Central Administrative Tribunal - Hyderabad
A Srinivasa Reddy vs M/O Railways on 11 January, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD OA/IO/LIGI 2013 & MAQOISL 2014, OAO233/2018 & MAIOA920IS, OA20/27T4/WIB & MAs 291 & 309/218, OA20/303/2018, OA20/323/2018. OALS9S2018, OAR TVARA/ IONE & MARU RGA 2018, OA2URRS 2018, OAL TOR LOTS & MA OIS/2018, DA/2L/OR/2017& MA 3277/2017, OARIATOROTT OA 202 RUT, Pans OAPZO/SSS/20L7 & MALO H96/2017, OAQUOUTSNET & MEAS 6352017 & US9/2018, OA/DVELO/2OLT, OA UG62 L017, OA 2WOINQO1T, OAT VESS2017, OA TIG2017, OA/20/740/2017, OATU TAZ 2017, OA/2O/R 16/2017, OA/20/893/2017, OAONOG/2017, OA20/1032/2017, OA 1034/2017, OAROTOST/2017, OAQLADOR/IOLT, OA/LO/LTSR 2017, WAZ L2016 (OASR 7778) 2018), OATS UTS, MEAS TOURS & 8789/2016, OARL/GL2016 & MAs 69, 88, 1072 & L1SH/2016, OA/2 1/62/2016, OA 1/63/2016, OAD 1/64/2016, OATLGSIOIG, OA RTGG/2016, OA/IUBT/2016, OAR UG8/2016, OA/21/69/2016, OA/21/70/2016, OAZUTI2016, OA 2172/2018, OAR LI32016, se a Ne CAP/74/2016, DAIO/I1/2016 & MAQ0/183/2016, OA/20/92/2018, OA/20 TAL 2016 & MASDUIOTI/ 2016, OAT/L 73/2016 & VMAs S83/2016 & P32 MAQUI SE UE in OAS 1295/2016, OA2O/291/ 2016 & MA 1672017, OA20 3612016 & MAQWOTS20 Lb, OA/RUASNIOLG, OALIVSAR 2016, OA/2O 9G 2016 & MA O28 2017, OAOO06/201G & MA #882017, OSLO G44/2016, OA/20/045 2016 & MA SAVUHT, OAV SHH GTO, OA/2OL1 182018, OA/2O/ 1123/2016, QARL28201S & MAs 389M 6 & UNO, OA/DUIS/2085 & MAs 3923/2015, 1062017, OAZ TR OROTS & MA TOS 20LT, OA/2SA/IUIS, OA/2 VOF QUIS, OA VOS/2UIS & MAs SSO POUT", OASIO/ISL2BIS, OAR TAOS 2018 & MAs J86/2016, O33/2018 & SSS, OA OL AUT S &MA IRV/2016, OA USELAUIS & MASLOOS, 1093, G94, BS2/2016 & G292UNS, OA/LEIOIOLS & MARUATIING, OAQUS28 7201S & ALASRIVS2 4/2018, QA 93G/2 074, OA/2O/OS4/2015 & MA 2832/2016, OA/2 LOS892015, OAR LOSS OTS. OA OU TOS9/20TS & Mas S10/2016, 916, O17 & THIROIS, OARQONLOV20TS & MA SIOZOTS OAPEULLOT OTS, DOADWII1OAOIS A MAs 1064, S01 & 8949/2016, OASTO TAD 201S, OAL SD UIS, OAD LP LIVES, CAAOITATY 2618, OAL OOU 20 TS, OAL OT 20S, OA/IOASBTIGLS, OARB/1663/ 2018, OA/20/ 1604/2018, ONO OOS IS, OAR OT OATES & MA (80/2016, OA/2O/ L764 /20 TR, OAPVLIOS AUIS, OA ROT TOG 2AIS, OAC ETOT UTA, OAPWLIOSADLS, OA/2O/L TOOTS, OAROTSAP UTS & MLA SAUL, OAV TSSO 2078, CUA2O/LSS T2015, OADBO1/20LL, OARO/SS T2014, OAZUSTROOM & MA A82/2OL7 QA/DOSTE/2014 & MA 8350/2014, OAS20/891 2014 & MA RES /20ES, OAU26L QAO AAO TARR LOSMOATT RIOD OAR UZ OT OAT AG AGS, OA/ONSSEIGLS, OANA SHO ROE & ATAS 248 & PAOLO AAI S00 2013, OA/IOGL2IGIE & MA 2635/2013, OAL NOTS O12 & OAS OUT ALOT) Crders Reserved On: 27/12/2018 & OLAS Pate of Orders LEAL 2a Between: OA No. 34 af 2015 Las At 6. oo) toa Ch Ravindra Babu, S/o CUSUK Baka, Aged 40 years, Occ: Station Master, Kadapa R.S., Guntakal Division, South Central Railway, Rio 346/256-24-8. Bharat Nagar, Chinnachowsk, Kadapa-516 002. ay + Nusanagectha Lakshmi, Win Aged 48 vears, Oce: Station Master, 'Tirapati RUS. Guntakal Division, Sonth Central Rail way, R¥o PO.0.7 Kennedy Nagar, (Hd Tirachany Road, Tirupath Si? SQq, RUMahesh Kumar, S/o R. Venkateswarlu, Aged 4] years, Qec: Traffic Inspector, Ofo The CHC, DORM's Olfice Compound, Guntakal-S15 801, TUN Fevararn, Sio JK Seshachalam Aged 44 years. Oce: Station Master, Grooty RLS.. Guntakal division, South Centr al Railway, Rio 6-401, Vidya Nagar, Road No.2, Porter lane, trantakalaps ogt. Kava Channa Naidu. So K.Pulla Naidt Aged dO y ears, Oce: Station Master, Ananiper RUS., Guntakal Division, South Central Railway e, Re Plat No.GO6, Ground Floor, DS A ian Apartments, sryanagar Colony Extenston, Amantpur-313 01. MUAsbok umar, S'o M.Gampanna, od ae years, Qeo: Station Master, .. Guntakal Divisiors, Central Railway R/o 6-5-6443, Opp: Kamm Bhavan, Ramnagar, Anantpur-S 15 G0) CUNarasimba Maida, $40 CP Narasimhula, Aged 36 vears, Occ: Station Master, PSP Y B.S., Gruntakal Division, South Central R Railway, Rio 2-335-3, 4" Road, M Suresh Babu, Sio MLS 5 Aged 40 sous. Ove: Station Master, + Geatakal Division, ral Re Uwe ay, Rios ¥ 'idya a Napar, RK Suresh, S/o R.Singarappa, te } Aged 38 vears, Occ: Station Master CCAR s. . Crantakal Division, ns EEN South Central Railway, R'o 19-9-1F, Kennedy Nagar, Old Tiruchany Road, TirapatSi? Sot, 1a VoEuran, Svo WV. Murali Srishna Aged 40 years, Occ: Stat wort A aster, Gooty R.S., Guniskal Divisio South Cent ral} Railway, Rio if 19-4, Upstairs, Besile AV R Schaal, Gooty-318 411, Anantpur District. oa Appheants And 1. Linton of India represented by The Chairman, Ministry of Railways, Railway Board, Sail Bhavan, New Delhi. 2. The General Manager, Sonth Central Raulway, Rail Nilayam, Secunderabad. 3, The Chief Personnel Officer South Central Railway, Rail Milayarn, Secunderabad. 4, The Divisional Railway Manager, Guntakal division, South Central Railway, Guntakal. The Senior Divisional Persorme!l OMeer, Guntakal division, South Central Railway, Guritakal. fat a. Suresh Bal. Oeeo: Slation Saumerintendent, March atal RIS. Guntakal Devision, uth Central Rarhway. 7, H entry Meena, Ooe: Statian Superintendent, Mantralavam R.S., Guntakal Division, South Central Railw ay. Murarilal Meena. Ooo. Station Superintendent, Gooty B.S., Guntakal Division, Saath Cent ral Railway. 2, S. Venkatesh, Oce: Station Sumerintendent, Gooty R.S., Crintakal Division, South Central Raibvay. _ Resraandents : Counsel for the applicants Mr RURLRY. Prasat Counsel for the respondents : Mrs. RMID Shyame Sundari, SC for Riv. Nee tt OAS 20/1162 /2073 & batch SERRE oe ss] aw aes a CORAM: . How ble Mr, Justice L. Narasimha teddy, Chairman Haavile Mr. BO. Sudhakar, idnin. Member ORDER
(Per Hon'ble Mr. Justice L. Narasimha Reddy, Chairman) Since common questions of fact and law arise in all the O.As, they are is disposed of through a common order,
2. In this batch of Q.As, the applicants challenge the various orders isstied by the Administration of the South Central Railway (SCR, for short} effecting reservation in promotions, mostly in the category of Drivers and Guards, who are commonly known as Loco staff minning staff. The grievance of the applicants is that the reservations in promotions are being elfected indiscriminately without undertaking any exercise indicated by the Hon'ble Supreme Court in M. Negara] & Others vs Union of India & Others { (2006) 8 SCC 212} and that the reservations are being implemented almost at every level of the hierarchy, thereby adversely affecting the chances of promotion of other categories of employees in those cadres. The applicants have furnished the particulars of the respective dates of appointment of themselves and those of the private respondents in the respective O.As to indicate their respective places in the cadre, and have made an attempt to shaw that the private respondents have been conferred with the benefit of promotions, one after the other, to higher levels. The grievance is not only about the promation from an induction stage to higher cadre but also to fee 7 ow en we ahi tos DA/20/1162/2013 & batch further higher cadres on the basis of seniority, which has accrued to the private respondents on account of the promotions made on the basis of reservation. We are not referring to the individual particulars since they are covered by the descriptions given above.
3. The applicants contend that the Article 16(4A) of the Constitution of India enables the State and its agencies to effect reservation in promotion in favour of employees belonging ito Scheduled Castes & Scheduled Tribes, together with the consequential seniority, but in the SCR, it is being treated as though it is mandatory to provide reservation at every level of promotion. They contend that the Article 16(4.A4) was interpreted by the Hon' ble Supreme Court in Nagaraj's case holding that before any reservation in promotion under that provision to ary particular past Is provided, an exercise on three aspects, namely, i) backwardness of class or category to which the employee is concerned; {11} representation of such category of emplovees in the post as well as the effect on efficiency in the Administration on account of such reservation; and (iu) the verification as to creamy layer, is to be undertaken and even where a policy decision is taken after undertaking verification of these aspects, the reservation is required to be up to a particular time in the position and not as a matter of perpetuity. They contend that the SCR or for that matter, the Railways at national level, have not taken any policy decision in the context of providing reservation in promotion of employees of Scheduled Caste & Scheduled Tribe categories and virtually it is being implemented as a matter of course. Various instances of the a a eet OA/2O/1162/2013 & batch candidates belonging to Scheduled Castes & Scheduled Tribes stealing march over others successfully, are also furnished.
4, The applicants further contend that m the recent past, a Constitution Bench of the Hon'ble Supreme Court in darnall Singh & Ors. Vs Lachhmi Narain Gupta (2018) 10 SCC, 395 examined the pudgement in Nagar}'s case and except that the requirement of verification of the backwardness of Scheduled Castes & Scheduled Tribes in the context of providing reservation in promotions was done away with, the rest of the parameters were reinforced, but stil, the Admimisiration did not make any change ta is approach to the issue.
S As Rehlance is placed by the applicants upon the judgement dated 294.2015 in Writ Peution Nos 39iS8/2013 & batch of the High Count of Andhra Pradesh, judgement dated 11.12.2018 in Writ Petition No.44 15/2016 of the High Court af AVP. and the judgement dated 30.7.2015 of the Patna on High Court in Sate of Bihar & Others vs Sushil Rumer Singh & Others , 2015 SCO Online Pat S002 }, apart from other judgements on the issue.
6. On behalf of the SCR as well as the respective private respondents in the concerned O.As, separate counter affidavits are filed. The gist thereof is that the reservation in promotion came to be firmly established with the introduction of Article [6(¢4A} in the Constitution of India and that the benefit is being extended to different categories of employees, strictly in accordance with law. They contend that the very purpose of amending the Constitution providing for reservation in promotions with consequential seniority, is to enable a candidate belonging to Scheduled Caste or Scheduled , % es Satay a nr ?
it OA/20/1162/2013 & batch Tribe category, to acquire promotion out of turn, so that the injustice that was meted out to the community in general, is reduced to a substantial extent. Its aiso the case of the respondents that the promotions that have been effected in favour of the private respondents are strictly In accordance with the principles laid down by the Hon"ble Supreme Court and that no violation has taken place.
7, We heard Sri K.RUELV. Prasad, Sri G, Trinadha Rao, Sri J. Satva Prasad, St ML Bhaskar, Sri LV. Uma Maheswara Rao, Sri B. Rajesh Kumar, Smt. Anita Swain & Sri S. Sudeep Reddy, learned counsel for the applicants, Sri N, Srinatha Rao, Sri N. Srinivasa Rao, Sri 5.M. Patnaik, Smt. Vilaya Sagi, Ms. KMIJD Shyama Sundari, Sri T. Hanumantha Reddy, Sri V.V_N. Narasimham, Sri M. Brahma Reddy, Sri D. Madhava Reddy & Smt. A.B. Lakshru, learned Standing Counsel for the official respondents and Set. 8. Siva Kumari, Smt. A. Deenthi, Smt. Anita Swain, Sri J. Sudkeer, Sri J, Satya Prasad, Sri R. Mahanty, Sri Siva, Si B. Laxman, Sri P. Krishna, Sri K. Siva Reddy and Sri K.R.KLV Prasad, learned counsel for the private respondents; elaborately and in detail.
8, Leamed counsel for the applicants submit that the reservation in promotions, or for that matter, the reservation in public employment itself is an exception to general rule of equality and various clauses of Article 16 are only enabling in their nature. They contend that the nplementation of reservation, be it in the direct recruitment or promotion, can be introduced only when the relevant facts and situation permit and the appointing authority is under obligation to justify the same. They submit that in the & > (us OA/20/2162/2013 & batch context of reservation in promotion, the f Plo Supreme Court has issued specific guidelines in its judgement in Nagaraj's case and stil] they have been observed in breach by the administration of the Railways. They submit that even by now, there does not exist any policy decision, much less guidelines > be followed in the context of introduction of reservation in prometion to various categories and the reservation of this nature is being implemented at every level as a matter of course. Learned counsel submit that the recent judgement of the Supreme Court in Jaraail Sing's case { judgement dared 26.08 HUG in Jarnail Singh & Others vs Lachhmi Narain Gepta & Others (2018) 1 SCC 398) j, virtually repeated the parameters indicated In Nagaraj's ca except the one as to the verification of backwardness, and the respondents are under obligation to follow the guidelines so reiterated. They submit that in earlier rounds of ligation, this Tribunal had set aside the orders of promotion affecting viclation of such principles, and the Hon'ble High Court at Hyderabad, apart from upholding the decision of the Tribunal, indicated specific steps to be fol lowed, But the respondents have not implemented the same.
& The concept of reservation in promotion, which was sought to be introduced mic the Constitution met with several hurdles. The attempts made earlier were thwarted, with the provision being held to be unconstitutional and the consequential steps having been set aside. Ultimately, the Parliament amended the Constitution by introducing Article 16(4A) providing for reservation in promotion in favour of candidates belonging to Scheduled Castes' Scheduled Tribes. Through another amendment, the concept of the 'consequential seniority' was introduced.
send OA/20/1162/2023 & batch The entire issue was dealt with extensively in Nagaraj's case by the Hon'ble Supreme Court. It is not necessary fo refer to the facts therein in detail. Suffice it to mention that the provision was upheld in its entirety, but the manner in which the implementation thereof should he done, was indicated.
In other words, the provision can be put inte force only by undertaking the > exercise indicated in the said judgement. [t is beneficial to refer ty the paragraphs 121 te 126, which provide the gist thereof.
*CaNCIUSEON i2t. The impugned constitutional amendments by which Articles 16G.4) and 16(4-B) have been inserted flow from Article $64). They de net alter the atructure of Article 164(4), They retain the controlling factors or the compelling masons, narnely, backwardness and inadequacy of representation winch enables the States to provide for reaervation Keeping in mind the averall efficiency of the Slate administration ander Article 335. These impugned amendments are confined only ta SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 30% (quaniitalive limitation), the concept of creamy layer (quali tative exclusion). the sab- classification between OBCs on the one hand and SCs and ST's on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in RK. Sabharwai.
122. We reiterate that the ceiling limit of 30%, the concept of creamy layer and the commpelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constindional requirements withoat which the structure of equality of opportunity in Article 1b would collapse.
i238. However, m this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State canceme:l will have to show in each case the existence of the compelling reascms, namely, backwardness. inadequacy of represertation and overall admunistrative efficiency before making provision for reservation, As stated above, (he impugned proviston is an enabling provision. The Mate is nat hound to make reservation for SCsf STs in maiter of promotions. However, if they wish to exercise thelr discretion and make such provision. the State has to collect quandfiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to comphance with Article 333, itis made clear that even i the State has compelling reasons, as stated above, the State vill have t io see that Hs reservation provision does not lead to excessiveness so as to breach the ceiling Heit of S18 or otliterate the creamy layer on or * extend the reservation indefinitely.
i24. Subject to the above. we uphold the constitutional validity of the Constintion (eventy -seventh Amendment) Aci, 1993: the Constitution Gughty-first Amendment) Act, 2800: the Constitution (Eight-second Amendment) Act, 2000 and the Constitutian (Lighty- fifth Amendment} Act, 2001.
aS SAV, OS OA/20/ 1162/2015 & batch i238. We fee not examined the vabdity af individual enactments of appropriate States and thet question will be gone into in individual Writ Petition by the appropriate Bench in accordance with law faid dawn by us in the present case.
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126. Reference is answered aceardingly."
10. From this it is clear that the first requirement is that the State must establish that there exist cornpelling reasons to provide reservation in promotions. Such reasons include:
{a} the backwardness of the category of the candidates, in whose favour the reservation is to be made; ib} the inadequacy of their representation and overall administration sticiency Yi. A note of caution was also added that the State is not bound to make reservation for SCs! STs in the matter of promotions, and if they wish ts provide such reservation, the quantifiable data showimg backwardness and inadequacy of representation in the public employment, im addition to compliance with the Article 335 must be established. The requirement as to creamy layer was also indicated. This judgement held the field all through.
12. in State of Bihar & Others vs Sushil Kamar Singh & Others { 2015 SCC OnLine Pat 6002 }, a Full Bench of the Patna High Court dealt with this very aspect in detail, with reference ts the judgement in Nagaraj's case and VS observed as under:
"i6. From dus what can be culled out is that the important factors that guide the reservations ander Avticle I6(4.4) are: (a} backwardness, (b} inadequacy of representation and {ce} overall efficiency of the State adminisimatios under Article.335. A ip also imports ant to note that while providing reservation or making other provisions, ihe Slate musi ensure that a} the facility so created dues not lead in excessiveneas so as to Ireach the ceiling Eat of 50%, b} the creamy layer excluded and denied the OA/20/1162 2013 & batch benefit of reservation, and c} the facility is nat extended indefinitely, In effect, 6 indicia were identified and stipulated, ie ft ig essential to bear io mind that the reservation provided for ander Article 16 (4) is substantially different from the one under Article 164A} The former is a facility that enables persons to enter the State service by relaxing the norms of selection or the parameters af merit which are stipulated for the pasts. in general, Throagh that process, a person Ww ho is otherwise not eligible to be appointed, is enabled to enter serv ice under the State. The target group for this fa unemployed persons, of certain categories. In contrast, Article-16(4A) deals with the situation where the target group is already enjoying the benefit of Pemployment on the basis af reservation under Article-16C0), and the effort is enly to push them tp higher places in the hierarchy. In a way, can be said that whde Articie- 16(4) deals with the primary and basic aspect of protective ¢ discrinalion, we, reservation, the ane under Article-16(4A) is abenn the secorary aspect. Obviously, for this reason the Psrhament as well as the constitutional courts have made subtle distinction and have chosen to stipulate different parameters for the two.
18. For example, the benefit under Clause-16(4) is in respect of "goryicws under the State" whereas the objective underlying Article- La(4A) is te ensure representation of the SC/ST in the "class or classes of pasts in the service ander the State". Similarly, the necessity fo ensure that the efficiency in administration does not suffer, is applied with a bit of greater emphasis for the reservations under Article-16(4A} than the one under Article 16f4}. These are only the broader aspects.
On facts, 2 was found that the representation was more than adequate and in some cases, it was 100%, Dealing with this contention of the State, if was observed:
oF, The argument advanced on behalf of the appellants that the situation obtaining at a partionlar time may not remain the.same and after a few years if may not be possible to keep pace with changing scenario claseswise or servicewise, cannot be accepted) The reason is that the facility under Article-1Q(9A) is not aimed at ensuring mere survival or livelihood. ft results In pushing af a person most pavor in the service fo higher positions by stealing march over his seniors, That can be done only when the circumstances explained by the Hon'ble Supreme Court are found ta be existing.
28. The Appellants cannot ignore the specific language employed un Clause "ALA } indication that the reservation under if shall be in a class or classes in a serv ice, under the State. and the service as a whole as indicated ay Clanse 4) of Article-16.
28. That the reservation under Article-L&(4A) of the Constituhon is with reference to class or classes of posts in the service under the State fs 3S evident not only from. the text of the provision, but also the varion judgements rendered on the subject.
30, it is also essential to keep in mind thet the makers of the Constitution sounded a sete of canton in Ariicle-335 that the special measures taken for ihe benefit of persons belonging to SC/ ST category muat be such that the efficiency in the administration is not compromised.
a ao ceaceee A, GAP OFTEG2 F013 & batch Induction at the entry level through reservation may nol pose any serious problem to administrative efficiency. Tt RE Feasen iS TR ONCE A Person with basic qualifications is mdacted into service he would be subject to san ip aining and methods es are applicable to amyone. On contrast, the reser alOB in peNion wand reader the concept such as seniority, nient irrelevant and enable a person belany 'ein g tw SC! ST category 9 get nramotion oat of tar. thet igo with the e aseguential acnionly, Si. AM ont of barn promotion may certain make the person happy.
However, the elernent of frastration or dissatisfaction in the person who is superseded cannot be ignored. The efficiency of administration which is adequately protected in Article-338 of the Constitution is Ekely to suffer a double deni on account of out of tern promotions. The first is that « relatively Imexperienced person would occupy a higher position, and second is thai an otherwise experienced and senior person is subjected to an clement of irustration and be may sot be able io execute with the same amount of interest as he used to do in the normal circumstances. It cannot be examined from ihe point af view of the beneficiary alone.
32. The creamy layer is another vexed question vis-a-vis the reservations under Ardcle-1Q/4A) Ht is true that in Indra Sewhney's case (supral, the Hon'ble Supreme Court held that the concept of creamy layer does nat apply to the reservations in favour of persons belonging io SCY ST category, However, in Nagraj's case (supra), their Lordships observed at mere pluces than one, that the creamy layer must De excluded from the purview of reservation under that provision, Not only from the body af the Fiigemeni, but also from the last sentence of the judgement this aspect is olgar.* & * The issue became the subject matier of several other judgements, across the country.
ia. Over the periog, doubts were expressed as to whether it is necessary at all to verify the social backwardness of employees of Scheduled Castes & ay Scheduled Tribes in the context of providing reservation in promotions, particularly when the Constitution, per se, recognizes their backwardness. It is in this context, that the issue came to be dealt with by the Hon'ble Supreme Court in Jarail Singh's case Jarnail Singh's case. After referring to the various aspects of the judgement in Nagaraj's case, the Hon'ble Supreme Court conchided as under:
"2h. Thas, we cane] ude that lhe jadgenient in Nagaraf (supra) does net need to be referred io a sevenTudge Bench, However, the canchasion in Naparaj (supra) that the Ntate has to collect quantifiable data showing backwardness of the Scheduled Castes and the os ea ii OA/2G/ 1162/2013 & batch Scheduled Tribes, being contrary to thé mine-Tnudge Bench m Indra Sawhney (1} (supra) is held to be invalid te this extent."
(4, The doubt expressed as to whether it is relevant to apply the theory ae ~ creamy layer in such matters, was specifically dealt with by the Hon'ble Supreme Court in para 17 of the judgement (supra), which reads as under:
"19. Therefore, when Nagaraj (supra) applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structare fest to uphold the constitutional amendments leading to Articles 16¢4A) and 16(4-B}, 1 did neg in any manner interfere with Parlaiment's power under Article 341 ar Article 342. We are, therefore, clearly of the opinion that this pari of the judgement doe not need to be revisited, and consequently. there is no need tn refer Nagara} (supra) ta & seven- -ludge Bench. We may also add at this juncture that Nagaraj (supra) is a unanimous Judgement af five feared Judges of this Court which has held sway smee the ZOE. This judgement has been repeatedly followed and applied oy oy PAY 'number of judgements of this Court, namely:
. Asil Chandra v. Radhe Krishna Gaur (2008) 8 SCC 454 (iwo- Judge Bench) (See paragraphs 17 & 18) b. Suraj Bhan Meena & Anr. V. State of Rajasthan & Ors. (OTT) | SCC 467 (two-Jodge Bench) (See paragrapha 10. 50 and 67} ¢. LUP. Power Corporation v. Rajesh Kamar & Ors., (2012) PSEC FT {iwo-Judge Bench} (See paragraphs 61, 810%) and 86) }. a. S. Paneer Selvam & Ors. V. State of Tamil Nadu & Ors. (2019) 10 SCC 292 (two-Judge Bench} (See paragraphs 18, 19 and 36).
e. Chairman & Managing Director, Central Bank of India d& Ors. V. Central Bank of India SC/ST Employe 2e3 Welfare Association & Ors., (2O1S) 12 SOC 308 Gwo-Judge Bench) (See, paragraphs 9 . and 26} se Suresh Chand Gautam v. State of UP, & Ors. 2018) TP SCC TTS (teo-Judge Bench) (See paragraphs 2 and 43).
ge BUR. Pavitra & Ors. v. Union of India & Ors . 2D EF} 4 SCC fpwo-Tndge Bench) (See paragragie 17 to 22) Fe es rin bs Further, Nagaraj (oupra} has been approved by larger Renches of this Ceoaet i a. General Categories Welfare Federation y. Union of India, (2012) 7 SCC AD tthree-J udge Bench} (See paragraphs 2 and 2).
% Rohtas Bhankar v. Union of india, (204 BYR SOC 82 Cive-Jadge Bench) (See paragraphs 6 and 7}.
Se OA/2O/1 62/2013 & batch in fact, the tests laid down in Nagaraj (supra) for judging whether a constiludonal amendment violates bags stracture have been ¢ expressly appreved ie a nieJadge Bench of this Coort in LR. Coelho (ead) by LRs. v. State of Tani] Nadu and Ors. 2007 2 SCC 1 (See paragraphs 61, GS and 142). The entirety of the decision, far from being clearly erroneaus, correotly applies the basic structure doctrine to uphold constitutional amendments on certain conditions which are based upon the equality principle aa being part of basic structure. Thus, we may make it clear that quantifiable date shall be coflected try the State, on the parameters as stipulated in Nagaraj (guprs} on the inadequacy of representation, which can be tested by the Courts. We may further add that the data would be relatable to the concerned cadre."
iS. 'Pherefore, as the law stands today, the State is under obligation to undertake an exercise to ascertain the adequacy of representation of the SC & ST in the cuncerned cadres for promotion to which, the reservation is sought to be made, and apply the concept of creamy layer, For this purpose, neoessary exercise need, to be undertaken, either by framing general guidelines or by addressing individual issues. Reservation in promotion cannot he maplemented unless such measures aye taken.
i6 Qn certain earlier occasions, when promotions were effected by implementing reservation, affected candidates approached this Tribunal by filing various O.As and all of them were allowed. The matter landed before the High Court of A.P. in WLP. Nos. 39158/2013 & batch. After disc a the matter at length, the Hon*ble High Court ordered as under:
ASTON:
As the Tribunal has merely followed the law laid down by the Supreme Court in M. Nagaraj, in allowing the OLAs, the orders of the Tribunal, to the extent i declared the action of the Railways in providing reservation in promotion without fulliling the parameters laid down in M. Naparaj to be legal, do not necessitate interference. The fact however remaims that, despite the amendment to the Constitution by insertion af Articles 16(44)} and (4-8) nearly puree years ago, the members of the scheduled Castes and the Scheduled Tribes still fece uncertaimy on a ee J Se % ae ey 13 whether ar not they are entitled for reservation in promotion, and to be extended the benefit of consequential seniority. This predicament, they find thernselves in. is for no fault of theirs heat is on account of the faihire af the Union of India te gather data, and form ifs opinion, on the perameters laid down by the Supreme Court in A Magara! The prevailing uncertainty can only be put an end to if the petitioner-Railhway is directed to undertake the aforesaid exercise, and take a decisiyn. within a specified Lime frame.
The Writ Petitions are, accordingly disposed of directing the petinioner-Rauways to undertake and complete the exercise of gathering data, and forming ifs opinion on the pararneters lad down by the Supreme Court mn Af Naegarai, with uimost expedition and, in any event, not later than six rnenths from the date of receipt of a copy of this Order, As this stalemate cannot be permitted ta effect raihvay administration, and the services it renders to the public af Jarge, if is open fo the petitioner- Raihways to make in-charge arrangements in the interregrum, raking if clear to those, whe are given charge of the posts, that this arrangement is temporary and would continue only UL the exercise of formation of opinion, on the need fo provide reservation in promotion, is completed, The nuscellancous petitions pending, Uf any, shall also stand disposed of Mo casts."
17. Recently, the Hon'ble High Court at Hyderabad had an occasion to deal with this very issue pertaining to Railways only, affer the Han'ble Supreme Court rendered its fudgernent in Jarnail Singh's case. Affer referring the relevant paragraphs in the fudgement in Jaraal Singh'y cage, the Hieh Court, m its judgement dated 29.11.2018 m WP. No.G456/2018, observed as under:
"The reqairement of collecting data as tn the backwardness of the Scheduled Castes ari Scheduled Tribes has now been done away with by the latest judgement in JARNATL SINGH and greater emphasis bas been laki on excliding the creamy laver. Reservation in pramotions arsd censequential seniority would therefore have to be extended te these reservation categories only after ecmpletion of the said exercise. Be i noted that in terms of this exercise, the organization would have to quantify the data as to the adequacy of representation of these reservation categorics in the promotional pasts; assess the effect upon the efficiency of administration if such reservation is provided: examine the issne of creamy-layer as laid down in M. NAGARAS and JARNAIL SINGH, apart from the other parameters which have heen {efi antouched or M. NAGARAS, and thereafter confer the benefit of reservation in promotions with or without consequential se niority, as warranted. [tis only the qualification of data with regard fo backwardness of the Scheduled Castes and the Scheduled Tribes that is mow excluded in the light of the later judgement in Ya 4 Cepia pt OPE"
OA/20/1162/20138 & batch JARNAIL SINGH, thoegh that wae one of the parameters indicated In M.NAGARAL The Railways are therefore bound te abide by this exercise before undertaking reservation in promotions and extending consequential seniority to sack promotes. There can be no exception to this mandate."
Is. What emerges, therefore, is that before the reservation in promotion to any parhcular category of posts is implemented, the employer or the State is under obligation to:
ss {a) undertake verification of the adequacy of representation in the pasts to which the promotions are to be effected, and decide whether such reservation would have any adverse impact on the efficiency of the department:
(b) stipulate the parameters as to the application of the concept of creamy layer; and
(c) indicate the period up te which, the reservations se provided, are to be in fierce, 12, Uniess a policy decision in general, or a decision with nsference to a specified cadre {s taken In this behalf, it cannot be said that the Article 16(4A), as interpreted by the Supreme Court is enforced properly.
20. Another aspect is that various departments have hierarchy of posts. For example, in the Engineering department, the posts may consist of Junior Engineer, Assistant Engineer, Electric Engineer, Section Engineer, Chief Engineer and Engineer in Chief. A conscious and well informed decision needs to be taken as to whether it is essential to provide reservation in promotion at every stage or at certain selected stages. For this purpose, not ik Af20/1162/2013 & batch needs to be undertaken. The exercise is required to be not a one time affair, hut as a constant and continuous one. The reason is that ata given point of time, the representation of the Scheduled Castes & Scheduled Tribes in s particular post may be wholly inadequate, and it may warrant provision of reservation to the optimum level. At a subsequent stage, the representation may be not that dissatisfactory and may need a slightly lesser push and at 8 sill later stage, the representation may far exceed the expected level. Unless these developments are monitored constantly, the facility vreated unler Article 16644) may turn out to be counterproductive, resulting in total frustration among other categories of candidates.
21. ' The effects of unbridled and unchecked reservation in promotions at every level, are not difficult to be imagined. Lf reservation tn promotion is provided at every level, that too with the consequential seniority, a Junior Engineer, who is fairly lower in the seniority list, may climb to the highest position within a short time on the basis of the reservation in promotion st every level, while his seniors in the lower cadre may languish at the same position or at the most, one or two stages above. The element of frustration would certainly have its own impact upon the efficiency of the department Ai the end of the day, one has to realise that the purpose of the Railway establishment is to serve the people in the best possible manner and providing reservations is incidental. A decent balance between the two, needs to be maintained. These aspects are to be taken into account by the administration,
22. We, therefore, allow the OAs directing:
% ed tot Wer + bs 36 OA /20/1 1602/2015 & batch y administration, in general the South Central Railway or the Rail shall take a policy decision indicating the parameters for introduction and implementation of the reservation in promotions, which shall include:
(1) the verification of the representation of the category of scheduled Castes & Scheduled Tribe employees in the past OF cadre for promotion to which, reservation is sought to be effected and the resultant effect of any on the efficiency of the administration:
(2) the manner in whieh the concept of eres my leyer shall be applied in enforcing such reservations in promotions: and (iu) the duration up to which the promotion shall be in force.
The views of the Association of Scheduled Caste & Scheduled Tribe employees on the one hand and the Association of employees. in general on the other hand, shall be taken into account before such parameters ars identified.
'Unless and until a decision at the level of Ministry of Railways & Railway Board is taken as mgards the implementation of the reservation In promotions, the same shall not be effected at the lawer levels.
If such guidelines already exist in respect of ay post or cadre, reservations in promotion can be made to such posts or cadre, duly referring to the relevant guidelines and administrative orders.
* aw eraal we whe &.
UP GA/20/1162/2013 & batch %.
'\ if any promotions have taken place sptrary to the law as if OXISIS now, it shall be open to the Railway administration te take corrective steps. Pending such action, the promotions so made shall be treated as provisional, without giving rise to any right to seniority in the oromated post, The entire exercise indicated above shall be completed within a period of six months from the date of receipt of a copy af this order.
+3 In almost all the O.As, Miscellaneous Applications are filed with a prayer to delete the Railway Board as a party to the OAs. After considering the matter at length, we are of the view that the presence of the Railway Board is very much essential since policy decisions are to be taker.
x Therefore, we reject the prayer made in the M.As. All the other M.As shall "
also stand disposed of.
34 There shall be no order as to costs,