Central Administrative Tribunal - Ernakulam
Shailesh N.P. Senior Commercial Clerk vs Union Of India on 15 November, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION Nos.
180/00098 of 2014,
180/00154 of 2014,
and
180/01121 of 2014
Tuesday this the 15th day of November, 2016.
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P.Gopinath, Administrative Member
OA 98/2014
Shailesh N.P. Senior Commercial Clerk,
Southern Railway, Palakkad-678002.
. . . Applicant
(By Advocate Mr. Elvin Peter P.J)
Versus
1 Union of India, represented by its Secretary,
Ministry of Railways, New Delhi-110 001.
2 Union of India, represented by its Secretary,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel and Training,
North Block, New Delhi-110 001.
3 The General Manager, Southern Railway,
Chennai-3.
4 The Chief Personnel Manager,
Southern Railway, Chennai-3.
5 The Divisional Railway Manager,
Southern Railway, Palakkad Division,
Palakkad.2.
6 N.N. Pradeep Kumar, Head Commercial Clerk/
Chief Commercial Clerk, Southern Railway,
Panamboor, Mangalore.1.
7 Vinodan M.K. Head Commercial Clerk/
Chief Commercial Clerk, Southern Railway,
Payyoli, Kannur-1.
. . . Respondents
(By Advocates Mrs. Sumathi Dandapani (Sr.) with Mrs. K. Girija for
R 1,3 and 5) and Mr.Anil Ravi, ACGSC for R2)
OA 154/2014
Binu V.S., Senior Assistant Loco Pilot,
Office of the Chief Crew Controller,
Southern Railway, Kollam.1.
... Applicant
(By Advocate Mr.Elvin Peter PJ)
Vs.
1 Union of India, represented by its Secretary
Ministry of Railways, New Delhi-110 001.
2 Union of India, represented by its Secretary,
Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training,
North Block, New Delhi-110 001.
3 The General Manager,
Southern Railway, Chennai.3.
4 The Chief Personnel Manager,
Southern Railway, Chennai.3.
5 The Divisional Railway Manager,
Southern Railway, Trivandrum Division,
Thycaud, Trivandrum.14.
6 Binoj B, Loco Pilot Goods,
(now officiating as Power Controller)
Control Office, Southern Railway,
Trivandrum Division,
Thycaud, Trivandrum.14. . . . Respondents
(By Advocate Mr.Sunil Jacob Jose (for R.1,3,4&5)
Advocate M/s Varkey & Martin (for R6)
OA 1121/2014
1 Basaweswaran.K.
Senior Assistant Loco Pilot,
Office of the Senior Section Engineer,
Palakkad Division,
Southern Railway, Olavkkode, Palakkad.2.
2 T.A. AnilKumar,
Senior Assistant Loco Pilot,
Office of the Chief Crew Controller,
Southern Railway, Shornur.
3 Basheer C.K.
Senior Assistant Loco Pilot,
Southern Railway, Palakkad.2. . . . Applicants
(By Advocate Mr.Elvin Peter PJ)
Vs.
1 Union of India, represented by its Secretary
Ministry of Railways, New Delhi-110 001.
2 Union of India, represented by its Secretary,
Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training,
North Block, New Delhi-110 001.
3 The General Manager,
Southern Railway, Chennai.3.
4 The Chief Personnel Manager,
Southern Railway, Chennai.3.
5 The Divisional Railway Manager,
Southern Railway, Palakkad Division,
Olavakkode, Palakkad.2.
(R.5 substituted asper order dated 24.7.2015 in MA
652/2015)
6 V.C.Sunil Kumar, Loco Pilot (Goods)
Office of the Senior Section Engineer,
Palakkad Division, Southern Railway,
Olavakkode, Palakkad.2.
7 B. Manoj Kumar, aged 44 years S/o A Bhaskaran,
Loco Pilot(s) II, Permanent Address at
Asarimattel, Manakad PO, Thodupuzha,
Idukki District-685608.
(R7 impleaded vide order dated 3.11.2015 in MA
1069/2015)
. . . Respondents
(By Advocates Smt.Sumathi Dandapani (Sr) with Mr.K.Girija for R
1,3 to 5), Mrs.P.K.Latha for R.2 and Mr.T.C.G.Swamy for R7)
These applications having been finally heard on 03.11.2016, the
Tribunal on 15.11.2016 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member OA 98/2014 is taken as the leading case. Since the issue involved in all these cases is the same, all these cases are heard together and this common order is passed.
2. The sole applicant in OA 98/2014 contends that he was first appointed as Office Clerk on 13.10.1987 in the Integral Coach Factory Madras and thereafter on inter-railway transfer he was appointed as Commercial Clerk in the Southern Railway, Palakkad Division on 5.9.1988. He was promoted as Senior Commercial Clerk on 31.12.1992 and is continuing in that post for more than 22 years without any promotion. The applicant contends that Respondents 5&6 are his juniors . They belong to Scheduled Caste (SC for short) community and they were promoted as Head Clerk on the basis of the reservation provided for members belonging to Scheduled Castes/Scheduled Tribe (SC/ST for short) communities. The applicant contends that the promotion so granted is illegal and unsustainable for which the applicant relies upon the Constitution Bench decision of the Hon'ble Supreme Court in M.Nagaaj Vs. Union of Inda 2006(8) SCC 212 : AIR 2007 SC 71. It is contended that going by the dictum laid down by the Hon'ble Supreme Court it is clear that the respondents can provide for reservation in the matter of promotion in Railways to members of SC/ST communities only after they collect quantifiable data showing the backwardness of the members belonging to the said class and more importantly the inadequacy of representation of SC/ST communities in the service. Reservation in the matter of promotion can be provided to the members belonging to SC/ST communities only after they conduct a study about the backwardness of the SC/ST communities and also the inadequacy of their representation in the Railways. The respondents have not conducted any such study on the subject as aforesaid. The applicant submitted an application under the Right to Information Act seeking information as to whether the 2 nd respondent had undertaken any exercise for collecting quantifiable data regarding the backwardness of SC/ST communities and the inadequacy of their representation in the Railway Service as directed by the Hon'ble Supreme Court in M. Nagaraj supra. Annexure A3 shows that no exercise has been undertaken by the department till date. Another Application seeking information was sent to the first respondent to which reply was given vide Annexure A6 wherein the first respondent admitted that till that date no exercise had been undertaken. Therefore, it is clear that no reservation in the matter of promotion in the Railway service can be extended to members belonging to SC/ST communities and as such they cannot be given accelerated seniority on the basis of such promotion earned by virtue of the reservation. After incorporation of Article 16 (4- A) in the constitution as per the 77 th amendment act directions were issued to continue the reservation in promotion provided for SC/ST in the services/posts under the Central Government beyond 15.11.1997 till such time as the representation of each of the above categories in each cadre reaches the prescribed percentage of reservation and that reservation in promotion shall also continue vide Annexure A7.
3. As per Annexure A8 order dated 21.1.2002 the 2 nd respondent issued similar order directing that the employees belonging to SC/ST communities in government service are entitled for reservation in the matter of promotion and also consequential seniority in accordance with Article 16 (4A) of the Constitution of India. Annexure A8 order was issued prior to the pronouncement of the judgment by the Supreme Court in M. Nagaraj's case supra. After the decision was rendered by the apex court tin M.Nagaraj the continuance of reservation for SC/ST both in appointment and promotion can be provided and continued only after the respondents collect quantifiable data showing the backwardness of the class and inadequacy of representation of the class in public employment in addition to compliance with Art.335 of the Constitution of India. State was legally bound to undertake the job of collecting the data showing the backwardness of the class in whose favour reservation is sought to be made and also inadequacy of representation as directed by the Hon'ble Supreme Court in M.Nagaraj. The reply statement referred to above would clearly show that till date no exercise was undertaken by the respondents and so the order granting reservation in promotion and consequential seniority is against the decision rendered in M. Nagaraj. The applicants contend that on the basis of Annexures A7 to A10 and A12 orders respondents 1&2 are taking steps to implement the orders and to make promotion to the higher category in the Railway service by extending reservation to members belonging to SC/ST communities and other backward classes and to grant them consequential seniority which is against the mandate of M. Nagaraj (supra). Therefore, the applicants seek quashment of Annexures A7 to A10 and A12 orders and to declare that the reservation in the matter of appointment and promotion and further grant of such consequential seniority on the basis of such accelerated promotion shall not be granted by Respondents 1&2 in the Railway service before collecting the quantifiable data showing the backwardness of the class in whose favour reservation is sought to be given and inadequacy of representation of the class in the Railway service. A further direction is also sought to be issued to restrain the official respondents from making any promotion in the Railway service by applying the principles of reservation under Articles 16(4A) and 16(4B) in favour of the members belonging to SC/ST community and other backward classes.
4. Respondents 1&3 to 5 filed reply statement contending as follows:
The reservation in promotion and seniority of SC/ST communities are to be regulated in terms of instructions contained in Board's letter dated 8.3.2002 and 13.1.2005. Annexure A10 is the letter dated 8.3.2002 issued by the Ministry of Railways on the issue of principles for determining the seniority of staff belonging to SC/ST promoted earlier vis-a-vis the general OBC staff promoted later which came to be issued pursuant to Annexure A8 Office Memorandum issued by the Ministry of Personnel, Public Grievances and Pensions. Annexure A12 is the recent restructuring order dated 8.10.2013 issued by the Ministry of Railways as per which decision was taken to restructure certain Group C cadres. It has been stated that the existing instructions with regard to reservation of SC/ST wherever applicable will continue to apply. The very same issue of reservation in restructuring was considered by a Larger Bench of the Hon'ble Supreme Court in Union of India Vs. Pushparani 2008(9) SCC 242. Taking into consideration of the judgment in M.Nagaraj it was held by the apex court in Pushparani's case that the policy of reservation is applicable to the cadre restructuring also. No promotion order was issued in the cadre of the applicant. The issue of reservation in promotion and consequential seniority after Indra Sawhney, Virpal Singh Chowhan, Ajit Singh-I and Ajit Singh-II had already been nullified by 77 th and 85th constitutional amendment and the existence and continuation of the reservation in promotion and consequential seniority are allowed to continue from 1955 onwards without any break. The same issue was considered by this Tribunal in a number of original applications and all those applications were dismissed. The applicant has no cause of action to file this Original Application since he is not an aggrieved party. Since the issue of reservation in restructuring had already been held to be valid in Pushparani's case cited supra, that issue cannot again be raked up in this Original Application. The method of 'catch-up' principle evolved by the Hon'ble Supreme Court in Virpal Singh Chowhan which was confirmed by the apex court in Ajit Singh I and Ajit Singh II had been nullified by the 85th amendment of the constitution and so the applicant cannot request implementation of the nullified rule of assigning seniority. The seniority is being maintained grade wise and not on category wise. The movement from one grade to another will be the criteria for assigning seniority with reference to the order of priority in the select list or empanelment made after due consideration of fitness of an employee to the higher post. The date of entry into the higher grade is the criteria for assigning the seniority.
Therefore the contention of the applicant, comparing respondents 6&7 as juniors with reference to initial recruitment grade is not at all acceptable since those respondents had been promoted to the higher post and shouldered higher responsibilities. The applicant was promoted as Senior Clerk with effect from 30.11.1992. He is continuing in that post. His next promotion is to the post of Chief Commercial Clerk in PB II with grade pay of Rs. 4200/-. He is already in the zone of consideration for promotion as Chief Commercial Clerk against the restructured vacancies. Therefore, he cannot have any grievance at all. As the applicant has not challenged Para 319 of IREM he cannot question the assignment of seniority based on that rule. The directions contained in Nagaraj case supra have to be applied for new introduction of reservation in promotion and consequential seniority. In department of Railways the reservation policy already exists. Therefore, the Railway could not act independently on the issue of reservation policy. There is no necessity to conduct any such study as directed in M. Nagaraj. The request of study as per para 12 of Nagaraj is not at all applicable to Railways/central government service of India since no judgment of the Supreme Court issued so far had instructed that the existing reservation shall be stopped forthwith and the reintroduction of reservation policy can be done only after complying with the conditions in Nagaraj. In Para 121 of Nagaraj's case it was affirmed that the constitutional amendments satisfies the conditions laid down in para 123.
5. The Hon'ble Supreme Court never made any condition with regard to the existing provision for reservation in promotion while upholding the constitutional amendment. If the State has decided to introduce the reservation in promotion with consequential seniority before making provision for reservation the conditions under para 123 are to be complied with. But that has nothing to do with the existing reservation. Since reservation has been in existence in Railways, the requirement of collecting quantifiable data etc., as contended by the applicants are inapplicable to the facts of these cases. Since reservation policy has in fact been upheld by the Hon'ble Supreme Court, the order of the DoP&T continues to be applicable for Railways. The conditions mentioned in paragraph 123 of Nagaraj are not applicable for the existing reservation policy in the Indian Railways. The applicant cannot sustain this petition which is in the nature of a public interest litigation without making proper representation to the administrative authority and without exhausting the remedy available to him.
6. A rejoinder was filed by the applicant refuting some of the averments made in the reply statement. Annexure A-2 rule was issued by the Railways in accordance with law laid down by the Hon'ble Supreme Court in M. Nagaraj. The decision in Nagaraj was followed by the Hon'ble Supreme Court in Suraj Bhan Meena and others Vs. State of Rajasthan and others -- (2011) 1 SCC 467. The plea raised by the respondents relying on the decision in Pushaprani's case is unsustainable.
7. An additional reply statement is seen filed by the respondents. stating that the issue of reservation has been considered by this Tribunal in various O.As based on the decisions of the Hon'ble Supreme Court in Virpal Singh Chowhan -(1995) 6 SCC 684 & R.K. Sabharwal - (1995) 2 SCC 745. The order passed by the Principal Bench is not applicable to the facts of this case. The true spirit of the decision in M. Nagaraj is that unless the State Government, on the basis of quantifiable data, declares a particular class to be backward and inadequately represented in public employment, persons belonging to such class cannot aspire for reservation at the time of promotion. The Railways being part of the Central Government is responsible for implementing the policies framed by the Central Government from time to time in respect of reservation of jobs to these socially under privileged and backward communities belonging to SCs and STs in government service. In Railways, reservation in jobs to SC/ST was implemented and it has been in existence from 1955 onwards at the prescribed percentage of 15 for SC and 7 for ST.
8. In Indra Sawhney's case -- (1992) Supplementary (3) SCC 217 the Constitution Bench held that reservation by appointments for posts under Article 16(4) of the Constitution should be confined to initial appointment only and it cannot be extended to reservation and matters of promotion. Accordingly, 77th constitutional amendment was enacted in 1995 which paved the way for providing reservation in promotion as well. It was held by the apex court that reserved community candidates recruited with general standard and posted against unreserved points shall not be counted against reserved posts. As such reserved community employees recruited/selected with general standard, appointed against unreserved posts, shall not be counted against reserved points. The decision in M. Ngaraj cannot supersede the nine Judges Bench judgment of the apex court in Indra Sawhney's case -- (1992) Supplementary (3) SCC 217. If there is any conflict between the two decisions, the decision of the Larger Bench will prevail. In Ashok Kumar v. Union of India --(2008) 6 SCC 1 it was held that:
'Creamy-layer principle is not applicable to the Scheduled Caste and Scheduled Tribe' The Principal Bench of the Tribunal had only quashed Railway Board's letter dated 29.02.2008 regarding seniority on promotion of SC/ST employees but no further directions were given as to what relief can be given to the applicants therein. As such, the applicant cannot claim any relief based on the order passed by the Principal Bench. Therefore, the respondents would contend that the Original Application is liable to be dismissed.
9. An additional rejoinder has been filed by the applicant again denying some of the averments contained in the additional reply statement.
10. In OA 1121/2014 also similar contentions are seen raised by the parties. The reliefs claimed in this case are also same. Therefore, it is not necessary to repeat those contentions. In this OA apart from the official respondents two private parties are impleaded as respondents 6 and 7.
According to the applicant the promotions granted to Respondents 6&7 are illegal and against the direction contained in M.Nagaraj cited supra. Respondents 6&7 though were served with the notice did not appear to contest the matter. The other respondents filed reply statement raising the same contentions as have been raised in OA 98/2014.
11. Some of the party respondents- Respondents 4, 5 and 8 to 11 appeared through counsel and filed reply statement raising contentions as raised by the official respondents in OA 98/2014. It is further contended as follows.
12 As per Annexure A10 order respondents 4 to 11 were called for attending the promotional course - training which is mandatory for getting further promotion. That is the only thing implied as per Annexure A10. Annexure A10 by no stretch of imagination would give an impression that it was an order granting promotion. Respondents 4 to 11 were not granted any promotion either as Senior Assistant Loco Pilot or as Loco Pilot (Goods). The respondents cannot straight away be promoted as Loco Pilot (Goods). There are certain posts; namely Sr. Assistant Loco Pilot, Loco Pilot (Shutting II), Loco Pilot (Shunting I) etc. Sending incumbents for promotional course is done with a view to keeping the incumbents fit for further promotion as and when vacancy arises. But these respondents contend that the promotion to be granted to applicants who belong to SC community will not affect the promotion to be granted to the applicants in the general category. It is further contended that a committee was constituted by the DoP&T to analise the reason for less employability of SC/ST/OBC and persons with disabilities in government sector and the committee in its meting held on 22.10.2014 recommended some remedial action for inadequate representation of SC/ST/OBC/Physically handicapped persons. It was duly forwarded by the DoP&T to all the ministries including the Railways on 20.11.2014. The minutes of that committee would highlight the point that there is inadequacy in representation of such persons in Public Sector of SC/ST/OBC etc. communities and so in order to overcome the same special recruitment drive was recommended by the committee vide Annexure R4(b). Therefore, the claim made by the applicants is opposed by these respondents. The official respondents took the same stand as taken in OA 98/2014 filing similar reply statement.
13. OA 154/2014 has been filed by another Assistant Loco Pilot who was selected on the basis of the selection conducted by the Railway Recruitment Board on 3.12.1999. Besides claiming implementation of the directions contained in M.Ngaraj's case and not to grant reservation in promotion for SC/ST communities before compliance of the directions contained therein, he also seeks a direction to restrain the respondents from making any promotion in the Railway Service by applying the reservations under Article 16 (4A) and 16 (4B) in respect of members belonging to SC/ST communities. Since the contentions raised by the applicant are identical to the case put forward by the applicant in OA 98/2014 those pleadings are not reproduced here. Similarly the contentions raised by official respondents are identical to the plea raised by them in OA 98/2014.
14. The private respondent (6th respondent) filed reply in this case contending that he belongs to SC and was appointed in Trivandrum Division on 16.9.2002 and after training he resumed duty on 2.6.2003. According to him he was not far junior to the applicants in the cadre of Assistant Loco Pilot. He states that he was promoted as Sr.Loco Pilot in 2006 and Loco Pilot (Goods) in 2008 against SC quota and he has been officiating as Power Controller at Trivandrum from April 2012. His appointment or promotion was not challenged at all till date and as such no relief can be granted against the 6th respondent, he contends.
15. The point for consideration in all these cases is (i) whether Annexure A7 to Annexures A10 and A12 orders are liable to be set aside?
(ii) Whether quantifiable data showing the backwardness and inadequacy of representation of SC/ST community in the Railway Service is to be collected before granting promotion to the class of employees in the Railway Service and mentioned in these Original Applications?; and (iii) whether consequential direction as sought for in these applications are to be issued?
16. Article 16(4), 16(4A) and 16(4B) read as under:
' (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.'. (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'
17. Paragraph 123 of the judgment of the Hon'ble Supreme Court in M.Nagaraj Vs. Union of India (supra) is the foundation of the claim made by the applicants in all these cases. Paragraph 121, 122, 123 & 124 of the judgment reads as follows:
' 121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article
335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated, the main issue the 'extent of reservation'. In this regard concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the provision is an enabling provision. The is not bound to make reservation for SC/ST in matter of promotions.
However if they wish to their discretion and make such provision, State has to collect quantifiable data showing backwardness of the class and inadequacy of of that class in public employment in to compliance of Article 335. It is made clear that even if the State has compelling reasons, as above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001. ' Article 335 is also relevant to some extent which reads:
'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.'
18. In Indra Sawhney case - 1992 (Sup.3) SCC 217 9 Judges Bench of the Hon'ble Supreme Court considered whether clause 4 of Article 16 was confined to initial appointment or can the same be applied at the stage of promotion. It was held by the apex court in that case that Article 16(4) is confined to initial appointment and cannot extend to providing reservation in the matter of promotion. It was also held that the promotions already made by applying the policy of reservation will not be affected and the policy may continue to operate for a period of five years. It was the judgment so rendered in Indra Sawhney's case (supra) which led to the 77th amendment of the Constitution. Clause 4A of Article 16 which was inserted by the amendment reads as under:
'Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.' It is vehemently argued on behalf of the applicants that the policy of reservation followed by the Railways cannot be applied at the stage of making promotions because the railway administration has no evidence to show that SCs/STs were not adequately represented in different cadres and that the efficiency of administration will not be jeopardized by reserving posts for SCs/STs.
19. A question had arisen before the Hon'ble Supreme Court in Union of India and Others v. Virpal Singh Chauhan - (1995) 6 SCC 684 as to whether a person in SC/ST category who gets accelerated promotion because of reservation would also get consequential seniority in the higher post if he gets that promotion earlier than his senior in general category.
The Hon'ble Apex Court held that such an employee belonging to SC/ST category on promotion would not get consequential seniority and his seniority will be governed by the panel position. It was held as under:-
'24. Article 16(4A) of the Constitution is only an enabling provision which specifically provides that the concerned State may make any provision for providing reservation of appointments or posts in favour of any backward class citizens which is not adequately represented in the services under the State. Articles 16(4) and 16(4A) have to be read with Article 335 of the Constitution which deal with norms of Scheduled Castes and Scheduled Tribes to services and posts and lay down that 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. In the absence of any policy decision taken by the State of Tamil Nadu, Eighty-fifth Amendment per se will not protect the consequential seniority granted to the respondents who were promoted to the post of Assistant Divisional Engineers following the rule of reservation.' It is pointed out that it is to overcome the decision rendered in Virpal Singh Chauhan as stated above, as per the 85th amendment Clause 4A of Article 16 was further amended enabling the State to make a provision for reservation in matters of promotion with consequential seniority. Thus after the amendment, Clause 4A of Article 16 of the Constitution reads as follows:-
'4A. Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.' The said amendment was made effective retrospectively from 17.6.1995 i.e, the date of coming into force of the original Clause 4 A of Article 16.
20. The learned counsel for the applicants would submit that following the principle laid down by the Apex Court in R.K.Agarwal & Others vs State of Punjab and others - (1995) 2 SCC 745 and Ajit Singh Januja and Others v. State of Punjab and others - (1996) 2 SCC 715 and the Constitution Bench decision in Indra Sawhney -- (1992) 3 Supp.
SCC 217, the three judge Bench in Ajit Singh Januja cited above accepted the principle of catch up rule as laid down in Virpal Singh Chouhan and observed that balance must be maintained in such a manner that there was no reverse discrimination against the general category candidates and that any rule/circular/order which give seniority to the reserved category candidates promoted at the roster point would be violative of Article 14 and 16 of the Constitution of India. In Ajit Singh (2) - (1999) 7 SCC 209 it was held that Article 16(4) and 16(4A) did not confer any fundamental right to reservation and that they are only enabling provisions. It was held by the Constitution Bench in Ajith Singh (2) as follows:
'77. We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, - vis-C -vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal, (1995) 6 SCC 684 and Ajit Singh, (1996) 2 SCC 715 have been correctly decided and that Jagdish Lal, (1997) 6 SCC 538 is not correctly decided. Points 1 and 2 are decided accordingly.' The constitutional validity of Clauses 4A and 4B of Article 16 of the Constitution was challenged in M.Nagaraj and Others v. Union of India and Others reported in (2006) 8 SCC 212 = AIR 2007 SCC 71. The question which came up for consideration in M.Nagaraj was whether by virtue of the constitutional amendment the power of parliament was so enlarged as to obliterate any or all of the constitutional requirements or limitations upholding the validity of the said articles with certain riders. On the concept of 'catch up rule' & consequential seniority, it was held by the Constitution Bench in M.Nagaraj as under:-
'122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, backwardness, inadequacy of representation overall administrative efficiency are all requirements without which the equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated, the main issue is the 'extent of reservation'. In this regard concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the provision is an enabling provision. The State is not bound to make reservation for SC/ST inmatter of promotions.
However if they wish to their discretion and make such provision, State has to collect quantifiable data showing backwardness of the class and inadequacy of that class in public employment in to compliance of Article 335. It is made clear that even if the State has compelling reasons, as above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.' It was subject to what have been stated in para 123 the validity of 77 th, 81st, 82nd and 85th Amendment Acts were held to be constitutionally valid (vide para 124 in M.Nagaraj).
21. The learned counsel for the Respondents would submit that the method of 'catch up principle' enunciated by the Hon'ble Apex court in Virpal Singh Chowhan (supra) and confirmed by Ajit Singh I (supra) and Ajit Singh II(supra) had been nullified or set at naught by the 85 th amendment of the Constitution and as such the 'catch up principle' cannot be applied at all. The respondents would further contend that as far as Railway service is concerned, seniority is being maintained grade wise and not on category wise. The movement from one grade to another will be the criteria for assigning seniority with reference to the order of priority in the select list or empanelment made after due consideration of fitness of an employee to the higher post.
22. The applicants would contend that the respondents can provide reservation in the matter of promotion in the railways to members belonging to SC/ST communities only after they collect quantifiable data showing the backwardness of the members belonging to the said class and more importantly the inadequacy of representation of SC/ST communities in the service. Without collecting the quantifiable data as afore-stated the respondents cannot provide reservation in the matter of promotion to the members belonging to SC/ST communities, it is contended. They would assert that the Railway department or the State of Kerala has not collected any quantifiable date showing the backwardness of the members belonging to the said class or their inadequate representation as stated in Paragraph 123 of M. Nagaraj and as such the respondents cannot provide reservation in promotion to members belonging to SC/ST communities. Annexure A6 the reply obtained to Annexure A5 (the application seeking information under the RTI Act) would make it clear that till that date no such exercise was undertaken by the respondents to collect the quantifiable data and other particulars as mentioned in paragraph 123 quoted above. Since that is the position, no reservation in the matter of promotion in the railway service can be extended to members of SC/ST communities and they cannot be given accelerated seniority on the basis of such promotions earned by virtue of reservation.
23. The learned counsel for the applicants would submit that after the decision in M.Nagaraj the reservation of posts in promotion is dependent on the inadequacy of representation of members of SC/ST communities and subject to the condition of ascertaining whether such reservation was required at all. A similar case arose in Surajbhan Meena Vs. State of Rajasthan --(2011) 1 SCC 467. In that case it was found by the High Court of Rajasthan that pursuant to the direction in M.Nagaraj no exercise was undertaken in terms of Auricle 16(4A) to acquire quantifiable data regarding the inadequacy of representation of the SC/ST communities in public services and hence High Court of Rajasthan quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the SC/ST community. The decision of the High Court of Rajasthan was confirmed by the Hon'ble Supreme Court in the decision in Surajbhan Meena Vs. State of Rajasthan-.(2011) 1 SCC 467.
24. The respondents contend that Annexures A7,A8 and A10 which are challenged in this case were issued decades prior to the pronouncement of the judgment in M. Nagaraj. Promotion policy has been in vogue in the Railway service for decades together and as such there was no requirement of collecting any quantifiable data pursuant to the decision in M. Nagaraj since it was after collecting such data regarding the inadequacy of representation etc., reservation policy in the matter of promotion was incorporated in the Railway service to give accelerated promotion to members belonging to SC/ST community. In short, the contention raised by the respondents is that since such a scheme or rule had been in existence in Railway department for decades together and since the rule or scheme relating to accelerated promotion and seniority to members of SC/ST community, had been existing even prior to the judgment in M.Nagaraj, there was no requirement of collection of quantifiable data etc., as stated in paragraph 123 referred supra. But at the same time the contention raised by the respondents that the principle laid down in M.Nagaraj is against the nine Judges Bench decision in Indra Sawhney or that it was rendered overlooking Virpal Singh Chowhan, Ajit Singh I and Ajit Singh II (supra) cannot be sustained at all. It is pointed out by the learned counsel for the applicants that in fact such a contention was raised by the respondents before the Hon'ble Supreme court in Suraj Bhan Meena's case - (2011) 1 SCC 467 but that plea was rejected by the Hon'ble Supreme Court holding that the mandate issued by the Constitution Bench in M.Nagaraj is imperative in character and that the challenge against the same cannot be sustained.
25. The respondents would also rely upon the decision of the Supreme Court in Union of India Vs. Pushparani and others -2008 (9) SCC 242. After considering Nagaraj's case it was held by the Supreme Court in Pushparani that the policy of reservation to the cadre restructuring exercise undertaken pursuant to the policy contained in letter dated 9.10.2003 observing that the restructuring exercise engaged in letter dated 9.10.2003 resulted in creation of additional posts in most of the cadres covered by the policy and the government had taken a conscious decision to fill up such posts by promotion from amongst eligible and suitable employees and that the promotees were burdened with duties and responsibilities of greater importance. It was argued before the Supreme Court that the policy of reservation cannot be applied at the stage of making promotions because the Railway Administration did not produce any evidence to show that SC/ST communities were not adequately represented in different cadres and that the efficiency of administration will not be jeopardized by reserving posts for SCs/STs. But the Hon'ble Supreme Court was not persuaded by that argument. Here, in fact, it is not a case of cadre restructuring but it is accelerated promotion to members of SC/ST communities which is under challenge.
26. The decision in Uttar Pradesh Power Corporation v. Raj Kumar and Others (2012) 7 SCC Page 1 has also been very much relied upon in this connection. There the controversy was pertaining to reservation in promotion for Scheduled Castes/Scheduled Tribes with consequential seniority as engrafted under Article 16(4A) and 16(4B) and the facet of relaxation granted by way of a proviso to Article 335 of the Constitution of India. The debate centred around in that case was Rule 8-A of U.P Government Servants Seniority Rules, 1991 which was inserted by the amendment of 2007. It was contended that Rule 8-A which was brought into force in 2007 is invalid, ultra-vires and unconstitutional and as a necessary corollary the consequential orders relating to seniority passed by the State Government was requested to be quashed. The said rule was quashed by the Hon'ble High Court and it was clarified that in case the State Government decides to provide a reservation in promotion to any class or classes of posts in the services under the State, it is free to do so after undertaking the exercise as required under the constitutional provisions keeping in mind the law laid down by the Hon'ble Supreme Court in M.Nagarajb�s case. It was further directed that till that is done, no reservation in promotion on any post or classes of posts under the services of the State including the Corporation shall be made henceforth. However, it was observed by the Division Bench of the High Court that the promotions already made as per the provisions or rules where the benefit of Rule 8-A has not been given while making the promotions, shall not be disturbed.
27. It was found that Rule 8A of the rules referred to above merely effectuated the provisions contained in Article 16(4A) of the Constitution of India whereby the benefit of consequential seniority has been given to the members of the Scheduled Castes/Scheduled Tribes due to reservation/roster in promotion by obliterating the concept of catch up rule of seniority. Rule 8-A mentioned therein specifically stipulated that if any member of the SC/ST is promoted on any post or grade in service earlier to other categories of persons, the member of SC/ST shall be treated to be senior to such other categories of persons who are promoted subsequently after promotion of members of SC/ST despite anything contained in Rules 6,7 & 8 of 1991 Rules.
28. After considering the decision in M.Nagaraj's case, it was held by the Apex Court in that case (Uttar Pradesh Power Corporation Ltd v. Rajesh Kumar and Others (2012) 7 SCC Page 1) as follows:-
'81. From the aforesaid decision and the paragraphs we have quoted hereinabove, the following principles can be carved out: -
i) Vesting of the power by an enabling provision may be constitutionally valid and yet b�exercise of powerb� by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required underArticle 335.
ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14.
iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
iv) The appropriate Government has to apply the 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. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated.
Further roster has to be post-specific and not vacancy based.
v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, Clause (4A) will be governed by the two compelling reasons - 'backwardness' and 'inadequacy of representation', as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.' (The other principles stated as (vi) to (x) are omitted as unnecessary).
29. Referring to the judgment in M.Nagaraj, it was held by the Hon'ble Supreme Court in U.P Power Corporation's case that vesting of the power by an enabling provision may be constitutionally valid and yet 'exercise of power' by the State in a given case may be arbitrary particularly, if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. It was also observed that Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14.
30. The decision in Surajbanb�s case - (2011) 1 SCC 467, which held that the State is required to place before the Court the requisite quantifiable data in each case to satisfy the Court that the said reservation became necessary on account of inadequacy of representation of SC/ST candidates in a particular class or classes of posts without affecting the general efficiency of service, was also referred to in U.P Power Corporation case cited supra. It was vehemently argued before the Hon'ble Supreme Court in U.P Power Corporation Limited v. Rajesh Kumar and Others (supra) that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. Negativing that plea in para 86 of that judgment the Hon'ble Supreme Court held as under:-
'86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.' However, in that case, it was held that any promotion that had been given based on the dictum in Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed. Therefore, in the light of the authoritative pronouncement of the Hon'ble Supreme Court referred to above, the contention that since the promotion policy had been in vogue in the Railway Department and since the policy of reservation in promotions was accordingly followed, no fresh excercise is necessary on the quantifiable data showing inadequacy of representation or social backwardness etc made mention of in para 123 of M.Nagaraj cannot be sustained. It is made impeative that if accelerated promotion is to be given to candidates belonging to SC/ST community, then the pre-conditions mentioned in paragraph 123 of M Nagaraj are to be satisfied.
31. The judgment rendered by the Hon'ble Surpeme Court in Union of India Vs. Pushaparani -- (2008) 9 SCC 242 is also incidentally referred to herein. The point which arsose for consideriton in that case was whether the order of the Tribunal which was confirmed by the High Court, can be maintained by applying the ratio of M.Nagaraj. Strenuous efforts were made therein to convince the court that the policy of reservation cannot be applied at the stage of making promotions because the Raiwlay Administration did not produce any evidence to show that Scheduled Castes and Scheduled Tribes were not adequately represented in different cadres and that the efficiency of administration will not be jeoparised by reserving posts for Scheduled Castes and Scheduled Tribes. But the Hon'ble apex court was not pursuaded to accept that contention. It was noted that the applicants therein did not plead that the application of the polcy of reservation would lead to excessive representations of the members of the Scheduled Castes and Scheduled Tribes or that the existing policy of reservation framed by the Government of India was not preceeded by an exercise in relation to the issue of adequacy of their representation. Instead the thrust of their claim was that restructuring of different cadres in Group C and D resutled in upgradation of posts and the policy of reservation cannot be applied qua upgraded posts. It was observed that the Union of India and the Railway Administration did not get opportunity to show that the employees belonging to Scheduled Castes and Scheduled Tribes did not have adequate representation in different cadres. As such, it was found neither possible nor desirable to entertain a totally new plea raised on behalf of the respondents therein, more so, because adjudication of such a plea would necessitate a detailed investigation into the issues of facts. Therefore, Pushparani's case is not of much help to decide the issue invovled in this case.
32. Copy of the judgment rendered by Hon'ble Supreme Court in Civil Appeal No. 209/2015 dated 09.01.2015 (Chairman and Managing Director v. Central Bank of India SC/ST Employees Welfare Association) has also been referred and placed before us. The Office Memorandum dated 13.08.1977 issued by the Central Government came up for consideration. That Office Memorandum was interpreted by the High Court of Madras in favour of SC/ST employees. That was challenged by the Bank before the Hon'ble Supreme Court. It was noticed that the Bank which are statutory banks and public sector undertakings have been following the reservation policies as issued by the Government of India from time to time. For doing so, the promotion policy of each of such bank makes specific provision in that behalf. As per the promotion policy, incorporating the reservation policy framed by the Central Government in respect of candidates belonging to SC/ST category are 15% reservation for SC and 7.5% reservation for ST candidates. That was done at the initial level of recruitment and also for promotion in the clerical cadre. Such a reservation was also provided for promotion from the clerical grade to the rank of officers grade (Junior Management Grade Scale -I). When promotion comes from one scale to the next scale it was stated that the banks were not making any reservations while carrying out the promotions. In the appeal the Hon'ble Supreme Court considered the judgments rendered in Indrasawhney, Virpal Singh Chowhan and M. Nagaraj. It was held by the Hon'ble Supreme Court in paragraph 24 as:
'The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules. ' It was also held that whenever there exists such a provision for reservation in the matters of recruitment or the promotion it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to the post while making selections/promotions. The beneficiaries of those provisions can approach the Court to get their rights enforced. It was held that what is to be highlighted is the existence of provisions for reservation in the matter of selection or promotion as the case may be which is the sine qua non for seeking mandamus as it is only when such a provision is made by the State a right shall accrue in favour of SC/ST candidates and not otherwise.
33. The learned counsel for the respondents would submit that so far as the cases on hand is concerned, there has been in existence the option for reservation which had been in vogue for more than five decades and as such a right had accrued in favour of SC/ST candidates in matter of selection and promotion. In short, the contention raised by the respondents is that since there had been in existence the recruitment rule which provides reservation in the matter of promotion as well there was no requirement of collecting quantifiable data as mentioned paragraph 123 of M. Nagaraj. That was a case where the office memorandum dated 01.11.1990 referred to therein did not provide any reservation in promotion by selection within Group A posts which carry an ultimate salary of Rs. 5700/- per month (as it stood done). Hence it was held that reservation is provided in promotion by selection qua those post which carry an ultimate salary of less than Rs. 5000/- per month (pre-revised). It was also held that the policy of no reservation in the matter of promotion is applicable only from Scale- VII - and above and so it is clear that promotions from one scale to the next upto scale VI are concerned, reservation is to be provided. It was held therein that the appellant Bank cannot take umbrage under the memorandum referred to above and deny reservation in favour of SC/ST employees while carrying out promotions upto Scale - VI. It was clarified that at present there is no provision for reservation in promotion but by selection only in respect of those posts which carry an ultimate salary of Rs. 5700/- per month (pre-revised) qua appellant bank that would be in respect of Scale -VII and above. Therefore, to carry out promotions from Scale-I upto Scale
- VI reservation promotion in favour of SC/ST employees has to be given. It is contended by the respondents that this judgment is actually in favour of the stand taken by the respondents that as long as the promotion policy existed even prior to the judgment in M. Nagaraj that promotion policy which had been in existence for more than five decades had to be held valid. In other words, according to the respondents the contentions vehemently advanced by the applicants that without collecting the quantifiable data, etc. as mentioned in paragraph 123 in M. Nagaraj, no reservation in promotion should be allowed to be carried out by the respondents should be held untenable.
34. The learned counsel for the respondents would submit that though innocuously the plea made by the applicants is that unless the quantifiable data relating to the inadequacy of representation etc. are collected the reservation in promotion which has been followed by the Railway Department should not be allowed, it would tantamount to a prayer for issue of a mandamus to take steps towards framing of a rule or a regulation for the purpose of reservation for Scheduled Caste and Scheduled Tribes in matter of promotions. The Court cannot issue such a mandamus to legislate, it is further added. The prayer made by the applicants is innocuously couched to make it appear that the relief is not for mandamus but it actually amounts to a direction in the nature of mandamus that unless quantifiable data regarding inadequacy of representation etc. are collected by the respondents no reservation in promotion can be given. The plea raised by the applicants is palpably unsound as it would amount to issuing a writ of mandamus to the department or the state to legislate, it is argued. That is not permissible in view of the plethora of decisions rendered by the Hon'ble Supreme Court. One among them is Census Commissioner v. R. Krishnamoorthy -- (2015) 2 SCC 796. It is also important to note that in spite of the fact that there is a specific plea raised by the respondents that the promotion policy had been in vogue in the Railway Department no declaration is sought to quash the recruitment rules on the premise/ground that it is in violation of M. Nagaraj, it is further argued.
35. In Indra Sawhneys case the Constitution Bench specifically held that the creamy layer principle does not apply to SCs/STs. In Paragraph 110 and 120 to 123 of M Nagaraj also it was stated that while considering questions of affirmative action, the larger principle of equality such as 50% ceiling (quantitative limitation) and creamy layer (qualitative exclusion) may be kept in mind. In M. Nagaraj it was not discussed or decided that the creamy layer principle would be applicable to SCs/STs. Therefore, there can be no doubt that creamy layer principle does not apply to SCs/STs.
36. The learned counsel for the applicants would also refer to the decision of the High Court of Himachal Pradesh in HP Samanya Varga Karmachari Kalayana Maha Sangh Vs.State of HP and others - (CWP-T No. 2628 of 2008 decided on 18.9.2001) to fortify the submission that the question posed before the High Court in that case was with regard to the requirement to collect data as mandated in M.Nagaraj That was a case where the State decided that there was no need to collect data as mandated in M. Nagaraj. There the State had issued a direction to the effect that SCs/STs Governments servants shall, on their promotion by virtue of rule of reservation/roster be entitled to consequential seniority with effect from 17.6.1995 retrospectively without the introduction of catch up principle.
37. The contention raised before the High Court was that the instructions dated 7.9.2007 issued by the State Government would be totally illegal since the State had not collected any data as directed by the apex court in M.Nagaraj. It was also urged before the High Court that in terms of the conclusion in M.Nagaraj, the concept of creamy layer would also be applicable to SCs/STs. After considering the various judgments on the point including M. Nagaraj it was held by the High Court of Himachal Pradesh that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribe. However, if it chooses to exercise the powers vested in it to make such reservations the State must collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. In addition thereto Article 335 relating to efficiency must also be complied with. It was finally held by the High Court that the instructions dated 7.9.2009 issued by the State Government was totally violative of the law laid down by the apex court in M. Nagaraj and it was held that the State is bound to collect data to show that the so called backward classes are actually backward and they are inadequately represented in the services under the State.
38. The learned counsel for the applicant has also placed reliance on a decision rendered by the Full Bench of C.A.T. (Principal Bench) in OA 2211/2008. The challenge posed by the applicants before the Principal Bench was regarding the circulars issued in respect of which the applicants sought a direction to be issued to the respondents to recast the seniority list of all the railway employees in each category and grade in Group B,C and D on the Indian Railways on the basis of original date of appointment and that no benefit of consequential seniority to earlier promoted SC/ST employees be allowed. A further direction was also sought to the respondents to review all promotions made in the past on the basis of revised seniority list to be prepared on the basis of original date of appointment with consequential benefits of fixation of pay and payment of arrears. The applicants therein contended that the respondents have not carried out any exercise to find out the parameters to determine backwardness which has to be based on objective and quantifiable criteria; identification of persons who satisfy the above parameters and also excluding persons or class of persons who form part of the creamy layer; laying down bench marks providing the maximum reservation that can be provided which when achieved would trigger a discontinuation of reservation (either in direct recruitment or on promotion). It was found that the respondents have not carried out any exercise to find out:
(a) the parameters to determine backwardness which has to be based on objective and quantifiable criteria;
(b) Identification of persons who satisfy the above parameters and also excluding persons or class of persons who form part of the creamy layer; B) Laying down benchmarks providing the maximum reservation that can be provided which when achieved would trigger a discontinuation of reservation (either in direct recruitment or in promotion);
(d) factors to be taken into consideration to maintain over all administrative efficiency ie., the maximum posts that can be reserved and also identification of areas and avenues which are critical to the working of the organization and where no reservation could be provided or else the efficiency and the manner of working of the organization as a whole would suffer;
(e) the actual representation of such class of persons in the matter of public employment and a comparison with the benchmarks to show compelling State need to exercise powers under Article 16(4) or Article 16(4A);
(f) setting up a continuous mechanism to see that the benchmarks and thresholds laid down are not breached and as soon as the targets are achieved, reservation is discontinued so as not to cause reverse discrimination and a breach of constitutional requirements.
In so afar as complying with the conditions precedent, with regard to reservation in promotion and accelerated seniority are concerned it was found that reservation in matter of public employment was proportionate to the population of such categories and that since the said bench mark has not been achieved reservation should be continued and that the numerical bench mark laid down by the Central Government for the purposes of reservation in favour of SCs/STs is 15% and 7.5 % respectively. The data provided therein was as on 1.1.2006. It was found that no exercise had been undertaken by the government/Railway Department after the judgment of the Hon'ble Supreme Court in M.Nagaraj which was delivered on 19.10.2006.
39. Thus according to the applicant therein what have been stated above are necessary requirements in view of the decision rendered by the Hon'ble Supreme Court in M.Nagaraj for continuation with the policy of reservation in promotions conferring consequential seniority etc. It was their further contention that despite the directions issued by Supreme Court the respondents did not carry out any exercise which would justify the exercise of the enabling power by the authorities and that the burden to establish the existence of compelling need is on the state and if the state failed to satisfy the compelling need, it would necessarily mean absence of jurisdictional facts and as such the exercise of power under the enabling provision wold be unsustainable. In that case the circulars dated 8.3.2002, 13.1.2005, and 29.2.2008 which conferred accelerated seniority to the members of SC/ST automatically, as a consequence of their promotion to higher post against the roster point reserved for such candidates were under challenge. Therefore, the issue therein was whether the consequential seniority can be conferred to the roster points meant to be occupied by reserved category candidates for the period even prior to 17.6.1995.ie, before Article 16(4A) came to be inserted by way of constitution amendment.
40. It can be gathered that the policy of the government was to provide reservation in promotion as well and that was why clause (4A) to Article 16 was inserted so as to give source of power to the State to make reservation to any class or class of posts in the services under the State. Conferment of seniority to the roster point promotees is considered in normal service jurisprudence as accelerated seniority. Such roster point employees belonging to reserved categories would sometimes secure promotion before their seniors could be promoted and hence that was challenged in Virpal Singh Chouhan's case [(1995) 6 SCC 684]. The Hon'ble Supreme Court in that case, while approving promotion of reserved category candidates on the roster points, evolved the principle known as 'catch up rules' and held that as and when a general category candidate who was senior in the feeder category is promoted, he shall regain his seniority and would thus become senior to his erstwhile junior of reserved category who was promoted earlier to him because of reservation/roster point. It was that judgment which led to the introduction of clause (4A) to Article 16 as amended by the 85 th constitutional amendment which says that nothing in Article 16 shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Caste and Schedule Tribes which in the opinion of the State are not adequately represented in the services under the State. It was while Considering the amended Article 16 (4A) the Hon'ble Supreme court issued the direction as contained in paragraph 123 in M.Nagaraj (supra). The learned counsel for the applicants would submit that for providing reservation for Scheduled Castes/Scheduled Tribes in promotional avenues in a manner so as to take away the benefit of catch up rule from eligible and successful candidates of general category, the requirement of guidelines issued by the Honble Supreme Court in M Nagaraj especially paragraph 123 had to be satisfied. Therefore, the question that falls for consideration is whether those directions have been fulfilled or not, the learned counsel for the applicants submits.
41. It was observed by the Full Bench that it is the adequacy of the representation of backward classes or citizens which has to be assessed and not proportionate representation as per their population. Referring to the provisions contained in Article 16(4A) the State is not prevented from making any provision for reservation in matters of promotion with consequential seniority to any class or classes of posts in the services under it in favour of SCs/STs if they are not adequately represented. It is the adequacy of representation which is to be worked out, it was held. The case of the applicants was that the pre-conditions spelled out in M.Nagaraj had already been done and hence reservation in promotion with accelerated seniority shall have to be worked out in the way and manner as per the law settled earlier on the issue and if that be so, it is not necessary for the Tribunal to labour much on the issues raised by the applicants. No doubt if the position is already settled, the only relevant discussion and adjudication in the case can be and should be confined to the alleged non- observance of the pre-conditions for making accelerated promotions.
42. It was held by the Full Bench that the Railways have not worked out or even applied their mind to be pre-conditions before giving effect to the provisions of Article 16(4A) and for that reason circular dated 29.2.2008 (as per which the seniority of SC/ST Railway servants promoted by virtue of rule of reservation/roster has to be regulated) is to be quashed. Regarding the plea to quash instructions dated 8.3.2002 and 13.1.2005 issued by the Railway Board it was held that there was no need to do so as the same had been discussed in the case of Railway staff in the matter of Virpal Singh Chowhan (supra) Therefore, while setting side instructions dated 29.2.2008 it was held by the Tribunal not to give accelerated seniority to Scheduled Castes and Scheduled Tribe category employees till such time pre-conditions on which alone article 16(4A) of the Constitution is to operate are complied with. Therefore, laying much emphasis on the decision rendered by the Full Bench (where also the recruitment or reservation policy which had been in existence was considered) it is contended by the applicants that it is impermissible to accord accelerated seniority before the pre-conditions laid down in M.Nagaraj are satisfied.
43. Another judgment in Civil Appeal No.6631 and 6632 of 2015 decided by the Hon'ble Supreme Court on 27.8.2015 (S.Paneerselvam and others Vs. Government of Tamilnadu and others) also has been placed before us. There arguments were addressed before the Hon'ble Supreme Court relying upon Rule 12 of the Special Rules Tamil Nadu Engineering Service to contend that the consequential seniority is protected in terms of Rule 12 and under Article 16(4A) of the Constitution of India. Rule 12 therein provided that the rule of reservation for appointments (General Rule 22) shall apply to the appointment of Assistant Divisional Engineers by direct recruitment and recruitment by transfer separately and the appointment of Assistant Engineers by direct recruitment. It was found that as per Rule 12 reserved category Assistant Engineers and the reserved category Junior Engineers secured promotion as Assistant Divisional Engineers much earlier to the general category Assistant Engineers and Junior Engineers respectively because of their accelerated promotion following rule of reservation. While considering that question it was held by the apex court:
'26. The true legislative intent under Article 16 (4A) of the Constitution is to enable the State to make provision or frame rules giving consequential seniority for the accelerated promotion gained based on the rule of reservation. Rule 12 evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. In the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category accelerated promotees, there is no question of automatic application of Article 16 (4A) of the Constitution.' It was also contended in support of the Rule of reservation that in about 8 departments of the States, Rule of reservation is followed; one among them is Tamilnadu Highway Engineering Services. In terms of Rule 12, the practice of following Rule of Reservation in promotion has been in existence for more than 60 years, it was scontended. Hence it was argued that the Division Bench of the High Court was right in extending the protection under Article 16(4A) to accelerated promotees.
44. The contention aforestated was not accepted by the Hon'ble Supreme Court. It was held by the apex court that even after the 85 th amendment act, the State is duty bound to collect data so as to assess the adequacy of representation of the Scheduled Caste candidates in the service and based on the same, the State should frame a policy/rule for consequential seniority. In that case the apex court found that no material was placed on record that the State of Tamilnadu has ever undertaken such exercise of collecting data of adequacy of representation of the SC/ST candidates in the Tamnlnadu Highway Engineering Service and so in the absence of any rule conferring consequential seniority in the State of Tamil Nadu 'catch up rule' is applicable even amongst Junior Engineers promoted as ADEs following rule of reservation and also for their inter-se seniority amongst AEs promoted as ADEs and JEs promoted as ADEs following rule of reservation. It was contended by the applicants that Tamilnadu Highway Engineering Service Rules had been in existence for over 60 years which provide for reservation of appointments as stated above, but still Hon'ble Supreme Court was not inclined to accept that plea. That is a plea similarly raised by the respondents herein. But that is countered by the respondents herein pointing out that the Supreme Court has observed that the consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees and so the claim made in that case was turned down by the Supreme Court since there was no such provision, whereas in the Railway service accelerated promotion for SC/ST candidates had been in vogue for over 5 decades and as such the decision rendered supra cannot be applied to the facts of this case.
45. It was held by the Hon'ble Supreme Court in that case that in the absence of any provision for consequential seniority in the rules, the 'catch up rule' will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. It was so held following the principle laid down by the Supreme Court in Virpal Singh Chowhan cited supra. Though the facts dealt with therein may not be exactly identical still it has been pressed into service by the applicants to forty their plea that unless the quantifiable data as mentioned in M.Nagaraj are collected, the respondents cannot proceed with the accelerated promotion for SC/ST communities.
46. It is vehemently argued on behalf of the respondents that the existing reservation policy cannot be taken away on the fallacious premise that the same is ultra-vires, illegal or is contrary to the dictum laid down by the Apex Court in M.Nagaraj. According to the applicants, the promotions attempted to be effected by the respondents is violative of the mandate issued by the Apex Court in M.Nagaraj. But it is contended by the respondents that unlike in other cases, so far as the Railway Administration is concerned, there has been in existence for more than five decades the recruitment rules providing for promotion to SC/ST candidates and so it is not something newly introduced after the pronouncement of M.Nagaraj. Therefore, the crux of the contention advanced by the respondents is that the promotion policy which had been in existence in the Railway Department for several decades should not be set at naught on the plea that the quantifiable data relating to the inadequacy of representation or social backwardness have not been collected subsequent to the pronouncement of the judgment in M.Nagaraj. According to the applicants, no relevant quantified data exists to support the reservation attempted to be effected by the respondents. It is contended by the respondents that the rules were framed several years back taking note of all the aspects regarding social backwardness, inadequacy of representation etc and so no further quantifiable data was required to be collected as held by the Supreme Court in M.Nagaraj. The mandatory test that backwardness, inadequacy of representation and reservation in promotion should not disturb the efficiency of administration had been taken note of while the recruitment rules were made and since that promotion policy has been in vogue for several decades, that should not be disturbed, the respondents plead.
47. It was by 77th Constitutional amendment, Article 16 (4A) permitting reservation in promotion to the SC/ST was inserted. The object of that amendment was to overcome the judgment rendered by the Supreme Court in Indra Sawhney wherein it was held that reservation of appointment or posts under Article 16(4) of the Constitution is confined to initial appointment and it cannot be extended to reservation in matters of promotion. The said amendment was aimed at to protect the interests of SC/ST as their representation in services in the States did not reach the required level. It was further amended to include consequential seniority by the 85th amendment. It was in order to surmount the judgment of the Supreme Court in S.Vinod Kumar and another Vs. Union of India and others - 1996 (6) SCC 580 the 85th amendment act was brought into force with retrospective effect from 17.6.1995 amending Article 16(4A) granting consequential seniority to reserved category employees in their accelerated promoted post. It is pointed out that the said amendment nullified the effect of Virpal Singh Chouhan Vs. State of M.P. & others -- 1995 AIR SC Weekly 4309, Rangachari - AIR 962 SC 36, Ajit Singh (1) Vs. State of Punjab & another - (1996) 2 SCC 715 and Ajit Sngh(2) - (1999) 7 SCC
209.
48. According to the respondents, the continued plight of SC/ST, their inadequate representation and social backwardness still persist and so the policies so adopted by the respondents should be allowed to continue. Learned counsel for the respondents would submit that the SC/ST Commission had submitted reports which would show that the Commission had identified backward classes pointing out the backwardness which still persists and so it is not a case where no quantified data is available with the respondents. According to the respondents, the communities shown as SC/ST are still socially, educationally and economically backward and there has been inadequacy of representation at all levels and cadres. Applicants would refute the submission so made and would contend that no quantifiable data has been collected by the State, (which is applicable to the respondent Railway department as well) subsequent to M. Nagaraj so as to justify the contention that there has been still inadequacy of representation or social backwardness, which are the prime requirements for granting reservation in promotion under Article 16(4A). In short, the challenge is made on the ground that the respondents have not obtained quantifiable data on the backwardness and inadequacy of representation in respect of the SC/ST to whom the respondents wanted to grant reservation in promotion as well. It is argued on behalf of the respondents that it is for the State (so far as the case on hand is concerned, the State of Kerala) which has to collect the quantifiable data since the Railway department as such cannot collect the quantifiable data. No decisive factor and plan are fixed or provided or made available to meddle with the reservation so fixed by the States and so the Court/Tribunal cannot meddle with the reservation policy introduced as per the 85 th amendment, the learned counsel for the respondents further submits.
49. It is further argued that so far as the respondent Railway is concerned, recruitment rules remain intact and it was based on the same, promotions were effected and as such there was no requirement of collecting quantifiable data as it is not something which has been brought into force after Article 16 (4A) was amended. According to the respondents, reservation in promotion had been in vogue in Railway Department and it was being implemented during the past several years.
50. There can be no doubt that the direction issued by the Apex Court in M. Nagaraj is to the State which is required to collect quantifiable data showing backwardness and inadequacy of representation. It cannot be disputed that the quantifiable data has not been collected by the respondents after the judgment in M. Nagaraj was pronounced by the Hon'ble Supreme Court. The quantifiable data regarding the inadequacy of representation or social backwardness, as mandated in M. Nagaraj is only for granting reservation in the matter of promotion and not for initial appointment. Therefore, the data which may be available prior to the amendment of Article 16 (4A) may not be sufficient since it was by way of amendment to Article 16 (4) reservation in promotion has been introduced or brought into force through Article 16(4A). It was in that context the Apex Court in M. Nagaraj has mandated the requirements as stated in para 123 of the judgment.
51. Learned counsel for the respondents has referred to the decision in Census Commissioner and Ors Vs. R.Krishnamurthy - (2015) 2 SCC 796 where it was held:
'21.....It is not within the domain of the Court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy making by adding something to the policy by way of a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the Executive. If a policy or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the Notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects....' This has been cited in order to buttress the submission that the Tribunal cannot issue a mandamus directing the respondents to collect the quantifiable data regarding the social backwardness and inadequacy of representation etc so as to permit the respondents to carry on the promotion policy as it had been followed earlier. But the applicants would contend that here no mandamus is sought for but has only sought for a direction that the respondents should not allow reservation in promotion since the amended Article 16 (4A) is only an enabling provision as has been held by Hon'ble Supreme Court in M. Nagaraj where the apex court has mandated the requirement of quantifiable data for reservation in promotion. The fact that amended Article 16 (4A) is only an enabling provision as has been held in M.Nagaraj was reiterated by the Supreme Court in Suresh Chand Gautam Vs. State of Uttar Pradesh - AIR 2016 SC 1321. In Suresh Chand Gautam it was held that the State is not bound to make reservation for SC/ST in matters of promotions and that it is only an enabling provision conditioned by the fact that the State has to collect the quantifiable data regarding the social backwardness, inadequacy of representation etc.
52. As has been repeatedly said, the Tribunal is not asked nor is the Tribunal of the view that we are to issue mandatory directions for collecting quantifiable data in the light of M Nagaraj but the direction is only to the effect that reservation in promotion should not be done unless the condition precedent is satisfied or complied with. Learned counsel for the respondents would submit that the reservation policy which has been in vogue for decades together based on the available data should be respected and it should be allowed to continue since these factors were not taken into consideration by the Apex Court in M.Nagaraj and as such these cases are to be distinguished on facts. In order to achieve the constitutional goal, the respondents should be allowed to use and utilize the data already available with them and which were and have been used by them for granting reservation in promotions and as such there would be no justification to abruptly put an end to the same, it is further argued. In UP Power Corporation Vs. Rajeshkumar-- AIR 2012 SC 2728, it was held that after culling out the principles stated in M.Nagaraj, the Supreme Court has graphically stated that a fresh exercise in accordance with the law laid down in M.Nagaraj is a categorical imperative. It was held that the State can make provision for reservation in promotion with consequential seniority only on certain basis or foundation and the conditions precedent set out therein have to be satisfied. The respondents have not evolved any such scheme, collecting quantifiable data as mandated in M.Nagaraj and so long as such a policy is not evolved, it would be impermissible for the respondents to grant reservation in promotion as well.
53. It is argued by the learned counsel for the respondents that the percentage of reservation to SC/ST communities and also the communities to which such reservations are allowed varies from State to State. That may depend upon the population of the State, population of the community, the inadequacy of representation and social backwardness and so many other factors. So far as the Railway department is concerned, the Southern Railway takes in it the States of Andhra Pradesh, Tamil Nadu, Karnataka, Puduchery, Kerala etc., and so it would be practically impossible to work out the percentage of reservation, common to the whole of the Southern Railway, which would take in the different States as mentioned above. No doubt, there may be practical difficulties to collect the data in respect of each State and then to modulate the permissible percentage in the matter of reservation in promotion as well. It may not be possible or advisable for the Court to lay down any such procedure or method for identification of backward classes or the percentage to be provided in the matter of reservation in promotions.
54. Learned counsel for the respondents would submit that the decisions cited earlier pertain to the employees of the Railway establishment. But it is pointed out that the instructions contained in para 319 (a) of IREM Vol.I came into being pursuant to the judgment of the Hon'ble Supreme Court in Veerpal Singh Chouhan, cited supra, according to which, a general category employee, as and when promoted, would catch up in the matter of seniority with the junior who was promoted earlier only because of reservation. The decision taken by the Ministry of Railway was that SC/ST railway servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also and that the said decision shall be effective from 17.6.1995. Consequent to the decision of the Supreme Court in M.Nagararj, the Ministry of Railways also considered the matter and decided to negate the effects of paragraph 319
(a) of IREM Vol.I - 1989 mentioned above. Paragraph 319 (a) of IREM Vol. I mentioned above introduced as per Railway Ministry's letters dated 28.2.1979 and 15.5.1998 were withdrawn and it was stated that seniority of the railway servants determined in the light of para 319 (a) would be revised as if that paragraph never existed. Circular dated 29.2.2008 issued by the Ministry of Railways deals with principles for determining seniority of staff belonging to SC/ST promoted earlier vis-a-vis general/OBC staff promoted later. It was mentioned in the said circular that instructions had earlier been issued by the Ministry as per letter dated 8.3.2002 that with effect from 17.6.1995 SC/ST railway servants would, on their promotion, by virtue of the rule of reservation/roster, be entitled to consequential seniority also. Those instructions were stated to have been reiterated by letter dated 21.11.2002 for implementation subject to the final outcome of the writ petitions which were pending before the Hon'ble Supreme Court.
55. In Suresh Chand Goutham v. Uttar Pradesh and others -- AIR 2016 SC 1321 it was contended that the decision in M. Nagaraj requires reconsideration. It was argued before the Hon'ble Supreme Court that certain passages in M.Nagaraj were in conflict with the 9 Judges Bench decision in Indra Sawhney & Others v. Union of India and others -- AIR 1993 SC 477 and R.K.Agarwal v. State of Punjab and others -- AIR 1995 SC 1371. Repelling the contentions so put forward it was held by the Supreme Court in Suresh Chand Goutham supra that the pronouncement in M.Nagaraj supra is a binding precedent and has been followed in a number of authorities and that apart, it has referred to in detail all other binding precedental authorities of larger Benches and as such M.Nagaraj does not require any reconsideration.
56. Relying on the decision as in Suresh Chand Goutham supra, Shri. Elvin Peter, learned counsel appearing for the applicants would submit that the attempt made by the respondents to contend that the principle laid down by the Hon'ble Supreme Court in M.Nagaraj was doubted or that it has to be distinguished on facts is totally unsustainable. In the light of the Constitution Bench judgment in M.Nagaraj, a fresh exercise to highlight certain aspects, to get away with M.Nagaraj, made by the respondents is totally unacceptable since the judgment of the Constitution Bench in M.Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny in as much as the Constitution Bench has clearly declared that Articles 16(4A) and 16(4B) are only enabling provisions and that State can make provision only on certain basis or foundations. The argument advanced by the Senior learned counsel for the respondents is that no mandate can be issued to the legislature to make enactments or provisions in the existing Acts as directed in M.Nagaraj is not acceptable, since we are not issuing any writ of mandamus. Article 16(4) creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. Those are the compelling reasons or conditions precedent. It is only when those reasons are satisfied a State gets power to provide for reservation in the matter of employment. The concept of efficiency, backwardness and inadequacy of representation are required to be identified and measured before any scheme of reservation in promotion is resorted to, the applicants assert.
57. As stated above, the validity of the amendment to Article 16(4A) was upheld only subject to the condition mentioned in para 123 of that judgment. That condition precedent is to be satisfied before putting in to effect the reservation and seniority as mentioned in the amended Article 16(4A). The applicants would contend that it is not a case where they request that the Tribunal should direct the respondents to frame or amend the rules or that the Tribunal should direct the respondents to collect the quantifiable data as mentioned in para 123. What they mean is that, if the conditions as enumerated in para 123 are not satisfied, which is actually a pre-requisite for giving effect to the seniority to SC/ST candidates in promotional posts that exercise has to be undertaken. So far, the respondents have not undertaken the exercise so directed by the Constitution Bench. What is sought for is only to see that the respondents do not bypass the directions contained in para 123 in M.Nagaraj which is a condition precedent for giving promotions in the light of the amended Article 16(4A).
58. In para 123 it was specified by the Constitution Bench that Article 16(4A) is only an enabling provision; the State is not bound to make reservation for SC/ST in matters of promotions. But if they wish to exercise their discretion and make such provisions the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. Therefore, what is sought for by the applicants is that if the respondents wanted to give consequential seniority in the higher posts, without applying the catch up rule, then the exercise as directed to be done under para 123 should be complied with. It is not a mandatory direction that is sought for by the applicants compelling the respondents to collect quantifiable data or to make rules. But the applicants only wanted to ensure that the directives contained in para 123 of M.Nagaraj are fully complied with by the respondents, if not, the respondents are bound to apply the catch up rule in promotion as held in Virpal Singh cited supra.
59.. It is argued on behalf of the applicants that since Article 16(4A) has been upheld by the Constitution Bench in M.Nagaraj but as an enabling provision which confers on the State authorities to provide reservation in promotion with consequential seniority subject to the condition of collection of quantifiable data to justify exercise of the enabling provision, if the Stale fails to collect the quantifiable data, it is to be presumed that the State as a model employer has failed in its duty and hence it is obligatory on the part of the Tribunal to require them to carry out the procedure so that the constitutional vision is realized. Hence, it is not actually a case where any mandamus or any direction is sought to be given to the respondents to collect and gather the necessary or appropriate data for the purpose of taking a decision as regards the promotion and consequential fixation of seniority, but the prayer is only to make it imperative to appreciate in proper perspective the concept of mandatory direction issued by the Constitution Bench in M.Nagaraj. When the law has been so laid down by the Hon'ble Supreme Court under Article 141 of the constitution, it is binding on all Courts and authorities and as such if any consequential promotion is directed to be given in violation of the principle laid down in M Nagaraj, the Tribunal has to intervene. That cannot be construed as a relief of mandamus against the legislature or against the employer.
60. It has already been made clear by the Hon'ble Apex Court in M.Nagaraj (supra) that the State is not bound to make reservation for SCs/STs in the matters of promotion but however, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of the representation of that class in public employment. This is made as a condition precedent for making reservation in the matters of promotion. That exercise was not done by the respondents. The respondents harp upon the fact that such reservation policy had/has been in existence in Railway service regarding promotions as well and as such no fresh quantifiable data is required so far as Railway Department is concerned. That plea is unsustainable in the light of the decision in UP Power Corporation Vs. Rejesh Kumar (supra) and Suresh Chand Gautham Vs. State of UP and others (supra).
61. The upshot of our discussion and conclusion is that the Railway Department is not bound to make reservation to members of SC/ST communities in the matter of promotions. But going by the stand taken by the Railway Department it is clear that they intend to follow the reservation scheme and to give reservation in promotion to members belonging to SC/ST communities; that is not allowable. It has already been held by the Hon'ble Supreme Court in Suresh Chand Gautham Vs. State of UP and others - AIR 2016 SC 1321 , UP Power Corporation Vs. Rajesh Kumar -AIR (2012) 7 SCC page 1 and Surajbhan's case - (2011) 1 SCC 467 that the decision rendered by the Constitution Bench in M.Nagaraj is a categoric imperative that if accelerated promotion is to be given to candidates belonging to SC/ST community then the pre-conditions mentioned in Paragraph 123 of M. Nagaraj are to be satisfied. It is also discernible from the decisions just cited supra, that in the light of the dictum laid down in Para 123 of M.Nagaraj a fresh quantifiable data is required to be collected. If the respondent Railway department intends to grant reservation in promotion to SC/ST communities, then they can do so only after getting the quantifiable data showing the backwardnesses of that class and inadequacy of representation as held in para 123 of M.Nagaraj. Therefore, the steps taken by the respondents to grant reservation in promotion to members belonging to SC/ST communities without collecting the quantifiable data cannot be sustained. To that extent the steps taken or orders issued by the respondents to that effect stands quashed. The respondents can, after collecting the quantifiable data, as required in Para 123 of M.Nagaraj decide afresh and grant reservation in promotion to employees belonging to SC/ST communities. 62 The Original Applications are allowed to the extent indicated above No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps