Central Administrative Tribunal - Mumbai
Rahul K Dhumal vs M/O Defence on 5 June, 2024
Central Administrative Tribunal, Mumbai Bench, Mumbai. Pre-delivery order in O.A.638/2017 The pre-delivery order in O.A.638/2017 is put un for concurrence and inputs, if any. ye lee '(Shri Krishna) Member (A) Hon'ble Shri J ustice Ranjit V. More, Chairman tu (ve aneone Thar WW wa ww bre Wat ( pA! Membu (P Central Administrative Tribunal, Mumbai Bench, Mumbai. Pre-delivery order in O.A.638/2017 The pre-delivery order in O.A.63 8/2017 1 is put un for concurrence and inputs, if any. The alge - (Shri Krishna) Member (A) Hon'ble Shri Justice Ranjit V. More, Chairman Papel arth omthontevare f fu Pyare Tha Wh waa ww wy Lehatt - [Ar Mimbu (# ws CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI. ORIGINAL APPLICATION No.638/2017 Date of Decision : 09306-2024 Shri Rahul K. Dhumal & 40 Ors. we Applicants (By Advocate Shri V.A, Nagrani) Versus Union of India. Through the Secretary, . M/o, Defence, New Delhi & Ors. .. Respondents (By Advocate Shri R.R. Shetty) CORAM: Shri Justice Ranjit V. More, Member (J) Mr. Shri Krishna, Member (A) - "1. To be referred to the reporter or not? Ve. Whether it is to be uploaded? Vo Library. (Shri Kfishnay----~ Member (A) Ma, 1 Central Administrative Tribunal, Mumbai Bench, Mumbai. 0.A.638/2017 hy Dated this\eqnuceostheO SD day of SUNE , 2024. | Coram: Hon'ble Shri Justice Ranjit V. More, CHairman Hon'ble Mr-Shri Krishna, Member (A) 1, Shri Rahul K. Dhumal, Age 36 years, Working in Naval Dock Mumbai as HSK-I, Residing at B-301, Shrinathji Krupa, Sector-20, Nerul, Navi Mumbai -- 400 706. 2. Shri Mukesh G. Parab, Age 31 years, Working in Naval Dock Mumbai as HSK-I, Residing at D-303, Yasraj Complex, Sector-6, Kamothe, Navi Mumbai -- 410 209. 3. Shri SKT Das, Age 30 years, Working in Naval Dock Mumbai as HSK-I, Residing at 167/2684/8A, Tagor Nagar, Vikhroli (East), Mumbai -- 400 083. 4, Shri Nityanand Sharma, Age 37 years, Working in Naval Dock Mumbai as HSK-I, Residing at 101, E-Wing, Gopal Krishna Park, Shree Malang Road, Kalyan (East), Dist. Thane, Maharashtra-421 306. 5. Shri Amit Kumar, Age 39 years, Working in Naval Dock Mumbai as HSK-I, Residing at 101, E-Wing, Gopal Krishna Park, Hazimalang Road, Kalyan (East), Dist. Thane, Maharashtra-421 306. 6. Shri Jitendra Khadanga, Age 37 years, Working in Naval Dock Mumbai as HSK-I, Residing at Arihant Aksh, Barrage Road, Kulgaon, Badlapur (West), Dist. Thane, Maharashtra -- 421 503. 7. Shri Sujit Kumar Yadav, Age 31 years, Working in Naval Dock Mumbai as HSK-I, OA.638/2017 10. 11. 12. 13. 14. 15. 2 - OA.638/2017 Residing at F/2, NCH Colony, Powai, ; Kanjurmarg (West), Mumbai -- 400 078. Shri K. Ramesh, Age 39 years, Working in Naval Dock Mumbai as HSK-I, Residing at 263/16, NCH Colony, Powai, Kanjurmarg (West), Mumbai - 400 078. .: hae Shri Santosh Prakash Patra, Age 31 years, Working in Naval Dock Mumbai as SK, Residing at 504, Ameya Park, 'C' Wing, Near Jar Mari Mandir, Kalyan (East), Dist. Thane, Maharashtra -- 421 306. Shri Chandan Panigrahi, Age 30 years, Working in Naval Dock Mumbai as SK Residing at 119/07, NCH Colony, Kanjurmarg (West), Mumbai -- 400 078. Shri Deenbandhu R. Ella, Age 29 years, Working in Naval Dock Mumbai as SK, Residing at 364/03, NCH Colony, Kanjurmarg (West), Mumbai -- 400 078. Shri R.V. Chougule, Age 30 years, Working in Naval Dock Mumbai as SK, Residing at 264/03, NCH Colony, Kanjurmarg (West), Mumbai -- 400 078. Shri Laxmikant A Matate, Age 30 years, Working in Naval Dock Mumbai as SK, Residing at A-1/201, Deep Angan, Valvali Goan, Badlapur, Dist. Thane, Mahrashtra ~ 421 503. Shri NK Viyogi, Age 38 years, Working in Naval Dock Mumbai as HSK-I, Residing at F/No-402, R-Wing, Telange Height, Moriwal Pada, B-Cabin Road, Ambernath (East) Dist. Thane, Maharashtra -- 421 501. Shri Satish Shinde, Age 29 years, Working in Naval Dock Mumbai as SK, 16. 17. 18. 19, 20. 21. 22. 3 OA.638/2017 Residing at A-1/40 1, Deep Angan, Valvali Goan, Badlapur, Dist. Thane, Maharashtra -- 421 503. Shri Ashok C. Desai, Age 38 years, Working in Naval Dock Mumbai as HSK-I, Residing at B/403, Murlidhar Building, .; Gopal Krishna Park, Hazimalang Road, "" Kalyan (E), Dist Thane, ' Maharashtra -- 421 300. Shri Arat Sahu, Age 33 years, Working in Naval Dock Mumbai as HSK-I, Residing at C3/402, Aprna Raj CHS Ltd., Gholai Nagar, Thane (West), Maharashtra-400 605. Shri Pradeep Nahak, Age 32 years, Working in Naval Dock Mumbai as HSK-II, Residing at C1/003, Aprna Raj CHS Ltd Gholai Nagar, Thane (West), Maharashtra -- 400 605. Shri Kamlesh Verma, Age 32 years, Working in Naval Dock Mumbai as HSK-IUL, Residing at 16, Kumar Chawl, Ganeshwadi, Thane (West), Maharashtra -- 400 601. Sangeet Kumar, Age 38 years, Working in Naval Dock Mumbai as HSK-I[, Residing at A-101, Sai Seva CHS Ltd Evershine City, Vasai (East), Dist. Palghar, Maharashtra -- 401 208. Shri Hilesh Koli, Age 28 years, Working in Naval Dock Mumbai as MCM, Residing at 16/812, Yatish CHS, Sardar Nagar No.1, . Sion Koliwada, Mumbai -- 400 022. Shri Mrityunjay O Singh, Age 39 years, Working in Naval Dock Mumbai as HSK-I, Residing at A3, RajShree Asha SHS, Tejpal Nagari, Kalyan (East), Dist. Thane, 23. 24, 25. 26. 27. 28. 29, 30. Maharashtra -- 400 088. Shri Rajeev Kumar, Age 39 years, Working in Naval Dock Mumbai as HSK-I, Residing at 3C/04, Anand Vihar, B-Cabin Road, Ambernath-East, Dist Thane, Maharashtra-421 501. Shri 8.K. Singh, Age 45 years, Working in Naval Dock Mumbai as HSK-I, Residing at D6/503, Mandarlok Udyan CHS, Kalyan €, Dist. Thane, Maharashtra-421 306. Shri S. Behera, Age 36 years, Working in Naval Dock Mumbai as SK, Residing at C/07, NCH Colony, Powai, Kanjurmarg-West, Mumbai -- 400 078. Shri Sanjeev Kumar, Age 41 years, Working in Naval Dock Mumbai as HSK-I, Residing at 136/6, NCH Colony-Powai, Kanjurmarg-West, Mumbai -- 400078. Shri TR Panda, Age 39 years Working in Naval Dock Mumbai as HSK-I, Residing at P/9, NCH Colony, Powai, Kanjurmarg-West, Mumbai -- 400 078. Shri V.K. Nandavadekar, Age 37 years, Working in Naval Dock Mumbai as HSK-I, Residing at D/201, Nimbeswar Angan, Shukapur, New Panvel, Navi Mumbai-410206. Shri A.K. Mishra, Age 34 years, Working in Naval Dock Mumbai as SK Residing at 208, Sai Shital Apartment, Chikanipada, Kalyan (BE), Dist. Thane, Maharashtra -- 421 306. Shri BK Maurya, Age 37 years, Working in Naval Dock Mumbai as HSK-I, OA.638/2017 Residing at A/04, Ujala CHS, Sector-1, Airoli, Navi Mumbai -- 410 708. 31. 32. 33. 34. 35. 36. 37. 38. 5 OA.638/2017 Shri KM Vakode, Age 38 years, Working in Naval Dock Mumbai as HSK-I, Residing at 504/03, Shivakalpatru, Kamothe, Navi Mumbai -- 410 209. Shri AK Pathak, Age 39 years, Working in Naval Dock Mumbai as HSK-I, Residing at A/201, New Jammuna Apaftment, Tulinj Road, Nalasopara-East, Dist. Palghar, Maharashtra -- 401 209. Shri MS Wagh, Age 40 years Working in Naval Dock Mumbai as HSK-I, Residing at 106, Sai Ganesh Mahal, Vijay Nagar, Kalyan -- East, Maharashtra ~ 421 306. Shri SN Pandey, Age 38 years, Working in Naval Dock Mumbai as HSK-I, Residing at 25B/402, Abhishek Apartment, Shanti Park, Mira Road (East), Dist. Thane, Maharashtra -- 401 107. Shri Raju Kumar, Age 39 years, Working in Naval Dock Mumbai as MCM, Residing at 05/Kashi Niwas, Sector-3 LA, Vashi, Navi Mumbai -- 410 703. Shri Rajesh Chandra Joshi, Age 41 years, Working in Naval Dock Mumbai as MCM, Residing at 101/Vaishnavi Palace, Chanakya Chowk, Virar-West, Dist. Palghar, Maharashtra-401 303. Shri Mohinder Singh Dogra, Age 41 years, Working in Naval Dock Mumbai as MCM, Residing at 158/26, NCH Colony, Powai, Kanjurmarg-West, Mumbai -- 400 078. "Shri AK Pal, Age 48 years, Working in Naval Dock Mumbai as MCM, Residing at C/14, NCH Colony, Powai, Kanjurmarg -- West, Mumbai --~ 400 078. 39. Ai). 41. 6 Shri Arun Kumar, Age 28 years, Working in Naval Dock Mumbai as SK Residing at 530/08, Naval Station--Karanja, The. Uran, Dist. Raigad, Maharashtra -- 400 702. Shri R.V. Komurlekar, Age 40 years, ;. Working in Naval Dock Mumbai as HSK-I, Residing at G-727 / Arihant Aksh, Badlapur, Dist. Thane, Maharashtra -- 421 503. Shri Vijay Kumar, Age 37 years, Working in Naval Dock Mumbai as HSK-I, Residing at 004 / Sunrise Valley CHS, Kalyan, Dist. Thane, Maharashtra -- 421 306. ( By Advocate Shri V.A. Nagrani ). Versus The Union of India, through the Secretary, Govt. of India, Ministry of Defence, South Block, New Delhi-- 110011. The Secretary of Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training, North Block, New Delhi --- 110 011. The Chief of the Naval Staff, For, Director of Civilian Personnel, Integrated Headquarters, Ministry of Defence (Navy), 1* Floor, Annex Building, Talkatora Stadium, New Delhi -- 110 001. The Admiral Superintendent, Lion Gate, Naval Dockyard, _ Mumbai -- 400 023. Shri A. Mahadevan, HSK-I, Personal Number 12319L, C. No.46/EPS Department, Lion Gate, OA.638/2017 .. Applicants. 7. OA.638/2017 Naval Dockyard, Mumbai -- 400 023. 6. Shri RM Singh, HSK-IL, Personal Number 59334L, C.No.42/RAC Department, Lion Gate, Naval Dockyard, Mumbai -- 400 023. Sy aty a 7. Shri KR Passi oe Skilled, Personal Number 123191, C. No.46 / EPS Department, Lion Gate, Naval Dockyard, Mumbai -- 400 023. ... Respondents. ( By Advocate Shri R.R. Shetty ). ORDER Per : Shri Krishna, Member (A)
The applicants 41 in number have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:~ "8 4. This Hon'ble Tribunal may graciously be pleased to call for the records of order dated 27.02.2017 (Annexure A-1), order dated 15.03.2017 (Annexure A-2), promotion orders dated 29.05.2017 (Annexure A-4} and DoPT OMs dated 13.08.1997 (Annexure A-3 ), from the Respondents and after examining the same may be quashed and set aside.
8.B. This Hon'ble Tribunal may further be pleased to quash DOPT OM dated 13.08.1997 [Annexure A-5] including all promotion granted to Artisan Staff on the basis of this OM.
8.C. This Hon'ble Tribunal may further be pleased to direct the Respondents to conduct review DPCs held on or after 13.08.1997 for promotion to Artisan Staff cadre without applying reservation for SC/ST.
8.D. This Hon'ble Tribunal may further be pleased to direct the Respondents to discontinue reservation of SC/ST categories in promotion of Artisan staff and its higher cadres until the Government of India do not collect quantifiable data showing backwardness and inadequacy of representation of SC/ST class in 8 0A.638/2017 public employment in addition to compliance of Article 33).
8.E. Cost of the Applicant be provided.
8.F Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
2. Briefly stated the facts of the case are: that the applicants submitted representation on 02.02.2017 against reservation in promotion for SC/STs by relying on the judgment of Hon'ble Supreme Court in the case of M. Nagaraj. The representation was rejected by respondent no.4, Since the applicants were making repeated representations, the respondent no.4 vide email dated 15.03.2017 has directed that further no more representations will be entertained in regard to reservation in promotion. The respondent no.4 has issued panel for promotion on 29.03.2017 for the post of HSK-I by applying reservation for SC/ST categories which was followed by issue of impugned order dated 29.05.2017 by which promotion order has been issued.
3. It has been submitted that reservation of SCs and STs in promotion is illegal and in violation of Hon'ble Supreme Court's judgment in the case of M. Nagaraj. it has been submitted that -- constitutional amendment by which Article 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 compelling reasons, namely, backwardness and inadequacy of representation 9 0A.638/2017 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.
4. It was submitted that the ceiling-limit of 50%, the concept of te 4 creamy layer and the compelling reasons, damely, 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. However, in this case, as stated, the main issue concerns the "extent of reservation'.
5. It has been submitted that 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. Therefore, the promotions already given to SC/ST categories against reservation, to the grade of Artisan Staff including during DPC 2017- 18 are arbitrary and illegal liable to be set aside.
6. It has been submitted that the Hon'ble Delhi High Court | in case of All India Equality Forum and Ors. Vs. Union of India, vide judgment dated 23.08.2017 in WP (C) 3490/2010 has quashed DoPT OM dated 13.08.1997 and all the promotion granted on the basis of said DoPT OM since the Government of India has not full-
10 OA.638/2017filed the conditions defined by the Hon'ble Supreme Court in its julgment in the case of M. Nagaraj.
7 Onnotice, the respondents have filed reply affidavit and denied all the adverse averments which are not specifically admitted or denied by the respondents. It has been submitted that the 41 applicants belong to the cadre of Industrial staff. The challenge in the O.A.is to three different and distinct panels of promotions dated 29.03 2017 for Master Craftsman (MCM), Highly Skilled-I (HSK-D), Highly Skilled-Il (HSK-IT) of Industrial staff in different grade for approximately 750 posts, promotion orders dated 29.05.2017 for HSK-I, HSK-II grades. Therefore, the O.A:
is clearly in violation of Rule 10 of the CAT (Procedure) Rules, 1987 and deserves to be dismissed on the grounds of seeking multiple reliefs.
8 It has been submitted that it is clear from the promotion panel of above Industrial staff grades given at page 21 to page 41 of the OA and . their promotion orders are mentioned at page 42 to page 52 of the OA that the 41 applicants are totally differently situated in their grade, seniority, qualifying service in the feeder grade etc. There is nothing common in them except reservation and the judgment in the M. Nagaraj's case. Therefore, M.A.600/2017 for joint application should not be allowed. It has been further submitted that the applicants are challenging DoPT OM dated 13.08.1997, which is hit by delay and laches.
Wo OA.638/20179. It has been submitted that the contention of the applicants that the reserved categories have occupied more posts than their fixed quota at higher levels by obliterating employees of general category is based on assumptions/speculations. It has been submitted that it can be clearly seen from the table that the representation is ' way below the stipulated percentage decided by the Government of India. It has been submitted that the reading of Hon'ble Supreme Court's judgment in the case of E.k Chinnaiah and Indra Sawhney clearly brings that the test of backwardness is not required for SC/STs who have been mentioned as a separate category as declared so by a Presidential List as per Article 341 and 342 of Constitution.
10. thas been submitted that the compelling reasons as brought out in the M. Nagaraj's case is being met in the Naval Dockyard, Mumbai where the applicants are working. It has been submitted that the judgment of the Hon' ble Delhi High Court in All India Equality Forum was challenged in the Hon'ble Supreme Court in SLP No.31288 of 2017 and the decision of Hon'ble High Court of Delhi has been considered by the Hon'ble Apex Court in the case of Jarnail Singh and Others Vs. Lachhmi Narain Gupta and Others, 2022 (10) SCC 595.
11. The respondents have placed reliance on the decision of Hon'ble Supreme Court in the case of State of Tripura & Ors. Vs. Jayanta Chakraborty & Ors. decided on 14.11.2017 and in the case of EK {2 OA.638/2017 Chinnaiah Vs. State of Andhra Pradesh and Ors. decided on 05.11.2004.
12. The applicants have filed rejoinder reiterating the submissions made inQ.A. The respondents in turn have filed reply to the rejoinder reiterating the arguments submitted in their reply affidavit. The respondents have further relied on the following documents and judgments:
(i) Copy of Constitutional Amendments with regard to Reservation in Promotion.
(ii) Copy of the Reservation in promotion -- Note on judgments.
(iii) Copy of the judgment of the Hon'ble Supreme Court in the case of RK. Sabharwal & Ors. Vs. State of Punjab & Ors. (1995) 2 SCC Page 745,
(iv) Copy of the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors. (1 995) 6 SCC Page 684.
(v) Copy of judgment of the Hon'ble Supreme Court in the case of Ajit --
Singh Januja & Ors. Vs. State of Punjab & Ors. (1 996) 2 SCC Page
715.
(vi) Copy of the judgment of the Hon'ble Supreme Court in the case of Ajit Singh & Ors. Vs. State of Punjab & Ors. (J 997) 7 SCC page 209.
(vii) Copy of the judgment of the Hon'ble Supreme Court in the case of M. Nagaraj Vs. Union of India & Ors. (2006) 8 SCC Page 212.
(viii) Copy of the judgment of the Hon'ble Supreme Court in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. (2018) 10 SCC Page 396 (hereinafter referred to as Jarnail Singh-D)
(ix) Copy of the judgment of the Hon'ble Supreme Court in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. (2022) 10 SCC Page 595 (hereinafter referred to as Jarnail Singh-ID)
13. During the course of arguments, Mr. Nagrani, counsel for the applicants has submitted that the data given in the table produced by the respondents is not supported by the documents as to how it has been computed and how it has been arrived at. He submitted that the impugned promotion order which was issued in 2017 cannot be justified by the 13 OA.638/2017 quantifiable data being produced now. He submitted his own data in respect of Artisan Staff (Industrial Staff) showing representation of SCs/STs as on 01.01.2024 and claimed that there is excess representation. | However, he has not been able to produce any data as on the date of impugned promotion order. -
14. The learned counsel for the respondents, Mr. Shetty has again submitted that the table showing sanctioned strength, working strength and percentage of reservation was submitted in reply affidavit itself which was submitted on 09.03.2018 and the table showing details of sanctioned strength, working strength and percentage of SC/ST recruited in reserved quota is available on page 80 of reply affidavit submitted on 09.03.2018. He submitted that the respondents have meticulously maintained the roster in accordance with the judgment of Constitution Bench of Hon'ble Apex Court in the case of R.K. Sabharwal (supra) and, therefore, the impugned orders were passed in accordance with the judgments of Hon' ble Supreme Court. He submitted that it is only reiterating what is part of reply affidavit and which has not been controverted by the applicants in their rej oinder. He submitted that the claim of Mr. Nagrani, counsel for applicants is not correct as he has not given any documentary evidence or basis for his data which he has claimed to be as on 01.01.2024 whereas the impugned order was issued on 27.02.2017, 15.03.2017 and 29.05.2017. He submitted that 14 OA.638/2017 is meticulously maintained by the respondents as per the mandate of Constitution Bench of Hon'ble Supreme Court in the case of RK. Sabharwal (supta). He further submitted that the learned counsel for the applicant is not correct in his claim as he has not given the bifurcation as fle + et to how many reserved category candidates have come on their own merit which ought to have been excluded and only those who have come through reservation quota ought to have been inchided for the purpose of arriving at vepresentation in the reserved quota as per the judgment of Hon'ble
- Supreme Court in Jarnail Singh -II wherein the Hon'ble Supreme Court has held in paras 18 to 20 as under:
18. Seniority of Superintending Engineers in the Irrigation Department of the State of Punjab was the subject matter of a writ petition filed under Article 32 of the Constitution of India in R.K. Sabharwal & Ors. v. State of Punjab & Ors., (1995) 2 SCC 745. The relevant instructions issued by the State of Punjab provided for 14 per cent reservation for SCs.
Two points came up for consideration before this Court in the said judgment, the first being that in case more than 14 per cent of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority. then the purpose of reservation having been achieved in the said cadre, the Government instructions providing reservations would become inoperative. The second point on which arguments were heard is that roster cannot operate once the posts earmarked for the SCs, STs and Backward Classes are filled. Any post falling vacant in a cadre, thereafter, is to be filled from the category - reserved or general due to retirement etc. of whose member the post fell vacant.
19. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working 15 OA.638/2017 out the percentage of reservation. This Court was of the opinion that Article 16(4) of the Constitution of India enables the State Government to make provision for reservation in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services. The percentage of posts reserved for Backward Classes, as prescribed by the State, has to be strictly followed and cannot be varied or changed simply because some members of the Backward Class have already been appointed/promoted against the general seats.
20. The second point relates to the implementation of the roster in the form of "running account" year to year. Roster points were fixed in a lot of 100 posts. This Court held that once 14% posts earmarked in the roster are filled up, the result envisaged by the instructions is achieved. Thereafter, there is no justification for operating the roster. This Court observed that the "running account" is to operate only till the quota provided by the instructions is reached and not thereafter, The vacancies arising in the cadre, after the initial posts are filled, will have to be filled from amongst the category to which the post belonged in the roster."
The respondents have also produced the original record of the proceedings and the roster register to support their decision.
15. Mr. Shetty heavily relied on the judgment of Hon'ble Supreme Court in the case of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors. reported in (2022) I 0 SCC, 595, (hereinafter referred to as Jarnail Singh-II) and submits that as per the judgment of 9 Judges Bench in the case of Indra Sawhney (Supra), the backwardness of SC/STs is proved when they are included in the list under Article 341 and 342 of the Constitution. He took us through various paragraphs of judgment in Jarnail Singh decided by Three-Judge Bench on 28.01.2022 to support the arguments that impugned promotion orders are perfectly legal and have 16 0A.638/2017 been passed in accordance with the directions contained in the OMs of DoPT and various judgments of Hon'ble Supreme Court.
16. The respondents have submitted that the issue in question in the present OA happens to be challenge afforded by the applicants for grant of reservation in promotion in respect of filling up vacancies from the post of Tradesman Skilled' to "HSK-II' and 'HSK-IT' to HSK-I vide promotion order dated 29.05.2017. Representation of SC/ST employees in various grades of the Artisan Staffis at page 80 of the Paperbook (Annexure R-2). After perusing the same, this Tribunal has directed to bring clear evidence as to the number of vacancies available, the cadre strength and the no. of officials from the SC/ST and General category who have come to the posts on the relevant date. |
17. The respondents have accordingly submitted the affidavit in order to demonstrate that the sanctioned strength of HSK-I as on 01.01.2017 was 1421 out of which 213 posts were to go to the SCs at 15% reservation and 106 posts were to go to the STs at 7.5% reservation, whereas 1102 have to go to the General or unreserved (UR). The respondents further submitted that as on 01.01.2017, the officials in position were only 1178 out of which 96 were SCs consequently resulted in a shortfall of 117 and only 07 were STs 'consequently resulted in a shortfall of 99, whereas in the General category out of 1102, 1074 posts were occupied and hence the number of vacancies available were only 28 in UR.
Be 7 17 OA.638/2017
18. The respondents have further submitted that the posts filled are in consonance with the law laid down by the 3-Judge Bench of Hon'ble Apex Court rendered on 28.01.2022 in the case of Jarnail Singh Vs. Lachhmi Narain Gupta, (2022) 10 SCC 595. The said judgment has been accepted by the Government of India and imiplemented by issuing DoPT OM No.36012/16/2019-Estt. (Res) dated 12.04.2022 by which reservation in promotion has been continued in accordance with the judgments of Hon'ble Apex Court. The same therefore does not warrant any interference at the hands of this Tribunal. The respondents are also additionally bringing to the notice of this Tribunal that a similar issue relating to grant of reservation in promotion in the office of the Pri. Chief Security Commissioner, Central & Western Railway came up before the Hon'ble High Court, Bombay in Writ Petition No.1305 of 2023 and the same by way of an interim order dated 23.01 .2024, wherein it was directed by the Hon'ble High Court that the respondents are permitted to issue orders pursuant to DPCs that have been conducted by them with a simple rider that the said promotions will be treated as provisional and reviewed subject to pending litigation.
19. The details of review DPC for promotion from HSK-II to HSK-I for the year 2017-18 and from Skilled to HSK-II for the year 2017-2018 are as follows:
fia = & %, 18 OA.638/2017 SC/ST DATA OF HSK-I GRADE:- AS ON 01/01/2017 Total jSC (SC% ST ST% UR/ |GEN% Representation Representation | GEN | Representation Sanctioned 1421 [213) 15 106 | 75 ta 715 strength Borne strength as 1178 | 96 6.7 7 0.5 1074 755 on 01.01.2017 &| dee .
Representation % against sanction (1421) strength Vacancies as on 117 99 28 }01.01.2017 Note: Data given above includes all SC/STs employees promoted in the grade of USK-I irrespective of whether they are promoted against reserved or unreserved vacancies. There is no direct recruitment in the grade of HSK-I and feeder post of HSK-I is HSK-I. REVIEW DPC FOR PROMOTION FROM 'HIGHLY SKILLED (HSK)-II' TO 'SHK-P FOR THE YEAR 2017-2018 AVAILABLE |PROMOTED |EMPLOYEE 179 80 All 80 nos. SC employees promoted in 2017-18 have been adjusted against the 179 reserved SC vacancies irrespective "| CATEGORY VACANCIES |CANDIDATES |FILLED BY WHICH CATEGORY sc whether they availed relaxation or not.
ST 103 19 All 19 nos. ST employees promoted in 2017-18 have been adjusted against the 103 reserved ST vacancies irrespective of whether they availed relaxation or not.
a General 279 279 Only 279 nos. General category employees have been promoted and adjusted against the 279 UR vacancies.
No reserved category employee has been included in the 279 UR vacancies.
TOTAL 561 378 ;
19O0A.638/2017 REVIEW DPC FOR PROMOTION FROM 'TRADESMAN SKILLED' TO 'HSK-II' FOR THE YEAR 2017-18 CATEGORY VACANCIES AVAILABLE CANDIDATES PROMOTED FILLED BY WHICH CATEGORY] EMPLOYEE SC 170 24 All 24 nos. SC employees promoted in 2017-18 have been adjusted against the
170. teserved SC vacancies irrespective of whether they availed relaxation or not.
ST 98 Ali 05 nos. ST employees promoted in 2017-18 have been adjusted against the 98 reserved ST vacancies irrespective of whether they availed relaxation or not.
General 764 123 Only 123 nos. General category employees have been promoted and adjusted against the 764 UR vacancies.
No reserved category employee has been included in the 764 UR vacancies.
TOTAL 1032 152
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26. The respondents submitted that the said order was passed in consonance with the judgment of the Hon'ble Apex Court in the case of Jarnail Singh and Others Vs. Lachhmi Narain Gupta and Others, (2022) 10 SCC 595. The respondents, therefore, prayed that the OA be dismissed as being completely devoid of merits since reservation in promotion has been rightly granted in consonance with the latest judgment of the Hon'ble Apex Court.
21. We have heard the learned counsel for both the parties at length and perused the pleadings and documents filed on record and have also gone through the various judicial pronouncements relied upon by the parties. ©
22. We find that the reservation in the matters of promotion is provided under the scheme of the Constitution of India. Prior to the decision in Indra Sawhney v. Union of India( 1992 Supp. (3) SCC 217), it was provided 20 OA.638/2017 through Article 16 (4) of the Constitution, but in Jndra Sawhney it was held that it is not permissible under Article 16 (4) but it was allowed to continue to provide reservation in the matters of promotion for a period of five years from the date of the decision in Indra Sawhney v. Union of ie India, ie. 16° November 1992 and upto I sth November 1997, as the reservation in promotion was in existence prior to the decision in the case of Indra Sawhney. In the meantime, the Constitution Bench on 10.02.1995 in the case of R. K. Sabharwal v. State of Punjab (1995 (2) SCC
745.), has held that reservation in public employment be enforced on the basis of Post based reservation roster instead of vacancy-based roster, and the reserved categories candidates who are appointed or promoted on the general standard, should not be counted for the purpose of computation of percentage of reservation as under:
"4, When a percentage of reservation is fixed in respect of a partic- ular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates be- longing to the general category are not entitled to be considered for the reserve posts. On the other hand, the reserve category candi- dates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of ap- pointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take 21 0A.638/2017 the total population of a particular backward class and its repre- sentation in the State Services. When the State Government, after doing the necessary exercise, makes the reservation and provides the extent of percentage of posts to be reserved for the said back- ward class then the percentage has to be followed strictly. The pre- scribed percentage cannot be varied or changed simply because some of the members of the backward class have already been ap- pointed/promoted against the general seatsicAs mentioned above, the roster point which is reserved for a backward class has to be filled by way of appointment/ promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed / promoted against general seats in the State Ser- vices may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ Rules providing certain percentage of reserva- tions for the backward classes are operative the same have to be followed. Despite any number of appointments/ promotees belong- ing to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.
(Emphasis supplied)
33. The Parliament in its constituent power under Art. 368 of the Con-
stitution, has removed the basis of Indra Sawhney v UOT (1992 SUPP. (3) SCC 217), on 17.06.1995, by insertion of clause (4-A) by Section 2 of the Constitution (77 Amendment) Act, 1995, and further amended clause (4-A) clause (4-A) by the Constitution (85 Amendment) Act, 2002 with retrospective effect from 17.06.1995, with the following Objects and reasons:
"The Government servants belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of consequential sen-22 OA.638/2017
iority on their promotion on the basis of rule of reservation. The judg- ments of the Supreme Court in the case of Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh Januja (No.1) v. State of Punjab AIR 1996 SC 1189, which led to the issue of the O.M. dated 30 January, 1997, have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. This has led to considerable arxiety and representations have also been received from various quatters including Members of Parliament to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes.
The Government has reviewed the position in the light of views re- ceived from various quarters and in order to protect the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes, it has been decided to negate the effect of O.M. dated 30" Jan- uary 1997 immediately. Mere withdrawal of the O.M. dated 30% will not meet the desired purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Gov- ernment servants will also be necessary. This will require amendment to Article 16(4A) of the Constitution to provide for consequential sen- jority in the case of promotion by virtue of rule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to Article 16(4-A) with effect from the date of coming into force of Article 16(4-A) itself, that is, from the 17" day of June 1995."
Therefore, with the above objective to remove the basis.of the decisions in UOI v. Virpal Singh Chauhan (1995) 6 SCC 684, and Ajit Singh Ja- nuja v. State of Punjab, the Constitution (85" Amendment) Act, 2001 has been enacted with retrospective effect from 17.06.1995. Article 16(4-A) as it stands after the Constitution ( 85" Amendment) reads as under:
{(4-A) Nothing in this Article shall prevent the State from making any provision for reservation in the matters of promotion' [with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Cates and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.] 1 Subs by the Constitution (35 Amendment) Act, 2001, Section 2 (w.re.f. 17.6.1995).23 OA.638/2017
23.1. The President has given his assent on 04.01 .2002 and Art.16 (4- A) has been enforced by the DOPT by issuing of OM No.20011/1/2001-Estt.(D) dated 21.01.2002, which is extracted here as under:
"3. The Government have now decidedito negate the effects of the DOP&T OM dated 30" January 1997 by amending Article 16(4A) of the Constitution right from the date of its inclusion in the Constitution i.e. 17 June 1995, with a view to allow the Government servants belonging to SCs/ STs to retain the seniority in the case of promotion by virtue of rule of reservation. In other words, the candidates belonging to general/OBC category promoted later will be placed junior to the SC/ST Government servants promoted earlier even though by virtue of the rule of reservation.
4. Therefore, in pursuance of the aforementioned --
Constitution (Eighty-fifth) Amendment Act, 2001, it has been decided as follows:
(i) (a) SC/ST Government servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequeniial seniority also; and
(b) the above decision shall be effective from 17" June 1995.
(ii) The instructions contained in DOPT O.M. No.20011/1/96-
Estt. (D) dated 30.1.1997 as well as the clarifications contained in DOPT O.M.No.20011 /2/97-Estt. (D) dated 21.3.1997 shall stand withdrawn w.ef, 30.1.1997 itself.
(iii) Seniority of Government servants determined in the light of O.M. dated 30.1.1997 shall be revised as if that O.M. was never issued.
(iv) (a) On the basis of the revised seniority, consequential benefits like promotion, pay, pension, etc. Should be allowed to the concerned SC/ST Government servants (but without arrears by applying principle of 'no work no pay').
(b) For this purpose, senior SC/ST Government servants may be granted promotion with effect from the date of promotion of their immediate junior general/OBC Government servants.
(c) Such promotion of SC/ST Government servant may be ordered with the approval of Appointing Authority of the post to which the Government servant is to be promoted at each level after following normal procedure of DPC (including consultation with UPSC).
(v) Except seniority other consequential benefits like promotion, pay etc. (including retiral benefits in respect of those who 24 OA.638/2017 have already retired) allowed to general/OBC Government servant by virtue of implementation of O.M. dated 30.1,1997 and/or in pursuance of the directions of CAT/Court should be protected as personal to them."
Thus, the amended provisions of clause (4A) of Article 16 of the Constitu-
tion with retrospective effect from 17.06.1995 has removed the basis of f Ge, decision in the case of Union of India v. Virpal Singh Chauhan 1995 (6) SCC 684 and Ajit Singh-I v. State of Punjab, 1999 (7) SCC 209, and consequently, enforced the mandate of the decision in Jagdish Lal v. State of Haryana, 1997(6)SCC 538. Therefore, application of regain and catch-up of seniority became contrary to the scheme of the Constitution.
24. Further, The Parliament enacted Article 16(4-B) by the Constitu- tion (81** Amendment) Act, 2000 with the objectives to remove the basis of the judgment by the Supreme Court of India in Indra Sawhney v. Union of India(supra) which held that the 'number of vacancies to be filled up on the basis of reservations in a year including carried forward reserva- tions should in no case exceed the limit of fifty per cent' and therefore to remove that conditions for backlog vacancies, the provisions of the Con- stitution (81 Amendment) Act, 2000 was inserted as under:
" 1(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.] "25 OA.638/2017
25. The Hon'ble Supreme Court in M. Nagaraj v. Union of India, 2006 (8) SCC 212, upheld the Constitutional validity of the Constitution (77, 815, 82° and 85" Amendments) Acts. The relevant extracts are as under: P "79. Reading the above judgments, we are of the view that the concept of 'catch-up' rule and 'consequential seniority' are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty ete.
It cannot be said that by insertion of the concept of 'consequential seniority' the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that the 'equality code' under Article 14, 15 and 16 is violated by deletion of the 'catch-up' rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the 'catch-up! rule nor the concept of 'consequential seniority' are implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan"
The Constitution Bench of the Hon'ble supreme Court in the case of M. Nagaraj v. Union of India (supra) has upheld the validity of above Constitutional Amendments providing for reservation in promotion with consequential seniority subject to compliance of certain conditions namely collection of quantifiable data about backwardness, quantifiable data about inadequacy of representation, in addition to compliance with Article 335 of the Constitution of India. Therefore, reservation in promotion with consequential seniority has withstood the test of judicial scrutiny.
26. Hon'ble Delhi High Court in the case of All India Equality 26 OA.638/2017 Forum(supra) has quashed and set aside the DOPT OM dated 13.08.1997 as quantifiable data was not collected which does not appear to be the case here. The decision of the Hon'ble High Court was challenged in the Hon'ble Supreme Court by way of SLP No.31288 of 2017 and SLPs(C)No.1332, 1336 and 1338 of 2022 and the same was tagged with SLP in the case of Jarnail Singh v. Lachhmi Narain Gupta. The Constitution Bench of the Hon'ble supreme Court in the case of Jarnail Singh v. Lachhmi Narain Gupta, [reported as 2018(10) SCC 396] has considered the issues involved in the M. Nagaraj Case (2006 (8) SCC
212) in SLP (C) No.30621 of 2011 and has passed the following order dated 26.09.2018:
"36. Thus, we conclude that the judgment in M. Nagaraj v. Union of India, 2006 (8) SCC 212, does not need to be referred to a Seven--Judge Bench. However, the conclusion in the M. Nagaraj v. Union of India (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-judge bench in Indira Sawhney v. Union of India, [1992 Supp. (3) SCC 217] is held to be invalid to this extent."
27. After the decision by the Constitution Bench in Jarnail Singh 7 Lachhmi Narain Gupta-I(supra), the decision in M. Nagaraj Case (supra) has been further clarified by a Three-Judge Bench of Hon'ble Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta in SLP No(s).30621/2011 vide judgment dated 28.012022 (2022) 10 SCC 595 (hereinafter referred to as Jarnail Singh-II) and has held that the judgment in case of M. Nagaraj will have prospective operation by 27 O0A.638/2017 declaring in para 62 of the judgment as under:
"62. This Court in Golak Nath (supra) and Ashok Kumar Gupta (supra), referred to above, has laid down that Article 142 empowers this Court to mould the relief to do complete justice. To conclude this point, the purpose of holding that M. Nagaraj (supra) would have prospective effect is only to avoid chaos and confusion that woulé ensue from its retrospective operation, as it would 'have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj(supra). Most of them would have already retired from service on attaining the age of superannuation. The judgement of M. Nagaraj (supra) was delivered in 2006, interpreting Article 14(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagaraj (supra) should be declared to have prospective effect." (Emphasis supplied).
It is this direction of giving prospective effect to M. Nagaraj judgment with effect from 19.10.2006 which leaves us with no other option but to examine the process followed by the respondents in 2017 and thereafter (being post 19.10.2006). On doing so, we found that the reservation in promotion granted in the impugned DPCs are well within the parameters laid down by the Hon'ble Apex Court in Jarnail Singh (ID).
28. The Three Judge Bench of Hon'ble Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta, (2022) 10 SCC 595 has further held that the determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the 28 OA.638/2017 determination depends upon myriad factors which this court can not envisage in para 17 of the judgment as under:
"17 Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage. A conséious decision was taken by this Court in M. Nagaraj (supra) and Jarnail Singh (supra) to leave it to the States to fix the ertterta for determining inadequacy of representation. The submission of the learned Attorney General for India that this Court has to lay down the yardstick for measuring adequacy of representation did not yield a favourable result as this Court in Jarnail Singh (supra) found it befitting for the States to have the liberty to evaluate the representation of SCs and STs in public employment. Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments. In addition, the prevailing local conditions, which may require to be factored in, might not be uniform. Moreover, in M. Nagaraj (supra), this Court made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data. Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation."
(Emphasis supplied).
29, The Hon'ble Apex Court in para 19 has held that the reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. The above referred para 19 is extracted on the next page for ready reference.
29 OA.638/201730. The Hon'ble Supreme Court in Jarnail Singh (ID) has further held that unit for collecting quantifiable data is cadre. Paras 18 to 21 are extracted hereinunder as follows:
"18. Seniority of Superintending Engineers in the Irrigation Department of the State of Punjab was the subject matter of a writ petition filed under Article 32 of the Constitution of India in R.K. Sabharwal & Ors. v. State of Punjab & Ors., (1 995) 2 SCC 745, The relevant instructions issued by the State of Punjab provided for 14 per cent reservation for SCs. Two points came up for consideration before this Court in the said judgment, the first being that in case more than 14 per cent of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority. then the purpose of reservation having been achieved in the said cadre, the Government instructions providing reservations would become inoperative.
The second point on which arguments were heard is that roster cannot operate once the posts earmarked for the SCs, STs and Backward Classes are filled. Any post falling vacant in a cadre, thereafter, is to be filled from the category - reserved or general due to retirement etc. of whose member the post fell vacant.
19. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. This Court was of the opinion that Article 16(4 ) of the Constitution of India enables the State Government to make provision for reservation in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services. The percentage of posts reserved for Backward Classes, as prescribed by the State, has to be strictly followed and cannot be varied or changed simply because some members of the Backward Class have already been appointed/promoted against the general seats.
(Emphasis supplied] title, 30 0A.638/2017
20. The second point relates to the implementation of the roster in the form of "running account" year to year. Roster points were fixed in a lot of 100 posts. This Court held that once 14 per cent posts earmarked in the roster are filled up, the result envisaged by the instructions is achieved. Thereafter, there is no justification for operating the roster. This Court observed that the "running account" is to operate only till the quota provided bythe instructions is reached and not thereafter. The vacancies arising in the cadre, after the initial posts are filled, will have to be filled from amongst the category to which the post belonged in the roster.
21. In M. Nagaraj (supra), this Court observed that the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Cadre strength as a unit also ensures that the upper ceiling limit of 50 per cent is not violated. Following the law laid down in R.K. Sabharwal (supra), this Court in M. Nagaraj (supra) further held that the roster has to be post- specifie and not vacancy based."
31. The Three-Judge Bench of Hon'ble Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta-H (supra) has further held that for the purpose of collection of quantifiable data for providing reservation in promotions, the entire service can not be taken to be a unit and treated as a cadre. In this regard, Paras 67, 68 and 69 of the judgment are extracted here as under:
"67. Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this court in M. Nagaraj (supra). The unit for the purpose of collection of data is a cadre, according to M. Nagaraj (supra) and Jarnail Singh (supra). For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated. The 31 -- 0A.638/2017 structure of services in the State of Karnataka is along the same lines as that of services in the Central Government. Services are divided into 'groups', which are further bifurcated into cadres. There is no confusion that a cadre is not synonymous with a 'group'.
68. The first term of reference for the Ratna Prabha Committee was to collect data cadre-wise. The conclusion of this Court in BLK. Pavitra IT (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 WUl(supra). Article 14(4-A) of the Constitution enables the State to make reservation in promotions for SCs and STs, which are not adequately represented in the services of the State. However, the provision for reservation in matters of promotion is with reference to class or classes of posts in the services under the State. That 'groups' consist of cadres is a fact which was taken into consideration by this Court in B.K. Pavitra 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)
69. The State should justify reservation in promotions with respect to the cadre to which promation 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 Il(supra) approving the collection of data on the basis of 'groups' and
32 0A.638/2017 not cadres is contrary to the law laid down by this Court in M. Nagaraj (supra) and Jarnail Singh (supra)."
(Emphasis supplied).
32. We find that a Three-Judge Bench of Hon'ble Supreme Court in the case of Saurav Yadav and others v. State of Uttar Pradesh and others (2021) dee 4 SCC $42) also has considered the issue of reservation and appointment of reserved category candidates in open category and has held as under:
"21.4. In Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007) 8 SCC 785, a Bench of three Judges of this Court considered the difference between vertical and horizontal reservation as under: (SCC pp.790-92, paras 8-11) "8 We may also refer to two related aspects before considering the facts of this case. The first is about description of horizontal reservation. For example, if there are 200 vacancies and 135% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: " For SC: 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus: For SV:21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of 'male' or 'men'. |
9. The second relates to the difference between the nature of vertical reservation and. horizontal reservation. Social reservation, in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc. under Article 16(1) or 15(3) are "horizontal reservations". Where a_ vertical . reservation is made in favour of a Backward Class under Article 16(4) the candidate belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and 33 OA.638/2017 available in addition to those selected under open competition category.( Vide Indra Sahney v. Union of India 1992 Supp.(3) SCC 217, R.K. Sabharwal v. State of Punjab 1995 SCC(L&S) 548, Union of India v. Virpal Singh Chauhan 1996 SCC(L&S) 1, and Ritesh R.Sah v. Y.L. Yamu (19960 3 SCC 253)."
(Emphasis supplied)
33. The Hon'ble Supreme Court in the case of Saurav Yadav and Others Vs. State of Uttar Pradesh and Others (supra) has further held that candidates belonging to the reserved categories are entitled to be selected in open category is well settled. It has been held that such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. The Hon'ble Supreme Court has referred to earlier decisions in the case of Indra Sawhney (supra), R.K. Sabharwal (supra) and constitution bench decision in the case of VV. Giri vs. D. Susi Dora, (1960) 1 SCR -
426. Para 26 of the judgment is extracted herein as under:
"26. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in "Open or General Category" is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from the extracts from the decisions of this Court in Indra Sawhney(supra) and R.K. Sabharwal(supra) the observations by the Constitution Bench of this Court in VV. Giri v. D. Susi Dora(supra), though in the context of election law, are quite noteworthy: (AIR pp. 1326-27, paras 21-22) :
34 0A.638/2017 "21. ....dn our opinion, the true position is that a member of a Scheduled Caste or Tribe does not forego his right to seek election to the general seat merely because he avails himself of the additional concession of the reserved seat by making the prescribed declaration for that purpose. The claim of eligibility for the reserved seat does not exclude the claim for the general seat; it is an additional claim; and both the claims have to be decided on the basis*that there is one election from the double-Member constituency.
22. In this connection we may refer by way of analogy to the provisions made in some educational institutions and universities whereby in addition to the prizes and scholarships awarded on general competition amongst all the candidates, some prizes and scholarships are reserved for candidates belonging to backward communities. In such cases, though the backward candidates may try for the reserved prizes and scholarships, they are not precluded from claiming the general prizes and scholarships by competition with the rest of the candidates."
(Emphasis supplied)
34. We find that recently, the Hon'ble Supreme Court in its judgment date 01.05.2024 in the case of Deependra Yadav & Others v. State of Madhya Pradesh & others in SLP(C) No.5817 of 2023 with SLP(C) No. 23514 of 2023 & SLP(C) No. 27620 of 2023 in para Nos. 31 and 32 has held as under:
"31. In Sauray Yadav and others y. State of U.P and others((2021) 4 SCC 542), a 3-Judge Bench of this Court affirmed the principle that candidates belonging to any of the vertical reservation categories would be entitled to be selected in the 'open category' and if such candidates belonging to reservation categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories of vertical reservation that they belong to. It was further observed that reservations, both vertical and horizontal, are methods of ensuring representation in public services and these are not to be seen as rigid 'slots', where a candidate's merit, which otherwise entitles him to be shown in the open general category, is foreclosed. The Bench further observed that the 'open category' is open to all and the only condition for 35 OA.638/2017 a candidate to be shown in it is merit, regardless of whether reservation benefit of either type was available to him or her.
32. This being the settled legal position, it appears that the State of Madhya Pradesh itself realized the harm that it was doing to the reservation category candidates and chose to restore Rule 4, as it stood earlier, which enabled drawing up the result of the preliminary examination by segregating deserving meritorious reservation category candidates with meritorious unreserved category candidates at the prelimindgy examination stage itself. As this was the process that was undertaken after the judgment in Kishor Choudhary (supra), whereby a greater number of reservation category candidates cleared the preliminary examination and were held eligible to appear in the main examination, there can be no dispute with the legality and validity of such process". [Emphasis supplied]
35. The above decisions of the Hon'ble Supreme Court makes it clear that it has been consistent view of Hon'ble Supreme Court right from the case of VV. Giri (supra) decided in the year 1960 to R.K. Sabharwal (supra) decided in the year 1995 by the Constitution Bench, Saurav Yadav decided in 2021 and Jarnail Singh-IT decided in 2022 both 3- Judges bench judgments and the latest decision dated 01.05.2024 in the case of Deependra Yadav (supra) that open category is open to all and those SC and ST candidates who compete on their own merit cannot be counted against reservation quota.
36. We find that Article 12 of the Constitution of India defines "the State" as under:
"Art.12. In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India' Thus, it is clear that the State does not mean the State Government alone but includes the Government of India and its instrumentalities. Therefore, 36 0OA.638/2017 the respondents are also the State within definition of Article 12 and the data about inadequacy of representation in each cadre under them can be collected by the respondents.
37. In the light of the above judicial pronouncements of the Hon'ble
--
a Supreme Court, we find that the sanctioned strength of HSK-I as on 01.01.2017 was 1421 out of which 213 posts were to go to the SCs at 15% reservation and 106 posts were to go to the STs at 7.5% reservation, whereas 1102 were to go to the General or unreserved (UR). We find that as on 01.01.2017, out of 213 posts meant for SCs, only 96 SCs were in position which is only 6.7% as against quota of 15% resulting in a shortfall of 117 and only 07 STs were in position which is only 0.5 % as against quota of 7.5% resulting in a shortfall of 99, whereas in the General category out of 1102, 1074 posts were occupied and hence the number of vacancies available were only 28 in UR. In the case of HSK-II, there were 179 vacancies for SCs and against these vacancies, only 80 candidates belonging to SC category were promoted. In the case of STs, there were 103 vacancies and only 19 were promoted. Thus, both SCs and STs were promoted against the vacancies earmarked for them as per the roster maintained by the respondents in accordance with the mandate of Hon'ble Supreme Court in R. K. Sabharwal v. State of Punjab (1995 (2) SCC 745.). The analysis of data submitted by the respondents clearly demonstrates _ that they have collected quantifiable data regarding inadequacy of 37 OA.638/2017 representation of SC/ST candidates in each cadre and there was shortfall of their representation even after the impugned order of promotion.
38. We cannot loose the sight of the fact that the reservation in promotion has through out been granted by the respondents Union of India dale eservation roster and not in an arbitrary manner. Since as per the f rendering of judgment by Hon'ble Supreme Court in R.K. Sabharwal (supra), if appointment or promotion is granted to reserved category candidates on general merit, such a candidate cannot be counted as a case of reservation. This principle has since been followed by the Three-Judge Bench in Jarnail Singh -H. Para 21 is relevant and re-extracted herein as under:
«91, In M. Nagaraj (supra), this Court observed that the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Cadre strength as a unit also ensures that the upper ceiling limit of 50 per cent is not violated. Following the law laid down in R.K. Sabharwal (supra), this Court in M. Nagaraj (supra) further held that the roster has to be post- specific and not vacancy based."
This is the logical reasoning for reservation not having been exceeded by ie respondents even in 2017.
The Hon'ble Supreme Court in the case of BK. Pavitra and Others Union of India and others, (2019) 16 SCC 129 while considering the fF reservation has held that "The Constitution is a transformative nt. The realization of its transformative potential rests ultimately ity to breathe life and meaning into its abstract concepts. For, j 38 OA.638/2017 above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression of and discrimination against the marginalised.". (Emphasis supplied) ee
40. inthe context of reservation, the Hor'ble Apex Court referred to their earlier decision in T. Devadasan Vs. union of India, AIR 1964 SC 179 wherein it was held that "The expression "nothing in this article" is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls 'outside it, It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article." [Emphasis supplied] Further more, referring to the subsequent decision in the case of State of Kerala Vs. N.M. Thomas, (1976) 2 SCC 310, wherein it was held that «If equality of opportunity guaranteed under Article 16(1) means effective material equality, then "Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz. even up to the point of making reservation." (Emphasis supplied)
41. Thereafter, the Hon'ble Supreme Court has discussed the issue of efficiency in administration. Paras 123 to 129 of the decision in case of B.K. Pavitra -- II(supra) is extracted herein as under.-39 OA.638/2017
"G. Efficiency in administration
123. Critics of affirmative action programmes in government services argue that such programmes adversely impact the overall competence or "efficiency" of government administration. Critics contend that the only method to ensure "efficiency" in the administration of Government is to use a "merit" based approach whereby candidates that fulfil more, seemingly "neutral", criteria than "others are given opportunities in government services. The constitutional justification for this "efficiency" argument is centred around Article 335:
"335, Claims of Scheduled Castes and Scheduled Tribes to services and posts.- The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the- Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."
The proviso was inserted by the Constitution (Eighty-second Amendment) Act, 2000.
124. The substantive part of Article 335 contains a mandate: a requirement to take into consideration the claims of SCs and STs in making appointments to services and posts in connection with the affairs of the Union or of a State. Consideration is much broader in its ambit than reservation. The consideration of their claims to appointment is to be in a manner consistent with maintaining the efficiency of administration. The proviso specifically protects provisions in favour of the SCs and STs for:
(i) relaxing qualifying marks in an examination; (ti) lowering the standards of evaluation; or (iii) reservation in matters of promotion. Reservation is encompassed within the special provision but the universe of the latter is wider.
125. The proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field. Centuries of discrimination 40 0A.638/2017 and prejudice suffered by the SCs and STs in a feudal, caste- oriented societal structure poses real barriers of access to opportunity, The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory. The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority'of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the States. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs. [Emphasis supplied]
126. The Constitution does not define what the framers meant by the phrase "efficiency of administration". Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency ts grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is Al OA.638/2017 founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognises-@overnance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well-governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State.
[Emphasis supplied]
127. This part of the philosophy of the Constitution was emphasised in a powerful exposition contained in the judgment of O. Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714 ("K.C. Vasanth Kumar"). The learned Judge held: (SCC pp. 737-38, para 35) "35. One of the results of the superior, elitist approach is that the question of reservation is invariably viewed as the conflict between the meritarian principle and_ the compensatory principle. No, it is not so. The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is not enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. And what is merit? There is no merit in a system which brings about such -- consequences..."
(Emphasis in original) Speaking of efficiency, the learned Judge held: (SCC, p.738, para 36):
"36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned...
42 0A.638/2017 One would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil service is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlying assumption that those belonging to the upper castes and classes, who are appointed to the non-reserved posts will, because of their presumed merit, "naturally" perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes".
128. The substantive right to equality is for all segments of society. Articles 15(4) and 16(4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. While, we are conscious of the fact that the decision in Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217 did not accept K.C. Vasanth Kumar Vs, State of Karnataka, 1985 Supp SCC 714, on certain aspects, the observations have been cited by us to explain the substantive relationship between equal opportunity and merit. It embodies the fundamental philosophy of the Constitution towards advancing substantive equality.
129, An assumption implicit in the critique of reservations is that awarding opportunities in government services based on "merit" results in an increase in administrative efficiency. Firstly, it must be noted that administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods. Secondly. arguments that attack reservations on the grounds of efficiency equate "merit" with candidates who perform better than other candidates on seemingly "neutral" criteria e.g. Standardised examinations. Thus, candidates who score beyond a particular "cut-off point" -are considered "meritorious" and others are "non-meritorious". However, 43 0A.638/2017 this is a distorted understanding of the function "merit" plays in society." [Emphasis supplied]
42. The Hon'ble Supreme Court after referring to the chapter on "Merit and Justice" by Nobel Laureate Amartya Sen from the book "Meritocracy and Economic Inequality" by Arrow, ALS. (Princeton University Press 2000), has emphasised that "Even though the typical "objective functions "
that are implicitly invoked in most countries to define and assess what is to count as merit tend to be indifferent to (or negligent of) distributive aspects of outcomes, there is no necessity to accept that ad hoc characterisation. This is not a matter of a "natural order" of "merit" that is independent of our value system.".
43. The Hon'ble Apex Court has further described in detail the concept of efficiency in administration. For the sake of ready reference, para Nos.131 and 132 of the decision in B.K. Pavitra-II(supra) are extracted herein as under:-
'131, Once we understand "merit" as instrumental in achieving goods that we as a society value, we see that the equation of "merit" with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.
132. For example, performance in standardised examinations (distinguished from administrative efficiency) now becomes one among many of the actions that the process of appointments in government services seeks to achieve. Based on the text of Articles 335, Articles 16(4) and 46, it is evident that the uplifting of the SCs and STs through employment in government services, and having an inclusive Government are other outcomes that the process of appointments in government services seeks to achieve.
EERE 44 OA.638/2017 Sen gives exactly such an example:
"Tf, for example, the conceptualisation of a good society includes the absence of serious economic inequalities, then in the characterisation of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen - or to generate economic inequality. In this case, the rewarding of merit cannot be done independent of its distributive consequences.
sd * * A system of rewarding of merit may well generate inequalities of well-being and of other advantages. But, as was argued earlier, much would depend on the nature of the consequences that are sought, on the basis of which merits are to be characterised. If the results desired have a strong distributive component, with a preference for equality, then in assessing merits (through judging the generating results, including its distributive aspects), concerns about distribution and inequality would enter the evaluation. "
(Emphasis supplied) Thus, the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. "Merit" must not be limited to narrow and inflexible criteria such as one's rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration. In fact, Sen argues that there is a risk to excluding equality from the outcomes:
"In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased (often implicitly) towards the interests of 'more fortunate groups favouring the outcomes that are more preferred by "talented" and "successful" sections of the population. This can reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, attaches some weight to lower inequality levels. " (Emphasis supplied) iGaan 45 OA.638/2017
44. The Hon'ble Apex Court in B.K. Pavitra-I has further explained in detail the interpretation of proviso to Article 335 of the Constitution and held that a "meritorious" candidate is not merely one who is "talented" or "successful" but also one whose appointment fulfils the constitutional goals of uplifting members of the $Cs and STs and ensuring a diverse and representative administration. It will be useful to reproduce para Nos.133 to 136 of the judgment in the case of B.K. Pavitra -- IT herein as under:
"133. The proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If the Government's sole consideration in appointments was to appoint individuals who were considered - "talented" or "successful" in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined. Thus, a "meritorious" candidate is not merely one who is "talented" or "successful" but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.
134. It is well settled that existing inequalities in society can lead to a seemingly "neutral" system discriminating in favour of privileged candidates. As Marc Galanter notes, three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of "merit". These are:
"... (a) economic resources (for prior education, training, materials, freedom from work, etc.); (b) social and cultural resources (networks of contacts, confidence, guidance and advice, information, etc.); and (c) intrinsic ability and hard work... "(Galanter M., Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New 46 OA.638/2017 Delhi 1984)
135. The first two criteria are evidently not the products of a candidate's own efforts but rather the structural conditions into which they are borne. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the: risk that the lack of the first two criteria will perpetuate the strudtural inequalities existing in society, ;
136.The Ratna Prabha Committee Report considers in Chapter Ll, the relationship between reservation in promotion and maintenance of efficiency in administration. Finally, it concludes:
"3,12: Conclusion:
Karnataka has been showing high performance in all the sectors of development viz. finance, health, education, industry, services, etc., to support sustainable economic growth. The analysis on performance of the State in economic development clearly indicates that reservation in promotions has not affected the overall efficiency of administration."
45. The Hon'ble Supreme Court in the case of B.K. Pavitra Vs. Union of India, 2019 (16) SCC 129 has considered and discussed in detail the issue of creamy layer and held that creamy layer is not applicable in case of SCs/STs and held as under:
"H The issue of creamy layer 138 At the outset, we analyse the submission of Ms Indira Jaising, learned Senior Counsel that the concept of creamy layer is inapplicable to the SCs and STs. This submission which has been urged by the learned Counsel is founded on two hypotheses which we have extracted below from the written submissions:
"(i) This Court in Indra Sawhney Vs. Union of India, 1992 Supp 93) SCC 217 seems to suggest 47 OA.638/2017 that the creamy layer should be excluded, however there was no unanimity for determining what is creamy layer. Some Judges took the view that the criteria for creamy layer exclusion is social advancement (i.e. based on social basis, educational, and economical basis) and others took the view that it will be economic basis alone.
It is submitted that it must be kept t ih mind that the said judgment related only to OBCs; and
(ii) Jarnail Singh Vs. Lachhmi Narain Gupta, (2018) 10 SCC 396 is not an authority for the proposition that the creamy layer principle applies to SCs and STs. It dealt only with the competence of Parliament to enact a law in relation to creamy layer without affecting Articles 341 and 342,"
147. .... The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail (supra) rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the submission on the ground that it related to the validity of Article 16 (4A) and held thus: (SCC, p.430, para 39:
"34... We may hasten to add that Shri Dwivedi's argument cannot be confused with the concept of "creamy layer" which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require _ reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes."
(Emphasis supplied)
148. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj (supra) applied the test of width and the test of identity, The Constitution Bench ruled that the catch-up a, 48 0A.638/2017 rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj (supra) held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality cade contained in Articles 14, 15 and 16. The principle postulated in Nagaraj (supra) is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16(4-A) and 16(4-B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act, 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. (Emphasis supplied) In view of the above ruling of the Hon'ble Supreme Court, the creamy layer concept is not applicable in the case of Schedule Castes and Schedule Tribes. |
46. In case of judgment of Hon'ble High Court of Chhattisgarh which has been relied upon by Mr. V.A. Nagrani, we find that Rule 5 of the Promotion Rule 2003 was quashed on the ground that the State has not produced the quantifiable data before the Court. It was held that the State has first issued the Notification of 'amended Promotion Rule 2003 and thereafter constituted the committee to collect the quantifiable data.
However, in the case under consideration before us, we find that though AG OA.638/2017 Government of India has always granted same percentage of reservation in appointments as well as promotion, this percentage has been left by the Jarnail Singh -II in para 17 of the judgment to be decided by the State and not by the Court. For ready reference, para 17 is extracted herein as under:
"17 Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannot envisage. A conscious decision was taken by this Court in M. Nagaraj (supra) and Jarnail Singh (supra) to leave it to the States to fix the criteria jor determining inadequacy of representation. The submission of the learned Attorney General for India that this Court has to lay down the yardstick for measuring adequacy of representation did not yield a favourable result as this Court in Jarnail Singh (supra) found it befitting for the States to have the liberty to evaluate the representation of SCs and STs -in public employment. Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State Governments. In addition, the prevailing local conditions, which may require to be factored in, might not be uniform. Moreover, in M. Nagaraj (supra), this Court made it clear that the validity of law made by the State Governments providing reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacy of representation is supported by quantifiable data. Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation. "
47, Even the unit for collection for quantifiable data is held to be the cadre.
48. The 3-Judge Bench of Hon'ble Supreme Court in Jarnail Singh-O has held that the unit for collection for quantifiable data is cadre and the 7 50 OA.638/2017 "Cadre" has been explained in para Nos.30 to 33 which are extracted herein as under:
"30. It would be relevant to refer to the judgments of this Court which have dealt with the scope of the expression "cadre". Rule 4(2) of the Central Engineering Service, Class I, Recruitment Rules, 1954 provided that 75% of the vacéhcies in the grade of Executive Engineer. Class I shall be fi lled by promotion from Assistant Executive Engineers, Class I. Interpreting the words "vacancies in the grade of Executive Engineer", this Court in A.K. Subraman v. Union of India, (1975) I SCC 319 held that the word "grade" is used in the sense of cadre.
31. The dispute that arose for consideration of this Court in Chakradhar Paswan v. State of Bihar, (1988) 2 SCC 214 relates to the posts of Director and three Deputy Directors in the Directorate of Indigenous Medicines, Department of Health, State of Bihar being grouped together for the purpose of implementing the policy of reservation under Article 16(4) of the Constitution of India. This Court was of the opinion that though the Director and three Deputy Directors are Class I posts, the posts of Director and Deputy Directors do not constitute one "cadre". It was held that the term "cadre" has a definite legal connotation in service jurisprudence. This Court referred to Fundamental Rule 9(4) which defines the word "cadre" to mean the strength of a service or part of a service sanctioned as a separate unit. It was observed that as the post of Director is the highest post in the Directorate of Indigenous Medicines for which a higher pay scale is prescribed in | comparison to Deputy Directors, who are entitled to a lower scale af pay, they constitute two distinct cadres or grades. This Court further expressed its view that it is open to the Government to constitute as many cadres in any particular service as it may choose, according to administrative convenience and expediency. This Court concluded that the post of Director and Deputy Directors constitute different cadres in the service.
32. In K. Manickaraj v. Union of India, (1997) 4 SCC 342, the appellant was a Welfare Inspector, Grade III belonging to Scheduled Caste category. He claimed promotion to Grade I by contending that four posts were reserved for Scheduled Castes as there were 26 Grade I posts. The respondent contended that 51 OA.638/2017 there were only 23 Grade II posts as three Grade II posts which were temporarily upgraded to Grade II did not form part of the cadre strength of Grade II Inspectors. While allowing the appeal of K. Manickaraj, this Court recognised that promotions take place from one grade to a higher grade, with the cadre strength for the purpose of providing reservation in such promotion to be the total number of posts ayailable in the grade to which promotion was sought. Ea
33. The meaning of "cadre" fell for consideration of this Court again in Union of India v. Pushpa Rani, (2008) 9 SCC 242, "Cadre" in the 1985 Edn. of the Railway Establishment Code is defined as the strength of a service or a part of a service sanctioned as a separate unit. This Court held that the posts sanctioned in different grades would constitute independent cadres, even for the purpose of implementing the roster. The reason for giving an enlarged meaning to the term "cadre" was that the posts in the railway establishment are sanctioned, a with reference to grades. Even temporary, work-charged, supernumerary and shadow posts created in different grades can constitute part of the cadre. "
Further, the cut-off date for implementation is 19.10.2006. We are, therefore, duly fortified to examine the process whereby reservation has been applied in promotion w.e-f. 19.10.2006 and interfere in the process if and only if the principles enunciated in M. Nagaraj (supra) has modified by Hon'ble Supreme Court in Jarnail Singh -I and Jarnail Singh - IT have not been followed.
49. We raised a pointed question relating to fulfilment of requirement of Article 335 of the Constitution of India i.e. to ascertain whether grant of reservation in promotion would adversely affect the efficiency in administration. To this, the respondents stated that whilst granting reservation in promotion, the benchmark for promotion for reserved 52 OA.638/2017 category is the same as that of general category. Therefore, we have no option but to accept the submission of the respondents that on account of following of the same benchmark for promotion of reserved category candidates, there can be no fall in efficiency in administration.
50. Mr. V.A. Nagrani has relied upon judgment of the Hon'ble High Court of Delhi in WP (C)No.3490/2010 dated 23.08.2017, 2017 SCC Online Del 10081, wherein the Hon'ble Delhi High Court has quashed the DoPT OM dated 13.08.1997 which provided for reservation in promotion.
We have carefully perused the said judgment. Para 33 thereof is being extracted herein as under:
"33. As has already been noticed hereinabove, the counter affidavit, filed in the present proceedings on behalf of Respondents 2 to 4, does not disclose that the requisite exercise, collecting quantifiable data and determining the aspects of backwardness, inadequacy of representation and overall efficiency of the administration, was ever undertaken before blindly extending, beyond 15th December, 1997, the provision for reservation, in promotion, favouring SCs and STs. The 77th Amendment to the Constitution, and sub-article (44), which was inserted in Article 16 thereby, were obviously taken as providing a carte blanche to the Government to extend the provisions of reservation for SCs and STS beyond the period of 5 years stipulated in Indra Sawhney (supra). As Nagaraj (supra), and the decisions following thereupon show us, however, that is not the case. Any reservation (as also consequential seniority) extended to SCs and STs, without, in the first instance, conducting the requisite exercise of garnering quantifiable data, indicating inadequate representation, and juxtaposing, they're against, the considerations of backwardness and overall efficiency of administration, would necessarily infract Articles 16 (1) and 335 of the Constitution of India and, consequently, be liable to be quashed."
| 53 . OA.638/2017
51. It is seen that the Office Memorandum of DoPT dated 13.08.1997 was quashed by the Hon'ble Delhi High Court since the respondents Union of India had not disclosed that the required exercise of collecting quantifiable data and determining the aspects of backwardness, a inadequacy of representation and overall efficiency of the administration, was ever undertaken. Whereas much water has flown under the bridge since then as the requirement of ascertaining backwardness of SCs/STs has been done away with in Jarnail Singh-I and parameters in detail have been set out in Jarnail Singh-II on the question of adequacy of representation, manner of examining adequacy by going into each cadre and most importantly the prospectivity of the principles w.e.f. 19. 10.2006, leaves us Now with little option except to diligently verify whether the parameters as Jaid down by the Hon'ble Apex Court have been carried out or otherwise. This exercise has been carried out by us in fair amount of detail by examining the pleadings of the respondents including the additional affidavit dated 08.04.2024 and chart submitted by Mr. Nagrani across the bar. We find that the data submitted by Mr. Nagrani across the bar in respect of Skilled, Highly Skilled Grade -II and Highly Skilled : ade I each as on 01.01.2024 whereas the impugned orders pertain to the +2017. Moreover, Mr. Nagrani has not given any bifurcation as to how 54 0OA.638/2017 representation of SC/STs in each cadre as on the date of impugned orders. So far the data in respect of Technical Assistants, Junior Technical Officers and Technical Officers is concerned, their promotion is not impugned in this OA and no relief has been claimed against,their promotion in this OA and, therefore, we cannot look into it. | 51.1 We find that all the parameters have been met by the respondents. Their data is based on the roster register maintained by them and data provided by them is as on 01.01.2017 which is relevant for impugned orders. So far as our examining this exercise as of 2017 is concerned, we are fully fortified in doing so in the light of principles having been made applicable in Jarnail Singh-IT w.e.f. 19.10.2006. The quashing of the Office Memorandum of DoPT dated 13.08.1997 by the Hon'ble Delhi High Court in the light of the fact that the exercise not having been carried out and consequently the parameters having not been met. The said situation is no longer obtaining for the reasons set out herein above. We are, therefore, compelled to examine the process in the light of Jarnail Singh-I and Jarnail Singh-HI which were yet to be delivered when the Hon'ble High Court of Delhi decided the above case. Another aspect which cannot be lost sight of is the fact of a fresh OM having been issued by the DoPT on 12.04.2022 being OM No.36012/16/2019- Estt.(Res.) pursuant to the judgment of Hon'ble Apex Court in Jarnail Singh-II which directs all departments to meticulously follow the Apex 35 OA.638/2017 Court ruling, which in turn gives prospective effect to reservation in promotion w.e.f. 19.10.2006
52. In -view of the above facts and circumstances of the case, we do not find any infirmity in the impugned empanelment orders and promotion orders. Therefore, we find that the OA is devéid of any merit and deserves to be dismissed and is accordingly dismissed. Pending applications, if any, stand closed. There shall be no order as to the costs.
(Shri Krishna)-- | (J ustice Ranjit V. More) Member (A) . Member (J) H/ma.