                         xx                                xx                     xx

                             In case of promotion in Class III & IV Posts
                         Sr. Category       Quantum of Roster points
                         No.                reservation

                         (a)       Scheduled Castes 20%                   4-8-14-18-24-28-34-38-42-
                                                                          50-54-58-64-68-74-78- 84-
                                                                          88-92 and 100.
                         xx                               xx                              xx"

The undisputed facts, which have come on record, as referred to above, are that the 2006 policy was quashed by this court being in violation of the mandate of Hon'ble the Supreme Court in M. Nagaraj's case (supra) and any policy for providing reservation in promotion could have been issued only after carrying out the exercise as envisaged in M. Nagaraj's case (supra), but still the State though constituted a Committee for the purpose on 19.2.2013, but a few days thereafter on 28.2.2013, issued a policy providing for 20% reservation to the members of Schedule Castes employees in Class- III and Class-IV categories. It is undisputed that report of the Committee so MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [17] constituted has not yet been received. Meaning thereby, the instructions have been issued totally in violation of the mandate of the judgment of Hon'ble the Supreme Court, referred to above, which are undisputedly within the knowledge of the authorities, hence, liable to be quashed and as a consequence the benefits of accelerated promotion granted to all the members of reserved categories will also fall through and they have to be reverted back to their original post, however, may be entitled to promotion on their own turn, if admissible.

The contention of learned counsel for the State that the aforesaid policy in fact does not provide for reservation in promotion, as is evident from the subject-matter of the policy, is merely to be noticed and rejected considering the clear wording of the policy where 20% reservation in promotion in Class-III and Class-IV posts have specifically been provided for, even mentioning the roster points.

The contention raised by Mr. Gurinder Pal Singh, learned counsel appearing for some of the private respondents regarding report of the Committee, which has been placed on record by him, is merely to be noticed and rejected for the reason that he has not been able to specify the source from where he got the report and also the date of the report. Further, it is for the reason that definite stand of the State is that there is no final report yet submitted by the Committee, as the query raised by it is pending consideration with the Government. The plea that once the 2013 policy had been framed by the Government providing for reservation in promotion, it pre-supposes that entire exercise, which was required to be carried out for the process, was done is totally misconceived in view of the stand of the State that the Committee constituted for the purpose is yet to submit its final report.

The apprehension of some of the private respondents that though they have been promoted on their turn as per their placement in the seniority list in the feeder cadre, but may be reverted, is totally misconceived as the issue is only regarding the cases where accelerated promotion has been given to the members of Schedule Castes in terms of the 2006 and 2013 policies.

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The plea of the private respondents regarding locus of the petitioners to file the writ petitions is also merely to be noticed and rejected for the reason that in the bunch of petitions, challenge is to the policy framed by the Government, which runs contrary to the law laid down by Hon'ble the Supreme Court in M. Nagaraj's case (supra). Large number of employees are affected and the action of the State has been found to be in violation of the law laid down by Hon'ble the Supreme Court, hence, the petitions are held to be maintainable. All the employees, who may be affected have already been informed about the pendency of the present petitions in terms of the order dated 6.8.2013.

The contention of some of the counsels for the private respondents that promotions already granted to some of them should not be disturbed as they may be entitled to accelerated promotion after new policy is framed by the Government is also totally misconceived, as any promotion granted in terms of the 2006 and 2013 policies, which have been quashed, certainly deserves to be recalled. Acceptance of this argument would mean putting cart before the horse. As and when any policy is framed by the Government, whosoever will be entitled to any benefit thereunder, may claim and get the same. The benefit cannot be granted in anticipation as the provisions of Article 1 (4A) of the Constitution of India are merely enabling and not mandatory.

For the reasons mentioned above, the writ petitions are allowed. The 2013 policy, issued on 28.2.2013, providing for reservation in promotion is set aside. The 2006 policy, issued on 16.3.2006, had already been set aside by this court in Prem Kumar Verma's case (supra). Any accelerated promotion/seniority granted on the basis of the aforesaid policies, is liable to be reversed. Ordered accordingly. Necessary action be taken within a period of 3 months from the date of receipt of a copy of the judgment.

From the facts of the case in hand, it is evident that the 2013 policy was issued by the then Chief Secretary, Haryana, despite being in knowledge of the judgments of Hon'ble the Supreme Court in M. Nagaraj's case (supra) and this court in Prem Kumar Verma's case (supra), I deem it MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2012 [19] appropriate to initiate proceedings for contempt against him. Let notice be issued to him to show cause as to why proceedings for contempt be not initiated against him. For that purpose, the present petition be listed on 28.1.2015. It shall be the duty of the learned counsel for the State to apprise the then Chief Secretary about the order passed by this court.

(Rajesh Bindal) Judge November 14, 2014 mk (Refer to Reporter) MANOJ KUMAR 2014.11.14 14:42 I attest to the accuracy and authenticity of this document

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Punjab-Haryana High Court