Central Administrative Tribunal - Delhi
Subhash Chander vs M/O Home Affairs on 9 April, 2025
1
C-3/Item-27 OA-989/2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./989/2018
Reserved on: 25.03.2025
Pronounced on: 09.04.2025
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Subhash Chander
S/o Sh. Maman Ram
C-21, M.K. Residency
Plot No. 8-B, Sector-11
Dwarka, New Delhi-110075
Last employed in the office of
Chief Controller of Accounts
Ministry of Home Affairs,
North Block, New Delhi as Assistant
Controller of Accounts ...Applicant
(Appeared in person)
VERSUS
Union of India through
1. The Secretary,
Ministry of Personnel and Training,
North Block, New Delhi-110001
2. The Controller General of Accounts
Ministry of Finance,
Department of Expenditure
Mahalekha Niyantrak Bhawan
E-Block, GPO Complex,
INA, New Delhi-110001
3. Chief Controller of Accounts,
Min. of Home Affairs
North Block, New Delhi-110001
4. Mr. Raju,
Deputy Controller General of Accounts,
PFMS, Ministry of Finance,
4th Floor, Shivaji Stadium,
New Delhi ...Respondents
2
C-3/Item-27 OA-989/2018
(Through Shri Hanu Bhaskar, Advocate)
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking ante dated promotion to the rank of Accounts Officer from the date his immediate juniors from the reserve category got promotion in 1996 and the consequential benefits of antedated promotion in the ranks of Senior Accounts Officer and Assistant Controller of Accounts (ACA).
2. Factual Matrix
2.1 The applicant was initially appointed as Junior Accountant on 07.07.1979. Thereafter, he participated in the Junior Accounts Officer (Civil) Examination 1986, and was appointed as JAO on 06.01.1987. He was promoted to the post of Assistant Accounts Officer on 05.03.1992. The juniors of the applicant, belonging to the reserve category who qualified the Junior Accounts Officer (Civil) Examination 1987, were extended promotion to the post of Accounts Officer between 1996 and 1998. While pressing his claim, he submits, even though he was all along senior, the persons junior to him belonging to the Reserved Category were extended 3 C-3/Item-27 OA-989/2018 promotion in the year 1996-1998 ignoring his promotion. He has placed a comparative chart at page No. 43 of the Original Application, which details his career progression vis-a viz his juniors. Agitating his claim, he has preferred a representation on 19.09.2017 placed at page no. 10 of the Original Application and the same was rejected by the respondents by an Order dated 12.10.2017. Aggrieved by the same, the applicant has filed the instant Original Application seeking the following relief(s):-
"(i) Direct the Respondents to consider and promote the Petitioner on notional basis to the post of Accounts Officer, Senior Accounts Officer, Assistant Controller of Accounts, Deputy Controller of Accounts and Controller of Accounts from the dates his juniors were promoted to these posts.
(ii) Fix his Pay on each occasion as was fixed in case of his juniors and pay the arrears of pay so calculated.
(iii) Revise all his retirement benefits on the basis of revised pay and pay arrears on such recalculation of retirement benefits.
(iv) Cost of the suit may be awarded in favor of Petitioner; and or Pass such further/ other orders as may be deemed fit in the circumstances of the case."
3. Submission by the Applicant who appeared in person:
3.1 The applicant submits that initially when he preferred the instant Original Application, he had filed an M.A. No. 1101/2018, seeking exemption to make the private respondents as a party, who were extended 4 C-3/Item-27 OA-989/2018 promotion by way of reservation. The MA 1101/2018 was dismissed by the co-ordinate Bench of this Tribunal by an order dated 31.05.2019. The applicant assailed the order dated 31.05.2019 before the Hon'ble High Court of Delhi by way of a Writ Petition (C) No. 10294/2019 and the Writ Petition, was disposed of by the Hon'ble High Court, wherein the following order was passed :-
"Petitioner appears in-person.
He submits that he does not press the present writ petition and would implead those persons who are in service and who would be affected by the relief sought by the petitioner before the Tribunal.
Mr. D.S. Mahendru, counsel for the respondents has entered appearance. He agrees that relevant parties would be those who are currently in service.
Recording the aforesaid, the petitioner is accordingly dismissed as not pressed."
3.2 Accordingly, the applicant sought amendment in the memo of parties and impleaded one, Mr. Raju, as private respondent no. 4. Thereafter OA was dismissed on 12.04.2023 on the ground that the private respondent was not added as necessary party. The Review Application was preferred by the applicant on the ground that Mr. Raju, who was allowed to be made party in light of the decision of the Hon'ble High Court in the Writ Petition preferred by the applicant has been ignored by the co-ordinate Bench. The Review 5 C-3/Item-27 OA-989/2018 Application was allowed on 01.07.2024. Accordingly, the matter is being heard today.
3.3 The applicant submits that he seeks promotion from the date his juniors were promoted by extending reservation i.e. on 10.01.1996. The cause of action arose in his favour of the applicant only by a decision of the Hon'ble High Court in Writ Petition (C) No. 3490/2010 decided on 23.08.2017. He submits that in the order dated 23.08.2017, the Hon'ble High Court in para 6.2 has recorded that prior to 1992, there was no provision for reservation in promotion and even if the straight instrumentalities have extended promotion in reservation, these promotions would be protected for five years only. The relevant portion of the decision of the Hon'ble High Court of Delhi in Writ Petition No. 3490/2010 dated 23.08.2017 is reproduced hereinbelow:-
"17. The further prayer, forming the latter part of prayer (b) in the writ petition, that "the employees of general category be given benefit of promotion retrospectively from the date reserved category employees were promoted illegally" cannot, however, be granted, for the simple reason that promotion may be dependent on a variety of factors, including seniority, eligibility, qualifying service, availability of vacancies, application of the quota-rota principle, and the like, and, in the absence of any specific prayer qua any specific post, an omnibus direction, to promote all "employees of general category" , retrospectively, "from the date reserved category employees were promoted illegally", cannot possibly be issued. All that we can say, on this prayer of the petitioner, is that, if, consequent on this judgement, any general category employee becomes entitled to promotion 6 C-3/Item-27 OA-989/2018 against a post against which an SC or ST candidate was promoted on the basis of the impugned OM dated 13th August 1997, it shall be open to such general category candidate/candidates to represent to the concerned administrative authorities, or to independently seek her, or his, judicial remedies in that regard. Liberty, to the said extent is, therefore, granted."
3.4 The Constitutional amendment in light of the decision of the Hon'ble Apex Court in the case of Indira Sawhney v/s U.O.I., 1992 Supp (3) SCC 216, was done in the year 1995 and the OM was issued by DOP&T on 02.07.1997. Therefore, according to him, prior to 1997, there was no provision for extending promotion to the Reserved Category. Nevertheless, there are as many as 9 persons as detailed at page no.43, who were extended promotion between 10.01.1996 to 03.04.1998 and the applicant, being senior to them, is entitled for promotion qua his juniors, w.e.f. 10.01.1996. He would submit that in the interregnum, each of the juniors has retired except one Mr. Raju and, therefore, in light of the decision of the Hon'ble High Court in the Writ Petition (C) No. 3490/2010, Mr. Raju was made a party and today when the Original Application is being heard, Mr. Raju has also demitted the office on attaining the age of superannuation.
4. Submission by Mr Hanu Bhaskar, learned counsel for the respondents 7 C-3/Item-27 OA-989/2018 4.1 Sh. Hanu Bhaskar, learned counsel for the respondents while opening his arguments submits, the cause of the applicant may not sustain. The applicant has himself submitted that the cause of action accrued in his favour only from the decision of the Hon'ble High Court in Writ Petition (C) No. 3490/2010 decided on 23.08.2017. The decision of the Hon'ble High Court dated 23.08.2017 has been assailed by the respondents before the Hon'ble Apex Court and has been tagged with other matters that may include Jarnail Singh & Ors., SLP (Civil) No. 30621 of 2011 dated 26.09.2018. 4.2 In continuation, Sh. Hanu Bhakar, learned counsel for the respondents places on record the DoP&T OM dated 12.04.2022. He submits that the decision relied upon by the learned counsel for the applicants has engaged the attention of the Hon'ble Apex Court in Union of India v/s All India Equality Forum which has been tagged along with the case of Jarnail Singh & Ors. v/s Lachhmi Narain Gupta & Ors., Civil Appeal No.629/2022 which is the basis of the cause of the applicant in the instant Original Application. The copy of the status before the Hon'ble Apex Court as well as the OM is taken on record.
5. In rejoinder, the applicant submits that in para 2 of the OM dated 12.04.2022, referred to by the learned 8 C-3/Item-27 OA-989/2018 counsel for the respondents, in fact the conditions imposed by the Hon'ble Apex Court in the case of M Nagaraj v/s Union of India & Ors., (2006) 8 SCC 212 have been incorporated. He submits that the Hon'ble Apex Court in the order dated 26.09.2018 has concurred with the judgment in M Nagaraj (supra) and the same could not be interfered with as it attained finality. Therefore, according to him, the respondents could only exercise reservation in promotion in terms of the decision of the Hon'ble Apex Court in the case of M Nagaraj (supra). He would add that the OM is dated 12.03.2022, while the claim of the applicant pertains to the years 1996-1997.
6. Analysis 6.1 The respondents in Paragraph 3 of preliminary objections of their counter affidavit filed on 7.05.2018 have stated:
"That the O.A. is also barred by limitation, delay and laches inasmuch as the applicant was promoted to various posts on the following dates:
Sl. Name of the post Date of
No. promotion
1. Accounts Officer 11.07.2005
2. Sr. Accounts Officer 01.04.2008
3. Assistant Controller 31.12.2014
of Accounts
If at all the applicant had any grievance relating to dates of promotion, he ought to have raised grievance at the relevant. He cannot claim ante-dating of his promotion on the basis of judgment pronounced on 23-8-2017."9
C-3/Item-27 OA-989/2018 6.2 In view of the preliminary objection raised by the
respondents in their counter affidavit, it would be appropriate to address this issue before proceeding to adjudicate the present OA on merit.
6.3 The applicant is seeking antedated promotion with effect from the date one of his juniors namely, Mr Kanhiya Lal belonging to the reserve category, got promotion to the rank of Accounts Officer with effect from 1.01.1996. He filed the OA in March 2018, 22 years after the said promotion of Mr Kanhiya Lal. The present OA is not accompanied by any application for condonation of delay nor there is any prayer to that effect in the OA itself. The applicant in his rejoinder dated 22.05.2018 has just stated that "It is denied that the matter is time barred."
6.4 The applicant has impugned the communication dated 12.10.2017 vide which the respondents have declined to accede to the claim of the applicant as per decision of the Delhi High Court in WPC No. 3490/2010, decided on 23.08.2017.
6.5 Now the question arises whether the High Court Order dated 23.08.2017, while granting liberty to employees belonging to the general category to seek redressal of their grievances arising out of reservation in 10 C-3/Item-27 OA-989/2018 promotion to their juniors, has decided the issue of limitation and the issue of limitation has been taken care of in the said liberty.
6.6 The plain reading of the judgment of the Delhi High Court dated 23.08.2017 does not give a carte blanche that irrespective of the period of limitation provided in any statute (in the instant case Section 21 of the Administrative Tribunals Act, 1985), the claims of the general category employees for ante-dating their promotion or retrospective promotion at par with their juniors in the reserve category shall be entertained. The relief is that they are at liberty to raise the issue, but the same should be subject to the relevant law/statutory provisions. As there is no specific finding on the issue of limitation, it is the discretion of the Court /Tribunal concerned to adjudicate the same as per law. 6.7 Moreover, liberty granted in a case does not obviate the need for adjudication of limitation. The Karnatak High Court, Dharwad Bench in Regular First Appeal No. 719 of 2015 decided on 13.12.2023 has held:
"26. In case liberty is granted to a party to file a fresh suit or a comprehensive suit, the order of granting liberty will never give rise to cause of action nor can it be construed so. Once a suit is finally adjudicated, any suit instituted subsequently by any of the parties or persons claiming title under the parties to the suit must plead independent cause of action."11
C-3/Item-27 OA-989/2018 In other words, mere liberty does not adjudicate the question of limitation in all circumstances. In the instant case, the applicant was not party to the WPC No.3490/2010. Hence, his case has to be decided as per the law of the land pertaining to limitation.
6.8 The applicant submits that his cause of action arose from the date of representation he has made. The statutory provision under the Administrative Tribunals Act, 1985 states that if representation is made when the cause of action arose and if it is not decided within one year, the applicant has to approach the Tribunal.
Section 21 of the Act states as under :-
"21. Limitation.--(1) A Tribunal shall not admit an application,--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-
section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable 12 C-3/Item-27 OA-989/2018 under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of subsection (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
Even otherwise, a belated claim cannot be entertained by any Court of Law.
6.9 The Hon'ble Apex Court in the matter of Chennai Metropolitan Water Supply Sewage Board vs. T.T. Murali Bapo (2014) 4 SCC 108 has held as under:
"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity 13 C-3/Item-27 OA-989/2018 and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
6.10 In D.C.S. Negi vs. Union of India and Ors. decided on 07.03.2011 in S.L.P. (C) no. 7566/2011 (CC no. 3709/2011), the Hon'ble Supreme Court analysed the provisions of section 21 of the Administrative Tribunals Act, 1985, and held as under:
"A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit on application unless the same is made within the time specified in Clause (a) and (b) of section 21(1) or section 21(2) or an order is passed in term of Sub- section (3) for entertaining the application after the prescribed period. Since section found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under section 21(3)."
6.11 In Lanka Venkateswarlu (D) by LRs vs State of A.P. and Ors, (2011) 4 SCC 363, the Hon'ble Supreme Court held as under:
"28...........The concepts such as "liberal approach", "Justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay........"
6.12 In Balwant Singh vs Jagdish Singh and Ors (2010) 8 SCC 685, the Hon'ble Supreme Court of India held on the law of limitation as under: 14
C-3/Item-27 OA-989/2018 "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his action vigilantly."
6.13 Question arises whether the decision of the Apex Court in Union of India and Ors vs Tarsem Singh, (2008) 8 SCC 648 will come to the rescue of the Applicant. In the said judgment, the Apex Court has enunciated the Principle of Exception to Exception". In Paragraph 7 of the said judgment, it has been held that:
".......Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the 15 C-3/Item-27 OA-989/2018 consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
6.14 In the Tarsem Singh judgment, the Apex court has provided two exceptions: pay fixation and pensions, subject to the condition that the relief granted should not affect the settled rights of third parties. However, the Apex Court in State of Uttar Pradesh & ors vs Rajmati Singh, Civil Appeal No.9329/2022 has analysed the judgment in Tarsem Singh (supra) and held that acquiescence by the party for a continuing wrong would not come to rescue of the applicant seeking relief at a belated stage nor entitle the applicant to challenge the decision of authorities arising out of decision at a belated stage, denying relief, on consideration of a representation to do so based on a court directive.
6.15 The Doctrine of Laches is based on the principle that the Courts/Tribunals will not help people who sleep over their rights and helps only those who are aware and vigilant about their rights. A party is said to be guilty of laches when they come to the Court to assert their rights after a considerable delay in that respect. The underlying principle is that the Court should not examine a stale case. Law is made to protect only diligent and vigilant people. Equity aids the vigilant and 16 C-3/Item-27 OA-989/2018 not the indolent. Law will not protect people who are careless about their right. The intention in accepting the concept of limitation is that "controversies are restricted to a fixed period of time, lest they should become immortal while men are moral".
6.16 In the instant case, the cause of action arose on 1.01.1996, but the applicant has approached this Tribunal in March 2018, after a delay of 22 years. The presumption of the applicant that his cause of action arose when the respondents declined his representation vide communication dated 12.10.2017 is not tenable. The cause of action arose in 1996, as he is seeking relief in the form of ante dating his promotion from that year. Subsequent causes of action arose when his alleged juniors got promotions to the rank of Senior Accounts Officers and Assistant Controllers of Accounts. However, the applicant slept over on each of these occasions and rose to agitate only after the Delhi High Court order dated 23.08.2017. There is no explanation as to why the applicant did not approach the Tribunal before 2018. The applicant is bound to explain each day of delay. However, he conveniently ignored the issue. 6.17 In State of Uttar Pradesh & Ors vs Rajmati Singh (supra), the Apex Court has categorically held that when law courts easily ignore the period of 17 C-3/Item-27 OA-989/2018 limitation and deal stale cases, such decisions open flood gates of litigations from fence sitters and also create illegitimate expectations in minds of such employees. In Paragraph 21 of the said judgment, it held that:
"21. We reiterate that undue sympathy and a perceived liberal approach by a judicial forum can lead to significant adverse consequences. It not only gives rise to illegitimate expectations in the mind of fence sitting employees, but also leads to undue burdens on the public exchequer. Not only this, the indulgence shown by a Court solely on equitable considerations, dehors the law, breeds indiscipline in public services and incorrigible employees start looking for a dividend on the period of their absence or for dereliction of duty. While there is no evidence to suggest that the respondent deliberately absented herself from duty, the facts speak for themselves in that she failed to take any recourse provided under law for more than three decades. We may say at the cost of repetition that the respondent had hardly served as an untrained teacher on temporary basis for a period of 2½ years and in terms of the impugned judgment of the High Court, she has been held entitled to get arrears of pay of more than 40 years, besides all the retiral benefits. We are, therefore, of the view that the High Court ought not to have drawn adverse inferences against the appellants or put the entire onus on them to prove that the respondent was unjustifiably denied the resumption of duties. The approach of the High Court in this regard is completely erroneous and contrary to the settled principles of law. The impugned Judgment thus cannot sustain and is liable to be set aside."
6.18 In view of the above, the present OA deserves to be dismissed on account of delay and laches.
7. We now turn to the issue of the relief sought by the applicant on merit. The Delhi High Court in its judgment dated 23.08.2017 has stated that the Indira Sawhney judgment dated 16.11.1992, gave five years 18 C-3/Item-27 OA-989/2018 protection to the existing system of reservation in promotions. Hence, the five years came to end on 15.11.1997. When such promotions were protected, the action by the government authorities promoting against the relevant vacancies, then the vacancies did not remain thereafter. So, when the vacancy occupied by Kanhiya Lal, junior to the present applicant from the reserve category, on 19.01.1996, the said post, due to the protection given in Indira Sawhney case, was not available to any other employee, including the applicant. The subsequent promotions were made after the constitutional amendments took place and such promotions are also protected by subsequent Apex Court judgments and/or Constitutional Amendments. In view of this, the applicant cannot lay claim to such vacancies. None of the judgments has created an indefeasible right in favour of employees like the applicant to be considered for promotion against non- existent vacancies. The Delhi High Court in WPC No.3490/2010 has rightly stated that the consideration of promotion of general category employees would depend upon, inter alia, existence of vacancies. The applicant has failed to bring to our notice that there were adequate vacancies at the relevant time to consider him for promotion. Moreover, the liberty given in the High Court order is under challenge in the Supreme 19 C-3/Item-27 OA-989/2018 Court. The applicant was not a party to the said WPC in the High Court nor the present OA is a Contempt Petition nor a petition for Execution of the order dated 23.08.2017 passed by the Delhi High court. The learned counsel for the respondents has categorically submitted that the said order of the High Court of Delhi in WPC no.3490/2010 has been challenged by the respondents in the Supreme Court and the same is tagged with other matter in Jarnail Singh (supra), which is pending for adjudication in the Apex court.
7.1 After the Indra Sawhney judgment in 1992, there are several judgments and Constitutional Amendments relating to reservation in promotions and associated issues like seniority, which are listed below:
i. The 77th Constitutional Amendment incorporating provision for reservation in Promotion ii. The issue of continuation of Roster Point Reservations was adjudicated in R. K. Sabharwal and Ors vs State of Punjab and Ors, 1995 SCC (2) 745, decided on 10th February, 1995.
iii. The Catch-up Rule was established in Union of India vs Virpal Singh Chauhan, 1996 AIR 448 20 C-3/Item-27 OA-989/2018 iv. Jagdish Lal & Ors vs State of Haryana & Ors, 1997 (6) SCC 538 on 7 May, 1997 reversed the Janjua-I Judgement stating that the Catch up Rule cannot be the basis for review of seniority after lapse of considerable period v. The conflict of decisions as raised in Jagdish Lal case was resolved by a five Judge Bench in Ajit Singh and Ors vs State of Punjab and Ors, decided on 8th December, 1999, 2000 (1) SCC 430, where the catch-up rule was reiterated and elaborated.
vi. The Apex Court in M.G. Badappanavar and Another vs State of Karnataka and Ors decided on 1st December, 2000, AIR 2001 SC 260, relying on the decisions in Ajit Singh I, Ajit Singh II and Sabharwal reiterated the principle that Article 16 (4A) does not permit the conferment of seniority to roster point promotees if there is no specific statutory Rule in that regard.
vii. 85th & 86th Amendments to Constitution (2001) to bring consequential seniority to any class in promotion 21 C-3/Item-27 OA-989/2018 viii. The Constitution Bench of the Apex Court in M. Nagaraj & Others vs Union of India & Others on 19 October, 2006 [2006 (8) SCC 212] up-held the validity of 85th and 86th Amendments to the Constitution. The Constitution Bench held that Article 16 (4A) is an enabling provision. The state is not bound to make reservations for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets:
a) The backwardness of the class;
b) The inadequacy of the representation of that
class in public employment; and
c) The general efficiency of service as mandated by
Article 335 would not be affected.
The principles governing this approach emerge from the following extracts from the decision:
".....If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured...
.... in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.22
C-3/Item-27 OA-989/2018 ... In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely........
ix. In B K Pavitra I, [B.K.Pavitra & Ors vs Union of India & Ors decided on 9th February, 2017 [2017 (4) SCC 620], a two judge Bench of the Apex Court considered a challenge to the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 providing for consequential seniority on the ground that the exercise which was required to be carried out in Nagaraj had not been undertaken by the State and there was no provision for the exclusion of the creamy layer.
Relying on the decisions of this Court in Suraj Bhan Meena vs State of Rajasthan, AIR 2011 SC 874, Uttar Pradesh Power Corporation Ltd vs Rajesh Kumar, AIR 2012 SC 2728 and S Panneer Selvam vs Government of Tamil Nadu, Civil 23 C-3/Item-27 OA-989/2018 Appeal nos.6631-6632/2015, the two judge Bench of the Apex Court affirmed that the exercise laid down in Nagaraj (supra) case for determining inadequacy of representation, backwardness‚ and overall efficiency‚ is necessary for recourse to the enabling power under Article 16 (4A) of the Constitution. The Court held that the Government of Karnataka had failed to place material on record showing that there was a compelling necessity for the exercise of the power under Article 16 (4A).
x. Ratna Prabha Committee by Government of Karnataka, THE RESERVATION ACT 2018, AND B.K. PAVITRA -II The proceedings in B.K. Pavitra vs Union of India on 10th May, 2019, AIR 2019 SC 2723, (B.K. Pavitra-II) were instituted to assail the vires of the Reservation Act 2018. It was held by the Apex Court that :
"144. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act 2018 is lacking in substance. Following the decision in B K Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature. It is Nagaraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution."24
C-3/Item-27 OA-989/2018
xi. Jarnail Singh (supra) vide its interim order dated
28.01.2022
The issue regarding collection of quantifiable data to determine inadequate representation of SCs and STs in government service was agitated by various petitioners in the Apex Court in The State of Tripura & Ors. vs. Jayanta Chakraborty & Ors, Civil Appeal Nos.4562- 4564/2017, The State of Maharashtra through the Chief Secretary, Government of Maharashtra & anr.
vs. Vijay Ghogre & Ors., Writ Petition No.2797/2015, and Jarnail Singh (supra) (Jarnail Singh-I). The Apex Court rejected the remaining grounds of challenge to the decision in M. Nagaraj (supra) and reiterated that the State has to collect quantifiable data regarding inadequate representation of SCs and STs in the services of the State, if reservation is sought to be provided in promotions. The Apex Court in Jarnail Singh (supra) held :
"45. 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'.25
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46. 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 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 II (supra). Article 16(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 II (supra). 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).
47. 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 purpose 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).
48. It is made clear that we have not expressed any opinion on the merits of any individual case as we have only answered the common issues that were formulated after hearing the parties."
7.2 As the case laws and constitutional provisions in respect of reservations in promotions and consequential seniority has under gone significant change, the claim by the present applicant that the he has an indefeasible 26 C-3/Item-27 OA-989/2018 right to be considered for promotion with effect from 1.01.1996 is not acceptable. If we accept the claim of the applicant, then at each stage, starting from 1996, the respondents would have to conduct exercise to find out whether quantifiable date in respect of each cadre was there to justify the reservations in promotion so as to give retrospective promotion to employees like the present applicant belonging to the general category. Such retrospective promotions are not allowed by the Apex Court, obviating such massive retrospective exercise since 1996 onwards involving 35 lakh employees of the central government and its autonomous organisations.
7.3 Accordingly, this Tribunal does not find any merit in the claim of the applicant for granting him retrospective promotion, even on notional basis, at this stage.
8. Conclusion 8.1 In view of the above, even if the limitation is ignored, no case is made out on merit. Therefore, the OA is dismissed on merit. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
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