Bombay High Court
Union Of India vs J.P. Shoke on 4 May, 2018
Bench: V. K. Tahilramani, M. S. Sonak
JUDG-WP-3214-02-ORS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3214 OF 2002
Union of India & Ors. ...Petitioners
Versus
Mrs. Rama Chandrakant Surwade & Ors. ...Respondents
WITH
WRIT PETITION NO. 961 OF 2003
Union of India & Ors. ..Petitioners
versus
Rajendra Kumar Raj & Ors. ..Respondents
WITH
WRIT PETITION NO. 1753 OF 2002
WITH
NOTICE OF MOTION NO. 174 OF 2005
WITH
NOTICE OF MOTION NO. 244 OF 2007
IN
WRIT PETITION NO. 1753 OF 2002
Union of India ..Petitioner
versus
J. P. Shoke ..Respondent
WITH
NOTICE OF MOTION (L) NO. 209 OF 2018
IN
WRIT PETITION NO. 1753 OF 2002
J. P. Shoke ..Applicant
versus
Union of India ..Respondent
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JUDG-WP-3214-02-ORS
WITH
WRIT PETITION NO. 1786 OF 2002
Alok Mittal ..Petitioner
versus
Union of India & Ors. ..Respondents
Mr. Suresh Kumar for Petitioners - UOI & Central Railway in
W.P. Nos. 3214 of 2002, 961 of 2003 and 1753 of 2002.
None for Petitioner in W.P. No. 1786 of 2002.
Mr. Jagannath P. Shoke - Respondent in W.P. No. 1753 of
2002 present in person.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
Date of Reserving the Judgment : 05 April 2018
Date of Pronouncing the Judgment : 04 May 2018
COMMON JUDGMENT :
1] Heard Mr. Suresh Kumar, the learned counsel for the petitioners - UOI & Central Railway in writ petition nos. 3214 of 2002, 961 of 2003 and 1753 of 2002 and Mr. J. P. Shoke - Respondent No. 1 in writ petition No. 1753 of 2002. None present for the petitioner in writ petition no. 1786 of 2002.
page 2 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 2] They state that these petitions can be disposed of by a common judgment and order. Even otherwise, the challenge in all these petitions is to the common judgments and orders dated 30th March 2001 and 19th April 2002 in Original Application Nos. 755 of 1998, 831 of 1998, 77 of 1999 and in Review Petition Nos. 30, 31, 35, 37 and 38 all of 2001 made by the Central Administrative Tribunal (CAT). Accordingly, it is only appropriate that all these matters are disposed of by a common judgment and order. 3] Since, the CAT, in its common judgments and orders as aforesaid, had treated Original Application No. 755 of 1998 as the lead matter, it is only appropriate that writ petition no. 1753 of 2002, which arises out of Original Application No. 755 of 1998 is treated as the lead matter and reference is made to the facts and circumstances in the said matter for illustrative purposes. 4] Mr. Suresh Kumar, the learned counsel for the petitioners - Union of India and Central Railway submits that the impugned judgments and orders relied upon the page 3 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS Ruling of the Hon'ble Supreme in the case of Jagdish Lal vs. State of Haryana (1997) 6 SCC 538, when in fact, the said ruling stood over ruled in Ajit Singh & Ors. (II) vs. State of Punjab & Ors. (1999) 7 SCC 209. On this short ground, Mr. Suresh Kumar submits that the impugned judgments and orders are liable to be set aside. 5] Mr. Suresh Kumar submits that the CAT has misconstrued the rulings of the Hon'ble Supreme Court in the case of Union of India vs. Virpal Singh Chauhan (1995) 2 SCC 684 and Ajit Singh Januja vs. State of Punjab (1996) 2 SCC 715. Mr. Suresh Kumar submits that in terms of these decisions, the promotees in the reserved categories will rank junior to the promotees from the general category, even though, the promotees from the reserved categories have secured accelerated promotion on the basis of the reservation policy. He submits that this is a 'catch up' rule applied by the petitioners, and is consistent with the rulings of the Hon'ble Supreme Court and therefore, the CAT, was not justified in interfering with the impugned orders / instructions as it has done by the impugned judgments and orders.
page 4 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 6] Mr. Suresh Kumar submits that in terms of the decision of the Hon'ble Supreme Court in the case of M. Nagaraj & Ors. vs. Union of India & Ors. (2006)8 SCC 212, it is clarified that the provisions of Article 16 (4-A) and (4-B) are only enabling provisions. In terms of these provisions, there is no compulsion upon the petitioners to make reservations in matters of promotion. Besides, as has been held by the Constitution Bench in this case, before any provisions for reservation is made in favour of SC & STs at the stage of promotion, certain pre-conditions have to be fulfilled i.e. collection of quantifiable data showing backwardness of the classes and inadequacy of representation of that class in public employment in addition to compliance with Article
335. Mr. Suresh Kumar points out that it is only subject to fulfillment of these predicates that the constitutional validity of Articles 16 (4-A) and (4-B) came to be upheld by the Hon'ble Supreme Court.
7] Mr. Suresh Kumar submits that this court, by its order dated 15th July 2002 had stayed the operation of the impugned judgment and order dated 30th March 2001 but page 5 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS had clarified that such stay will not affect the promotion that has already been granted to the general category candidates and will also not prevent the petitioners from considering the cases of SC / ST candidates for promotions. All such orders were however made subject to the final decision in these petitions. Mr. Suresh Kumar points out that most of the respondents belonging to the reserved category have since been promoted. Some have been promoted on more than one occasions. He points out that most of the respondents have also retired from service. He submits that if the impugned judgments and orders are upheld at this stage, there would be needless administrative chaos, without any significant benefits to the respondents. Mr. Suresh Kumar submits that in any case, in the light of the decision of the Hon'ble Supreme Court in the case of M. Nagaraj (supra), the direction for consideration of the case of the reserved category candidates for promotions may not possibly be implemented, in the absence of fulfillment of predicates as prescribed by the Hon'ble Supreme Court itself. For all these reasons, Mr. Suresh Kumar submits that the impugned judgments and orders may be set aside.
page 6 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 8] Mr. J. B. Shoke, the respondent in writ petition no. 1753 of 2002, has submitted that the catch up rule will apply to a situation where promotions have been effected in excess of the quota prescribed. He submits that since in the present case, his promotion was well within the limits of the reserved quota, there is no question of persons from the general category who came to be promoted after him to be placed at senior position, as compared to him. He submits that in any case, the catch up rule can be applied only prospectively and not retrospectively. 9] Mr. Shoke submits that the earlier controversy as to whether there can be any reservation at the stage of promotions no longer survives after introduction of Article 16 (4-A) and (4-B) of the Constitution of India. He submits that upon introduction of these constitutional amendments, the law laid down in Virpal Singh Chauhan (supra) and Ajit Singh Januja (supra) no longer represents the correct position in law. For the same reasons, Mr. Shoke submits that even the decision in Ajit Singh & Ors. (II) (supra) no longer represents the correct position in law.
page 7 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 10] Mr. Shoke concedes that he has later on secured further promotions whilst in service. However he submits that if the direction in the impugned judgments and orders are implemented then, he can accept a promotion (deemed date) from an earlier date and consequential benefits. He submits that in terms of the interim order made by this Court there was no bar to consideration of candidature of the members of the reserved category for promotion as against reserved post. However, for no justifiable reason, this has not been done by the petitioners. Mr. Shoke submits that therefore he has taken out notice of motion seeking for appropriate reliefs and directions in this regard. Mr. Shoke submits that there is no legal infirmity in the impugned judgments and orders and therefore, these petitions may be dismissed with exemplary costs. 11] The rival contentions now fall for our determination. 12] At the very outset, there is necessity to refer to our order dated 15th July 2002 in writ petition no. 1753 of 2002 , by which, the Rule and interim relief came to be granted. The order dated 15th July 2002, reads thus :
page 8 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS "1. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Rule.
The learned counsel for the respondent waives service. Hearing expedited. Petition be posted for final hearing peremptorily on 16.9.2002. 2 . The learned counsel for the parties brought to our notice that subsequent to the impugned order being passed, there has been a Constitutional Amendment, namely, The Constitution (85th Amendment) Act, 2001 which has come into force with effect from 4.1.2002 whereby the amendment has been given effect, with effect from 17.6.1995. It appears that, after the said amendment came into force, certain Writ Petitions were filed before the Hon'ble Apex Court challenging the said Amendment. One order passed in Writ Petition (Civil) No. 61 of 2002 and Writ Petition (Civil) No. 62 of 2002 by the Hon'ble Supreme Court dated 8.4.2002 has been brought to our notice. The Apex Court has directed in those cases that that the respondents shall not revert the petitioners who were belonging to the open and general category nor affect their standing in the seniority list and promotion, pay etc. At the same time, it was open to the respondent, namely, the Union of India to promote those who had benefited by the said 85th Amendment but the same will be subject to the final result of the writ petitions.
3 . On the same lines, we direct that the petitioners are at the liberty to promote those who were benefited by the aforesaid 85th Amendment to the Constitution of India as expeditiously as possible and at the same time, the candidates belonging to the general and open category shall not be reverted and, their seniority etc., shall also be not disturbed. 4 . The impugned order dated 30.3.2001 is stayed but this stay will not affect promotion that has already been granted to the general category candidates and will also not prevent the petitioners from considering the cases of the Scheduled Castes / Scheduled Tribes for promotion. All orders page 9 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS will be subject to the final decision in this petition.
5. Parties to act on a true copy of this order duly authenticated by the Court Associate." 13] We are informed that in compliance with the interim order dated 15th July 2002 promotions already granted to the candidates from the general category were not disturbed. Further, candidatures of the candidates belonging to the reserved category were also considered for future promotions, though, it is not quite clear as to whether such consideration was against any reserved post. However, it is stated that the candidates like Mr. Shoke were considered for promotion and even subsequently promoted to the next higher post. It is pointed out that most of the officers concerned with these petitions, have, by now, not only secured the benefits of promotion, but further, have also, retired from service upon attaining the age of superannuation. This factum, at least to some extent, is relevant for disposing of the present petitions. 14] From the perusal of the impugned judgments and orders in the original applications as well as the review petitions, it does appear that the CAT, has gone by the page 10 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS ruling of the Hon'ble Supreme Court in the case of Jagdish Lal (supra). This is despite the factor that Ajit Singh (II) (supra) was also cited before the CAT. Ajit Singh (II) (supra) as will be noticed hereafter, specifically overrules Jagdish Lal (supra). The impugned judgments and orders, to the extent, they have been influenced by the overruled decision in Jagdish Lal (supra), naturally stand vitiated and are required to be set aside.
15] Ajit Singh (II) (supra) arose out of three interlocutory applications seeking 'clarification' by the State of Punjab in relation to the decision in Ajit Singh Januja (supra). This matter concerned dispute relating to seniority of reserved candidates vis-a-vis general candidates. In paragraph 3, the Hon'ble Supreme Court made it clear that it was concerned with the limited question as to whether Virpal Singh Chauhan (supra) and Ajit Singh Januja (supra) which were earlier decided in favour of general categories are to be affirmed or whether the later deviation made in Jagdish Lal (supra) against the general candidates is to be accepted. Initially, in a case relating to the Indian Railways, a two Judge Bench of the Hon'ble Supreme Court in Virpal page 11 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS Singh (supra) held that it was "permissible" for the Railways to say that reserved candidates who get promotion at the roster points would not be entitled to claim seniority at the promotional level as against senior general candidates who got promoted at a later point of time to the same level. It was further held that "it would be open" to the State to provide that as and when the senior general candidate got promoted under the rules, - whether by way of a seniority rule or a selection rule - to the level to which the reserved candidate was promoted earlier, the general candidate would have to be treated as senior to the reserved candidate (the roster-point promotee) at the promotional level as well, unless, of course, the reserved candidate got a further promotion by that time to a higher post. (This is described for convenience, as the 'catch up' rule). 16] Similarly, in Ajit Singh Januja (supra), a three Judge bench of the Hon'ble Supreme Court held that the question of seniority at the promotional level had to be decided by applying the provisions of Article 14 and 16(1) and if any order, circular or rule provided that such reserved candidates who got promotions at roster-points were to be page 12 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS treated as senior to the senior general candidates who were promoted later, then such an order, circular or rule would be violative of Articles 14 and 16(1). It was, however, held that the position would be different if by the time the senior general candidate got his promotion under the normal rules of seniority or selection, the reserved candidate who was promoted earlier at the roster-point, had got a further promotion. In other words, the `catch up' principle as laid down in Virpal Singh Chauhan (supra) was accepted. In coming to the above conclusions, the three Judge Bench relied upon the principles laid down by the nine Judge Bench in Indira Sawhney vs. Union of India [1992 Suppl. (3) SCC 217] and by the Constitution Bench in R.K.Sabharwal vs. State of Punjab [1995 (2) SCC 745]. These two cases had laid down earlier the manner in which the rights of the general candidates and the reserved candidates ought to be balanced. In Ajit Singh Januja (supra) the Court said the balance must be maintained in such a manner that there was no reverse discrimination against the general candidates and that any rule, circular or order which gave seniority to the reserved candidates promoted at roster- point, would be violative of Articles 14 and 16(1) of the page 13 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS Constitution of India.
17] At that point of time, another three Judge Bench came to decide a case from the State of Haryana in Jagdish Lal (supra) and took a view contrary to Virpal Singh Chauhan (supra) and Ajit Singh Januja (supra). It held that the general rule in the Service Rules relating to seniority from the date of continuous officiation which was applicable to candidates promoted under the normal seniority/selection procedure would be attracted even to the roster point promotees as otherwise there would be discrimination against the reserved candidates. The Bench also observed that the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights and in that behalf, it followed Ashok Kumar Gupta vs. State of U.P. [1997 (5) SCC 201] where a similar principle had been laid down. 18] In Ajit Singh (II) (supra), the contention now addressed by Mr. Shoke, that the catch up rule will apply only to situations where promotions have been effected in excess of the quota prescribed, also came to be considered. This is page 14 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS clear from the reading of paragraph 10 of Ajit Singh (II) (supra).
19] On the basis of the issues raised, the Hon'ble Supreme Court, in Ajit Singh (II) (supra) framed the following points for consideration :-
(1) Can the roster point promotees ( reserved category) count their seniority in the promoted category from the date of their continuous officiation vis-a-vis general candidates who were senior to them in the lower category and who were later promoted to the same level?
(2) Have Virpal, Ajit Singh been correctly decided and has Jagdish Lal been correctly decided?
(3) Whether the 'catch-up' principles contended for by the general candidates are tenable?
(4) What is the meaning of the 'prospective' operation of Sabharwal and to what extent can Ajit Singh be prospective?
20] After detailed discussion, the Hon'ble Supreme Court recorded the following conclusions on point (1) and (2) :
"77) We, therefore, hold that the roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, -
vis- a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further page 15 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS promotion of the reserved candidate-he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal and Ajit Singh have been correctly decided and that Jagdishlal is not correctly decided. Point 1 and 2 are decided accordingly.
"94. We dispose of the clarification applications IAs 1 to 3 of 1998 filed by the State of Punjab accordingly and hold that Ajit Singh and Virpal lay down the correct law and not Jagdish Lal, which must be considered as confined to its own peculiar facts. We shall be passing separate orders in the Punjab, Haryana and Rajasthan cases and Contempt Cases and other IAs on the basis of the principles laid down in this judgment which, for convenience will be called Ajit Singh II."
21] As regards point (3), the Hon'ble Supreme Court has again, accepted the principle in Virpal Singh Chauhan (supra), Ajit Singh Juneja (supra). However, the Hon'ble Supreme Court has held that even if seniority on a roster- point promotee does not count, experience of both groups can be considered as a part of merit for further promotion. Such principle would be equitable balancing of the 'experience' of the candidates at various levels. On such basis, the point (3) came to be disposed of. 22] As regards point (4), the Hon'ble Supreme Court has recorded the following conclusions at paragraphs 89 and 92, page 16 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS which reads thus:
"89. It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only to remove hardship such roster point promotees are not to face reversions, - then it would, in our opinion be, necessary to hold - consistent with our interpretation of Articles 14 and 16(1) - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while Courts can relieve immediate hardship arising out of a past illegality, Courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10.2.1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster point promotees shall have to be reviewed after 10.2.1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the 'prospectivity'' point in relation to Sabharwal. Prospectivity of Ajit Singh:
"92. Where, before 1.3.1996, i.e. the date of Ajit Singh's judgment, at the level 3, there were reserved candidates who reached there earlier and also senior general candidates who reached there later, (but before the reserved candidate was promoted to level 4) and when in spite of the fact that the senior general candidate had to be treated as senior at level 3 (in view of Ajit Singh), the reserved candidate is further promoted to level 4 - without considering the fact that the senior general candidate was also available at level 3 - then, page 17 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS after 1.3.1996, it becomes necessary to review the promotion of the reserved candidate to level 4 and reconsider the same (without causing reversion to the reserved candidate who reached level 4 before 1.3.1996). As and when the senior reserved candidate is later promoted to level 4, the seniority at level 4 has also to be refixed on the basis of when the reserved candidate at level 3 would have got his normal promotion, treating him as junior to the senior general candidate at level 3. Chander Paul Vs. State of Haryana ( 1997(10) SCC 474) has to be understood in the manner stated above."
23] Now if we peruse the impugned judgments and orders, it is apparent that the same are not quite consistent with the ruling of the Hon'ble Supreme Court in the case of Ajit Singh (II) (supra). The impugned judgments and orders have been influenced by the ruling in Jagdish Lal (supra), even though, the said ruling has been specifically overruled in Ajit Singh (II) (supra). Similarly, the principles in relation to the catch up rule do not appear to have been correctly applied by the CAT in disposing of the original applications and review petitions by the impugned judgments and orders. In this view of the matter, there is no option but to set aside the impugned judgments and orders made by the CAT.
page 18 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 24] At this stage, there is no necessity to go into the question as to whether the promotions made to the reserved quota were within the limits of the prescribed quota or whether the same were in excess. This is because, admittedly, candidates from the reserved category like Mr. Shoke, have been subsequently promoted to higher position, from which, they have retired upon attaining the age of superannuation. Even if the contention of Mr. Shoke is to be accepted, it would only entail issuing directions to consider the case of Mr. Shoke and others similarly placed for promotion against reserved quotas, possibly, with reference to some dates earlier than those of which such candidates have already secured promotion. At this point of time, taking into consideration what we have set out in paragraphs 12 and 13 of this judgment and order, adoption of such a course of action may not be appropriate. Besides, in the light of the ruling of the Constitution Bench of the Hon'ble Supreme Court in the case of M. Nagaraj (supra), such a direction, at this stage, may neither be legal nor proper.
page 19 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 25] In M. Nagaraj (supra), the issue involved was whether the constitutional amendment which introduced Articles 16(4-A) and 16(4-B) were violative of the basic structure of the Constitution of India. In this context, the Constitution Bench, interpreted the provisions of Article 16(4-A) and 16(4-B) and finally, upheld the Constitutional Amendment Act "subject to" the interpretation as aforesaid. (See paragraph 121 to 124 of SCC at pages 278-279 in M. Nagaraj).
26] The Hon'ble Supreme Court, in M. Nagaraj (supra) has held that Article 16 (4A), no doubt enables the State to make provisions for reservation in matters of promotion in favour of SC/STs provided, such SC/STs , in the opinion of the State are not adequately represented in the services under the State. Further, the proviso to Article 335 also enables the State to make provisions in favour of the SC/STs for relaxation in qualifying marks in any examinations or lowering the standards of evaluation, for reservations in matters of promotions to any class or classes of services or posts in connection with the affairs of the Unions or of a page 20 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS State consistently with the maintenance of efficiency of administration. This suggests a pattern as specified in Articles 16(3) and 16(4) of the Constitution. Article 16(4A), in terms, emphasizes the opinion of the States in the matter of adequacy of representation. This Article enables the State, in appropriate cases depending upon the ground reality to make provisions for reservations in matters of promotions provided, the State has quantifiable data to form its opinion regarding adequacy of representation. Since, Article 16(4A) is carved out of Article 16(4), its interpretation as well as exercise of power thereunder will be governed by the following three factors:
(a) Backwardness ;
(b) Inadequacy of representation ; and
(c) Overall efficiency of administration (Article
335) .
27] In M. Nagaraj (supra), the Constitution Bench has
further held that in every case where the State decides to
provide reservation in matters of promotions in favour of SC/STs, there must exist at least two circumstances, namely, "backwardness" and "inadequacy of page 21 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS representation". Further, regard must also be had to the overall efficiency of administration (Article 335). These factors are no doubt context specific in the sense that there is no fixed yardstick to identify and measure these three factors. However, it is imperative that the State which is desirous of providing reservations in matters of promotions in favour of SC/STs must be conscious of these factors and further, such consciousness must be reflected in the existence of and in the consideration of quantifiable data, which again, must be contemporaneous and not outdated or antiquated (See Ram Singh Vs.Union of India 2015(4) SCC 697). If the State fails to identify and measure backwardness, inadequacy of representation and overall administrative efficiency, then, the provision for reservation would be invalid and liable to be struck down. 28] It is only on the basis of aforesaid interpretation that the Constitution Bench in M. Nagaraj rejected the contention that the constitutional amendment by which Article 16(4A) was introduced violated the basic structure of the Constitution. In fact, the validity of the Constitutional Amendment Act was upheld "subject to" the interpretation as aforesaid. (See paragraph 121 to 124 of SCC at pages page 22 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 278-279 in M. Nagaraj).
29] Since, there is no material on record to establish that the predicates prescribed by the Hon'ble Supreme Court in the case of M. Nagaraj (supra) stands fulfilled in the present matters, it would not be appropriate to issue any directions to implement the policy of reservations at the stage of promotions and that too when the respondents like Mr. J. P. Shoke have already secured the benefits of promotion al beit from dates slightly later than what they claim they ought to have.
30] For all the aforesaid reasons, we set aside the impugned judgments and orders dated 30th March 2001 and 19th April 2002. Rule is made absolute to the aforesaid extent. However, we clarify that if any promotions have already been effected in terms of our interim order dated 15th July 2002, then, such promotees shall not be reverted, on account of the impugned judgments and orders being set aside. In the facts and circumstances of the present cases, there shall be no order as to costs.
page 23 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 ::: JUDG-WP-3214-02-ORS 31] In view of disposal of the petitions, the pending notices of motion do not survive and the same are also disposed of.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE) CHANDKA page 24 of 24 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:51:13 :::