Punjab-Haryana High Court
K. Radhakrishnan Nair vs Union Of India And Others on 28 October, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No. 4914 of 2002 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 4914 of 2002
Date of Decision: 28.10.2013
K. Radhakrishnan Nair
. . . . Petitioner
Versus
Union of India and others
. . . . Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
PRESENT: Mr. R.D. Bawa, Advocate for the petitioner.
Mr. Sandeep Bansal, Advocate for the respondents.
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RAJIV NARAIN RAINA, J. (ORAL)
This writ petition was filed in 2002, when the constitutional validity of the 85th Amendment of the Constitution of India was pending adjudication before the Supreme Court. On 10.04.2006, the Constitution Bench of the Supreme Court pronounced judgment in the landmark decision in M. Nagaraj & Others Vs. Union of India & Others, 2006(8) SCT 212. The vires of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001 were upheld.
The Supreme Court concluded :-
"122. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the Jawala Ram 2013.10.31 16:21 I attest to the accuracy and integrity of this document CWP No. 4914 of 2002 [2] compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.
123. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
124. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 Jawala Ram 2013.10.31 16:21 I attest to the accuracy and integrity of this document CWP No. 4914 of 2002 [3] enabling provision. The State is not bound to make reservation for SC/ST in matter of 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 of 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."
Though the 85th Amendment has been held valid, riders have been put with respect to the reserved category candidates that any reservation policy must satisfy the twin tests; firstly, of quantifiable data justifying reservation and secondly, to revisit reservation in promotion on the touchstone of Article 335 of the Constitution consistent with efficiency in administration.
The petitioner is a general category candidate. A reserved category candidate, had stolen a march over the petitioner in promotion to higher post on the basis of accelerated promotion based on accelerated seniority on reserve roster point. The petitioner's deprivation of his promotion based on accrued seniority reckoned from the date of entry in service was repaired by order dated 01.12.2001, on the basis of the Jawala Ram 2013.10.31 16:21 I attest to the accuracy and integrity of this document CWP No. 4914 of 2002 [4] circular dated 30.01.1997 (Annexure P-2), which laid down the principle that seniority of reserved category candidates had to be operated on the principles enunciated by the Supreme Court in Virpal Singh Chauhan Vs. Union of India, AIR 1996 SCC 448. The seniority was restored but by virtue of letter dated 21.01.2002 issued on the basis of the rights conferred by the 85th Amendment to the Constitution, the petitioner was put back to square one, since the new policy circular withdrew the earlier circular dated 30.01.1997 and removed the ground beneath his feet. As a result of the dicta in M. Nagaraj's case, the efficacy of the letter dated 21.01.2002 stands extinguished. Consequently, accelerated seniority of reserved category candidates has ceased to be a vested or accrued right and is open to reversal and restoration of the status quo ante in favour of the general category candidates.
Mr. R.D. Bawa, learned counsel for the petitioner, further relies upon two decisions of the Supreme Court, rendered after M. Nagaraj's case i.e. Suraj Bhan Meena and another Vs. State of Rajasthan and others, 2011(2) SCT 260 and C.P. Power Corporation Ltd. Vs. Rajesh Kumar and Otghers, 2012(4) SCT 258 and a decision of this Court rendered in CWP No. 17280 of 2011, titled Prem Kumar Verma and others Vs. State of Haryana, decided on 07.08.2012, quashing the policy instructions on reservation dated 18.03.2006 issued by the Haryana Government, which had guaranteed accelerated seniority to scheduled caste candidates as a consequence of accelerated promotion under the reservation policy. The position presently is that the State of Haryana would have to follow the methodology indicated in M. Jawala Ram 2013.10.31 16:21 I attest to the accuracy and integrity of this document CWP No. 4914 of 2002 [5] Nagaraj's case, with respect to collecting of quantifiable data and looking to efficiency in administration to determine case to case, department by department of the extent of and percentage of reservation which may deserve to be operated in order to balance out the rights of both sides without eclipsing each other.
Learned counsel for the respondent is not in a position to make a statement whether the Central Government or BRDB has carried out any such exercise in terms of the principles now laid down in M. Nagaraj's case. Be that as it may, since a sea change has been brought about in the law after the filing of the writ petition, the case of the petitioner deserves to be reviewed in the light of the aforesaid judgments.
Having heard the learned counsel for the parties at some length, I feel it will be just and proper that a direction deserves to be issued to the respondents to consider and decide the issue of seniority and consequential promotion/s of the petitioner in the light of the statements of law contained in the judgments aforesaid relied upon by the petitioner.
The petitioner would make a comprehensive representation to the respondents bringing out the complete legal position obtaining as a result of judgments rendered in Ajit Singh Janjua and others Vs. State of Punjab and others, JT 1999 (7) S.C. 153, M. Nagaraj's case, Suraj Bhan Meena, U.P. Power Corporation Ltd. cases read with the decision of this Court in Prem Kumar Verma's case, by which the policy dated 16.03.2006 of Haryana Government stands quashed in the light of observations of this Court which are of general application in State and Central Government service.
Jawala Ram 2013.10.31 16:21 I attest to the accuracy and integrity of this document CWP No. 4914 of 2002 [6]
For the foregoing reasons, this writ petition is disposed of with a direction to respondents to consider the matter afresh by passing a speaking order within one month from the date of receipt of a certified copy of this order.
Needless to say that the petitioner would be heard and a speaking order passed containing reasons for conclusions reached. Thereafter, the final order be communicated to the petitioner forthwith.
In case, the claim of the petitioner is found justified, then consequential benefits would follow in accordance with rules.
With this, the petition stands disposed of.
28.10.2013 (RAJIV NARAIN RAINA)
J.Ram JUDGE
Jawala Ram
2013.10.31 16:21
I attest to the accuracy and
integrity of this document