Central Administrative Tribunal - Delhi
Vivek Kumar vs Earth Sciences on 31 May, 2024
1
O.A. No. 2936/2023
Item No. 46 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2936/2023
Reserved on: 19.04.2024
Pronounced on:31.05.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1.Vivek Kumar,
Met-A, Group 'B',
Aged about 34 years,
S/o, Sh. Baiju Prasad, R/o,168, Khirki village, Malviya
Nagar, South Delhi, Delhi-110017
[email protected].
2. Abdur Rahaman,
Met-A, Group 'B',
Aged about 34 years,
S/o, Sh. Tufail ahamad, R/o, 86 Village Fattepur Karchhana
Prayagraj Uttar Pradesh-212301.
3.Ankit Saxena,
Met-A, Group 'B',
Aged about 34 years, S/o, Sh. Sudesh Kumar Saxena, R/o,
D-142, Sector-20, Noida, U.P.-201301.
4. Atul Kumar Verma,
Met-A, Group 'Β',
Aged about 33 years,
S/o, Sh. Ghanshyam Verma, R/o, M-32D, Meteorological
Housing Complex.
5. Himanshu Chaudhary,
Met-A, Group 'B',
2
O.A. No. 2936/2023
Item No. 46 (C-4)
Aged about 33 years, S/o, Sh. JAL SINGH, R/o H.No.
600/11 Shalimar Garden Extn-1 Sahibabad, Ghaziabad,
U.P. 201005.
6. Monika Katiyar,
Met-A, Group 'B',
Aged about 35 years, D/o, Sh. Vijan Swaroop Katiyar, R/o,
M-70B India Meteorological Housing Complex, Lodhi Road,
New Delhi.
7. Prabhav Singh,
Met-A, Group 'B',
Aged about 36 years, S/o, Vinay kumar singh, R/o, House
No 498, Gali No 7, Ashok Mohalla, Nangloi, New Delhi
110041.
8. Rahil Akram,
Met-A, Group 'B',
Aged about 35 years, S/o, Sh. Shaheed Khan, R/o, M-83A
IMD Complex Mausam Bhawan Lodhi Road, New Delhi.
9. Ranjan Kumar,
Met-A, Group 'B',
Aged about 36 years, S/o, Sh. Harendra Singh, R/o,
Gardenia Glory, Noida Sector 46, UP-201303.
10. Rhythm Naswa,
Met-A, Group 'B',
Aged about 34 years,
D/o, Sh. Ramesh Naswa, R/o, 106 SFS Flats Mukherjee
Nagar Delhi-110009.
3
O.A. No. 2936/2023
Item No. 46 (C-4)
11.Sachin Kumar Patel, Met-A, Group 'B', Aged about 33
years, S/o, Sh. RS Verma, R/o, Vill-Paharpur, PO-Lohinda,
Jaunpur-222145, U.P.
12.Sudhir Kumar,
Met-A, Group 'B',
Aged about 38 years, S/o, Sh. Ramshakal Prasad Singh,
R/o, B-79-80 UGF, Gali-05, Dashrathpuri Delhi 110045.
13.Vivek Kumar,
Met-A, Group 'B',
Aged about 38 years, S/o, Sh. Sohan Pal, R/o, Flat-31F,
Block-R, Dilshad Garden, Delhi-110095
14.Ram Singh Yadav,
Met-A, Group 'B',
Aged About 37 Years, S/o Haushila Prasad, R/o H-84, Gali
No-05, H-Block,
Ganga Vihar, Delhi 110094
-Applicants
(By Advocate: Mr. M. K. Bhardwaj)
VERSUS
1. Union of India, through its Secretary, Ministry of Earth
Sciences, Mahasagar Bhavan, Block-12, CGO Complex,
Lodhi Road, New Delhi-110003.
4
O.A. No. 2936/2023
Item No. 46 (C-4)
2. The Director General of Meteorology, India
Meteorological Department, Mausam Bhawan, Lodhi
Road, New Delhi-110003.
- Respondents
(By Advocates: Mr. Gyanendra Singh and Mr. Anil Kumar
Mishra)
5
O.A. No. 2936/2023
Item No. 46 (C-4)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A):
The Original Application has been filed by the present applicants under Section 19 of the C.A.T. Act., 1985 seeking the following relief:
(i) To declare the action of respondents in not fixing the seniority of applicants in the grade of Meteorologist-A (erstwhile Assistant Meteorologist Grade-II) by applying catch-up rule' and direct the respondents to fix the seniority of applicants as Meteorologist-A (erstwhile Assistant Meteorologist Grade-11) vis-à-vis their juniors by applying „catch-
up rule‟.
(ii) To quash and set aside the impugned order dated 01.05.2023 (A-1) as well as seniority list dated 10.08.2023 (A-1A) and direct the respondents to redraw the same by applying 'catch-up rule' and grant all consequential benefits to the applicants.
(iii) To direct the respondents to grant seniority to the applicants in the grade or Meteorologist-A (erstwhile Assistant Meteorologist Grade-II) by applying catch-up rule' as per the law laid down by Hon'ble Supreme Court of India in the case of B.K.Pavitra & Ors vs Union Of India & Ors on 09.02.2017 as well as Maheshinder Singh Dhindsa Vs. UOI, OA No. 060/00254/2017 and consider the claim of applicants for further promotion as per the new seniority list with all consequential benefits.
(iv) To allow the OA with cost.
(v) Pass any other orders that this Hon‟ble Tribunal may deem fit in the facts and circumstances of the case.
6O.A. No. 2936/2023 Item No. 46 (C-4)
2. The factual matrix of the case is as follows:-
2.1 The brief facts of the case as outlined by the learned counsel for the applicants are that the applicants joined the respondents‟ department as Scientific Assistant on different dates in the year 2013. After their appointment as Scientific Assistant, the respondents notified the seniority list of Scientific Assistant on 09.12.2014. On completion of three years of service as Scientific Assistants, they became eligible for promotion to the post of Meteorologist -A. Thereafter on 09.12.2014, the respondents issued /notified the seniority list of Scientific Assistants. (59 of the OA). The seniority list of Scientific Assistant as on 01.07.2014 has been finalized on receipt of the representation of the candidates forwarded by their concerned offices for rectification in the seniority list.
Based on the said seniority list, the respondents promoted same junior category Scientific Assistants as Meteriologist-A on 27.03.2017 (Page 131 to 137 of the OA). These juniors belong to reserve category and they were given the benefit of reservation in the said cadre. It is the claim of the applicants that these juniors were promoted against settled law as set 7 O.A. No. 2936/2023 Item No. 46 (C-4) by the Apex Court in catena of judgments particularly in M. Nagraj, Suraj Bhan Meena and Jernail Singh etc. The applicants, though were senior to said Junior Scientific Assistants in cadre, were later promoted as Meteorogolist as on 30.09.2022, five years after the said juniors were promoted to the said category. The applicants, who are 14 in number submitted representation to the respondents during the period October, 2022 to March, 2023. The said respresentations were rejected by the respondents, vide order dated 01.05.2023. Being aggrieved, the applicants have filed the present Original Application seeking the aforementioned relief. Basically, the applicants are seeking quashing the rejection order dt. 01.05.2023 and the seniority list of dated 10.08.2023.
3. On admission of the OA, notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed rejoinder to the same.
4. The learned counsel for the applicant has tendered the following grounds in support of relief sought by the applicant during the course of the arguments: 8 O.A. No. 2936/2023
Item No. 46 (C-4) 4.1. It is the contention of the learned counsel for the applicants that as per the Recruitment Rules for the post of Meteorologist -A, the applicants being senior were entitled to be considered for promotion prior to their juniors irrespective of their category, however, the respondents promoted their juniors on 27.03.2017 to the post of Meteorologist -A by giving benefit of reservation to them, which is in violation of the law laid down by the Hon‟ble Supreme Court, whereas the respondents promoted the applicants as Meteorologist-A on 30.09.2022.
4.2. Learned counsel for the applicants relying upon various judicial pronouncements of the Hon‟ble Supreme Court such as in the case of M. Nagraj & Ors. Vs. Union of India & Ors.
2006 (8) SCC 212 decided on 19.10.2006, Jarnail Singh and ors. vs. Lachhmi Narain Gupta and Others, 2018 (4) SCT 445 decided on 26.09.2018, S. Panneer Selvam and others versus Govt. of Tamil Nadu and others, (2015) 1 SCC 292 decided on 27.08.2015, etc. as also of the Hon‟ble High Court and this Tribunal, submits that the respondents have acted in an unconstitutional and arbitrary manner by not fixing the seniority of the applicants as 9 O.A. No. 2936/2023 Item No. 46 (C-4) Meteorologist -A by applying „catch-up-rule‟. Further, he argues that the respondents have not carried out the requisite exercise by collecting the quantifiable data in terms of the judgment of Hon‟ble Supreme Court in M. Nagraj (supra) as well as Jarnail Singh (supra) and, therefore, the respondents were required to follow the „catch-up-rule‟ while fixing seniority of the applicants vis-à-vis their juniors who were promoted as Meteorologist -A by giving them the benefit of reservation at a prior point of time.
4.3 Learned counsel for the applicants further contends that recently a similar illegality was committed by the Ministry of Finance, Govt. of India and the same was challenged before the Hon‟ble Punjab and Haryana High Court in the case of Union of India & Ors. vs. Maheshinder Singh Dhindsa and vide Judgment dated 12.02.2020, CWP No. 11386/2018, the Hon‟ble Punjab and Haryana High Court directed to follow the „catch-up-rule‟ while fixing seniority in the feeder cadre of Superintendent of Customs. The said judgment of Hon‟ble High Court of Punjab & Haryana has been upheld by the Hon‟ble Supreme Court while dismissing SLP No. 12475/2020 on 18.12.2020 and Review Petition No. 31455/2021 on 10 O.A. No. 2936/2023 Item No. 46 (C-4) 15.02.2022 and following the said judgments, recently the Chandigarh Bench of this Tribunal vide order dated 26.02.2024 in OA No. 060/1435/2018 and batch followed the said judgments and directed the respondents to apply the „catch-up-rule‟.
4.4. The applicants contend that the respondents have tried to justify their arbitrary action by relying on judgment of Hon'ble Supreme Court in B. K. Pavitra vs UOI, JT 2017 (2) SC 277 decided on 10.05.2019, however they failed to appreciate that the said judgment would not be applicable in their case inasmuch as, the respondents have initially applied rule of reservation in promotion in violation of judgment of Hon'ble Supreme Court in the case of M. Nagraj, Jarnail Singh (supra) without carrying out the requisite exercise by collecting the quantifiable data. In the B. K. Pavitra (supra), the concerned party had carried out the requisite exercise as per the judgment of M. Nagraj (supra), by collecting quantifiable data which is not the case of respondents herein. Therefore, B.K. Pavitra (supra) is not applicable and respondents are bound by the subsequent judgment of the Hon‟ble Punjab & Haryana High Court in Maheshinder Singh 11 O.A. No. 2936/2023 Item No. 46 (C-4) Dhindsa (supra) which has been upheld by the Hon‟ble Supreme Court while dismissing SLP No. 12475/2020 on 18.12.2020 and Review Petition No. 31455/2021 on 15.02.2022.
5. The learned counsel for the respondents relying on the counter affidavit filed by the respondents and reiterated the stand undertaken in their counter affidavit stating that all the promotions are done keeping in view the extant rules, instructions as well as the DoP&T guidelines. Relying upon DoP&T OM No. 36012/17/88-Estt. (SCT) dated 25/4/1989, an averment has been made by the respondents that reservation to the members of the Scheduled Castes and the Scheduled Tribes shall be provided in the matter of promotion when promotion is made:
(a) through Limited Departmental Competitive Examination in Group B, Group C and Group D posts;
(b) by selection from Group B post to lowest rung of Group A post or in Group B, Group C and Group D posts;
and
(c) on the basis of seniority subject to fitness in Group A, Group B, Group C and Group D posts.
12O.A. No. 2936/2023 Item No. 46 (C-4) Reservation in all the above cases shall be given at the rate of 15 per cent for the Scheduled Castes and 7.5 per cent for the Scheduled Tribes. However, reservation in promotion is not given in the grades in which the element of direct recruitment, if any, exceeds 75 percent. 5.1. The learned counsel for the respondents further relied on DOPT OM No. 22011/1/90-Estt(D) dated 12.10.1990, which states that if adequate number of SC/ST candidates are not available within the normal field of choice to fill up the vacancies reserved for them, the field of choice shall be extended to five times the total number of vacancies and the SC/ST candidates (and not any other) coming within the extended field of choice be considered against the vacancies reserved for them.
5.2. Further, learned counsel for the respondents submitted that while issuing office order dated 27.03.2017 for promotion to the post of Meteorologist 'A' (erstwhile Assistant Meteorologist II), prevailing DoP&T rules and guidelines were implemented. At the time of the DPC there were no eligible ST candidates available within the normal zone of consideration. Hence, as per DoP&T OM No. 22011/1/90-Estt(D) dated 13 O.A. No. 2936/2023 Item No. 46 (C-4) 12.10.1990, ST candidates from the extended zone (five times the total number of vacancies) were considered against the vacancies reserved for them.
5.3. It is further submitted that as per DoP&T O.M. No. 20011/1/2001- Estt. (D) Dated 21st January, 2002, SC/ST Government servants on their promotion by virtue of rule of reservation roster, will be entitled to consequential seniority also. In other words, the candidates belonging to general/OBC category promoted through a later DPC will be placed junior to the SC/ST Government servants promoted through earlier DPC, even though by virtue of the rule of reservation. Further, it is also submitted that in view of above mentioned DoP&T OM. No.20011/1/2001-Estt. (D) Dated 21st January, 2002 general/OBC category candidates who were promoted through a later DPC, were placed junior to ST candidates who were promoted through earlier DPC.
5.4. Drawing strength from the averments made in the counter reply, learned counsel for the respondents submits that even in the matter of M. Nagraj (supra) reservation is permissible with certain conditions. Therefore, averment made by the applicants that reservation in promotion was not 14 O.A. No. 2936/2023 Item No. 46 (C-4) permissible as per the law laid down by Hon'ble Supreme Court, is not true. Further, he categorically states that Department of Personnel & Training (DoP&T) is the nodal agency, under the Govt. of India, which issues guidelines and rules regarding various matters like recruitment, regulation of service conditions, posting/transfers, deputation of personnel etc. to be followed by all Ministries/Departments. Indian Meteorological Department under the Ministry of Earth Sciences also follows the rules and guidelines issued by DoP&T. The respondents have further submitted that it is pertinent to mention that what the applicants have challenged, is a draft Seniority list of Meteorologist 'A' dated 10.08.2023 which was prepared as per the extant DoP&T guidelines and the same has not yet been finalized.
6. Analysis.
6.1 We have gone through the records of the case thoroughly and the written submissions by the both parties as well as heard the both the counsels carefully.
6.2. It is not out of place to consider the evolution of the constitutional mandate as well as the cases laws pertaining to 15 O.A. No. 2936/2023 Item No. 46 (C-4) the reservations in promotion and the associated issues since the last four decades. The following sections are heavily borrowed from the case analysis in M. Pavitra and Jarnail Singh judgment of the Apex Court.
6.3 Constitutional Provisions and Case Laws Regarding Reservation in Promotions 6.3.1 Constitutional Provisions Regarding Reservation. The framers of the Constitution envisaged the affirmative action in the form of providing reservation to backward classes. Clauses (1) and (4) of Article 16 provide:
(1) There shall be equality of opportunity for all citizens in matters relating to the citizens belonging to the backward classes in employment or appointment to any office under the State.
...
(4) 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. Based on the constitutional provision, the Union of India and states provided for reservation for SCs and STs in public employment, as well as admission to publicly funded educational institutions.
6.3.2 Was reservation contemplated in Promotions when it used the expression "Appointment". 16 O.A. No. 2936/2023 Item No. 46 (C-4) On January 1, 1979, the thenset up the Socially and Educationally Backward Classes (SEBC) Commission headed by Shri B.P. Mandal under Article 340 of the Constitution of India. The first SEBC commission was set up in January 1953 under the chairmanship of Kaka Kalelkar. It presented its report on March 30, 1955, listing down 2399 ranks as socially and educationally in deprived class on rules made by the Central Government.
The Mandal commission submitted its report in December 1980 in this report the commission identified about 3743 castes as socially & educationally backward classes and recommended for reservation of 27% in Government jobs. However, the Report of the Mandal commission could be implemented for considerable time.
The Central Government under the Prime Ministership of V.P, Singh issued an office of a memorandum on August 13, 1990, and reserved 27% seats for the Socially & Backward classes. This caused a civil disturbance in the country. Anti reservation moment was started from various parts of the country. Indian Youth were in the streets to protest against this decision. 17 O.A. No. 2936/2023 Item No. 46 (C-4) A writ appeal was documented by the Bar Association of the Supreme Court, Challenging the legitimacy of the Office of Memorandum given by the public authority. Finally, the case was decided by the 5 Judges bench. Later, on October 1, 1990, they issued a stay order till the final disposal of the matter. The government under the Premiership of P.V. Narsimha chose to give another Office of Memorandum by rolling out 2 improvements:
i) by presenting the financial rule in allowing reservation inside 27% in Govt. Work and
ii) Reserved another 10% of opportunities socially and instructively in reverse classes. That is complete 37% (27% 10%).
The 5 judge‟s bench referred this matter to the 9 judges‟ bench who issued a notice to the government to show cause the criteria upon which the government has proposed to make 27% reservation for them.
This is the background under which the 9 Judge bench of the Supreme Court adjudicated the Indra Sawhney [Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. Etc.,(SC), (1992) 6 JT 673.1 (SC) decided on 16 November, 1992]. The 9 Judge Constitutional Bench 18 O.A. No. 2936/2023 Item No. 46 (C-4) formulated 9 issues including (i) whether the percentage of reservation can extend beyond 50% of total, (ii) whether caste or economic parameters would determine backwardness and (iii) whether reservation can extend to promotions. The Nine Judge Constitutional Bench held inter alia, the following:
(i) Reservations contemplated by Article 16 (4) of the Constitution should not exceed 50 per cent. While 50 per cent shall be the rule, ―it is necessary not to put out of consideration certain extraordinary situations inherent the great diversity of this country and the people. But, any relaxation of the strict rule must be with extreme caution and on a special case being made out;
(ii) Reservations under Article 16 (4) could only be provided at the time of entry into government service but not in matters of promotion. However, this principle would operate only prospectively and not affect promotions already made.
Moreover, reservations already provided in promotions shall continue in operation for a period of five years from the date of the judgment;
(i) The creamy layer can be and must be excluded.
Justice B P Jeevan Reddy held:
19O.A. No. 2936/2023
Item No. 46 (C-4) While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‗class„ a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).
(ii) The adequacy of the representation of a backward class of citizens in services ―is a matter within the subjective satisfaction of the State, since the requirement in Article 16 (4) is preceded by the words in the opinion of the State.
(iii) The backward class of citizens cannot be identified only and exclusively with reference to an economic criterion. It is permissible to identify a backward class of citizens with reference to occupation, income as well caste.
In view of the afore mentioned decision of the Apex Court, the provisions for reservation in matters of promotion under the Karnataka Government Order of 1978, as clarified by the Official Memorandum dated 1 June 1978, were saved for a 20 O.A. No. 2936/2023 Item No. 46 (C-4) period of five years from 16 November 1992.N other words, Promotions already made were saved. 6.3. 3 The 77th Constitutional Amendment incorporating provision for reservation in Promotion On 17 June 1995, the Parliament acting in its constituent capacity adopted the Seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservations to be made in promotion in favour of the SCs and STs. Clause 16 (4A) reads as follows:
"16 (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 Scheduled Tribes."
This amendment came into force on 17 June 1995, before the expiry of five years from 16 November 1992 (the date on which the decision in Indra Sawhney was pronounced). As a result of the decision in Indra Sawhney and the seventy- seventh amendment to the Constitution, the provision for reservations made by the Government of Karnataka under the Government Order of 1978 stood saved and continued to operate.
21O.A. No. 2936/2023 Item No. 46 (C-4) 6.3.4 The Apex court Decision regarding operation of Roster (R K Sabharwal v State of Punjab, 10.2.1995) The issue of continuation of Roster Point Reservations was adjudicated in R. K. Sabharwal And Ors vs State Of Punjab And Ors,1995 SCC (2) 745, decided on 10 February, 1995.
In the said petition, the petitioners and respondents 4, 5 and 6 arc members of the Punjab Service of Engineers (Class1) (the Service) in the Irrigation Department of the State of Punjab. The respondents are members of the Scheduled Castes whereas the petitioners belong to the general category. The conditions of service of the members of the Service are governed by the Rules called The Punjab Service of Engineers Class I P.W.D. (I.B.) Rules, 1964 (the Rules). The Punjab Government by the instructions dated May 4, 1974 provided reservations for the Scheduled Castes and Backward Classes in promotions to and within Class I and II services under the State Government. It was laid down under the said instructions that 16 per cent of the posts to be filled by promotion were to be reserved for members of the Scheduled Castes and Backward Classes (14 per cent for the Scheduled 22 O.A. No. 2936/2023 Item No. 46 (C-4) Casts and 2 per cent for the Backward Classes) subject to the conditions that the persons to be considered must possess the minimum necessary qualifications and they should have, satisfactory record of service. The instructions further provided as under:
"(i) In a lot of 100 vacancies occurring from time to time, those falling at serial numbers mentioned below should be treated as reserved for the members of Scheduled Castes; 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, 91 and so on. Vacancies falling at serial numbers 26 and 76 should be treated as reserved for the members of Backward Classes.
(ii) The reservation prescribed shall be given effect to in accordance with a roster to bemaintained in each Department. The roster will be implemented in the form of a running account from year to year."
The issue which came for adjudication was whether once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled, it would be construed that the reservation is complete. Whether the roster cannot operate any further and it should be stopped.The five judges of Constitution Bench of the Apex Court held that:
(i) Once the prescribed percentage of posts is filled by reserved category candidates by the operation of the roster, the numerical test of adequacy is satisfied and the roster would cease to operate.23 O.A. No. 2936/2023
Item No. 46 (C-4)
(ii) The percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation.
(iii) The interpretation placed on the working of the roster shall operate prospectively from 10 February 1995.
(iv) In the event of non-availability of a reserve candidate atthe roster-point itwould be open to the State Government to carry forward the point in a just and fair manner.
6.3.5 The Catch-up Rule : Union of India v Virpal Singh Chauhan (10.10.1995) On 1 October 1995, a two judge Bench of the Apex Court in Virpal Case (Supra) held that:
"44. It is true that this case presents a rather poignant turn of events. Of the thirty three candidates being considered for eleven vacancies, all are Scheduled Castes/Scheduled Tribes candidates. Not a single candidate among them belongs to general category. The learned counsel for the respondent is justified in complaining that appellants have failed to explain how such a situation has come about. Not only the juniors are stealing a march over their seniors but the march is so rapid that not only erstwhile compatriots are left far behind but even the persons who were in the higher categories at the time of entry of Scheduled Castes/Scheduled Tribes candidates in the service have also been left behind. Such a configuration 24 O.A. No. 2936/2023 Item No. 46 (C-4) could not certainly have been intended by the framers of the Constitution or the framers of the rules of reservation. In the absence of any explanation from the authorities, the best we can do is to ascribe it as faulty implementation of the rule of reservation. In other words, not only have the Railways not observed the principle that the reservation must be vis-a-vis posts and not vis-a-vis vacancies but they had also not kept in mind the rule of seniority in the promotion posts enunciated in the Railway Board's circulars referred to supra. Yet another principle which the authorities appeared to have not observed in practice is that once the percentage reserved for a particular reserved category is satisfied in that service category or grade (unit of appointment) the rule of reservation and the roster should no longer be followed. Because of the breach of these three rules, it appears, the unusual situation complained of by the general andidates has come to pass. The learned counsel for general candidates is right that such a situation is bound to lead to acute heart-burning among the general candidates which is not conducive to the efficiency of administration. Be that as it may, the question is can the said situation be rectified. Probably not, until we direct all the promotions to be reviewed and re-done. This may not be advisable at this distance of time. The enormity of the exercise should deter any one from launching upon such a course. It is evidently for this reason that the Constitution Bench has directed in R.K. Sabharwal that the rule affirmed by them should be applied only prospectively. There is yet another circumstance: the Scheduled Castes/Scheduled Tribes candidates cannot be barred from competing for general posts. We are constrained to remark that it is the application of 25 O.A. No. 2936/2023 Item No. 46 (C-4) rule of reservation in the matter of promotions - which entitles a reserved category candidate to avail of the benefit of reservation any number of times which is mainly responsible for such a situation."
In other words, the Virpal Judgment held that the state could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of Castes and the Scheduled Tribes can compete for further promotion, and if in the opinion of the State, there are not adequately represented in the services under the State, they can avail reservation and on the application of the roster. This would entitle such a person to seniority over a senior belonging to the general category in the feeder cadre.However, a senior belonging to the general category who is promoted to a next higher post subsequently would regain seniority over the reserved candidate who was promoted earlier.This rule came to beknown as the catch-up rule. The two judge Bench directed that the above principle would befollowed with effect from the date in the judgment in Sabharwal. 6.3.6 Ajit Singh Janjua ( Juneja-I) and retaining seniority in feeder cadre - catch -up Rule affirmed but feeder cadre seniority restored. Six months after the decision in Virpal Singh, on 1 March 1996, athree judge Bench of this Court in Ajit Singh 26 O.A. No. 2936/2023 Item No. 46 (C-4) Januja v State of Punjab (1996 (2) SCC 715, 1 Ajit Singh I ), adopted the catch-up rule propounded inVirpal Singh, to the effect that the seniority between reserved category candidates and general candidates in the promoted category shall continue to be governed by their inter se seniority in the lower grades. This Court held that a balance has to be maintained so as to avoid ―reverse discrimination. and, a rule or circular which gives seniority to a candidate belonging to the reserved category promoted on the basis of roster points would violate Articles 14 and 16 of the Constitution 6.3.7. The Jagdish lal case and reversing Janjua-I Judgement: Catch up Rule cannot be the basis for review of seniority after lapse of considerable period.
In Jagdish Lal &Ors vs State Of Haryana & Ors, 1997 (6) SCC 538on 7 May, 1997a three judge Bench of the Apex Court took a the following view:
"That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellant kept sleeping over their rights for long and elected to wake 27 O.A. No. 2936/2023 Item No. 46 (C-4) up when they had the impetus from Vir Pal Chauhan and Ajit Singh's ratios. But Vir Pal Chauhan and Sabharwal's cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation, to all the persons prior to the dated of judgment in Sabharwal's case, which required to examined in the light of law laid in Sabharwal's case. Thus earlier promotions cannot be reopened? Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal's case Vir Pal Chauhan's case and equally Ajit Singh's case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed contrary view to the decision in Ajit Singh I. The decision in Jagdish Lal held that by virtue of the principle of continuous officiation, a candidate belonging to a reserved category who is promoted earlier than a general category candidate due to an accelerated promotion would not lose seniority in the higher cadre. "
6.3.8. Catch -Up Rule Reiterated and elaborated - Ajit Singh Janjua-II Judgement This conflict of decisions as was raised in Jagdish Lal case was resolved by five Judges Ajit Singh And Ors vs State Of Punjab And Ors, decided on 8 December, 1999, 2000 (1) SCC 430 The Constitution Bench held that Article 16 (4A) is only an enabling provision for reservation in promotion. The Constitutional Bench held:
28O.A. No. 2936/2023
Item No. 46 (C-4) "In Ajit Singh II v. State of Punjab, [1997] 7 SCC 209, It was stated (at PP. 229-230)relying upon earlier judgments starting from 1963, that Article 16(4) was only anenabling provision and did not impose any constitutional duty nor confer anyfundamental right for reservations. The observations at page 691 by Jeevan Reddy, J.in Indira Sawhney relied upon in the review applications do not deal with the aboveissue. It was the view of two Constitution Bench Judgments of this Court one of 1963in M.R. Balaji v. State of Mysore, [1963] Supp. 1 SCR 439 and another in 1968 in C.A.Rajendran v. Union of India, [1968] 1 SCR 721 and also two three judgments of thisCourt in P& T Scheduled Caste/Tribe Employees Welfare Association (Regd.) vs. Ajit Singh and Ors vs State Of Punjab And Ors on 8 December, 1999.Indian Union of India, [1998] 4 SCC 147 and State Bank of India v. Scheduled Caste/ TribesEmployees Welfare Association, [1996] 4 SCC 1191, that Article 16 (4) was only amenabling provision. The view was nowhere dissented in Indira Sawhney much less at page 691 by Jeevan Reddy, J. It appears to us that all the nine Judges in IndiraSawhney were of the same view that Article 16(4) was not in the nature of afundamental right and was only an enabling provision. In this connection, referencemay be made with advantage to the view of the Jeevan Reddy, J. (at pages 667-735) referring to Subba Rao, J, That Article 16 (4) was a provision conferring a 'power' andreferring to Article 16 (1) alone as a guarantee and not to Article 16 (4); to the view ofSawant, J. (at page 517,para 43 (4), Pandian J. (at page 407, para 168). Thommen, J.(at page 449, para 284), Sahai, J. (at page 580) with whom Kuldip Singh, J. agreed, -all expressly stating that Article 16 (4) was only an enabling provision. Thus, majorityof the 29 O.A. No. 2936/2023 Item No. 46 (C-4) learned Judges expressly stated that Article 16 (4) was an "enabling provision".
Merely because the reservation for backward classes was created as reasonableclassification and justified at page 691, that does not detract from the view thatArticle 16 (4) was only an enabling provision.
For the aforesaid reasons, we find there is no merit in these review petitions which are dismissed."
In consequence, roster point promotes belonging to the reserved categories could not count their seniority in the promoted category from the date of continuance officiation in the promoted post in relation to general category candidates who were senior to them in the lower category and who were promoted later. Where a senior general candidate at the lower level is promoted later than a reserved category candidate, but before thefurther promotion of the latter, such a person will have to be treated as senior at the promotional level in relation to the reserved candidate who was promoted earlier.
The Constitution Bench accordingly applied the catch-up rule for determining the seniority of roster point promotes vis-à-vis general category candidates. The Court held that any circular, order or rule that was issuedto confer seniority to roster point promotees would be invalid.30 O.A. No. 2936/2023
Item No. 46 (C-4) However, the Constitution Benchdirected that candidates who were promoted contrary to the above principles of law before 1 March1999 (the date of the decision in Ajit Singh I) need not be reverted.
6.3.9. Conferment of seniority to roster point promotes cannot be given if no rule exists ; implying catch-
up rule applies if there is no specific rule conferring seniority to roster point promotes. A three judge Bench, in M.G. Badappanavar And Another vs State Of Karnataka And Others on 1 December, 2000, 2001(1) KARLJ236, relying on the decisions in Ajit Singh I, Ajit Singh II and Sabharwal reiterated the principle that Article 16 (4A) does not permit the conferment of seniority to roster point promotees. The Apex court specifically held:
12. There is no specific rule here permitting seniority to be counted in respect of a roster promotion.In second Ajit Singh Januja's case, supra, a circular which gave seniority to the roster point promotees was held to be violative of Articles 14 and 16. In Virpal Singh Chauhan's case, supra, which was later decided, this Court used the words "it is open to the State" and it gave an impression that the State could give seniority to roster point promotees. But in first Ajit Singh's case, supra, this aspect has since been clarified. It was held that Seniority Rules like Rules 2(c), 4 and 4-A permitting seniority to be counted from date of initial promotion, govern normal promotions made according to rules --by seniority at basic level, by seniority-cum-fitness or by seniority-cum-31 O.A. No. 2936/2023
Item No. 46 (C-4) merit or by selection -- but not to promotions made by way of roster. The roster promotions were, it was held, meant only for the limited purpose of due representation of backward classes at various levels of service. If the rules are to be interpreted in a manner conferring seniority to the roster point promotees, -- who have not gone through the normal channel where basic seniority or selection process is involved, --then the rules, it was held will be ultra vires of Article 14 and Article 16 of the Constitution of India. Article 16(4-A) cannot also help. Such seniority, if given, would amount to treating unequals equally, rather, more than equals. 6.3.10. The 85Th& 86th Amendment to constitution (2001) to bring consequential seniority to any class in promotion The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with effect from 17 June 1995.
Amended Article 16 (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 purpose of the amendment was to enable the grant of consequential seniority to reserved categories promotees. The significance of the date on which the eighty-fifth amendment came into force - 17 June 1995 - is that it coincides with the coming into force of the seventy-seventh amendment which 32 O.A. No. 2936/2023 Item No. 46 (C-4) enabled reservations in promotions to be made for the SCs and STs.
A further amendment to Article 16 of the Constitution of India, by insertion of Article 16(4-B) by the Constitution (Eighty-first Amendment) Act, 2000. Article 16(4-B) reads as under: -
16 (4-B) was introduced to rationalise the 50% ceiling.
This ceiling will be applicable to a particular year of vacancy , but excluding the carry over vacancies. But all these are subject to overall ceiling of 50% of the cadre. The above constitutional amendment made the catch-up rule propounded in Ajit Singh II inapplicable.The earlier decision of this Court in Badappanavar had held that there was no specific rule for the conferment of seniority to roster point promotees. By the enactment of the Reservation Act 2002 with effect from 17 June 1995, the principle of consequential seniority was statutorily incorporated as a legislative mandate by the state of Karnatak.
6.3.11. Validity of 85th and 86thAmendment to Constitution : The N. Nagarj Case, 19 October, 2006 The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted 33 O.A. No. 2936/2023 Item No. 46 (C-4) in pursuance of those amendments was challenged before a Constitution Bench of this Court in M.Nagraj& Others vs Union Of India & Others on 19 October, 2006, 2006 (8) SCC 212. The Constitution Bench analysed whether the replacement of the catch-up rule with consequential seniority violated the basic structure and equality principle under the Constitution. Upholding the constitutional validity of the amendments, the Apex Court held that the catch-up rule and consequential seniority are judicially evolved concepts based on service jurisprudence. Hence, the exercise of the enabling power under Article 16 (4A) was held not to violate the basic features of the Constitution:
―79. Reading the above judgments, we are of the view that the concept of ―catch-up‚ rule and ―consequential seniority‚ are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot be said that by insertion of the concept of ―consequential seniority‚ the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that ―equality code‚ under Articles 14, 15 and 16 is violated by deletion of the ―catch-up‚ rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are 34 O.A. No. 2936/2023 Item No. 46 (C-4) different from constitutional limitations. Therefore, in our view neither the ―catch-up‚ rule nor the concept of consequential seniorityis implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.
The Constitution Bench held that Article 16 (4A) is an enabling provision. The state is not bound to make reservations for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets:
(i) The backwardness of the class;
(ii) The inadequacy of the representation of that class in public employment; and
(iii) The general efficiency of service as mandated by Article 335 would not be effected.
The principles governing this approach emerge from the following extracts from the decision:
107. ...If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article
335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured...
... 117... in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in 35 O.A. No. 2936/2023 Item No. 46 (C-4) each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.
... 123. ... In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters 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 with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
The Constitution Bench held that the constitutional amendments do not abrogate the fundamentals of equality:
―110...the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we 36 O.A. No. 2936/2023 Item No. 46 (C-4) have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.These observations emphasise the parameters which must be applied where a law has been enacted to give effect to the provisions of Article 16 (4A). The legislative power of the state to enact such a law is preserved. The exercise of the power to legislate is conditioned by the existence of ―compelling reasons namely; the existence of backwardness, the inadequacy of representation and overall administrative efficiency. Elsewhere in the decision, the Constitution Bench treated these three parameters as ―controlling factors‚ for makingreservations in promotions for SCs and STs. They were held to be constitutional requirements crucial to the preservation of ―the structure of equality of opportunity in Article 16. The Constitution Bench left the validity of the individual enactments of the states to be adjudicated upon separately by Benches of this Court.
Conclusion The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4).37 O.A. No. 2936/2023
Item No. 46 (C-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. Sabharwal8. 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. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, 38 O.A. No. 2936/2023 Item No. 46 (C-4) namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely [M.Nagraj & Others vs Union Of India & Others.
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] 6.3.12. Impact of M. Nagraja Judgment on catch-up Rule.39 O.A. No. 2936/2023
Item No. 46 (C-4) The M. Nagraj judgement upheld the constitutional validity of the 85th and 86th amendments. Hence, it upheld the constitutional amendment allowing consequential seniority to the promotees. It held that that the catch-up rule and consequential seniority are judicially evolved concepts based on service jurisprudence. Hence, the exercise of the enabling power under Article 16 (4A) was held not to violate the basic features of the Constitution.
The principle postulated in Nagraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true Supra 49 at page 430 PART I constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect 40 O.A. No. 2936/2023 Item No. 46 (C-4) consequential seniority upon promotion of persons belonging to the SCs and STs 6.3.13. Catch up Rule applies in absence of any rules for seniority A bunch of petitions were filed in the Apex Court {S.Panneer Selvam & Ors vs Govt. of T.Nadu &Ors on CIVIL APPEAL NOS. 6631-6632 of 2015 decided on 27 August, 2015} seeking to grant benefit of catch-up Rule in absence of policy decision taken by the Stat/Rules framed pursuant to the enabling provisions of Article 16 (4A) of the Constitution of India. One of the issue framed in those petitions was :
(i) (i) In the absence of policy decision taken by the State/rules framed pursuant to the enabling provision of Article 16 (4A) of the Constitution of India whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post.
The Apex Court in its decision dated 27.8.2015 held:
"35. In the absence of any provision for consequential seniority in the rules, the „catchup 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. The Division Bench appears to have proceeded on an erroneous footing that Article 16 41 O.A. No. 2936/2023 Item No. 46 (C-4) (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained."
In other words, consequential benefit applies when the exercise directed in M. Nagraj, etc are completed. Till then , catch-up rule applies. The Apex Court in Jarnail Singh & Others further deliberated the modalities to frame such policy/Rules based on quantifiable data of extent of representation of backward classes in any cadre. 6.3.14. Striking down Sections 3& 4 of the Karnatak Reservation Act, 2002 (B.K. Pavitra -I Judgment) In B K Pavitra I,[ B.K.Pavitra & Ors vs Union Of India &Ors on 9 February, 2017, 2017 (4) SCC 620,] a two judge Bench of this Court considered a challenge to the the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 providing for consequential seniority on the ground that the exercise which was required to be carried out in Nagraj had not been undertaken by the State and there was no provision for the 42 O.A. No. 2936/2023 Item No. 46 (C-4) exclusion of the creamy layer. Analysing the judgement, the Apex court in Jarnail Singh judgement observed that :
Relying on the decisions of this Court in Suraj Bhan Meena v State of Rajasthan43, Uttar Pradesh Power Corporation Ltd v Rajesh Kumar44 and S Panneer Selvam v State of Tamil Nadu45 (―Panneer Selvam‚ ), a two judge Bench of this Court affirmed that the exercise laid down in Nagraj for determining ―inadequacy of representation‚ , ―backwardness‚ and ―overall efficiency‚ is necessary for recourse to the enabling power under Article 16 (4A) of the Constitution. The Court held that the Government of Karnataka had failed to place material on record showing that there was a compelling necessity for the exercise of the power under Article 16 (4A). Hence, the directions laid down by this Court in Nagraj were not followed. Striking down Sections 3 and 4 of the Reservation Act 2002, this Court held thus: ―29. It is clear from the above discussion in S. Panneer Selvam case that exercise for determining ―inadequacy of representation‚ , ―backwardness‚ and ―overall efficiency‚ , is a must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority 43 O.A. No. 2936/2023 Item No. 46 (C-4) to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4-A), it is the ―catch-up‚ rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the rule of consequential seniority.‚ 46 The Court clarified that the decision will not affect those who have already retired and availed of financial benefits. It was further directed that promotions granted to existing employees based on consequential seniority are liable to be reviewed and that the seniority list be revised in terms of the decision. Three months were granted to take further consequential action. Petitions seeking a review of the decision have been tagged with the present proceedings.
6.3.15. Ratna Prabha Committee by Government of Karnataka ,THE RESERVATION ACT 2018, AND B.K. PAVITRA -II After the decision of this Court in B K Pavitra I, on 22 March 2017, the Government of Karnataka constituted the Ratna Prabha Committee headed by the Additional Chief Secretary to the State of Karnataka to submit a report on the backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka.44 O.A. No. 2936/2023
Item No. 46 (C-4) The tasks entrusted to the Committee were to: ―1) Collect information on the cadre-wise representation of Scheduled Castes and Scheduled Tribes in all the Government Departments; 2) Collect information regarding backwardness of Scheduled Castes and Scheduled Tribes; and 3) Study the effect on the administration due to the provision of reservation in promotion to the Scheduled Castes and Scheduled Tribes. On the basis of the Ratna Prabha Committee report, the Government of Karnataka introduced the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Bill 2017. The Bill was passed by the Legislative Ratna Prabha Committee report PART B Assembly on 17 November 2017 and by the Legislative Council on 23 November 2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for the consideration of the President of India under Article 200 of the Constitution. The Bill received the assent of the President on 14 June 2018 and was published in the official Gazette on 23 June 2018. The proceedings in B.K. Pavitra vs Union Of India on 10 May, 2019, 2019 SC 275,( B.K. Pavitra-II)were instituted 45 O.A. No. 2936/2023 Item No. 46 (C-4) to assail the vires of the Reservation Act 2018. It was held that:
"144. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act 2018 is lacking in substance. Following the decision in B K Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagraj. The Reservation Act 2018 has cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature. It is Nagraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution."
6.3.16 Reference of the Reservation in Promotion Issue to a larger Bench - The Jarnail Singh-II Judgment The issue regarding collection of quantifiable data to determine inadequate representation of SCs and STs in government service was agitated by various petitioners in the Apex Court in State of Tripura &Ors. v. Jayanta Chakraborty &Ors. State of Maharashtra &Anr. v. Vijay Ghogre&Ors. and Jarnail Singh &Ors. v. Lachhmi Narain Gupta &Ors(Jarnail Singh-I The Apex Court rejected the remaining grounds of challenge to the decision in M. Nagraj (supra) and reiterated that the State has to collect quantifiable 46 O.A. No. 2936/2023 Item No. 46 (C-4) data regarding inadequate representation of SCs and STs in the services of the State, if reservation is sought to be provided in promotions.
In the meanwhile, several petitions were filed in various High Courts challenging reservation in promotions provided by the Central Government and the State Governments to SCs and STs. The decisions of High Courts were challenged in the Apex Court. In view of the broad similarities in the issues involved, the Apex Court tagged all cases together in Jarnail Singh vs Lachhmi Narain Gupta Civil Appeal No. 629 of 2022). On 18.01.2021, a direction was given to the Advocates-on-Record appearing for each State to submit a note to the learned Attorney General for India, identifying the issues involved in their respective cases. The learned Attorney General for India was requested to hold a conference with the counsel appearing in the matters to finalise the issues for determination and a list of issues with reference to each State was directed to be prepared thereafter. A note was submitted by the learned Attorney General formulating the following issues;
47O.A. No. 2936/2023 Item No. 46 (C-4)
1) What is the yardstick by which, according to M. Nagraj (supra), one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment?
2) What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected?
3) Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Article 16(4-A)?
4) Should there be a time period for reviewing inadequacy of representation?
5) Whether the judgment in M. Nagraj (supra) can be said to operate prospectively?
6) Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by this Court in B.K. Pavitra &Ors. v. Union of India &Ors. 7 ("B.K. Pavitra II")?
The findings of the Apex Court in respect all the issues are as follows:
1) YARDSTICK FOR ARRIVING AT QUANTIFIABLE DATA Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as the determination depends upon myriad factors which this Court cannotenvisage. A conscious decision was taken by this Court in M. Nagraj (supra) and Jarnail Singh(supra) to leave it to the States to fix the criteria for determining inadequacy of representation.48 O.A. No. 2936/2023
Item No. 46 (C-4) ...
Therefore, we are of the opinion that no yardstick can be laid down by this Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation.
2) UNIT FOR COLLECTING QUANTIFIABLE DATA Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or „class‟/„group‟ but it should be relatable to the grade/category of posts to which promotion is sought. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service.
3) PROPORTIONATE REPRESENTATION AS TEST OF ADEQUACY In R.K. Sabharwal (supra), it was observed that State Governments may take the total population of a particular Backward Class and its representation in the State services for the purpose of coming to a conclusion that there is inadequate representation in the State services. In M. Nagraj (supra), the Apex Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case.
Therefore, the Apex court did not express any opinion on this aspect. It was held that it is for the State to assess the inadequacy of representation of SCs and STs in 49 O.A. No. 2936/2023 Item No. 46 (C-4) promotional posts, by taking into account relevant factors.
4) TIME PERIOD FOR REVIEW There was near unanimity amongst the counsel for both sides that the data collected to establish inadequacy of representation, which forms the basis for providing reservation for promotions, should be reviewed periodically. The Apex court held:
"We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive. As regards review, we are of the opinion that data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out."
5) PROSPECTIVE OPERATION OF THE JUDGMENT IN M. NAGRAJ.The Apex court held:
"32. While holding that Article 16(4-A) does not provide for reservation in matters of promotion, this Court in Indra Sawhney (supra) saved the promotions that were already made. It was made clear that the judgment shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. Already-existing provisions made for reservation in promotions in Central or State services were permitted to continue to operate for a period of five years from the date of the judgment in Indra Sawhney (supra).
....50 O.A. No. 2936/2023
Item No. 46 (C-4) There cannot be any manner of doubt that this Court can apply its decision prospectively, i.e., from the date of its judgment to save past transactions.
....
As making the principles laid down in M.Nagraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagraj (supra) should be declared to have prospective effect."
"47. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a 'group‟, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a 'group‟, is the unit and the data has to 67 | P a g e be collected with respect to each cadre. Therefore, we hold that the conclusion of this Court in B.K. Pavitra II (supra) approving the collection of data on the basis of 'groups‟ and not cadres is contrary to the law laid down by this Court in M. Nagraj (supra) and Jarnail Singh (supra)."
6) QUANTIFIABLE DATA AND SAMPLING METHOD The Apex court held:
51O.A. No. 2936/2023
Item No. 46 (C-4) "Nagraj (supra). The unit for the purpose of collection of data is a cadre, according to M. Nagraj (supra) and Jarnail Singh (supra). For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated.
In clear terms, M. Nagraj (supra) held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra II (supra).
That „groups‟ consist of cadres is a fact which was taken into consideration by this Court in B.K. Pavitra II (supra). The conclusion that the collection of data on the basis of „groups‟ is valid, is contrary to the decisions of this court in M. Nagraj (supra) and Jarnail Singh(supra). Therefore, we hold that the conclusion of this Court in B.K. Pavitra II (supra) approving the collection of data on the basis of 'groups‟ and not cadres is contrary to the law laid down by this Court in M. Nagraj (supra) and Jarnail Singh (supra).
6.3.17 Conclusion of the Analysis of the Apex court judgments regarding Reservation in Promotions The Jarnail Singh-II(Supra) Judgment has not overrules the S. Paneer Selvam decision of the Apex Court. This case was never discussed; the catch-up rule was not an issue. The 52 O.A. No. 2936/2023 Item No. 46 (C-4) detailed modalities for effective the decision in M. Nagraj (sura) was expressed. Hence, regarding catch-up Rule, the decision of the Apex Court in Panner Selvam (Supra) prevails.
7. In the instant case, the applicants are seeking relief in the form of direction to the respondents to fix their seniority applying the catch-up Rule. As the respondents have not brought out any quantifiable data in the respective cadre meteorologists as per the Jarnail Singh -II( Supra) judgment by the Apex court, the Catch-up Rule as enunciated in S.Panneer Selvam(Supra) and B.K Pavitra -I (supra) applies in favour of the present applicants. 7.1 We do agree with the contention of the learned counsel for the applicants that the ratio of judgement of the Punjab & Haryana High Court in Maheshinder Singh Dhindsa( Supra) and orders of the Coordinated Bench of this Tribunal at Chandigarh in OA no.060/1435/2018 and batch are squarely applicable in the instant case. 53 O.A. No. 2936/2023 Item No. 46 (C-4)
8. Accordingly the present OA is allowed. The Respondents are directed to grant seniority to the present applicants in the grade of Meteorologists-A by applying catch-up rule. This exercise shall be completed within 90 days from receipt of certified copy of this order. No order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/mk/