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7. Later, a Constitution Bench of this Court in Indra Sawhney & Ors. Vs. Union of India & Ors.[2] held that reservation in promotion is not permissible under Article 16(4) of Constitution and directed to discontinue such reservations after 5 years. Thereafter, in R.K. Sabharwal & Ors. Vs. State of Punjab & Ors.,[3] this court held that the operation of roster must stop running when the prescribed quota of posts have been occupied by the reserved category. It was in this backdrop that the Parliament of India enacted Constitution (77th Amendment) Act, 1995, thereby adding Article 16(4A) which permits the State to provide reservation in matters of promotion to Scheduled castes and Scheduled Tribes. In 2001, Parliament approved Constitution (85th Amendment) Act, permitting promotions with consequential seniority to government service.

8. On 7th September, 2007, with a view to give effect to the 85th Amendment to the Constitution, the State of Himachal Pradesh issued instructions vide letter No. PER (AP)-C-F (1)-1/2005, and thereby provided for assignment of consequential seniority to the members of Scheduled Castes and Scheduled Tribes in service under the State. The policy was to take effect from 17th June, 1995. The instructions further provided, as under:-

According to the respondent State, the policy decision would have to relate to the data showing the position as on 30th June, 2011, which would be available shortly.

18. On 2nd November, 2012, an I.A. was filed by the State of Himachal Pradesh in the Civil Appeal, seeking extension of time for complying with the order of this Court until 31st January, 2013. By order dated 7th January, 2013, this Court granted extension to the State of Himachal Pradesh as sought and further directed it not to make any promotions in the meantime. On 11th January, 2013, the State of Himachal Pradesh issued instructions to all the departments to stop granting promotions. On 31st January, 2013, the State of Himachal Pradesh in Letter No. PER (AP)-C-F(1)- 2/2011 noticed that since the Constitution (117th Amendment) Bill, 2012 is pending consideration in the Parliament, the matter regarding implementation of Constitution (85th Amendment) Act, 2001 in the state may be deferred. It was also decided that the instructions dated 11th January, 2013 issued pursuant to interim order dated 7th January, 2013 in I.A. No. 6 of 2012 in SLP (Civil) No. 30143 of 2009 will continue in operation in the meantime. On 4th February, 2013, the State of Himachal Pradesh sought modification of the restriction placed by this Court by order dated 7th January, 2013, whereby the State was directed not to make any promotions. The stand taken in the said affidavit was that since the Constitution (117th Amendment) Bill, 2012 is pending consideration in the Parliament, the matter regarding implementation of Constitution (85th Amendment) Act, 2001 in the state may be deferred. The State Government also prayed that the existing reservation system in promotions be continued till the finalization of matter relating to the Constitution (117th Amendment) Bill, 2012.

21. Mr. Hansaria further submitted that the data collected by the State reveals that there is backlog in the government services. Further, it was submitted that data was available to the State Government on 31st October, 2009, but this fact was suppressed from this Court. It was also argued that the defence put by the State that they deferred the matter concerning implementation of 85th Amendment on the ground of 117th Amendment Bill is without any basis since it already has the data. Thus, they must take a decision thereon. Learned senior counsel relied upon Salauddin Ahmed & Anr. Vs. Samta Andolan[5], to submit that this Court had earlier directed the State to comply with the directions given in M. Nagaraj (supra) and Suraj Bhan Meena (supra).