Indian Kanoon - Search engine for Indian Law

4. Articles 16(4), 16(4-A) and 16(4-B) read as under:-

“Article 16. Equality of opportunity in matters of public employment.— (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.

(4-A) 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.

5. In M. Nagaraj (supra), the Court has encompassed the facts in the following manner:-

“The petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in Union of India v. Virpal Singh Chauhan5, Ajit Singh Januja v. State of Punjab6 (Ajit Singh-I), Ajit Singh (II) v. State of Punjab7, Ajit Singh (III) v. State of Punjab8, Indra Sawhney v. Union of India (supra) and M.G. Badappanavar v. State of Karnataka9. The petitioners say that Parliament has appropriated the judicial power to itself and has acted as an Appellate Authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said (1995) 6 SCC 684 (1996) 2 SCC 715 (1999) 7 SCC 209 (2000) 1 SCC 430 (2001) 2 SCC 666 amendment is, therefore, constitutionally invalid and is liable to be set aside. The petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. The petitioners say that the equality in the context of Article 16(1) connotes “accelerated promotion” so as not to include consequential seniority. The petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). The petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. The petitioners say that in Indra Sawhney (supra) decided on 16-11-1992, this Court has held that under Article 16(4), reservation to the Backward Classes is permissible only at the time of initial recruitment and not in promotion. The petitioners say that contrary to the said judgment delivered on 16-11-1992, Parliament enacted the Constitution (Seventy-seventh Amendment) Act, 1995. By the said amendment, Article 16(4-A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-seventh Amendment) Act, 1995 is also challenged by some of the petitioners.

“66. The position after the decision in M. Nagaraj case (supra) is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled (2011) 1 SCC 467 Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required.

67. The view of the High Court is based on the decision in M. Nagaraj cases(supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the Notifications dated 28-12-2002 and 25-4-2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference.”

“8-A. Entitlement of consequential seniority to a person belonging to Scheduled Castes or Scheduled Tribes.—Notwithstanding anything contained in Rules 6, 7 or 8 of these Rules, a person belonging to the Scheduled Castes or Scheduled Tribes shall, on his promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also.”

12. Rule 8-A was omitted on 13.05.2005 by the Uttar Pradesh Government Servants Seniority (Second Amendment) Rules, 2005. However, it was provided in the said Rules that the promotions made in accordance with the revised seniority as determined under Rule 8-A prior to the commencement of the 2005 Rules could not be affected. Thereafter, on 14.9.2007, by the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007, Rule 8-A was inserted with the same language. It has been mentioned in the said Rule that it shall be deemed to have come into force on 17.6.1995.