Punjab-Haryana High Court
Date Of Decision: March 03 vs State Of Haryana And Others on 3 March, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
C.M. No. 2582 of 2014 and
R.A. No. 128 of 2014 in
CWP No. 17280 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
140.
C.M. No. 2582 of 2014 and
R.A. No. 128 of 2014 in
CWP No. 17280 of 2011
Date of Decision: March 03, 2014
Prem Kumar Verma and others
..PETITIONERS
VERSUS
State of Haryana and others
..RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH PRESENT:Mr.Shireesh Gupta, Advocate, for the applicants.
D.S.Rawat, Advocate, for the petitioners.
AUGUSTINE GEORGE MASIH, J C.M. No. 2582 of 2014 Prayer in this application is for impleading the applicants as respondents No. 4 to 19.
The said application is not maintainable and is hereby dismissed in the light of dismissal of the similar applications preferred by the applicants i.e. C.M. Nos. 8713, 8774 and 8785 of 2013 vide a Prerna datta 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 2 detailed order dated 31.05.2013, which reads as follows:-
" These applications, i.e. CMs No. 8713, 8774 and 8785 of 2013, have been filed under Order 1 Rule 10 read with Section 151 C.P.C. for permitting the applicants to be impleaded as respondents on the ground that vide order/judgment dated 7.8.2012, passed by this Court in the writ petition, quashing the instructions dated 16.3.2006 (Annexure-P-8), vide which the State of Haryana had granted 'accelerated seniority' to the scheduled caste category employees being violative of Article 16 of the Constitution of India and the law laid down by the Hon'ble Supreme Court in M. Nagaraj Versus Union of India (2006) 8 SCC 212 has adversely affected the interest of the applicants as they belong to the scheduled caste category and in pursuance to the instructions dated 16.3.2006, stood promoted to the higher posts.
In CMs No. 8715, 8757 and 8784 of 2013, prayer has been made for correction/modification of the order/judgment dated 7.8.2012 passed in the instant writ petition clarifying with regard to the fact as to whether the said order is prospective in operation quashing the instructions or retrospective. Prayer has also been made to clarify as to whether the said order is operative Prerna datta in rem or in personam restricting it to the petitioners in the 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 3 writ petition. Prayer has also been made for recall of the order dated 7.8.2012, passed by this Court in the writ petition.
It is the contention of the counsel for the applicants that the applicants/Union is of the scheduled caste employees in the State of Haryana and by the quashing of the instructions dated 16.3.2006 (Annexure- P-8), vide judgment dated 7.8.2012, they have been adversely affected. Applicants were not impleaded as party to the writ but were and are essential parties and deserve to be heard. It has further been stated that in compliance with the order passed by this Court, respondents have issued instructions dated 20.2.2013, circulating the judgment dated 7.8.2012, passed by this Court in the writ petition for information and necessary action and in pursuance thereto, the said instructions have been adopted by various Corporations, the result whereof is likely to be that the applicants, who belong to the reserved category, will be reverted. Counsel, on this basis, contends that the application deserves to be accepted.
As regards the review/modification of the order dated 7.8.2012, it is contended that the said judgment can only be prospective in operation and in Prerna datta support of this contention, counsel have relied upon the 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 4 judgment of the Hon'ble Supreme Court in the case of R.K. Sabharwal Versus State of Punjab, (1995) 2 SCC 745 and Ajit Singh Janjua Versus State of Punjab and others, (1999) 7 SCC 209, vide which the judgment was given prospective effect. On this basis it has been contended that the position needs to be clarified with effect to the judgment being retrospective in operation or prospective.
I have considered the submissions made by the counsel for the parties and have gone through the pleadings and am of the considered view that the applicants are not necessary parties to the writ petition and, therefore, application for impleadment deserves to be dismissed.
In CWP No. 17280 of 2011, petitioners have approached this Court praying for issuance of writ of certiorari for quashing the instructions dated 16.3.2006 granting accelerated seniority to the scheduled caste employees based upon the Constitution (Eighty Fifth) Amendment Act 2001 amending Article 16(4-A) of the Constitution. The judgment passed by this Court is based upon the law laid down by the Hon'ble Supreme Court in M. Nagaraj's case (supra), wherein it has been held that Article 16(4-A) as per the Constitution (Eighty Prerna datta Fifth) Amendment Act, 2001 is an enabling provision and 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 5 the State can make reservation for the SCs/STs in the matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335 of the Constitution of India. Even if the State has compelling reasons, it has 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. Subject to the above conditions, the Constitution validity of the Eighty Fifth Amendment Act of 2001 was upheld.
In the case of Suraj Bhan Meena and another Versus State of Rajasthan and others 2011 (2) SCT 260, the Hon'ble Supreme Court has clarified the position that it would be necessary for the State Government to frame Rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such Rules in this regard, then it would have to satisfy itself by quantifiable data that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an Prerna datta exercise was undertaken by the Government, the Rule 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 6 relating to reservation in promotion with consequential seniority could not be introduced.
Still further in U.P. Power Corporation Limited Versus Rajesh and others, JT 2012 (4) SC 459 relying upon the judgment passed by the Hon'ble Supreme Court in M. Nagaraj's case (supra) and Suraj Bhan Meena's case (supra), the Hon'ble Supreme Court held that unless the principles laid in the above two judgments are not satisfied, which is a condition precedent, no reservation in promotion can be provided for. In the light of the law laid down by the Hon'ble Supreme Court in the above judgments and further there being an admitted fact on the part of the respondent/State that no such exercise was carried out as has been provided for by the Hon'ble Supreme Court, which is a condition precedent to be satisfied for invoking the enabling provisions as provided in the Amendment to the Constitution even by impleadment of the applicants as respondents, would not make any difference with regard to the judgment as the result would be same. The instructions dated 16.3.2006 (Annexure-P-8), which cannot withstand the test as laid down by the Hon'ble Supreme Court and withstand the scrutiny on the parameters specified by the Hon'ble Supreme Court, prayer made by the applicants for Prerna datta impleadment cannot be accepted as it would be a futile 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 7 exercise. The consequences of the order passed by this Court quashing the instructions, which is un- constitutional, has obviously got to be faced by all the concerned.
In CM No. 8757 of 2013, the clarification/modification, which has been sought by the applicants of the judgment dated 7.8.2012, is also unsustainable as the judgment passed by this Court is very clear and specific. The law as laid down by the Hon'ble Supreme is that reservation in promotion with consequential seniority can only be granted after an exercise has been undertaken by the State Government with regard to inadequacy of representation of the scheduled caste and scheduled tribe candidates in a particular class or classes of post that too without affecting the general efficiency of service. This satisfaction of the State Government has to be based upon quantifiable data, which would show that there was backwardness, inadequacy of representation in public employment and overall administrative efficiency. The basic pre-requisite for providing reservation in promotion as also the consequential seniority having not been undertaken by the State, the instructions dated 16.3.2006 (Annexure-P-8) being un-constitutional has already been Prerna datta quashed and, therefore, there is no question of quashing 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 8 of the instructions being prospective in nature.
Finding no merit in the present applications which are mis-conceived, the same stand dismissed.
In the light of the above order, CM No. No. 8712 of 2013 for placing on record Memo of Parties as well as Annexures-A-1 to A-15, CM No. 8714 of 2013 for staying the operation of the judgment dated 7.8.2012 and CM No. 8758 of 2013 for grant of interim protection by order of status quo till the finalization of the work assigned to the Committee, vide instructions dated 20.2.2013, being infructuous also stand dismissed." Review Application No. 128 of 2014 As the application for impleading the applicants as party respondents stands dismissed, the Review Application, as preferred by the applicants, would also not survive especially in the light of dismissal of C.M. Nos. 8715, 8757 and 8784 of 2013, which were preferred by the applicants for correction/modification of the order/judgment dated 07.08.2012 passed in the main writ petition, which stands dismissed by a speaking order dated 31.05.2013 reproduced above.
The matter is being gone through by this Court in the light of the observations made by a Division Bench of this Court in the Letters Patent Appeals preferred by the applicants dated 05.02.2014 and 26.02.2014.
Prerna datta 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 9 The first ground, on which review is being sought of the judgment, is that the Division Bench of this Court was in cession of a Public Interest Litigation i.e. CWP No. 12133 of 2007 titled as Haryana Pradesh Chamar Sangharsh Samiti vs. State of Haryana through the Chief Secretary, which was disposed of on 13.02.2013 (Annexure A-1) with a direction to the State of Haryana to undertake the exercise of clearing the backlog of vacancies reserved for the Scheduled Castes and Scheduled Tribes categories calculating the same as per roster point w.e.f. 17.06.1995 in vacant posts and making promotions as per the directions given by the Supreme Court in M.Nagaraj vs. Union of India, (2006) 8 SCC 212. This exercise was to be done at the earliest and preferably within six months from the date of receipt of the order. The second ground, on which review is being sought of the judgment, is that subsequent to the passing of the order by this Court in the main writ petition dated 07.08.2012, the State of Haryana constituted a Committee to collect the quantifiable data to justify grant of benefit of accelerated seniority in promotions. The said report is stated to have been submitted to the State of Haryana, copy of which has been appended as Annexure A-5.
The applicants, in the meanwhile, preferred Letters Patent Appeals against the order dated 31.05.2013 (Annexure A-3) passed by this Court. They also moved applications in the appeals placing the report, which was submitted by the Committee, before the Prerna dattaDivision Bench. They also placed an order dated 13.09.2013 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 10 (Annexure A-7) passed by the Supreme Court in a similar matter in Interlocutory Application No. 6 of 2012 in Special Leave Petition (Civil) No. 30143 of 2009 titled as H.P. Scheduled Tribes Employees Federation and another vs. Himachal Pradesh S.V.K.K. and others with Contempt Petition (C) No. 91 of 2013 in Special Leave Petition (C) No. 30143 of 2009, where the Hon'ble Supreme Court allowed the Interlocutory Application and directed the State of Himachal Pradesh to take a final decision on the issue either on the basis of the data within a period of three months. It further ordered that till a final decision is taken, State of Himachal Pradesh was restrained from making any promotion.
In the meanwhile, in pursuance to the order passed by this Court in the main writ petition dated 07.08.2012, State of Haryana issued Instructions dated 20.02.2013, vide which the judgment in Prem Kumar Verma' s case was given effect to.
The applicants preferred CWP No. 1852 of 2014 titled as Sant Lal and others vs. State of Haryana and another challenging these instructions dated 20.02.2013, wherein notice of motion has been issued by this Court for 25.03.2014 and directions have been issued to the State counsel to seek instructions and specified time frame within which the decision on the report of P.Raghavendra Rao Committee would be taken. These facts were brought to the notice of the Letters Patent Bench, on the basis of which, the Division Bench, vide order dated 05.02.2014, permitted the appellants to Prerna dattawithdraw the appeals with liberty to approach the Single Judge by 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 11 filing review applications on the basis of fresh documents which support the case of the appellants. Liberty was also granted to them to make a request for interim stay.
Applicants thereafter preferred C.M. No. 1962 of 2014 and R.A. No. 88 of 2014, which was withdrawn by the counsel for the applicants with liberty to approach the Division Bench for modification/clarification of the order dated 05.02.2014. Thereafter, C.M. No. 777-LPA-2014 in LPA No. 1614 of 2013 titled as Sant Lal and others vs. State of Haryana and others, was preferred, which was disposed of by the Division Bench observing that the modification of the order dated 05.02.2014 is sought on the basis of new documents, which were not available before the Single Judge when earlier review application was dismissed. The application of the appellants was disposed of to take legal recourse as per law. The present review application has been filed as a consequence thereof.
The prayer in the review application cannot be accepted in the light of the fact that the documents, on which reliance has been placed by the applicants, were not in existence at the time when the order was passed. These are all subsequent facts, which have come into existence including the documents, which cannot be taken note of in the application for review of the judgment dated 07.08.2012. In any case, the basic document, on which reliance has been placed by the applicants, is the P.Raghavendra Rao Committee Prerna datta Report (Annexure A-5), which admittedly has come into existence 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 12 subsequent to the passing of the judgment dated 07.08.2012. This report also, as yet, has not been considered and no decision taken thereon either to accept it, reject it and as to how effect thereto has to be given by the Government. The same, therefore, in any case, cannot be taken into consideration for reviewing the judgment dated 07.08.2012, which was passed by this Court on the basis of the then factual position in existence, based upon the pleadings of the parties and the law laid down by the Supreme Court in M.Nagaraj's case (supra). It may be noted here that the Division Bench of this Court in CWP No. 12133 of 2007 titled as Haryana Pradesh Chamar Sangharsh Samiti through its President Gaje Singh Muwal vs. State of Haryana through the Chief Secretary (Annexure A-1), vide order dated 13.02.2013, had observed as follows:-
" Learned counsel for the respondents has drawn our attention to the judgment dated 07.08.2012 rendered by learned Single Judge of this Court in CWP No. 17280 of 2011 titled as Prem Kumar Verma and others vs. State of Haryana by which instructions dated 16.03.2006 have already been quashed being ultra- vires and contrary to the dictum laid down in the case of M.Nagaraj vs. Union of India (2006) 8 SCC 212. Other instructions which are challenged in these writ petitions and noted above are on the same line as are instructions dated 16.03.2006. Since the instructions Prerna datta have already been quashed, as a consequence, the 2014.03.12 13:53 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2582 of 2014 and R.A. No. 128 of 2014 in CWP No. 17280 of 2011 13 State of Haryana will have to undertake the exercise of clearing the backlog of vacancies reserved for Scheduled Castes and Scheduled Tribes categories calculating the same as per roster point w.e.f. 17.6.1995 in vacant posts and making promotion as per the direction given by the Supreme Court in M.Nagaraj's case (supra). The necessary exercise shall be done expeditiously as soon as possible and preferably within six months from the date of receipt of copy of this order. With these directions, these writ petitions are disposed of accordingly."
The Division Bench of this Court, in CWP No. 12133 of 2007, has taken note of the judgment passed by this Court on 07.08.2012 in this case and has accepted the same to be correct and thereafter passed the directions to the State of Haryana. Therefore, no ground for review of the order dated 07.08.2012 arises or is made out.
The Review Application thus, stands dismissed.
(AUGUSTINE GEORGE MASIH)
March 03, 2014 JUDGE
pj
Prerna datta
2014.03.12 13:53
I attest to the accuracy and
integrity of this document
High Court, Chandigarh
C.M. No. 2582 of 2014 and
R.A. No. 128 of 2014 in
CWP No. 17280 of 2011 14
Prerna datta
2014.03.12 13:53
I attest to the accuracy and
integrity of this document
High Court, Chandigarh