Document Fragment View

Matching Fragments

Further submission of the respondents is that 21% reservation has been provided to scheduled castes and 2% for scheduled tribes in services and that in view of the chart given by the State Government in the counter affidavit, it is clear that the said target could not be achieved as yet.

In answer to the petitioners' plea that such reservation in promotion and accelerated seniority will undoubtedly prejudice the accrued right of seniority of general category candidates for consideration of their promotion and would also affect efficiency in administration, of which Article 335 takes care and that it will cause reverse discrimination, it has been submitted by the respondents that the quantifiable data was not required to be collected for the reason aforesaid and if the quota of reserved category remains short, then there cannot be a plea of reverse discrimination, nor giving reservation in promotion in such a situation with accelerated seniority can be said to be in any manner arbitrary, discriminatory or violative of Articles 14 and 16 of the Constitution. Clarifying the aforesaid argument, it has been submitted that granting reservation in promotion with accelerated seniority without compromising with the efficiency in administration is positive and affirmative action for bringing up the members of scheduled castes and scheduled tribes to the equal level to that of general category and while doing so, if some advantage is given to the members of scheduled castes and scheduled tribes category, that in no way takes away any vested right of the general category.

The aforesaid reasoning given by the Division Bench at Allahabad nowhere shows that the Court did at all apply its mind to the requirements propounded by the Apex Court in M.Nagraj case (supra) while framing a rule for reservation in promotion with accelerated seniority. The Court never adverted on the question as to whether the State Government had collected any quantifiable data, nor addressed itself to the backwardness of the class, adequate representation, efficiency of administration (Article 335) and reverse discrimination. The Court also did not consider, that reservation in promotion with consequential seniority was only to control the extent of reservation.

107. .........The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. 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 in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representations are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove........However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of "guided power". We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred."

The effect of such a rule would also be that even though on a particular post or class of posts in the cadre of service, either the quota is full or no reservation can be provided for want of quota, namely, the total cadre strength of the post is less than 5, to make even one post/vacancy available for scheduled caste, the reserved category by virtue of consequential seniority would have a prior right of occupying such a post, which otherwise is general vacancy and that too, by superseding his senior. This will mean not only providing reservation in excess of the quota which means reverse discrimination, but also supersession of a senior person without sanction of law. There may be a case of single post cadre, e.g. the Head of the department, and that post will also be available to persons belonging to scheduled castes and scheduled tribes by virtue of accelerated seniority, superseding the claim and infringing the fundamental right of consideration for promotion of a senior person of general category. This cannot be the intention of rules nor of constitutional provisions. Any promotion made of scheduled castes/scheduled tribe persons beyond the quota prescribed would necessarily result into reverse discrimination. No reservation can be provided by indirect method on a class or classes of posts where there is no quota available for scheduled castes/scheduled tribes. This will also exceed the limit of 50% reservation in service.