Allahabad High Court
Mukund Kumar Srivastava vs State Of U.P. And Another on 21 October, 2010
Bench: Sheo Kumar Singh, Sabhajeet Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD Heard Sri Anil Kumar Srivastava, learned Advocate for the petitioner, Sri Pankaj Saxena, learned Standing Counsel for the respondents and Sri Vikas Budhwar, learned Advocate for caveator. The order which we propose to pass in the writ petition, we need not call for any response from the respondents as same can be decided as fresh without any counter affidavit.
2. While working as Executive Engineer in Rural Engineering Services at Sonebhadra Division, Sonebhadra the petitioner has filed above noted writ petition challenging the Seniority List of Executive Engineers of Rural Engineering Services published vide Office Memorandum No. 2950/62-3-2010-45-RES/2010 dated 8.9.2010 of State Government contained in Annexure-1 of the writ petition by seeking writ of certiorari. Further reliefs in the nature of mandamus to declare Rule 8A of the Uttar Pradesh Government Servants Seniority (Third Amendment Rules) 2007 as ultravires and unconstitutional and directing the respondents not to proceed with and/or to promote any person on the next higher posts on the basis of the impugned Seniority List of Executive Engineers of Rural Engineering Services are also sought for.
3. The reliefs sought in the writ petition are grounded on the facts that the petitioner after facing the due selection process, was appointed on the post of Assistant Engineer in Rural Engineering Services department of Government of U.P. and is presently posted as Executive Engineer in Sonebhadra Division, Sonebhadra. Since several persons much junior to the petitioner were accorded promotion on the post of Executive Engineer with effect from 8.7.1986, the petitioner vide his representation dated 19.3.1993 made request to the respondents for giving promotion to him as an Executive Engineer from the date of his juniors e.g. 8.7.1986 were promoted in the light of the judgement of this Court delivered in Writ Petition No. 2023 of 1988. True copy of the order dated 9.7.1986 according promotion of several persons to the post of Executive Engineer as well as the petitioner's representation are on record as Annexure-4 and 5 to the writ petition. It is stated that in the Seniority List dated 14.12.2001 published by the department, the name of the petitioner finds place at serial no. 51 while his juniors e.g. S/Sri Mahmood Ilahi and Chandra Bhushan who have been accorded promotion with effect from 8.7.1986 are placed at serial nos. 52 and 55 respectively. True copy of the relevant portion of Seniority List dated 14.12.2001 is on record as Annexure-6 to the writ petition. It is further stated that when no heed was paid by the respondents upon the representation of the petitioner, he filed a writ petition before this Court, being as Civil Misc. Writ Petition No. 12012 of 2004 (Mukund Kumar Srivastava Vs. Principal Secretary, Rural Engineering Services, U.P., Lucknow and others) which was finally disposed off by this Court vide order dated 24.3.2004 with a direction to the respondents to consider the case of the petitioner for promotion on the post of Executive Engineer in view of the Judgement dated 4.2.2004 passed in Civil Misc. Writ Petition No. 53043 of 2002 (Kailash Shankar Tiwari Vs. The Secretary Minor Irrigation Department and Rural Engineering Services, U.P., Lucknow and others). The petitioner in compliance of the aforesaid order dated 4.2.2004 of this Court, made his representation dated 26.3.2004 for according promotion to him on the post of Executive Engineer with effect from 8.7.1986 i.e. from the date when juniors to him were accorded promotion. True copy of the petitioner's representation dated 26.3.2004 and the order dated 4.2.2004 of this Court are on record as Annexure-7 to the writ petition. It is stated that respondents by completely ignoring the petitioner's representation as well as the order of this Court, passed an order promoting the petitioner to the post of Executive Engineer with effect from 20.5.2005 and not from 8.7.1986 from which date several juniors to the petitioner were accorded promotion on the said post. True copy of the promotion order dated 20.5.2005 is on record as Annexure-8 to the writ petition.
4. It is further stated that though the respondents in compliance of the similar orders of this Court in other cases as well as in compliance of the order of the Tribunal, accorded promotion to other persons on the post of Executive Engineer with effect from 8.7.1986 while the petitioner though was much senior given promotion with effect from 20.5.2005. True copy of the order dated 20.6.2008 according promotions to several persons with effect from the date of promotion of their juniors is on record as Annexure-9 to the writ petition. It is further stated that by disclosing the aforesaid facts, the petitioner again made his representation on 23.3.2009 requesting that his case for promotion with effect from 7.8.1986 on the post of Executive Engineer may be considered since his juniors have already been given seniority/promotion with effect from the said date, however no decision was taken on the said representation. True copy of the representation dated 23.3.2009 is on record as Annexure-10 to the writ petition. Feeling aggrieved against aforesaid action the petitioner filed a writ petition before this Court being registered as Civil Misc. Writ Petition No. 57002 of 2009 seeking direction in the nature of mandamus commanding the respondents to consider and decide the petitioner's representation dated 23.3.2009 in accordance with relevant Rules and till then the respondents may be directed not to hold the DPC for the purposes of making promotion from the post of Executive Engineer to the post of Superintending Engineer Rural Engineering Services. In the aforesaid writ petition, a counter affidavit was filed by Sri Shahzadey Lal, Joint Secretary, Rural Engineering Services, U.P., Lucknow sworn on 18.12.2009 at Lucknow wherein the copy of an order dated 24.11.2009 issued by the Principal Secretary Rural Engineering Services U.P., Lucknow was enclosed, alleging therein that in compliance of the order dated 24.3.2004 passed in Civil Misc. Writ Petition No. 12012 of 2004, Mukund Kumar Srivastava Vs. State of U.P. and others and order dated 4.2.2004 of this Court passed in Civil Misc. Writ Petition No. 53043 of 2002, Kailash Shankar Tewari Vs. State of U.P. and others and the order dated 9.3.2007 passed in Claim Petition No. 1236 of 1996, Sachchidanand Pandey Vs. State of U.P. and others, the Selection Committee met on 29.5.2008 wherein alongwith others, the case of the petitioner was also considered but he was not found suitable for promotion/notional promotion and accordingly he was not accorded promotion/notional promotion with effect from the date of his juniors. True copy of the order dated 24.11.2009 passed by the Principal Secretary, Rural Engineering Services, U.P. Lucknow is on record as Annexure-11 to the writ petition.
5. According to the petitioner in the order dated 24.11.2009, it has been nowhere mentioned as to why the petitioner was not found suitable for promotion/notional promotion while others were found suitable and accorded promotion/notional promotion and further the criteria for according promotion/notional promotion was not disclosed; in as much the decision taken in the Selection Committee Meeting dated 29.5.2008, as referred to in the aforesaid order dated 24.11.2009 was never communicated to the petitioner. The petitioner was accorded regular promotion to the post of Executive Engineer vide order dated 20.5.2005 and at that time also, the petitioner was entitled to be accorded promotion from the date of his juniors but it was not done. It is stated that others were given promotion/notional promotion in compliance of same and similar order of this Court while the case of the petitioner for promotion/notional promotion was rejected without assigning any reason as to why he should not be given such promotion. Photocopy of the order giving promotion/notional promotion to others are on record as Annexure-12 to the writ petition. It is stated that by illegally and arbitrarily denying promotion to the petitioner with effect from the date of his juniors, the petitioner has been shown at serial no. 36 while he ought to have been placed in between Sri Mohammad Rizvi (Serial No.11) and Sri Mahmood Ilahi (Serial No.12), in the tentative Seniority List.
6. It is further stated that in Civil Misc. Writ Petition No. 33440 of 2009, Rajesh Chandra Srivastava Vs. State of U.P. and others, a letter dated 29.7.2009 was filed by Sri Shahzade Lal, Joint Secretary stating therein that the amended Rule 8 was challenged by way of Civil Misc. Writ Petition No. 1389 SB of 2007, Prem Kumar Singh and others Vs. State of U.P. and others, in which an interim order was passed by the Lucknow Bench of this Court on 6.11.2007 against which the State Government preferred Special Leave Petition No. 14794 of 2008 in which after hearing the case, the judgment was kept reserved vide order dated 28.4.2009. Photostat copy of the amended Rule 8, letter dated 29.7.2009 of Sri Shahzade Lal, Joint Secretary and the order dated 6.11.2007 passed by Lucknow Bench of this Court in Civil Misc. Writ Petition No. 1389 SB of 2007, Prem Kumar Singh and others Vs. State of U.P. and others are on record as Annexures-13,14 and 15 respectively to the writ petition. Sri Shahzade Lal, Joint Secretary had also taken the ground in the aforesaid letter dated 29.7.2009 that arrangement has been made for the reserved quota and not for general quota. Upon the aforesaid letter dated 29.7.2009 filed by Sri Shahzade Lal, Joint Secretary, this Court vide order dated 3.8.2009 postponed the matter till disposal of the case. Photostat copy of the order dated 3.8.2009 passed by this Court in Civil Misc. Writ Petition No. 37511 of 2009, Rajesh Chandra Srivastava Vs. State of U.P. and others is on record as Annexure-16 to the writ petition.
7. In the case of one Vinod Kumar Dixit working in the Irrigation Department, the State Government stayed making promotion on the basis of Seniority List/Rule 8A. Photostat copy of the order dated 14.7.2009 passed by Lucknow Bench of this Court in Civil Misc. Writ Petition No. 3436 SS of 2009, Vinod Kumar Dixit and others Vs. State of U.P. and others is on record as Annexure-17 to the writ petition. The aforesaid case is also pending and has not been decided so far. The Apex Court decided the case in favour of Prem Kumar Singh and remanded the matter before this Court which is still pending. It is stated that by disclosing the aforesaid fact, the petitioner filed a detailed objections against the tentative Seniority list, however nothing transpired upon the said representation. Photostat copy of the objections is on record as Annexure-18 to the writ petition. The petitioner challenging the tentative Seniority List dated 31.3.2010 filed a writ petition before this Court being registered as Civil Misc. Writ Petition No. 20782 of 2010 which however was not interfered by this Court on the ground that the seniority list under challenge was tentative Seniority List. Photostat copy of the order passed by this Court in Civil Misc. No. 20782 of 2010 is on record as Annexure-19 to the writ petition. Accordingly the impugned final Seniority List dated 8.9.2010 is being challenged by means of this writ petition. The impugned final Seniority List has been issued without application of mind and without considering the points raised by the petitioner in his representations. In the case the impugned final Seniority List is allowed to stand and the respondents proceed with the said Seniority List, the same shall highly prejudice the rightful claim of the petitioner. The act of the respondents in not considering and deciding the petitioner's representation in respect of according him the seniority/promotion with effect from 8.7.1986 i.e. from the date when the juniors to him were given seniority/promotion is absolutely illegal, arbitrary and motivated with mala-fide reasons.
8. Having regard to the submission of learned counsel for the petitioner and from the perusal of assertions made in the pleadings of writ petition and grounds taken in support of reliefs sought for by the petitioner and after going through the records, the first question which arises for consideration is that, as to whether the provisions of Rule 8 A of U.P. Government Servants Seniority Rules 1991 inserted by (Third Amendments) Rules, 2007 is ultravires and constitutional?
9. In order to answer this question it is necessary to state that the seniority of Government Servants of State of U.P. is governed by the provisions of rules contained in U.P. Government Servants Seniority Rules, 1991. These rules are applicable to all Government servants in respect of whose recruitment and conditions of service, rules have been made by the Governor under the proviso to Article 309 of the Constitution notwithstanding anything to the contrary contained in any other service rules made before the commencement of the aforesaid rules. Thus the aforesaid rules have overriding effect upon other service rules. Rule 5 of the said rules deals with the seniority of a Government servants where appointments are made by the direct recruitment only. Rule 6 deals with seniority where the appointments are made by promotions from a single feeding cadre. Rule 7 deals with the determination of seniority where the appointments are made by promotion only from several feeding cadres. Rule 8 of the said rule deals with the determination of seniority where appointments are made by promotion and by direct recruitment both.
10. For ready reference it would be useful to extract the provisions of Rule 6, 7 & 8 in extenso existing prior to U.P. Government Servants Seniority (Third Amendment) Rules, 2007 as under:-
"6. Seniority where appointments by promotion only from a singly feeding cadre.-Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre.
Explanation.- A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.
7. Seniority where appointments by promotion only from several feeding cadres.- Where according to the service rules, appointments are to be made only by promotion but from more than one feeding cadres, the seniority inter se of persons appointment on the result of any one selection shall be determined according to the date of the order of their substantive appointment in their respective feeding cadres.
Explanation.-Where the order of the substantive appointment in the feeding cadre specifies a particular back date with effect from which a person is substantively appointment, that date will be deemed to be the date of order of substantive appointment and, in other cases it will mean the date of issuance of the order:
Provided that where the pay scales or the feeding cadres are different, the persons promoted from the feeding cadre having higher pay scale shall be senior to the persons promoted from the feeding cadre having lower pay scale:
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
8.Seniority where appointments by promotion and direct recruitment.-(1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together,in the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed that date will be deemed to be the date of order of substantive appointment and,m in other cases, it will mean the date of issuance of the order:
Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection,-
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule7, as the case may be, according as the promotion are to be made from as single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis -a-vis direct recruits shall be determined in a cyclic order ( the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
Illustrations.-(1) Where the quota of promotees and direct recruits is in the proportion of 1: 1 the seniority shall be in the following order-
First ... Promotee Second ...Direct recruits and so on.
(2) Where the said quota is in the proportion of 1:3 the seniority shall be in the following order-
First ...Promotee Second to fourth . ...Direct recruits Fifth ...Promotee Sixth eight ...Direct recruits and so on.
provided that-
(i) Where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) Where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) Where in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
11. By virtue of Rule 2 of U.P. Government Servants Seniority (Third Amendment) Rules 2007, after Rule 8 of 1991 Rules, Rule 8A has been inserted under the said Rules and has been made applicable with retrospective effect i.e. w.e.f. 17th June, 1995. This rule has also been framed under the proviso to Article 309 of the Constitution of India by the Governor of State of U.P. The entire amendment Rules, 2007 is extracted as under:-
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Government Servants Seniority Rules, 1991.
1. Short title and commencement.- (1) These rules may be called the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007.
(2) They shall be deemed to have come into force on June 17, 1995.
2. Insertion of new rule.- In the Uttar Pradesh Government Servants Seniority Rules, 1991 after Rule 8, the following new Rule "8-A" shall be inserted, namely:-
"8-A. Entitlement of consequential seniority to a person belonging to Scheduled Castes or Scheduled Tribes.- Notwithstanding anything contained in Rules 6,7 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.
Explanation.- As a consequence to this rule, the persons belonging to the categories other than Scheduled Castes or Scheduled Tribes promoted later will be placed junior in the seniority list to the persons belonging to the Scheduled Castes or Scheduled Tribes promoted earlier even though by virtue of the rule of reservation."
12. From a plain reading of Rule 8A of 1991Rules brought through U.P. Government Servants Seniority (Third Amendment) Rules, 2007, it is clear that it pertains to entitlement of consequential seniority to a person belonging to the Scheduled Castes and Scheduled Tribes due to reservation in promotion in their favour. Rule 8A opens with non-obstante clause to the effect that notwithstanding anything contained in Rules 6, 7 & 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. An explanation has also been appended to the said rules which postulates that with a consequence of this rule, the person belonging to the categories other than Scheduled Castes or Scheduled Tribes promoted later will be placed junior in the seniority list to the person belonging to the Scheduled Castes or Scheduled Tribes promoted earlier, even though by virtue of rule of reservation/roster. It appears that this Rule 8A of 1991 has been made applicable with retrospective effect i.e. w.e.f. 17th June, 1995 to effectuate the amendments made under Article 16 of the Constitution whereby the provisions of Clause (4A) has been inserted under said Article after Clause (4) with retrospective effect, which we will deal hereinafter at relevant place.
13. At this juncture it would be useful to state various functions of explanation appended to any statute which have been extensively dealt with by Hon'ble Apex Court in S. Sundaram Pillai, etc. Vs. V.R, Pattabiraman AIR 1985 SC 582. In para-52 of the said decision the Hon'ble Apex Court besides various other functions of explanation appended to statute suiting in given facts and circumstances of the case has held that an explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment. Thus where there is any obscurity or vagueness in the statute the explanation is appended to clarify the same so as to make it consistent with the dominant object which it seems to subserve. For ready reference the observations of Apex Court are as under:-
52. "Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provisions is-
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same to as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same".
14. Thus in view of the well settled legal position about the role of explanation appended to a statute, from a plain reading of Rule 8-A of 1991 Rules with the said explanation it is clear that if any member of scheduled castes or scheduled tribes is promoted earlier to other categories candidates, he will be treated to be senior to other categories candidates despite contrary provisions contained under Rule 6, 7 and 8 of 1991 Rules. Thus to that extent the concept of catch-up rule of seniority stands obliterated only in respect of determination of seniority of members of scheduled casts and scheduled tribes who are promoted on any posts and/or in any grade in service due to reservation in promotion in respect of which said rule is applicable. So far as other categories of employees are concerned, the provisions of Rule 6, 7 and 8 of 1991 Rules shall remain continue to apply with the concept of catch-up rule to determine their inter-se seniority as available under existing seniority rules. Since this Rules confers benefits of consequential seniority upon the members of SC/ST alone due to their promotion based on reservation in promotion, therefore, it would be useful to go through background of reservation made in promotion before dealing with the validity or constitutionality of the Rule 8A of 1991 Rules.
15. In this connection, it is to be noted that in Indra Sawhney etc. Vs. Union of India and others etc. decided by a Constitution Bench of Hon'ble Apex Court on 16.11.1992 reported in AIR 1993 S.C. 477 by majority judgement in para 122 (AIR 1993 S.C. at page 587, 588) it has been held that the reservation in appointments or posts under Art. 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. It has also been held that such reservation should not exceed the 50 % of the appointments in a grade, cadre or service in any given year. However, it was further directed that the aforesaid decision shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It was 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 the aforesaid date. Within said period it was made open to the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievement of the objective of Article 16(4). For ready reference it would be useful to extract para 122 (8)of the decision as under:-
"122. . . . . . . . . . .
(8) Reservation of appointments or posts under Art. 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of' promotion. 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 Art. 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 reissue the relevant rules to ensure the achievement of the objective of Art. 16(4)."
16. It appears that to effectuate the 50% ceiling limit of reservation in the appointments the percentage of reservation in favour of Scheduled caste, Scheduled Tribes and Other Backward Classes has been fixed by U.P. State Legislature under the provisions of Section 3 (1) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (in short Reservation Act, 1994) (U.P. Act No. 4 of 1994) in the initial recruitment/appointment. To implement said reservation in sub-section 5 of Section 3 of the said Act the State Government issued notification containing roster fixing reserved/and unreserved points in total cadre strength of service or post and the said roster has to be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-section (1) is achieved. Under sub-section (7) of Section 3 of the said Act it is further provided that if on the date of commencement of the aforesaid Act, reservation was in force under the 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.
17. For ready reference it would be useful to extract the provisions of Section-3 of the aforesaid reservation Act in extenso as under:-
"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes.- (1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens.-
(a) in the case of Scheduled Castes Twenty-one per cent;
(b) in the case of Scheduled Tribes Two per cent;
(c) in the case of other Backward Twenty-seven per cent.
Classes of citizens.
Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II:
Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made;
(2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1);
(3) Where a vacancy reserved for the Scheduled Tribes remains unfilled even after three special recruitments made under sub-section (2), such vacancy may be filled from amongst the persons belonging to the Scheduled Castes;
(3-A). . . . .
(3-B). . . . .
(4). . . . .
(5) The State Government shall for applying the reservation under sub-section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-section (1) is achieved, and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster.
(6) If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an op0en competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1).
(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."
18. At this juncture, it is to be noted that on account of reservation in promotion in favour of member of Scheduled Castes and Scheduled Tribes the aforesaid Rule 8A of 1991 Rules rules has been added by U.P. Government Servants Seniority (3rd amendment) Rules 2007 framed by the Governor of State of U.P. under proviso to Article 309 of the Constitution to effectuate the amendments made in Article 16 (4) of the Constitution of India by adding Clause (4-A) whereby benefit of consequential seniority due to such promotion based on reservation has been given to them. Besides this, Article 335 of the Constitution of India has also been amended by adding proviso in existing article by Constitution 82nd Amendment Act, 2000. For ready reference the amended provisions of Article 335 of the Constitution of India are extracted in extenso as under:-
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.- The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
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".
19. It is to be noted that Constitutional validity of aforesaid Amendments Acts has been considered by a Constitution Bench of Hon'ble Apex Court in M. Nagraj and others Vs. Union of India AIR 2007 Supreme Court 71, wherein while dealing with the objects and reasons of the aforesaid amendments the Hon'ble Apex Court has dealt with various earlier decisions and background under which the aforesaid constitutional amendments came into being. In this connection it would be useful to extract certain paragraphs of the said decision of Hon'ble Apex Court as under:-
"85. The Supreme Court in its judgment dated 16.11.92 in Indra Sawhney stated that reservation of appointments or posts under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matter of promotion. Prior to the judgment in Indra Sawhney reservation in promotion existed. The Government felt that the judgment of this court in Indra Sawhney adversely affected the interests of SCs and STs in services, as they have not reached the required level. Therefore, the Government felt that it was necessary to continue the existing policy of providing reservation in promotion confined to SCs and STs alone. We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Seventy-Seventh Amendment) Act, 1995 introducing clause (4A) in Article 16 of the Constitution :
"THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995 STATEMENT OF OBJECTS AND REASONS The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of Indra Sawhney v. Union of India, however, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the Government to protect the interests of the Scheduled Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is necessary to amend Article 16 of the Constitution by inserting a new clause (4A) in the said Article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.
2. The Bill seeks to achieve the aforesaid object.
THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995 [Assented on 17th June, 1995, and came into force on 17.6.1995] An Act further to amend the Constitution of India BE it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows :-
1. Short title.- This Act may be called the Constitution (Seventy-seventh Amendment) Act, 1995.
2. Amendment of Article 16.- In Article 16 of the Constitution, after clause (4), the following clause shall be inserted, namely:-
"(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion 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."
86. The said clause (4A) was inserted after clause (4) of Article 16 to say that nothing in the said Article shall prevent the State from making any provision for reservation in matters of promotion to any class(es) of posts in the services under the State in favour of SCs and STs which, in the opinion of the States, are not adequately represented in the services under the State.
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 "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.
88. After the Constitution (Seventy-Seventh Amendment) Act, 1995, this court stepped in to balance the conflicting interests. This was in the case of Virpal Singh Chauhan1 in which it was held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position. According to the Government, the decisions in Virpal Singh1 and Ajit Singh (I)2 bringing in the concept of "catch-up" rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade.
89. In the circumstances, clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was an extension of clause (4A) of Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act, 2001.
90. We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Eighty-Fifth Amendment) Act, 2001 :
"THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001 STATEMENT OF OBJECTS AND REASONS The Government servants belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of consequential seniority on their promotion on the basis of rule of reservation. The judgments of the Supreme Court in the case of Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh Januja (No.1) v. State of Punjab, AIR 1996 SC 1189, which led to the issue of the O.M. dated 30th January, 1997, have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. This has led to considerable anxiety and representations have also been received from various quarters including Members of Parliament to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes.
2. The Government has reviewed the position in the light of views received from various quarters and in order to protect the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes, it has been decided to negate the effect of O.M. dated 30th January 1997 immediately. Mere withdrawal of the O.M. dated 30th will not meet the desired purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Government servants will also be necessary. This will require amendment to Article 16(4A) of the Constitution to provide for consequential seniority in the case of promotion by virtue of rule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to Article 16(4A) with effect from the date of coming into force of Article 16(4A) itself, that is, from the 17th day of June, 1995.
3. The Bill seeks to achieve the aforesaid objects.
THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001 The following Act of Parliament received the assent of the President on the 4th January, 2002 and is published for general information :-
An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Fifty-second Year of the Republic of India as follows :-
1. Short title and commencement.- (1) This Act may be called the Constitution (Eighty-fifth Amendment) Act, 2001.
(2) It shall be deemed to have come into force on the 17th day of June 1995.
2. Amendment of Article 16.- In Article 16 of the Constitution, in clause (4A), for the words "in matters of promotion to any class", the words "in matters of promotion, with consequential seniority, to any class" shall be substituted."
91. Reading the Constitution (Seventy-Seventh Amendment) Act, 1995 with the Constitution (Eighty-Fifth Amendment) Act, 2001, clause (4A) of Article 16 now reads as follows :
"(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."
92. The question in the present case concerns the width of the amending powers of the Parliament. The key issue is - whether any constitutional limitation mentioned in Article 16(4) and Article 335 stand obliterated by the above constitutional amendments.
93. In R. K. Sabharwal, the issue was concerning operation of roster system. This court stated that the entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. It was held that if the roster is prepared on the basis of the cadre strength, that by itself would ensure that the reservation would remain within the ceiling-limit of 50%. In substance, the court said that in the case of hundred-point roster each post gets marked for the category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone (replacement theory).
94. The question which remained in controversy, however, was concerning the rule of 'carry-forward'. In Indra Sawhney's case this court held that the number of vacancies to be filled up on the basis of reservation in a year including the 'carry-forward' reservations should in no case exceed the ceiling-limit of 50%.
95. However, the Government found that total reservation in a year for SCs, STs and OBCs combined together had already reached 49½% and if the judgment of this court in Indra Sawhneyhad to be applied it became difficult to fill "backlog vacancies". According to the Government, in some cases the total of the current and backlog vacancies was likely to exceed the ceiling-limit of 50%. Therefore, the Government inserted clause (4B) after clause (4A) in Article 16 vide the Constitution (Eighty-First Amendment) Act, 2000.
96. By clause (4B) the "carry-forward"/"unfilled vacancies" of a year is kept out and excluded from the overall ceiling-limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-First Amendment) Act, 2000. Quoted hereinbelow is the Statement of Objects and Reasons with the text of the Constitution (Eighty-First Amendment) Act, 2000:
"THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000 (Assented on 9th June, 2000 and came into force on 9.6.2000) STATEMENT OF OBJECTS AND REASONS Prior to August 29, 1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non-availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as "Backlog Vacancies". These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in the Indra Sawhney versus Union of India, 1992 AIR SCW 3682 held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent, it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives. Therefore, to implement the judgment of the Supreme Court, an Official Memorandum dated August 29, 1997 was issued to provide that the fifty per cent limit shall apply to current as well as "Backlog Vacancies" and for discontinuation of the Special Recruitment Drive.
Due to the adverse effect of the aforesaid order dated August 29, 1997, various organisations including the Members of Parliament represented to the central Government for protecting the interest of the Scheduled castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the constitution so that the 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 clause (4A) of Article 16 of the Constitution, shall be considered 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 vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before August 29, 1997.
The Bill seeks to achieve the aforesaid object.
THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000 (Assented on 9th June, 2000 and came into force on 9.6.2000) An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows :-
1. Short title :- This Act may be called the Constitution (Eighty-first Amendment) Act, 2000.
2. Amendment of Article 16 :- In Article 16 of the Constitution, after clause (4A), the following clause shall be inserted, namely :-
"(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 clause (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 vacancies of that year."
97. The Constitution (Eighty-First Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R. K. Sabharwal. Once it is held that each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies do not arise. Therefore, in effect, Article 16(4B) grants legislative assent to the judgment in R. K. Sabharwal. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post-based, subject to replacement theory and within the limitations indicated hereinafter.
98. As stated above, clause (4A) of Article 16 is carved out of clause (4) of Article 16. Clause (4A) provides benefit of reservation in promotion only to SCs and STs. In the case of S. Vinod Kumar and another v. Union of India and others this Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney.
99. 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."
100. 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(4A).
20. After the aforesaid amendments in Article 16 (4) of the Constitution by adding Clause (4-A) and Clause(4-B) in the said article by virtue of 77th Amendment Act, 1995, 85th Amendment Act, 2001 and 81th Amendment Act, 2000, the position as stands now is as under:-
"16. Equality of opportunity in matters of public employment.- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizens shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State.
(4-A) 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.] (4-B) 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 clause (4-A) 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 vacancies of that year."
21. In para 79 of the said decision the Constitution Bench while answering one of the questions as to whether catch-up rule and consequential seniority are constitutional requirement of Article 16 and of equality so as to be beyond the constitutional amendatory process, or whether obliteration of catch-up rule or insertion of consequential seniority would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16 of the Constitution held that 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 etc. 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 and 16 is violated by deletion of catch-up rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations, therefore, Apex Court has opined that neither the catch-up rule nor the concept of consequential seniority is implicit in Clause (1) and (4) of Article 16 of the Constitution.
22. While dealing with the validity of the aforesaid constitutional amendments-whether the constitutional limitations on the amending power of the Parliament are obliterated by the impugned amendments so as to violate the basic structure of the constitution, the Hon'ble Apex Court in aforesaid decision has drawn a distinction between the criterion for determination of the validity of a law made by law making authority and amending power of the Constitution, and in para 104 of the said decision has held that the criterion for determining the validity of law is competence of the law making authority. The competence of law making authority would depend on the ambit of the legislative power and limitations imposed thereon as also the limitations on mode of exercise of the power, though the amending power in constitution is in the nature of a constituent power and differs in content from the legislative power. The limitation imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restriction with regard to the mode of exercise of amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.
23. The pertinent observations made in this regard in para 103, 104, 105, 108 and 109 of the decision are as under:-
"103. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the 'width test' and the test of 'identity'. As stated hereinabove, the concept of the 'catch-up' rule and 'consequential seniority' are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism etc. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. 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. The word "amendment" connotes change. The question is whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicate that the impugned amendments have been promulgated by the Parliament to overrule the decision of this court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this court is the law of the land. The judgments of this court in Virpal Singh1, Ajit Singh (I)2, Ajit Singh (II)3and Indra Sawhney5, were judgments delivered by this court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well-settled that the Parliament while enacting a law does not provide content to the "right". The content is provided by the judgments of the Supreme Court. 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. Applying the "width test", we do not find obliteration of any of the constitutional limitations. Applying the test of "identity", we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets "formal equality" and "proportional equality". Proportional equality is equality "in fact" whereas formal equality is equality "in law". Formal equality exists in the Rule of Law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
104. The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending power in Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.
105. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-Second) Amendment Act, 2000. 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 facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4A) and Article 16(4B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied-with by the States, the provision of reservation cannot be faulted. Articles 16(4A) and 16(4B) are classifications within the principle of equality under Article 16(4).
108. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for backward classes in cases of inadequate representation in public employment. 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 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.
APPLICATION OF DOCTRINE OF "GUIDED POWER" ARTICLE 335 :
109. Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-Second Amendment) Act, 2000, we find that the said proviso has a nexus with Articles 16(4A) and 16(4B). Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring discretionary power on the State to relax qualifying marks or standards of evaluation. 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 variable factor. It is for the concerned State 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."
24. Thus, vide para 125 of the said decision the Constitution Bench of Apex Court upheld the validity of the Constitution 77 Amendment Act 1995, the constitution 81 Amendment Act 2000, the Constitution 82 Amendment Act 2000 and Constitution 85th Amendment Act 2001 by which the clauses (4A) and (4B) have been inserted after clauses (4) in Article 16 and a proviso has been added in Article 335 of the Constitution, for relaxing qualifying marks in any examination or lowering the standards of evaluation for reservation in the matters of promotion to any class or classes of services or posts in connection with the affairs of union or of a state in favour of members of scheduled castes and scheduled tribes.
25. Now coming to the question formulated by us, as indicated earlier, we find that the Rule 8-A of 1991 Rules has been framed by Governor of Uttar Pradesh in exercise of his power conferred under proviso to Article 309 to effectuate the provisions of Article 16 (4A) of the Constitution. Article 16 (4A) specifically provides that nothing in this Article shall prevent the State from making any provision for reservation in the matters of promotion with consequential seniority to any class or classes or posts in the service under the State in favour of SC and ST which in the opinion of State are not adequately represented in the services under the State. 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 Consequential seniority is implicit in Clause (1) and 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.
26. 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 (1) and (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 8 A 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 members 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 any thing 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 8 A 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.
27. In this connection, we make it clear that deletion of 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 casts 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 aforestated 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 casts and schedule 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.
28. So far as involvement of other questions, due to seeking relief for quashing the impugned seniority list of Executive Engineers of Rural Engineering Service Department published vide Office Memorandum No. 2950/62-3-2010-45-RES/2010 dated 8.9.2010 issued by the State Government contained in Annexure-1 of the writ petition and further reliefs seeking mandamus commanding the respondents not to proceed with the impugned seniority list and not to promote any person on the basis of aforesaid impugned seniority list of Executive Engineers are concerned, in our opinion, require determination of factual matrix based on appreciation of evidence thus such factual issues cannot be decided without giving opportunity of hearing to the persons who may be likely to be affected on account of any interference in the said seniority list. Therefore, instead of testing the validity of impugned seniority list and deciding the claim of petitioner in respect of his seniority and notional promotion on the post of executive engineer with retrospective effect and his claim of any further promotion on the next higher post based on his seniority, we relegate the petitioner to avail alternative remedy available to him before U.P. Public Service Tribunal, Lucknow.
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.
30. Accordingly with the aforesaid observations writ petition stands dismissed with liberty to the petitioner to challenge the impugned seniority list and raise his claim of promotion before U.P. Public Service Tribunal, Lucknow as indicated herein before.