Andhra HC (Pre-Telangana)
V. Saida vs G. Krishnaveni And 17 Others on 30 March, 2012
Author: K.G. Shankar
Bench: K.G. Shankar
THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE K.G. SHANKAR
WP No.32425; 32426 of 2011
30.03.2012
V. Saida
G. Krishnaveni and 17 others
Counsel for the petitioner: B. Adinarayana
Counsel for the Respondents: J. Sudhir for R-1.
G.P. for GAD for R-3 & R-4
G.P. for Social Welfare for R-5
<Gist:
>Head Note:
?Cases referred:
1. AIR 2000 SC 498
2. (2006) 8 SCC 212
3. (2011) 1 SCC 467
Writ Petition Nos.32425
and 32426 of 2011
COMMON ORDER (per Hon'ble Sri Justice K.G. Shankar):
The petitioner is one of the respondents in O.A.No.412 of 2011 and one of the applicants in VMA No.1794 of 2011 in O.A.No.412 of 2011. He assailed the orders of the Andhra Pradesh Administrative Tribunal (the Tribunal, for short) in the common orders in VMA No.1794 of 2011, VMA No.2082 of 2011 and VMA No.2147 of 2011 in O.A.No.412 of 2011 and VMA No.1795 of 2011 and VMA No.2149 of 2011 in O.A.No.7157 of 2011. The Tribunal dismissed the Vacate Miscellaneous Applications and made the interim order dated 17.02.2011 absolute. Assailing the same, the present writ petition is filed by the fourth respondent in VMA No.1794 of 2011 and other VMAs. The Tribunal granted interim relief restraining the competent authority from effecting promotions on the published tentative seniority list. Claiming that the interim relief is tantamount to a blatant ban on promotion of employees belonging to the Scheduled Castes (SCs) and Scheduled Tribes (STs), the petitioner preferred the present writ petition.
2. The question revolves round the interpretation of Article 16 (4-A) of the Indian Constitution. Before considering the march of Law in this regard, we may narrate the facts, which led to the present writ petition. The respondents 1 and 2, who are the applicants in O.A.No.412 of 2011, filed the application before the Tribunal seeking a direction to the respondents 3 to 5 herein (who were respondents 1 to 3 in the O.A.) not to accord consequential seniority to SC and ST candidates who were promoted to higher cadre. Till about 1995, there was no uniform policy of reservations in promotions. In Indra Sawhney v. Union of India1, the Supreme Court made it clear that there cannot be any reservations in promotions. To overcome this position, amendment to Article 16 was brought through 77th amendment brining Article 16 (4-A) into the Indian Constitution providing for reservations in promotions. That 'catch up theory' has been developed thereafter is a different story altogether.
3. The Government of Andhra Pradesh implemented reservations in promotions. In the Andhra Pradesh Secretariat Services, Article 16 (4-A) of the Constitution of India was implemented up to the level of the Assistant Secretary. From the cadre of the Deputy Secretary, the policy of the Government is not to provide reservations in promotions, so much so, one should be in the line of seniority as an Assistant Secretary for being promoted as a Deputy Secretary.
4. It is the case of the petitioner that the reservations in promotions for candidates belonging to the SC and ST community carry with the promotions the consequential seniority in the promoted category. In the process, the candidates who secured promotions by virtue of SC and ST reservations may become seniors to the unreserved candidates in the promoted category. The State Government issued G.O.Ms.No.5, dated 14.02.2003 providing reservations in promotions with consequential seniority. Indeed, the rule of reservation would operate subject to the condition the cadre strength of the respective category is more than five. The purpose of providing reservation is to accord adequate representation to the employees belonging to SC and ST communities in the promoted posts. The case of the petitioner is that the persons promoted on account of the implementation of the reservation policy are entitled to reckon their seniority in the promoted posts from the date on which they stood promoted.
5. The writ petitioner is a member of the Scheduled Tribe. On the basis of reservation in promoted posts, the petitioner was promoted as Assistant Secretary in September, 2008. In view of Rule 33 of the Andhra Pradesh State and Subordinate Service Rules, 1996, the petitioner claims that he is entitled to count his seniority from the date of his joining as Assistant Secretary.
6. It is the contention of the petitioner that the petitioner was placed at Serial No.18 in the panel of Assistant Secretaries to be promoted as Deputy Secretaries. The unofficial respondents raised a contention before the Government that as there is adequate representation of employees belonging to Scheduled Caste in the cadre of Deputy Secretaries and that there is only one short fall vacancy in the employees belonging to Scheduled Tribes, the employees belonging to SC and STs, who secured promotions as Assistant Secretaries on account of the operation of the reservation policy, were not entitled for promotions. The unofficial respondents 1 and 2 herein laid O.A.No.412 of 2011 not to accord consequential seniority to SC and ST candidates who were promoted in the scheme of reservation in promotions, unless an exercise is undertaken to examine the adequacy of the representation of the SC and STs in the higher cadres beyond the prescribed quantity of reservation at 15% and 6% for SC and STs, as the case may be. They also claimed that the policy of the Government in adopting 100 point roaster system under Rule 22 (e) of the Andhra Pradesh State and Subordinate Service Rules meant for direct recruitees was leading to inequitable distribution of vacancies between SCs and STs and unreserved candidates and that the same, consequently, is violative of Articles 16 (1), 16 (4-A) and Article 335 of the Constitution of India. They also sought for a declaration that providing reservation for women within SCs and STs reservation in promotions is illegal. The unofficial respondents also sought for a declaration that granting consequential seniority in promotions policy is bad and is illegal.
7. As already pointed out, the Tribunal passed orders making the interim order absolute.
8. Sri B. Adinarayana, learned counsel for petitioner contends that the Tribunal virtually passed orders restraining the Government from implementing the policy of reservation. It is pointed out that although respondents 1 and 2 never claimed that they were denied promotions, the Tribunal thought it fit to pass the interim orders and thought it more fit to make the interim orders absolute subject to the result of the application. The learned counsel for the petitioner submits that the orders of the Tribunal are tantamount to a direction not to promote SC and ST candidates which is unjust, uncalled for and is wholly illegal.
9. The learned counsel for the petitioner submitted that once employees are promoted to the cadre of Assistant Secretary, their seniority stands determined from the date of their joining as Assistant Secretaries and that the SC/ST caste tag disappears. Thereafter, since reservation policy in promotions has not been implemented from the cadre of Deputy Secretaries, it is the contention of the learned counsel for the petitioner that the interim order granted by the Tribunal is more than what the petitioner asked for and could have obtained even if the respondents 1 and 2 had succeeded in O.A.No.412 of 2011.
10. Sri J. Sudhir, learned counsel for the first respondent has not disputed Rule 36 of the Andhra Pradesh State and Subordinate Service Rules and admitted that the date of promotion determines seniority of the employees in the promoted post. He, however, contended that the "catch up theory" propounds that the seniors in the feeder category who did not obtain promotion on account of reservation in promotion policy would be treated as seniors, once they are promoted to the promoted category in the normal course and that they thus catch up with their juniors in the feeder category who obtain promotion earlier owing to the reservation policy. He also admitted that Article 16 (4-A) was brought into Constitution, through 77th and 85th amendments to overcome this problem. He admitted that consequential seniority in the promoted category was provided by Article 16 (4-A) of the Indian Constitution, even with retrospective effect from 1995.
11. In M. Nagaraj v. Union of India2, the Supreme Court considered the implication of the Article 16 (4-A) and (4-B) of the Constitution of India read with Article 335 of the Constitution. The Supreme Court held that the State shall identify and collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment keeping in mind maintenance of efficiency in the administration. In Suraj Bhan Meena v. State of Rajasthan3, the Supreme Court followed Nagaraj's case and upheld the direction of the High Court of Rajasthan quashing the notification issued by Rajasthan Government for consequential seniority and promotion to the members of the SCs and STs without acquiring quantifiable data regarding their inadequate representation as envisaged by Article 16 (4-A) of the Constitution of India.
12. In Suraj Bhan Meena, the Supreme Court held that the consequential seniority is not automatic. Primarily basing this claim on Suraj Bhan Meena, the learned counsel for the first respondent contended that unless there is shortage of adequate representation for the SC and STs in the promoted categories i.e., the Deputy Secretary category in the present case, the petitioner cannot claim for promotion by virtue of his seniority as Assistant Secretary, since his seniority in the cadre of Assistant Secretary was on account of his out of turn promotion by the operation of the policy of reservation in promotions. He defended the finding of the Tribunal that the Tribunal directed that promotions be granted taking representation of SCs and STs in the promoted category into consideration.
13. It may be clarified that Article 16 (4-A) amended by 77th Amendment provided for reservations in matters of promotions for SC and STs subject to the condition that those communities have not been adequately represented in the services. This controversy was writ large as to consequential seniority. Article 16 (4-A) was further amended through 85th amendment incorporating consequential seniority in the promoted clauses for those people who are promoted in view of Article 16 (4-A). Thus, it is evident that those employees who secure promotion on the basis of Article 16 (4-A) not only take out of order promotion but also take the seniority along with the promotion. How to determine the inter se seniority of various employees has been explained in Rule 22 (e), Rule 33 and Rule 36 of the Andhra Pradesh State and Subordinate Service Rules. As the question is relating to seniority of promoted employees only, Rule 36 alone is relevant. Rule 36 to the relevant extent is as follows:
"The seniority of the persons in the service shall be determined as follows:
(i) ...............
(ii) In respect of the persons promoted or appointed by transfer (involving promotion), the dates from which they were placed on their probation;
(iii) ...............
(iv) ...............
(v) ..............."
Under Rule 36 (ii), the date of promotion determines the seniority. Rule 36
(ii) does not deal with the promotees in the ordinary course and the promotees through reservation scheme. It deals with promotions simplicitor. If a person obtains promotion on one count or other, his seniority is determined from the date of joining the promoted post, unless there is any contrary provision in the respective service Rules. Admittedly, there is no such provision in the Andhra Pradesh Secretariat Subordinate Service Rules.
14. We may, however, refer to Suraj Bhan Meena, which has been primarily relied upon by the learned counsel for unofficial respondents contending that the petitioner who was promoted against reservation vacancy cannot claim seniority in terms of Rule 36 (ii) of the Andhra Pradesh State and Subordinate Service Rules.
In Suraj Bhan Meena, the Supreme Court held that notification providing for promotion of persons belonging to SCs and STs with consequential seniority, where the State did not acquire and consider quantifiable data regarding inadequacy of representation of SCs and STs in the concerned service, is bad and deserves to be set aside. Indeed, in the absence of quantified data, the question of applying reservation in promotions is not permissible in view of the language deployed by Article 16 (4-A) with special reference to 85th amendment. However, the verification of quantifiable data is in respect of the next higher cadre to which the employee is to be promoted and not in the cadre where promotee has been working. We may assume that after verification and finding that there was inadequate representation of the employees belonging to SCs and STs in the cadre of Assistant Secretary, the petitioner was given promotion by providing reservation to him. It is not the question whether there is adequate representation in the cadre of Assistant Secretaries, which shall determine whether the petitioner is entitled to be promoted in the cadre of Deputy Secretary. The Rule of Reservation in promotion envisaged by Article 16 (4-A) applies to the cadre of Deputy Secretaries in the event there is inadequate representation of members belonging to SCs and STs in the cadre of Deputy Secretary. The unofficial respondents conducted exercise in this regard and claimed that there is one short fall of vacancy in the cadre of Scheduled Tribe and one excess representation in respect of Scheduled Caste in the cadre of Deputy Secretary and that the petitioner, therefore, cannot claim any seniority for promotion as a Deputy Secretary.
15. It may be noticed that the State of Andhra Pradesh has adopted a policy of implementing Article 16 (4-A) up to the level of Assistant Secretary in the Andhra Pradesh Secretariat Service Rules, Andhra Pradesh Secretariat Section Officers Service Rules and Andhra Pradesh Secretariat Subordinate Service Rules. The Government of Andhra Pradesh considered it appropriate not to provide for reservations from the cadre of Deputy Secretary and above. The question of quantifying the representation of SCs and STs in the cadre of Deputy Secretary and above, therefore, does not arise for determining the seniority in the cadre of Assistant Secretary. Once the petitioner was promoted as an Assistant Secretary after the exercise and quantifying the inadequacy of the representation of the Scheduled Tribe in the cadre of Assistant Secretaries, Rule 36 (ii) of the Andhra Pradesh State and Subordinate Service Rules comes into play determining the inter se seniority of the petitioner and others from the date of their appointments as Assistant Secretaries. The petitioner is not seeking for promotion to the cadre of Assistant Secretary. The Tribunal on the other hand restrained the promotions of SC and ST candidates to the cadre of Deputy Secretary if the promotion to the cadre of Assistant Secretary was on account of promotions against reservation. This more or less would amount to giving a goby to the seniority of the Assistant Secretaries singling out members of the SC and STs and disqualifying them for promotion as Deputy Secretaries. This is not only unconstitutional but is unacceptable to the very concept of social justice. We, therefore, strongly disapprove the view of the Tribunal that while promoting Assistant Secretaries as Deputy Secretaries, the inter se seniority as determined under Rule 36 (ii) shall not be followed, particularly, with reference to the members of SCs and STs who secured promotion in view of the operation of Article 16 (4-A) of the Indian Constitution.
16. We consider that the order of the Tribunal is not only unjust but is unconstitutional as well. Indeed, the question of considering reservations does not arise for promotion as Deputy Secretaries. Consequently, the question of exercising and quantifying the inadequacy of representation of SCs and STs in the cadre of the Deputy Secretary does not arise. The members of SCs and STs who were promoted against the reserved vacancies, therefore, take seniority in the cadre of Assistant Secretary from the date of their promotion as ordained by Rule 36 (ii) of the Andhra Pradesh State and Subordinate Service Rules and are liable to be promoted to the next higher cadre by virtue of this seniority. Accordingly, we hold that the order of the Tribunal making interim order absolute is wholly unjustified and the same is accordingly set aside.
17. Both the Writ Petitions are ordered accordingly. We direct the Government to proceed with the promotions in terms of the seniority as determined in the cadre of Assistant Secretaries. In view of the disposal of both the writ petitions, WVMP No.4599 of 2011 and WVMP No.210 of 2012 are closed. There shall, however, be no order as to costs.
________________ V. Eswaraiah, J ________________ K.G. Shankar, J