Central Administrative Tribunal - Mumbai
All India Equality Forum vs M/O Personnel,Public Grievances And ... on 5 June, 2024
4 OA.332/2019 Central Administrative Tribunal, Mumbai Bench, Mumbai. O.A.332/2019 . ; ee _ Dated this WeOnesoay the OD day of JUNE, 2024. Coram:Hon'ble Shri Justice Ranjit. More, Chairman Hon'ble Mr.Shri Krishna, Member (A) 1. All India Equality Forum through Its President (Naval. Civilian - Branch), Address: 199/2300, Sector-06, "CGS Colony, Kane Nagar, Antop Hill, Mumbai -- 400 037. 2. Shri Bhagwan Tomar, Age 55 years, Working as Foreman in Naval Dockyard Mumbai Residing at B-04/11, Kendriya Vihar, Sector-1ll, Kharghar, Navi Mumbai - 410210. 3. Shri.Naresh Kumar Dutta, Age 54 years, Working as TA(PP&C) in Material Organization Of Indian Navy at Ghatkopar-Mumbai, Residing at 104, Octagon, Motiram Pride, Near Green City, Ambernath (Hast), Dist. Thane, Maharashtra-420 501. . Applicants. ( Applicant No.Z in person ). Versus L. Union of India, through The Secretary of Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, North Block, New Delhi - 110 011. 2. The Secretary, Unicon Public Service Commission, Dholpur House, Shahjahan Road, New Delhi - 110 069. 2 OA.332/2019 3. The Chief of the Naval Staff, For, Director of Civilian Personnel, Integrated Headquarter, Ministry of Defence (Navy), 1st Floor, Annex Building, - Talkatora Stadium, . 3) New Delhi ~ 110 001. ca 4, The Admiral Superintendent, Naval Dockyard Mumbai, Lion Gate, Mumbai - 400 023. 5. Shri LY Gajgosh, Promoted from TA to JTO, Vide order dated 30.04.2019. 6. Shri VL Jadhav, Promoted from TA to JTO, Vide promotion order dated 30.04.2019 7. Shri RCH Chenna Krishnaiah, Promoted from Foreman to TA (Eng). Vide promotion order dated 03.12.2018. 8. Shri S Kulan, Promoted from Foreman to TA. (Eng) Vide promotion order dated 03.12.2018. .. Respondents. (By Advocates Shri R.R. Shetty for R-1 and Shri N.K. Rajpurohit for R-2). ORDER Per : Shri Krishna, Member (A)
The applicants have filed this OA to claim the following reliefs:-
"4. This Hon'ble Tribunal may graciously be pleased to call for the records of panel for promotion dated 19.11.2018 (Annexure A-
1), promotion order dated 03.12.2018 (Annexure A-2), panels for promotion dated 30.04.2019 (Annexure A-3), promotion order °3 0A.332/2019 dated 30.04.2019. (Annexure A-4) and DoP&T OM dated 10.08.2010 (Annexure A-5) from the Respondents and after ex-
amining the same may be please to quash and set aside with all consequential benefits.
B. This Hon'ble Tribunal may be pleased to hold that the promotions given to SC/ST in excess of their quota to the posts of TA and JTO are not lawful and justifi fed if they have been already appointed or promoted in any lower post availing the benefit of reservation. Hence, promotions given to such SC/ST candidates are quashed and set aside.
C. This Hon'ble Tribunal may be pleased to direct the Respondents to cancel all promotions of SC/ST made in excess of their prescribed quota to the posts of TA and JTO, and then to review DPCs for these posts following the concept of post based roster with inbuilt concept of replacement in accordance with the DoPT OM dated 02.07.1997 (Annexure A-7) so as to provide jus- tice to the applicants under the Principal of Equality provided un- der Article 16(1) of the Constitution.
_éD. Cost of the appl ication be provided.
E. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
2. Brief facts of the case as stated by the applicants are that the applicant no.1 (All India Equality Forum -AIEF) is a non-Government Society registered under the Societies Registration Act, 1860. The applicant no.2 and applicant no.3 are the members of ATEF. The applicant no.2 is presently working as Foreman in Naval Dockyard Mumbai and recently promoted to the post of Technical Assistant (Engineering) vide impugned 4 oe 7 (0A.3322019 promotion order dated 03.12.2018. The applicant No.3 is working as Technical Assistant(TA) in Material Organization of Indian Navy in Ghatkopar ~ Mumbai. Their next promotions are to be in the post of Junior Technical Officer (JTO} on the basis of combined seniority list of TAs pertaining to all disciplines.
3. It has been submitted that as per the seniority list of Technical TA as on 01.04.2016, out of 70 SC/ST candidates there are 32 younger candidates than the applicant no.2 whereas out of 102 general candidates there are only 9 younger candidates ~ and nearly same situation is of the applicant no.3 also. The excess promotions of SC/ST than their prescribed quota of 22.5% for the posts of TA and JTO, made without following the concept of post based roster with inbuilt concept of replacement maintaining balance within the SC/ST and General category in accordance with the DoPT OM dated 02.07.1397 have blocked promotions of the applicants permanently for the post of JTO having sanction of only 29 posts. The respondents have granted promotions to SC/ST candidates in 5 OA.332/2019 excess of their quota Lo the posts of TA and JTO violating the settled law by adjusting them against general category although such SC/ST candidates have been appointed »/ promoted out of turn in lower posts availing the benefits of reservation.
4. It has been submitted that as per Para 3 of DoPT OM dated 10.08.2010 it has been clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualification will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non- selection method. The applicants contend that if a SC/ST candidate is promoted in any lower posts availing the benefits of reservation then subsequently although he may be at serial number Ol in the seniority list for promotion to next higher post but it cannot be said that his seniority at serial number 01 is his own seniority because he could have never attained the seniority position at serial number 01 if he would 6 0A.332/2019 have not got accelerated promotion in lower grade under reserved quota. Similarly, if a SC/ST candidate who has - been initially appointed availing the benefits of peservation then subsequently he can. be promoted to next higher posts against the roster point of SC/ST only. Therefore, promotions of SC/ST made in excess of 'their prescribed quota in higher posts of TA, JTO and TO are warranted to be reduced by demoting them to the extent in excess of the prescribed quota.
5. The SC/ST candidates have been promoted in excess of their prescribed quota in higher posts through multiple gain of reservation in promotions. The multiple benefits are:(1) out of turn promotion at younger ages over senior elder general candidates, (2) since the number of posts from higher to higher posts keep on decreasing resulting roster points made available for promotion of general candidates are occupied more and "more by Sc/st candidates, (3) Due to accelerated promotions at younger ages the SC/ST candidates keep on accumulating in higher posts To 0A.332/2019 against faster retirement of general candidates due to their older ages.
6. It has been submitted that 'the DoPT oM dated 4 13.08.1997 has mentioned that ,in pursuance of dg.
Article 16(4A), it has been decided to continue the reservation in promotion, as at present, for the Scheduled Castes and Scheduled Tribes in the services /posts under the Central Government beyond 15.11.1997 till such time as the represen- tation of each of the above two categories in each cadre reached the prescribed percentage of reservation thereafter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories.
7. It has been submitted that in spite of interim relief granted by the Tribunal in OA No.4739/2017 for stay on sc/st promotions to Foreman and above posts i.e. TA and JTO, the respondents have followed sc/st reservation policy while considering for promotions to the posts of TA and JTO on the basis of impugned panels / orders.
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8. On notice, the respondents nos.1, 3 and 4 have filed their. reply and submitted that the applicants have approached the Tribunal by way of Le ia an O.A. seeking quashing of the promotion panel dated 19.11.2018 and promotion. order dated 03.12.2018 to the grade of Technical Assistant (TA) for the year 2016-17, 2017-18 and 2018-19 and promotion panel, | promotion order dated 30.04.2019 to the grade of Junior Technical Officer (JTO) for the year 2014-15, 2015-16, 2017-18 and 2018-19. The applicants have further sought relief to conduct the review DPC for these posts Eollowing the concept of posts-based roster with inbuilt concept of replacement in accordance | with DoP&T OM dated 02:07.1997.
9. It has been submitted that a case was taken up by Respondent No.3 with Ministry of Defence on 15.03.2019 for necessary guidelines/directions in consultation with Government of India, Department of Personnel & Training (DoP&T) being the nodal agency for issuing Government orders on such issues and also the fact that any court order Qo OA.332/2019 which adversely affect the DoP&T OMs = should invariably be examined by DoP&T. . The proposal was examined by Ministry of Defence and thereat-- ter referred to DoP&T with the approval of Defence Secretary for their advice. xitex examining the
-issue, it has been stated by DoP&t / Estt (Reservation) that a number of important cases, involving the Central Government policy on reservation in oromotion to SC/STs are still pending before the Hon'ble Supreme Court. The two such cases that are pending that -
(i) SLP (C) No.30621/2011 filed by Jarnail Singh and other related cases arising out of final judgment and order dated 15.07.2011. in CWP No.13218/2009, passed by the Hon'ble High Court of Punjab & Haryana, whereby the DoPT OM No.36012/45/2005-Estt (Res) dated 10.08.2010, on own-merit in reservation in promotion for SCs/STs was set aside.
(ii) SLP (C) No.21288/2017, filed by Union of India, arising out of Hon' ble Delhi High Court judgment dated 23.08.2017, whereby the DOPT OM No.36012/18/95-Estt. (Res) (Pt-II) dated 13.08.1997 10 oa 3399019 on the subject 'Reservation to SCs/STs in promotion', providing for continuation of reservation for SCs/STs in promotion, providing for continuation of reservation, for SCs/STs, was i.
fe.
set aside. This case has been clubbed / tagged with SLP (C) No.30621/2011. --
10. The Hon'ble Supreme court while referring to judgment dated 26.09.2018 in SLP (C) No.30621/2011. and subsequent judgment dated 28.01.2022, following main points covered in the judgment has been considered:
(i) The need for State to collect quantifiable data, showing backwardness of the SCs and STs, as observed in Nagraj judgment, being contrary to the 9-Judge Bench in Indira Sawhney judgment has been done away with.
(ii) While considering promotion for SCs/STs, the quantifiable data on the inadequacy of represen-
tation need to be considered which would be relatable to the concerned cadre. Further, efficiency in administration is aiso required to be kept in view while granting such promotions.
the (0A.332/2019 (lii)The test for determining adequacy of repre- sentation in promotional posts has been left to che state. The existing arrangement approved by the Hon'ble Supreme Court, in,its division of fi 17.05.2018 in SLP (C) No.30621/2011 has not been .stayed and, therefore, action can continue to be taken on promotions as per provisions of DOPT OM dated 15.06.2018 and as per further clarification vide decision dated 28.01.2022 in Jarnail Singh- il.
11. On citing the above background, the DOPT has advised the Administrative Ministry/Department to implement the provisions of OMs issued by DOPT from time to time and the DoPT OM dated 12.04.2022. The factual position in the case are enumerated in the succeeding paragraphs.
12. It has been submitted that the Defence Civilians in the Indian Navy, in which the applicants are currently employed as, are Central Government employees and governed by rules promulgated by Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, New Delhi 0A.332/2019 (GOT, DOPT) which is the nodal agency to formulate policy matters relating to the service conditions of the Central Government employees. The contention of the applicants that the respondents
- bie are illegally effecting promotions by applying the principle of reservations is denied by the Respondents. The action of the respondents is strictly in accordance with extant rules published by DOPT. The integrated Headquarters, Ministry of Defence {IRQ MoD(N)} i.e. Respondent No.3 had | prepared impugned promotion panel and order to the grade of TA and JUTO as per the Government rules in force, DPC for Foreman and above is undertaken at the Respondent No.3 jointly for all organisation of Indian Navy. There is nothing on record to show or establish that DoPT guidelines/rules/orders have not been complied with.
13. It has been submitted that the OA was Filed on 10.05.2019 by All India Equality Forum and 2 other applicants belonging to the cadre of Non- 'Industrial staff working in Naval Dockyard, Mumbai and Material Organisation, Mumbai. However, 3B OA.332/2019 no documentary evidence in the OA was placed to show whether the 2 other applicants are members of the All India Equality Forum. The All India Equality Forum is not a registered Union/Forum ie | for the employees of this Yard. The Chargeman
- (CM) and Foreman (FM) are belonging to the grades of Technical Supervisory staff whereas Technical Assistant (TA), Junior Technical Officer (JTO) and Technical Officer (TO) are the grades of the Civilian Officer Cadre. Promotional hierarchy of these grades is CM-FM-TA-JTO-TO. It has been submitted that the applicant no.2 i.e. Shri B. Tomar, FM in the OA sought relief to quash the promotion panel dated 19.11.2018 and promotion order dated 03.12.2018 to the grade of Technical Assistant (TA) but the 'same Applicant in another OA 219/2019 filed by him in this Tribunal has prayed to grant of interim order for giving promotion to him for TA (Engg) and be retained in Naval Dockyard, Mumbai. Therefore, the applicant is clearly misguiding this Tribunal by seeking different reliefs in two OAs filed by him. The post-based rosters are maintained and followed by oe 4 0332/2019 the department for promotion. The contention of the applicants that the respondents have continuously made promotion beyond SC/ST 22.5% quota in the higher posts without following the Lis.
post based roster is denied. "
14. It has been submitted that the contention made by the applicants is based on assumptions/speculations. It is again pertinent to mention that the DPCs are conducted as per extant rules at the time of the said DPC and the applicants cannot presume the orocedure/result of the same. Further, reservation to the SCs, STs and OBCs in case of direct recruitment, on all India basis by open competition is given as per the extant rules at the time of the said direct recruitment. Two sets of orders have been passed by the Hon'ble Apex Court, one being order dated
05.06.2018 in SLP (Civil) No.31288/2017 and order dated 17.05.2018 in SLP (Civil) No.30621/2011. A careful perusal of the OM dated 15.06.2018 would go to show that the Hon' ble Supreme Court had given a categorical direction on 17.05.2018 that pendency of the SLP shall not stand in the way of NU 45 | | -04332/2019 the Union of India taking steps for the purpose of promotion from 'reserved to reserved' category and 'unreserved to unreserved' category and also in the matter of 'promotion on merits. A further AF order of 05.06.2018 of the ont ble Apex Court directed the respondents to make promotions in accordance with law.
15. As per DOPT OM dated 15.06.2018, the. Cadre Controlling Authorities of Central Government Ministries, Departments and Union Territories are to carry out promotion in accordance with the directions of the won' ble Supreme Court mentioned in para 2 and 3 of the OM pased on existing seniority/select lists. In light of this scenario, the respondent no.3, i.e. IH MoD (N) issued impugned panel and promotion orders to the grade of TA in accordance with DOPT OM dated 15.06.2018. Post promulgation of DOPT OM ibid, not conducting DPpCs is, therefore, not complying with the directives of the Hon'blie Supreme Court order dated 17.05.2018 and 05.06.2018 as brought out in DOPT OM ibid.
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16. It has been submitted that UPSC is also considering the proposals wherein reserved candidates have been considered for promotion under unreserved(UR) vacancy owing to their own fe ee merit. The IHO MoD(N) accordingly issued an order dated 12.09.2018, directing promotions of personnel based on the DOPT OM dated 15.06.2018, DOPT further stipulated that promotion shall be subject to further order which may be passed by the Hon'ble Supreme Court and the same has been incorporated in the promotion orders. It is reiterated that the existing arrangement approved by the Hon'ble Supreme Court, in its order of 17.05.2018, has not been stayed and, therefore, action continued to be taken on promotions as per provisions of DOPT OM dated 15.06.2018 as no further clarification was issued by DOPT. Therefore, the respondents have acted purely in accordance with existing rule positions by conducting DFCs.
17. It has been submitted that, SLP (C) No.21288/2017, filed by Union of India, arising out of Hon'ble Delhi High Court judgment dated | 7... - - 0A.33212019 23.08.2017, whereby the DOPT OM dated 13.08.1997 on the subject 'Reservation to SCs/STs in promotion', providing for continuation of reservation for SCs/STS, was set aside. This case has been clubbed/tagged Raith SLP (C) No.30621/2011. In a hearing held on 15.04.2019, the Hon'ble Supreme Court has ordered that until further order, status quo, as it exists today, shall be maintained and all clubbed matter listed on 15.10.2019 for further hearing. The issues involved have been clarified by the Hon'ble Apex Court in their judgement dated 28.01.2022 in Jarnail Singh-Il.
18. It has been submitted that .one Mr. Udaiveer Singh in his O.A.479/2017 has prayed to issue interim relief/order for stay on reservation for SC/ST in promotion to the grades of Foreman and above to avoid unlawful loss to his immediate and future promotions. The interim relief dated 08.08.2017 in OA ibid granted by the Tribunal is in personam and not in rem. The interim order passed by the Tribunal in its wisdom could not have stalled all promotions 1.¢.
Ne is OA.332/2019 promotion to Foreman and above, but to the extent that only those by which the applicant Shri Udaiveer Singh is being affected, are not promoted. Therefore, the interim reliet granted i.
by the Tribunal is to be read id conjunction with his prayer made in the OA 479/2017 wherein his immediate seniority is affected. The Tribunal has already closed the Contempt Petition No.45/2018 in OA.479/2017 wherein the panel and promotion order to the 'grade of TAs were impugned.
19. It has been submitted that the alleged contention of the applicants that the respondents have issued promotion orders of SC/ST to the post of TA and JTO vide impugned panels / promotion orders in contempt of interim order dated 8.8.2017 is grossly misleading and unfounded because none of the Foreman promoted to TA and JTO during the vacancy years 2014-15 to 2018-19 are affecting the applicant's immediate and further promotion as sought in IR of his OA.479/2017. Further, the applicant is also not directly affected as he is holding a post (Charge-
man) which is a feeder to feeder grade (i.e. 19 0OA.332/2019 Foreman) to the post of Technical Assistant (TA) and hence he is not at all adversely affected by issuance of empanelment panel/promotion orders to the grade of TA and JTO. Further, panel as well Ls as the promotion order of TAs 45 also subject to outcome of OA 479/2017 is brought out vide IH MoD(N) letter dated 07.12.2018. In the light of the aforesaid factual position, the respondents submitted that they have only sincerely tried to implement the ordérs passed by the Hon' ble Apex Court in May and June of 2018 as advised by the DOPT in OM dated 15.06.2018. in view of the aforesaid submissions, the 0O.A. has no merit whatsoever and, therefore, the same may be dismissed.
20. The respondent No.2 have also filed their reply. Respondents Nos.5 & 6 have neither filed any reply nor made appearance either in person or through Advocate.
21. The applicants have not filed any rejoinder on reply affidavit submitted by the respondents No.1, 3 & 4.
20 = OA.332/201922. The arguments were finally concluded on 08.05.2024. The applicant No.2 submitted his written "arguments on 09.05.2024 and placed reliance on the following judgments:
ie (4) Ajit Singh Januja & Ors. We. State of Punjab & Ors., 1996 AIR 1189.
(ii) Judgment of M. Nagaraj & Others Vs. Union of India & Others, AIR 2007 SC 71.
(iii) Judgment of Hon'ble Supreme Court on the case Jarnail Singh & Others Vs. Lachhmi Narain Gupta & Others.
23. The respondents have submitted that Three-dJudge Bench of Hon'ble Apex Court vide order dated 28.01.2022 in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. (2022) 10 SCC Page 595 (hereinafter referred to as Jarnail Singh-II) has further clarified the issue of own merit cases of sCs/STs and held that those scs/STs which have. been selected on their own merit cannot be counted against the reserved quota and also clarified that judgment of M. Nagaraj (supra) will have prospective operation. The respondents have = 2 OA.332/2019 placed reliance on following documents 'and judgments:-
(i) Copy of Constitutional Amendments with regard to Reservation in Promotion. .
(ii) Copy of the Reservation in promotion -- Note on judgments.
(iii) Copy of the judgment of the Hon'ble SGpreme Court in the case of RK. Sabharwal & Ors. Vs. State of Punjab & Ors. (1995) 2 SCC Page 745.
(iv) Copy of the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors. (1995) 6 SCC Page 684. .
(v) Copy of judgment of the Hon'ble Supreme Court in the case of Ajit Singh Januja & Ors. Vs. State of Punjab & Ors. (1996) 2 SCC Page 715, |
(vi) Copy of the judgment of the Hon'ble Supreme Court in the case of Ajit Singh & Ors. Vs. State of Punjab & Ors. (1997) 7 SCC page
209.
(vii) Copy of the judgment of the Hon'ble Supreme Court in the case of M. Nagaraj Vs. Union of India & Ors. (2006) 8 SCC Page 212.
(viii) Copy of the judgment of the Hon'ble Supreme Gourt in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. (2018) 10 SCC Page 396 (hereinafter referred to as Jarnail Singh-D
(ix) Copy of the judgment of the Hon'ble Supreme Court in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. (2022) 10 SCC Page 595 (hereinafter referred to as Jarnail Singh-ID)
24. We have heard the applicant No.2 in person and learned counsels for the respondents at length and perused the pleadings and documents filed on record. We have also gone through the various judicial pronouncements relied upon by the parties.
25. The main challenge of the applicants is to DoPT OM dated 10.08.2010 and panel dated 49 OA.332/2019 19.11.2018 for the post of Technical Assistant Group 'Bf and consequent promotion order dated 03.12.2018 and empanelment of Junior Technical Officer vide order dated 30.04.2019 and ib consequent promotion order dated 30.04.2019 which are based on the DoPT OM dated 10.08.2010. The Main contention of the applicants is that total representation of SCs/STs candidates including those who have come on their own merit cannot exceed the reservation quota prescribed for them as it will amount to reverse diseximination and therefore those who have been promoted should be demoted.
26. We find that the reservation -in the matters of promotion is provided under the scheme of the Constitution of India. Prior to the decision in Indra Sawhney v. Union of India( 1992 Supp. (3) ScC 217), it was provided through Article 16 (4) of the Constitution, but in Indra Sawhney it was held that it is not permissible under Article 16 (4), but it was allowed to continue to provide reservation in the matters of promotion for a period of five years from the date of the 23 OA.332/2019 decision in Indra Sawhney Vv. Union of India, i.e. 16% November 1992 and upto 15% November 1997, as the reservation in promotion was in existence prior to the decision in the case of Indra Sawhney.
hee dee In the meantime, the Constitution Bench on 10.02.1995 in the case of R. K. Sabharwal v. State of Punjab(i995 (2) sce 745.), has heid that reservation in public employment be enforced on the basis of Post based reservation roster instead of vacancy-based roster, and the resérved categories candidates who are appointed or promoted on the general standard, should not be counted for the purpose of computation of percentage of reservation as under:
"4, When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not 14 OA.332/2019 adequately represented in the 'State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government, after doing the necessary exercise, makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above, the roster point which is reserved for a backward class has to be filled by way of appointment/ promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is _ reserved for the backward class. The fact that considerable number of members of a backward class have been appointed / promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ Rules providing certain percentage of reservatio for the backward classes are operative the same have to be followed. Despite any number of appointments/ promotees be- longing to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.
11. .... the interpretation given by us to the working of the roster and our findings on this point shall be operative prospectively. "
(Emphasis supplied).
27. The applicant has relied on the decision of Hon'ble Supreme Court in the case of Ajit Singh Januja & Ors. Vs. State of Punjab & Ors., 1996 AIR 1189 in which it was held that when a scheduled caste/tribe candidate is promoted earlier by applying the rule of reservation/ roster against a post reserved for such scheduled 25 . 0A.332/2019 caste/tribe candidate, in this process he does not supersede his seniors belonging to the general category. When the general category candidate is promoted later from, the lower grade dd to the higher grade, he will be considered senior to a candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him.
28. The Parliament in its constituent power under Art. 368 of the Constitution, has removed the basis of Indra Sawhney v UOI (1992 sUPP. (3) SCC
217), on 17.06.1995, by insertion of clause (4-A) by Section 2 of the Constitution (77. Amendment) Act, 1995, and further amended clause(4-A) by the Constitution (85% Amendment) Act, 2002 with retrospective effect from 17.06.1995, with the following 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 30° 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 26 0A.332/2019 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.
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 30" January 1997 immediately. Mere withdrawal of the O.M. dated 30° 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 ofrule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to Article 16(4- _ A) with effect from the date of coming into force of Article 16(4-A) itself, that is, from the 17" day of June 1995."
Therefore, with the above objective to remove the basis of the decisions in UOI v. Virpal Singh Chauhan (1995) 6 SCC 684, and Ajit Singh Januja v. State of Punjab, the Constitution (85 Amendment) Act, 2001 has been enacted with retrospective effect from 17.06.1995. Article 16(4-A) as it stands after the Constitution ( 85" Amendment) reads as under:
1 1(4-A) 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 of posts in the -
services under the State in favour of the Scheduled Cates and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.] 28.1. The President has given his assent on 04.01.2002 and Art.16 (4- A) has been enforced | Inserted by the Constitution (77" Amendment) Act, 1995, Section 2 (w.e.£.17.6.1995). 2 Subs by the Constitution (85 Amendment) Act, 2001, Section 2 (w.re.f 17.6.1995).
ee 27 | 0A.332/2019 by the DOPT by issuing of OM No.20011/1/2001- Estt.(D) dated 21.01.2002, which is extracted here as under:
"3 The Government have now decided to negate the effects of the DOP&T OM dated 30% January 1997 by amending Article 16(4A) of the Constitution right from the date of its incluston, iff the Constitution ie, 17 June 1995, with a view to allow the Government servants belonging to §Cs/ STs to retain the seniority in the case of promotion by virtue of rule of reservation. In other words, the candidates belonging to general/OBC category promoted later will be placed junior to the SC/ST Government servants promoted earlier even though by virtue of the rule of reservation. --
4. Therefore, in pursuance of the aforementioned Constitution (Eighty-
fifth) Amendment Act, 2001, it has been decided as follows:
Thus,
(i) (a) SC/ST Government servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also; and \
(b) the above decision shall be effective from 17" June 1995,
(ii) The instructions contained in DOPT O.M. No.20011/1/96- Estt. (D) dated 30.1 1997 as well as the clarifications contained in DOPT O.M.No.20011 /2/97-Estt. (D) dated 21.3.1997 shall stand withdrawn wef, 30.1.1997 itself:
(iii) Seniority of Government servants determined in the light of O.M. dated 30.1.1997 shall be revised as if that O.M. was never issued.
(iv) (a) On the basis of the revised seniority, consequential benefits like promotion, pay, pension, etc. should be allowed to the concerned SC/ST Government servants (but without arrears by applying principle of "no work no pay').
(b) For this purpose, senior SC/ST Government servants may be granted promotion with effect from the date of promotion of their immediate junior general/OBC Government servants.
(c) Such promotion of SC/ST Government servant may be ordered with the approval of Appointing Authority of the post to which the Government servant is to be promoted at each level after following normal procedure of DPC (including consultation with UPSC).
(v) Except seniority other consequential benefits like promotion, pay etc. (including retiral benefits in respect of those who have already retired) allowed to general/OBC Government servant by virtue of implementation of O.M. dated 30.1.1997 and/or in pursuance of the directions of CAT/Court should be protected as personal to them."
the amended provisions of clause (4A) of Article 16 of the Constitution with retrospective effec t from 17.06.1995 has removed the basis of a ---- 0A.332/2019 decision in the case of Ajit Singh-II v. State of Punjab, 1999 (7) sccC 209, and consequently, enforced the mandate of the decision in Jagdish . Lal v. State of Haryana, 1997 (6), SCC 538.
' Wome 29, The Parliament further enacted Article 16(4-B) by the Constitution (gist Amendment) Act, 2000 with the objectives to remove the basis of the judgment by the Supreme Court of India in. Indra Sawhney v. Union of India(supra) which held that the 'number of vacancies to be filled ug on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent' and therefore to remove that conditions for backlog vacancies, the provisions of the Constitution (815* Amend-
ment) Act, 2000 was inserted as under:
" (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 ]"
29 : ---- 0A.332/2019
30. The Hon'ble Supreme Court in the case of Sudhakar Baburao Nangnure Vs. Noreshwar Raghunathrao Shende, 2020(11) SCC 399 has of amended clause 4{A) of Articlé 16. The Hon'ble Apex Court in para 66 of the judgment has held as under:
"66. A challenge to the resolution providing for consequential seniority is indeed a serious matter. Such a challenge calls upon the court to upset a policy circular which has been issued with the avowed objective of safeguarding consequential seniority which was, as our constitutional history indicates, a clear purpose underlying the 85"" Amendment to the Constitution. Such constitutional challenges cannot be bandied about without specific pleadings. We are clearly of the view that such an ex- ercise would be impermissible in the absence of a frontal challenge."
31. The Hon'ble Supreme Court in M. Nagaraj v. Union of India, 2006 (8) SCC 212, upheld the Constitutional validity of the Constitution (77%, 81st, 827¢ and 85% Amendments) Acts. The relevant extracts are as under:
"79 Reading the above judgments, we are of the view 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 the concept of 'consequential seniority' the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that "igus SES saga 300~COS ---- 0A.332/2019 the 'equality code' under Article 14, 15 and 16 is violated by ~ deletion of the '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, in our viewneither the 'catch-up' rule nor the concept of 'consequential seniority' are implicit in cléuses (CD) and (4) of Article 16 as correctly held in Virpal Singh Chauhan"
The Constitution Bench of the Hon'ble supreme Court in the case of M. Nagaraj v. Union of India (supra) has upheld the validity of above Constitutional Amendments providing for reservation in promotion subject to compliance of certain conditions namely collection of quantifiable data about backwaraness, quantifiable data about inadequacy of represen- tation, in addition to compliance with Article 335 of the Constitution of India. Therefore, the contention of the applicant based on the judgment of the Hon'ble Supreme Court in the case of Ajit Singh Januja & Ors(supra) which was decided before the amendment of clause 4(A) of Article-16 is not correct as they are contrary to the Constitutional provisions which have been upheld by the Hon'ble Supreme Court.
screenees"
peter ARRAS 31 : ---- 0A.332/2019
32. Hon'ble Delhi High Court in the case of All India Equality Forum(supra) has quashed and set aside the DOPT OM dated 13.08.1997 as quantifiable data was not collected which does not appear to be the case here: The decision of the Hon'ble High Court was challenged in the Hon'ble Supreme Court by way of SLP No.31288 of 2017 and SLPs(C)No.1332; 1336 and 1338 of 2022 and the same was tagged with SLP in the case of Jarnail Singh v. Lachhmi Narain Gupta. The Constitution Bench of the Hon'ble supreme Court in the case of Jarnail Singh v. Lachhmi Narain Gupta,({2018(10) scc 396] has considered. the issues involved in the M. Nagaraj Case (2006(8) SCC 212) in SLP (CC) No.30621 of 2011 and has passed the following order dated 26.09.2018:
"36, Thus, we conclude that the judgment in M. Nagaraj v. Union of India, 2006 (8) SCC 212, does not need to be referred to a Seven-- Judge Bench. However, the conclusion in the M. Nagaraj v. Union of India (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-judge bench in Indira Sawhney y, Union of India, [1992 Supp. (3) SCC 217] is held to be invalid to this extent."
33. After the decision by the Constitution Bench in Jarnail Singh v. Lachhmi Narain Gupta-
erie subsea ieensEehoeiudp es catoo 32 ~~ --«A.332/2019 I(supra), the decision in M. Nagaraj Case (supra) has been further clarified by a Three-Judge Bench of Hon'ble Supreme Court in Jarnail Singh v.
Lachhmi Narain Gupta in SLP No(s) .30621/2011 vide judgment dated 28.012022 (2022) 10 scc 595 (hereinafter referred to as Jarnail Singh-IT) and has held that the judgment in case of M. Nagaraj will have prospective operation by declaring in para 62 of the judgment as under
"62. This Court in Golak Nath (supra) and Ashok Kumar Gupta (supra), referred to above, has laid down that Article 142 empowers this Court to mould the relief to do complete justice. To conclude this point, the purpose of holding that M. Nagaraj (supra) would have prospective effect is only to avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj(supra). Most of them would have already retired from service on attaining the age of superannuation. The judgement of M. Nagaraj (supra) was delivered in 2006, interpreting Article 14(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagaraj (supra) should be declared to_haye prospective effect." (Emphasis supplied).
It is this direction of giving prospective effect to M. Nagaraj judgment with effect from 19.10.2006 which leaves us with no other option a 33 . OA.332/2019 but to examine the process followed 'by the respondents in 2018 and 2019(being post 19.10.2006). On doing so, we found that the reservation in promotion granted in the impugned iL DPCs are well within the parameters laid down in Jarnail Singh (II).
34. The Three Judge Bench of Hon'ble Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta, (2022) 10 scc 595 has further held that the determination of inadequate representation of SCs and STs in services under a State is left to / the discretion of the State, as the determination depends upon myriad factors which this court can not envisage in para 17 of the judgment as under:
"17. Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage. A conscious decision was taken by this Court in M. Nagaraj (supra) and Jarnail Singh (supra) to leave it to the States to fix the criteria for determining inadequacy of representation. The submission of the learned Attorney General for India that this Court has to lay down the yardstick for measuring adequacy of representation did not yield a favourable result as this Court in Jarnail Singh (supra) found it befitting for the States to have the liberty to evaluate the representation of SCs and STs in public employment. Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments. In addition, the prevailing 34 0OA.332/2019 local conditions, which may , require to be factored in, might not be uniform. Moreover, in M. Nagaraj (supra), this Court.made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data. Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation."
(Emphasis supplied).
35, The Hon'ble Apex Court in para 19 has held that the reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. The above referred para 19 is extracted on the next page for ready reference.
36. The Hon'ble Supreme Court in Jarnail Singh (IT) has further held that unit for collecting quantifiable data is cadre. Paras 18 to 21 are extracted hereinunder as under:
"18. Seniority of Superintending Engineers in the Irrigation Department of the State of Punjab was the subject matter of a writ petition filed under Article 32 of the Constitution of India in R.K. Sabharwal & Ors. v. State of Punjab & Ors., (1995) 2 SCC 745. The relevant instructions issued by the State of Punjab provided for 14 per cent reservation for SCs. Two points came up for consideration before this Court in the said judgment, the 35 ~ QA.332/2019 first being that in case more than 14 per cent of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority. then the purpose of reservation having been achieved in the said cadre, the Government instructions providing reservations would become inoperative. The second point on which arguments were heard is that roster cannot operate,once the posts earmarked for the SCs, STs and Backwérd Classes are filled. Any post falling.vacant in a cadre, thereafter, is to be filled from the category - reserved or general due to retirement etc. of whose member the post fell vacant.
19. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into. consideration for working out the percentage of reservation. This Court was of the opinion that Article 16(4) of the Constitution of India enables the State Government to make provision for reservation in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services. The-- percentage of posts reserved for Backward Classes, as prescribed by the State, has to be strictly followed and cannot. be varied or changed simply because some members of the Backward Class have already been appointed/promoted . against the general seats. [Emphasis supplied]
20. The second point relates to the implementation of the roster in the form of "running account" year to year. Roster points were fixed in a lot of 100 posts. This Court held that once 14 per cent posts earmarked in the roster are filled up, the result envisaged by the instructions is achieved. Thereafter, there is no justification for operating the roster. This Court observed that the "running account"
is to operate only till the quota provided by the instructions is reached and not thereafter. The vacancies arising in the cadre, after the initial posts are filled, will have to be filled from amongst the category to which the post belonged in the roster.
21. In M. Nagaraj (supra), this Court observed that the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain 36 0A.332/2019 whether a given class/group is adequately represented in the service. Cadre strength as a unit also ensures that the upper ceiling limit of 50 per cent is not violated. Following the law laid down in R.K. Sabharwal (supra), this Court in M. Nagaraj (supra) further held that the roster has to be post-specific and not vacancy based."
hi.
re
37. The Three-Judge Bench of Hon'ble Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta- II (supra) has further held that for the purpose of collection of quantifiable data for providing reservation in promotions, the entire service can not be taken to be a unit and treated as a cadre. In this regard, Paras 6/7, 68 and 69 of 7 the judgment are extracted here as under:
"67. Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this court in M. Nagaraj (supra). The unit for the purpose of collection of data is a cadre, according to M. Nagaraj (supra) and Jarnail Singh (supra). For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated. The structure of services in the State of Karnataka is along the same lines as that of services in the Central Government. Services are divided into 'groups', which are further bifurcated into cadres. There is no confusion that a cadre is not synonymous with a 'group".
68. The first term of reference for the Ratna Prabha Committee was to collect data cadre-wise. The conclusion of this Court in B.K. Pavitra II (supra) that the expression 'cadre' has no fixed meaning in service jurisprudence is contrary to the judgments 37 OA.332/2019 of this Court, which have been referred to above while answering point 2. In clear terms, M. Nagaraj (supra) held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra I (supra). Article 14(4-A) of the Constitution enables the State to make reservation in promotions for SCs and STs, which are not adequately represented in the services of the State. However, the provision for reservation in matters of promotion is with reference to class or classes of posts in the services under the State. That 'groups' consist of cadres is a fact which was taken into consideration by this Court in B.K. Pavitra I fsupra). The conclusion that the collection of data on the basis of 'groups' is valid, is contrary to the decisions of this Court in M.Nagaraj (supra) and Jarnail Singh (supra)
69. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a 'group', which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-
wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpos¢ of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a 'group', is the unit and the data has to be collected with respect to each cadre. Therefore, we hold that the conclusion_of this Court in B.K. Pavitra_II (supra) approving the collection of data on the basis of 'groups' and not cadres is contrary to the law laid down by this Court in M. Nagaraj (supra) and Jarnail Singh (supra). "
(Emphasis supplied).
38. We find that a Three-Judge Bench of Hon'ble Supreme Court in the case of Saurav Yadav and others vy. State of Uttar Pradesh and others (2021) 4 sce 542} also has considered the issue of reservation and appointment of reserved category candidates 38 OA.332/2019 in open category and has held as under:-
"21.4. In Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007) 8 SCC 785, a Bench of three Judges of this -- Court considered the difference between vertical and horizontal reservation as under: (SCC pp.790-92, paras:8-11) "8 We may also refer to two related aspects before considering the facts of this case. The first is about description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: " For SC: 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus: For SV:21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of 'male' or 'men'.
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservation, in favour of SC, ST and OBC under Article 1 6(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc. under Article 16(1) or 15(3) are "horizontal reservations". Where a_ vertical reservation is made in favour of a Backward Class under Article 16(4) the candidate belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category.( Vide Indra Sahney.v. Union of India 1992 Supp.(3) SCC 217, RK. Sabharwal v. State of Punjab 1995 SCC(L&S) 548, Union of India v. Virpal Singh Chauhan 1996 SCC(L&S) 1, and Ritesh R.Sah v. ¥.L. Yamu (19960 3 SCC 253)."
(Emphasis supplied) 39 OA.332/2019
39. The Hon'ble Supreme Court in the case of Saurav Yadav and Others Vs. State of Uttar Pradesh and Others (supra) has curther held that candidates belonging to the resetved categories are entitled to be selected in open category 1s well settled. It has been held that such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. The Hon'ble Supreme Court has referred to earlier decisions in the case of Indra Sawhney (supra), R.K. Sabharwal (supra) and constitution bench decision in the case of V.V. Giri vs. D. Susi Dora, (1960) 1 SCR 426. Para 26 of the judgment is extracted herein as under:
"26. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in "Open or General Category" is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from the extracts from the decisions of this Court in Indra Sawhney(supra) and R.K. Sabharwal(supra) the 1 ' ~ 40 OA.332/2019 observations by the Constitution Bench of this Court in VV. Giri y, D. Susi Dora(supra), though in the context of election law, are quite noteworthy. (AIR pp. 1326-27, paras 21-22) "21. ..,.In our opinion, the true position ts that a member of a Scheduled Caste or Tribe does not forego his right to seek election to the general seat merely becquse he avails himself of the additional concess ion of the reserved seat by making the prescribed deciaration for that purpose. The claim of eligibility for the reserved seat does not exclude the claim for the general seat; it is an additional claim; and both the claims have to be decided on the basis that there is one election from the double-Member constituency.
22. In this connection we may refer by way of analogy to the provisions made in some educational institutions and universities whereby in addition to the prizes and scholarships awarded on general competition amongst all the candidates, some prizes and scholarships are reserved for candidates belonging to backward communities. In such cases, though the backward candidates may try for the reserved prizes and scholarships, they are not precluded from claiming the general prizes and scholarships by competition with the rest of the candidates."
40. We find that recently, the Hon' ble Supreme Court in its judgment date 01.05.2024 in the case of Deependra vadav & Others v. State of Madhya Pradesh & others in SLP(C) No.5817 of 2023 with SLP(C) No. 23514 of 2023 & SLP(C) No. 27620 of 2023 in para Nos.31 and 32 has held as under:
"37 In Saurav Yadav and others v. State of U.P. and others((2021) 4 SCC 542), 4 3-Judge Bench of this Court affirmed the principle that candidates belonging to any of the vertical reservation categories would be entitled to be selected in the 'open category' and if such candidates belonging to- reservation categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the annie ccna tect 41 OA.332/2019 quota reserved for the categories of vertical reservation that they belong to. It was further observed that reservations, both vertical and horizontal, are methods of ensuring representation in public services and these are not to be seen as rigid 'slots', where a candidate's merit, which otherwise entitles him to be shown in the open general category, is foreclosed. The Bench further observed that the 'open category' is open to all and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type was available to him or her.
32. This being the settled legal position, it appears that the State of Madhya Pradesh itself realized the harm that it was doing to the reservation category candidates and chose to restore Rule 4, as it stood earlier, which enabled drawing up the result of the preliminary examination by segregating deserving meritorious reservation category candidates with meritorious unreserved category candidates at the preliminary examination stage itself. As this was the process that was undertaken after the judgment in Kishor Choudhary (supra), whereby a greater number of reservation category candidates cleared the preliminary examination and were held eligible to appear in the main examination, there can be no dispute with the legality and validity of such process". [Emphasis supplied]
41. The above decisions of the Hon'ble Supreme court make it clear that it has been consistent view of Hon'ble Supreme Court right from the case of V.V. Giri decided by the Constitution Bench in the year 1960 to R.K. Sabharwal decided in 1995 by the Constitution Bench, Saurav Yadav decided in 2021 and Jarnail Singh-il decided in 2022 both 3-Judges bench. judgments and the latest decision dated 01.05.2024 in the case of Deependra Yadav (supra) that open category is 42 OA.332/2019 open to all and those SCs and STs candidates who compete on their own merit cannot be counted against reservation quota. Therefore, the contention of the applicant that, fotal number of bee SC/ST candidates including those promoted on their own merit cannot exceed the 15% and 7.5% respectively is not correct and contrary to the law laid down by the Hon'ble Supreme Court.
42. We find that Article 12 of the Constitution of India defines "the State" as under:
"Art.12. In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India' Thus, it is clear that the State does not mean the State Government alone but includes the. Government of India and its instrumentalities. Therefore, the respondents are aiso the State within definition of Article 12 and the data about inadequacy of representation in each cadre under them can be collected by the respondents.
43. We cannot loose the sight of the fact that the reservation in promotion has throughout been 43 OA.332/2019 granted by the respondents Union of India as per the reservation roster and not in an arbitrary manner. Since rendering of judgment by Hon'ble Supreme Court in R.K. Sabharwal (supra), if appointment or promotion 1s granted to reserved category candidates on general merit, such a candidate cannot be counted as a case of reserved. This principle has since been followed by the Three-Judge Bench in Jarnail Singh -II. For ready reference Para 21 is reproduced herein as under:
"21. In M. Nagaraj (supra), this Court observed that the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Cadre strength as a unit also ensures that the upper ceiling limit of 50 per cent is not violated. Following the law laid down in R.K. Sabharwal (supra), this Court in M. Nagaraj (supra) further held that the roster has to be post-specific and not vacancy based."
This is the logical reasoning for reservation not having been exceeded by the respondents even in 2018 and 2019.
44. The Hon'ble Supreme Court in the case of B.K. Pavitra and Others Vs. Union. of India and others, (2019) 16 SCC 129 while considering the issue of reservation has held = that "The Constitution is a transformative document. The 44 OA.332/2019 realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts. For, above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression of and discrimination against the marginalised.".
45. In the context of reservation, the Hon'ble Apex Court referred to the earlier decision in %. Devadasan Vs. union of India, AIR 1964 $C 179 wherein it was held that "The expression "nothing in this article" is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article." | [Emphasis supplied] Furthermore, referring to the subsequent decision in the case of State of Kerala Vs. N.M. Thomas, 45 OA,332/2019 (1976) 2 sce 310 wherein it was held that "If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz. even up to the point of making reservation. "
(emphasis supplied}
46. Thereafter, the Hon'ble Supreme Court has discussed the issue of efficiency in administration. Paras 123 to 129 of the decision in case of B.K. Pavitra - II(supra) is extracted herein as under:
"G, Efficiency in administration
123. Critics of affirmative action programmes in government services argue that such programmes adversely impact the overall competence or "efficiency" of government administration. Critics contend that the only method to ensure e "efficiency" in the administration of Government is to use a "merit" based approach whereby candidates that fulfil more, seemingly "neutral", criteria than others are given opportunities in government services. The constitutional justification for this "efficiency" argument is centred around Article 335:
"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:46 OA.332/2019
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."
Fao set The proviso was inserted by the Constitution (Eighty-second Amendment) Act, 2000.
+f
124. The substantive part of Article 335 contains a mandate: a requirement to take into consideration the. claims of SCs and STs in making appointments to services and posts in connection with the affairs of the Union or of a State. Consideration is much broader in its ambit than reservation. The consideration of their claims to appointment is to be ina manner consistent with maintaining the efficiency of administration. The proviso specifically protects provisions in favour of the SCs and STs for: (i) relaxing qualifying marks in an examination; (ii) lowering the standards of evaluation; or
(iii) reservation in matters of promotion. Reservation is encompassed within the special provision but the universe of the latter is wider.
125. The proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste- oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration. of their claim to appointment will remain illusory. The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the States. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting vauhendemlaaaeicnnsds 47 OA.332/2019 these special measures designed to uplift and protect the welfare of the SCs and STs.
[Emphasis supplied]
126. The Constitution does not define what the framers meant by the phrase "efficiency of administration". Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep- rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with . the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity, Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one- sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognises governance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well- governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering 48 OA.332/2019 the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State. [Emphasis supplied]
127. This part of the philosophy of the Constitution was emphasised in a powerful exposition contained in the judgment of O. Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714 ("K.C. Vatanth Kumar"). The learned Judge held: (SCC pp. 737-38, para 35) "35. One of the results of the superior, elitist approach is that the question of reservation is invariably viewed as the conflict between the meritarian principle and the compensatory principle. No, it is not so. The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is not enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. And what is merit? There is no merit in a system which brings about such consequences..." (Emphasis in original) Speaking of efficiency, the learned Judge held: (SCC, p.738, para 36):
"36, Efficiency is very much on the lips of the privileged whenever reservation is mentioned... One would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil service is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlying assumption that those belonging to the upper castes and classes, who are appointed to the non-reserved posts will, because of their presumed merit, "naturally" perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the 49 OA.332/2019 latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes".
128. The substantive right to equality is for all segments of society. Articles 15(4) and 16(4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. While, we are conscious of the fact that tke decision in Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217 did not accept K.C. Vasanth Kumar Vs. State of Karnataka, 1985 Supp SCC 714, on certain aspects, the observations have been cited by us to explain the substantive relationship between equal opportunity and merit. It embodies the fundamental philosophy of the Constitution towards advancing substantive equality.
129. An assumption implicit in the critique of reservations is that awarding opportunities in government services based on "merit" results in an increase in administrative efficiency. Firstly, it must be noted that administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself, The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods. Secondly. arguments that attack reservations on the grounds of efficiency equate "merit" with candidates who perform better than other candidates on seemingly "neutral" criteria e.g. standardised examinations. Thus, candidates who score beyond a particular "cut-off point" are considered "meritorious" and others are "non-meritorious". However, this is a distorted understanding of the function "merit" plays in society." [Emphasis supplied]
47. The Hon'ble Supreme Court after referring to the chapter on "Merit and Justice" by Nobel Laureate Amartya Sen from the book "Meritocracy and Economic Inequality" by Arrow, Kd.
eaten ginescatatta tes 50 OA.332/2019 (Princeton University Press 2000) , the Hon''bie Apex Court has emphasised that "Even though the typical "objective functions" that are implicitly invoked in most countries to define and assess what is to count as merit rend Xo be indifferent to (or negligent of) distributive aspects of outcomes, there is no necessity to accept that ad hoc characterisation. This is not a matter of a "natural order" of "merit" that is independent of our value system.".
48. The Hon'ble Apex Court has further described in detail the concept of efficiency in administration. For the sake of ready reference, para Nos.131 and 132 of the decision in B.K. Pavitra-II (supra) are extracted herein as under:
"131. Once we understand "merit" as instrumental in achieving goods that we as a society value, we see that the equation of "merit" with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.
132. For example, performance in standardised examinations (distinguished from administrative efficiency) now becomes one among many of the actions that the process of appointments in government services seeks to achieve. Based on the text of 'Articles 335, Articles 16(4) and 46, it is evident that the uplifting of the SCs and STs through employment in government services, and having an inclusive Government are other outcomes that the process of appointments in government services seeks to j ct 3 :51 OA.332/2019
achieve. Sen gives exactly such an example:
"If, for example, the conceptualisation of a good society includes the absence of serious economic inequalities, then in the characterisation of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen - or to generate economic inequality. I this case, the rewarding of merit cannot be done independent of its distributive consequences.
6 % * A system of rewarding of merit may well generate inequalities of well-being and of other advantages.
But, as was argued earlier, much would depend on the nature of the consequences that are sought, on the basis of which merits are to be characterised. If the results desired have a strong distributive component, with a preference for equality, then in assessing merits (through judging the generating results, including its distributive aspects), concerns about distribution and inequality would enter the evaluation. "
(Emphasis supplied) Thus, the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy.."Merit" must not be limited to narrow and inflexible criteria such as one's rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration. In fact, Sen argues that there is a risk to excluding equality from the outcomes:
"In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased (often implicitly) towards the interests of more fortunate groups favouring the outcomes that are more preferred by "talented" and "successful" sections of the population. This can reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, attaches some peg Funbaditenalaciteetales 52 OA.332/2019 weight to lower inequality levels. « (Emphasis supplied).
49. The Hon'ble Apex Court in B.K. Pavitra-II has further explained in detail thd! interpretation of proviso to Article 335 of the Constitution and heid that a "meritorious" candidate is not merely one who is "talented" or "successful" but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse. and representative administration. It will be useful to extract para Nos.133 to 136 of the judgment in the case of B.K. Pavitra --- II herein as under:
"133. The proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. Ifthe Government's sole consideration in appointments was to appoint individuals who were considered "talented" or "successful" in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined. Thus, a "meritorious" candidate is not merely one who is "talented" or "successful" but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administretian.
Koinonia ei: SF eCdaone Senet 53 OA.332/2019
134. It is well settled that existing inequalities in society can lead to a seemingly "neutral" system discriminating in favour of privileged candidates. As Mare Galanter notes, three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of "merit". These are:
"| (a) economic resources (for prio education, training, materials, freedom from work, etc.); (b) social and cultural resources (networks of contacts, confidence, guidance and advice, information, ete.); and (c) intrinsic ability and hard work... "(Galanter M., Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984)
135. The first two criteria are evidently not the products of a candidate's own efforts but rather the structural conditions into which they are borne. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society.
136.The Ratna Prabha Committee Report considers in Chapter ILL, the relationship between reservation in promotion and maintenance of efficiency in administration. Finally, it concludes:
"3.12: Conclusion:
Karnataka has been showing high performance in all the sectors of development viz. finance, health, education, industry, services, etc., to support sustainable economic growth. The analysis on performance of the State in economic development clearly indicates that reservation in promotions has not affected the overall efficiency of administration."
50. The Hon'ble Supreme Court in the case of B.K. Pavitra Vs. Union of India, 2019 (16) SCC 129 has considered and discussed in detail the issue of sascha tbe 54 0A.332/2019 creamy layer and held that creamy layer is not applicable in case of S$Cs/STs and held as follows:
"H The issue of creamy layer 138 At the outset, we analyse the submisstion of Ms Indira Jaising, learned Senior Counsel that the concept of creamy layer is inapplicable to the SCs and STs. This submission which has been urged by the learned Counsel is founded on two hypotheses which we have extracted below from the written submissions:
"() This Court in Indra Sawhney Vs. Union of India, 1992 Supp 93) SCC 217 seems to suggest that the creamy layer should be excluded, however there was no unanimity for determining what is creamy layer. Some Judges took the view that the criteria for creamy layer exclusion is social advancement (i.e. based on social basis, educational, and economical basis) and others took the view that it will be economic basis alone. It is submitted that it must be kept in mind that the said judgment related only to OBCs; and
(ii) Jarnail Singh Vs. Lachhmi Narain Gupta, (2018) 10 SCC 396 is not an authority for the proposition that the creamy layer principle applies to SCs and STs. It dealt only with the competence of Parliament to enact a law in relation to creamy layer without affecting Articles 341 and 342."
147. .... The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail (supra) rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the submission on the ground that it related to the validity of 55 OA.332/2019 Article 16 (44) and held thus: (SCC, p.430, para 34):
"34... We may hasten to add that Shri Dwivedi's argument cannot be confused with the concept of "creamy layer" which, as has been pointed out by us hereinabove, applies to persons within the Scheduled --
Castes or the Scheduled Tribes who ng longer require reservation, as opposed to posts beyond' the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes."
(Emphasis supplied)
148. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj (supra) applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj (supra) held that they are not constitutional limitations or principles but are. concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj (supra) is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as.an incident of promotion does not require the application of the creamy layer test.
Articles 16(4-A) and 16(4-B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act, 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs.
In view of the above ruling of the Hon'ble Supreme Court, the creamy layer concept is not applicable 56 OA.332/2019 in the case of Schedule Castes and Schedule Tribes.
51. The 3-Judge Bench of Hon' ble Supreme Court in Jarnail Singh-II has held that the unit for collection for quantifiable data is cadre and the + de | "Cadre" has been explained in-para Nos.30 to 33 which are extracted herein as under:
"30. It would be relevant to refer to the judgments of this Court which have dealt with the scope of the expression "cadre". Rule 4(2) of the Central Engineering Service, Class I, Recruitment Rules, 1954 provided that 75% of the vacancies in the grade of Executive Engineer. Class I shall be filled by promotion from Assistant Executive Engineers, Class I. Interpreting the words "yacancies in the grade of Executive Engineer", this Court in A.K. Subraman y. Union of India, (1975) 1 SCC 319 held that the word "grade" is used in the sense of cadre.
31. The dispute that arose for consideration of this Court in Chakradhar Paswan v. State of Bihar, (1988) 2 SCC 214 relates to the posts of Director and three Deputy Directors in the Directorate of Indigenous Medicines, Department of Health, State of Bihar being grouped together for the purpose of implementing the policy of reservation under Article 16(4) of the Constitution of India. This Court was of the opinion that though the Director and three Deputy Directors are Class I posts, the posts of Director and Deputy Directors do not constitute one "cadre". It was held that the term "cadre" has a definite legal connotation in service jurisprudence. This Court referred to Fundamental Rule 9(4) which defines the word "cadre" to mean the strength of a service or part of a service sanctioned as a separate unit. It was observed that as the post of Director is the highest post in the Directorate of Indigenous Medicines for which a higher pay scale is prescribed in comparison to Deputy Directors, who are entitled to a lower scale of pay, they constitute two distinct cadres or grades. This Court further expressed its view that it is open to the Government to constitute as many cadres in any particular service as it may choose, according to administrative convenience and expediency. This Court concluded that the "ahaha auesbaNisk ba Ccaahinased egg toate.57 OA.332/2019
post of Director and Deputy Directors constitute different cadres in the service.
32. In K. Manickaraj v. Union of India, (1997) 4 SCC 342, the appellant was a Welfare Inspector, Grade III belonging to Scheduled Caste category. He claimed promotion to Grade II by contending that four posts were reserved for Scheduled Castes as there were 26 Grade II posts. The respondent contended that there were only 23 Grade II posts as three Grade III posts which were temporarily upgraded to Grade il did not form part of the cadre strength of Grade IT Inspectors. While allowing the appeal of K. Manickaraj, this Court recognised that promotions take place from one grade to a higher grade, with the cadre strength for the purpose of providing reservation in such promotion to be the total number of posts available in the grade to which promotion was sought.
33, The meaning of "cadre" fell for consideration of this Court again in Union of India v. Pushpa Rani, (2008) 9 SCC 242, "Cadre" in the 1985 Edn. of the Railway Establishment Code is defined as the strength of a service or a part of a service sanctioned as a separate unit. This Court held that the posts sanctioned in different grades would constitute independent cadres, even for the purpose of implementing the roster. The reason for giving an enlarged meaning to the term "cadre" was that the posts in the railway establishment are sanctioned, a with reference to grades. Even temporary, work-charged, supernumerary and shadow posts created in different grades can constitute part of the cadre. "
Further, the cut-off date for implementation is 19.10.2006. We are, therefore, duly fortified to examine the process whereby reservation has been applied in promotion w.e.f. 19.10.2006 and interfere in the process if and only if the principles enunciated in M. Nagaraj (supra) has 58 0A.332/2019 modified by Hon'ble Supreme Court in Jarnail Singh -I and Jarnail Singh - Il have not been followed.
52. We raised a pointed question relating to fulfilment of requirement of article 335 of the Constitution of India i.e. to ascertain whether grant of reservation in promotion would adversely affect the efficiency in administration. To this, the respondents stated that whilst granting reservation in promotion, the benchmark for promotion for reserved category is the same as that of general category. We have no option but to accept the submission of the respondents.
53. 'The applicants have relied upon the judgment of Hon'ble High Court of Delhi in WP (C)No.3490/2010 dated 23.08.2017, (2017) SCC Online Del 10081, wherein the Hon'ble High Court has quashed the DoPT OM dated 13.08.1997 which provided for reservation in promotion. We have carefully perused the said judgment. Para 33 thereof is being extracted herein as under:
"33 4s has already been noticed hereinabove, the counter affidavit, filed in the present proceedings on behalf of Respondents 2 to 4, does not disclose that the requisite exercise, iiss ered 59 OA.332/2019 collecting quantifiable data and determining the aspects of -- backwardness, inadequacy of representation and overall efficiency of the administration, was ever undertaken before blindly extending, beyond 13th December, 1997, the provision for reservation, in promotion, favouring SCs and STs. The 77th Amendment to the Constitution, and sub-article ( 4A), which was inserted in Article 16 thereby, were obviously taken as providing a carte blanche to the Government to extéid the provisions of reservation for SCs and STS beyond the period of 5 years stipulated in Indra Sawhney (supra). As Nagaraj (supra), and the decisions following thereupon show us, however, that is not the case. Any reservation (as also consequential seniority) extended to SCs and STs, without, in the first instance, conducting the requisite exercise of garnering quantifiable data, indicating inadequate representation, and juxtaposing, they're against, the considerations of backwardness and overall efficiency of administration, would necessarily infract Articles 16 (1) and 335 of the Constitution of India and, consequently, be liable to be quashed." | 54, It is seen that the Office Memorandum of DoPT dated 13.08.1997 was quashed by the Hon'ble Delhi High Court since the respondents Union of India nad not disclosed that the required exercise of collecting quantifiable data and determining the aspects of backwardness, inadequacy of representation and overali efficiency of the administration, was ever undertaken. Whereas much water has flown under the bridge since then as the requirement of ascertaining backwardness of sCs/STs has been done away with in Jarnail Singh-
I and parameters in detail nave been set out in neti niente ast 60 OA.332/2019 Jarnail Singh-II on the question of adequacy of representation, manner of examining adequacy by going into each cadre and most importantly the prospectivity of the principles w.e.t. 19.10.2006, leaves us now with littie Sption except to diligently verify whether the parameters as laid down by the Hon' ble Apex Court have peen carried out or otherwise.
55. This exercise has been carried out by us in fair amount of detail by examining the pleadings of the respondents including the impugned orders and the documents filed by the applicant on 02.04.2024. We find that all the parameters have peen met. So far as our examining this exercise as of 2018 and 2019 is concerned, we are fully fortified in doing so' in the light of principles having been made applicable in Jarnail Singh-It w.e.f. 19.10.2006. The quashing of the Office Memorandum of DoPT dated 13.08.1997 by the Hon'ble Delhi High Court was done in the light of the fact that the exercise not having been carried out and consequently the parameters having not been met.
Another aspect which cannot be lost sight of is 61 | 0A.332/2019 the fact of a fresh oM having been issued by the DoPT on 12.04.2022 being OM WNo.36012/16/2019- Estt.(Res.) pursuant to the judgment of Hon'ble Apex Court in Jarnail Singh-Il which directs all departments to meticulously follow the Apex Court ruling, which in turn gives prospective effect to reservation in promotion w.e.f. 19.10.2006. The said situation is no longer obtaining for the reasons set out herein above. We are, therefore, compelled to examine the process in the-light of Jarnail Singh-I and Jarnail Singh-II which were yet to be delivered when the Hon'ble High Court of Delhi decided the above case.
56. We find that the impugned DoPT OM dated 10.08.2010 was issued pursuant to Central Administrative Tribunal, Madras Bench order in OA No.900/2005 in S&S. Kalugasalamoorthy Vs. Union of India & Others in which it was held that when 4 person is selected on the basis of his own sen- jority, the scope of considering and counting him against quota reserved for scs does not arise.
The above decision of Central Administrative gece publish hac 62 OA.332/2019 Tribunal, Madras Bench was upheld by the Hon'ble High Court of Judicature at Madras in the matter of Union of India Vs. S$. Kalugasalamoorthy [WP No.15926/2007]. Since the impugned DOPT OM was issued pursuant to the decision of CAT, Madras Bench which was upheld by Hon'ble High Court at Madras and is in conformity with the various decisions of Hon'ble Supreme Court as discussed in the previous pages, we do not find any infirmity in the impugned DoPpt OM dated 10.08.2010 and, therefore, this ground is rejected. This position has since been finally concluded by the Hon'ble Apex Court in Jarnail Singh-II, leaving us with no option but to conclude that a reserved category candidate who has been promoted either on general merit or seniority cannot be counted for the purpose of quantifiable data to ascertain adequacy of representation whereas the applicant has been repeatedly alleging that reserved category candidates have been promoted in excess of their quota by counting even those reserved category candidates who have been promoted on their own 4 63 OA .332/2019 merit, as reserve category candidate. The applicant has produced 4 table across the bar to claim the excess representation of SCs/STs in the post of Junior Technical officers (JTOs}) as on 01.01.2024 which cannot be Locked into by us as we are called upon to examine the question of excess reservation as of 30.04.2019 and not as of 01.01.2024. So far as the table suppling information on excess representation of Scs/STs in the cadre of Technical Assistant (TA) as on 01.01.2019 is concerned, the applicant has not been able to show as to how many reserved category candidates have been promoted on general merit and how many in the reserved quota and, therefore, we find no merit in the claim of the applicants that there is excess representation of SCs/STs. So far as the table suppling information in respect of Technical Officer is concerned, the empanelment and promotion orders of Technical Officer are not impugned in this OA and no relief has been claimed against their promotion in the relief clause in this OA, therefore, we cannot eeetahnnsaedhaiaait breast eattheddeaitdoke 64 0A.332/2019 look into it. The entire OA is, therefore, mis~ conceived on the basis of perceived injustice based on counting reserved category candidate promoted on general merit as the reserved i Hi ee category candidate instead of treating them as general candidates. The said premise is clearly against the law settled by the Hon'ble Apex Court both in R.K. Sabharval (supra) and Jarnail Singh~ IZ (supra).
57. We find that in the empanelment order dated 30.04.2019 for the panel Junior Technical officer Group 'A' which has been prepared on the basis of recommendations of the DPC for the panel year 2014-2015 to 2018-2019, 5 names were empan- elled which included one 'SC' candidate against unreserved vacancy on his own merit and there was none from SC/ST against the reservation quota. For panel year 2015-2016, 6 names were empanelled, out of which 4 SCs were empanellied against unreserved vacancies on their own merit, one from ST on own merit, one from general category and none from sc/ST category against reservation quota. For panel year 2017-2018, 3 names were "Geng piiet parent eaapiadee sie 65 QA.332/2019 empanelied which included 1 sc and 1 ST on their own merit and 1 SC against reservation quota. For panel year 2018-2019, © names were empanelled which included 4 candidates in open category in hee # which two candidates were from general category and 2 SC candidates were empanelled on their own merit and 2 SCs were empanelled against reservation quota for SCs. Thus, from panel 2014- 2015 to 2018-2019 for which DPC was conducted, total 20 names were empanelled in which only 3 SC candidates were in reservation quota, which comes to 15% of 20 vacancies. No candidate from ST candidate was empanelied in reservation quota.
Thus, we do not find any violation of rules and the same are in conformity with the DoPT OM dated 10.08.2010.
57.1. For the Technical Assistant {PP&C), DPC was conducted for panel year 2016-2017 to 2018- 2019. For the panel year 9016-2017, 3 names were empanelled and all were from the general category and none from SCs/STs either on their own merit or in reservation quota. For panel year 2017-2018, 5 names were empanelled which included 4 from 4 a fl Ey Es 66 0A.332/2019 general category and 1 ST on his own merit and none from SCs/STs against reservation quota. For panel year 2018-2019, 3 names were empanelled which included 2 from general category and one SC 3 i he, -
Fe against 'SC' vacancy. Thus, out of 11 vacancies for which DPC was conducted and names were empanelled for the vacancy year 2016-2017 to 2018-2019, 10 candidates were empanelied in open category and one SC against reservation quota for SCs and no ST was empanelled in reservation quota. 57.2. | Similarly, for Technical Assistant (Flect.) for which DPC was conducted for the panel years 2016-2017 to 2018-2019, two names were empanelled for vacancy year 2016-2017 and both were from general category and none from SC/ST category. For panel year 2017-2018, 2 names were emoanelled, 1 general and 1 ST on own merit and none from SC/ST category against reservation quota. For panel year 9018-2019, total 8 names were empanelled, out of which 7 were from general category and one SC against SC vacancy and none from $T. Thus, for Technical Assistant, total 12 names were empanelled from 2016-2017 to 2018 to i | | 67 0A.332/2019 2019 and only 1 SC candidate was empanelled against the reservation quota for SCs and no ST candidate Was empanelled against the ST category reservation quota. , 57.3 For Technical Assistant (Cohst.) for which DPC was conducted for panel year 2016-2017 to 2018-2019, we find that for panel year 2016- 2017, total 8 names were empanelled which included 4 from the general category, 2 SC candidates on their own merit and 2 against reservation quota for SCs. No candidate from ST category was empanelled either on own merit or against reservation quota. For panel year 2017- 2018, there were total 6 vacancy, out of which 5 names were empanelled in open quota which included one candidate from ST category who was empanelled on his own merit, 3 from general category and 1 from SC category on his own merit » and one SC candidate was empaneiled against reservation quota for SCs. For panei year 2018- 2019, total 10 names were empanelied, out of which 8 were in open quota. Out of 8 vacancies in open quota, 7 candidates were empanelled from general 68 OA.332/2019 category, 1 SC on his own merit, 1 SC candidate against reservation quota for $Cs and 1 ST against 8T reservation quota. Thus, out of 24 names Saat empanelled from 2016-2017 to 2018-2019, 4 SC heh ms candidates and 1 ST mandidaté were empanellec against reservation quota based on the roster. We find that in all the empanelment orders, the respondents have specifically mentioned that 'these empanelments have been made in accordance with DoP&éT OM 36012/11/2016-Estt. (Res-I) (Pt-Il) dated 15 June, 2018, the above panel is subject to further orders which may be passed by the Hon'ble Supreme Court'.
57.4. For the post of Technical Assistant (Engg.), DPC was held and panel for vacancy year 2016-2017, 2017-2018 and 2018-2019 were prepared. We find that for panel year 2016-2017, there were total 13 names empanelled which included 3 names in extended panel. Out of this, 6 candidates from open category and 3 sc were empanelled on their own merit. One ST candidate was empanelled against vacancy for ST quota. No SC was empaneliled in the reservation quota for SCs. For panel year 69 0A.332/2019 2017-2018, total 14 names were empanelled, cut of which 8 candidates from general category and 5 SCs on their own merit, 1 ST candidate against reservation quota for STs and no sc candidate was fats ee included against reservation quota for SCs. For the panel year 2018-2019, total 12 names were recommended which included 1 SC candidate on his own merit and 5 SC candidate against reservation quota meant for SCs as per the roster. Thus, out of 39 vacancies, 5 SC candidates were empanelled against SC vacancy which comes to about 13% of the total empanelment and one 2 STs were empan-- elled against reservation quota for STs which "comes to 5%.
57.5. For the post of Technical Assistant (Works), there was only one vacancy in panel year 2016-2017 for which SC candidate was recommended on his own merit. For the panel year 2017-2018, one SC candidate was recommended on his own merit and one general candidate. For panel year 2018-
2019, one SC candidate was empanelled on his own merit and one from general category. Thus, out of 5 vacancies for which empanelment was done, no 70 OA.332/2019 candidate from SC and ST category Was empanelled against reservation quota.
57.6. For the post of Technical Assistant (WEAP), 8 names were empanelled. for panel year ee 2016-2017, Out of which one ST candidate was empanelled against ST vacancy and 1 SC candidate against SC vacancy. For the panel year 2017-2018, there was one vacancy for which one candidate from general category was empanelled. For panel year 2018-2019, there was no vacancy.
58. The above analysis clearly demonstrates that reservation quota for SCs/STs which a 15% and reservation quota for STs which is 7.5% was not exceeded. Therefore, we do not find any infirmity in the impugned orders.
59. We further find that the impugned empanelment orders dated 19.11.2018 and consequent promotion order dated 03.12.2018 as well as the impugned empanelment order for Junior Technical officer dated 30.04.2018 and consequent promotion order dated 30.04.2019 were issued in conformity with DoPT OM dated 10.08.2010 and are in conformity with the various decisions of the 71 OA.332/2019 Hon'ble Supreme Court in the case of V.V. Giri (supra), R.K. Sabharwal (supra) both constitution bench judgments, Saurav Yadav (supra) and Jarnail Singh-II (supra) both 3-Judge Bench judgments and fl 4 latest judgment in the case of Deependra Yadav decided on 01.05.2004, leaving us with no option but to not count reserved category candidates who have been promoted in general merit only as general candidates and not count them as reserved category candidates for arriving at quantifiable data for decided adequacy of representation as discussed in the previous pages. Therefore, we do not find any infirmity in the impugned > empanelment and promotion orders.
60. In view of the above facts and circumstances of the case, we find that the OA is devoid of any merit and deserves to be dismissed and is accordingly dismissed. Pending applications, if any, stand closed. There shall be no order as to the costs.
(Shri Krishna) (Justice Ranjit V. More) Member (A) Member (J) H/ma.
FHwl