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2. The petitioners were appointed to O.A.S-II posts being selected by the Orissa Public Service Commission. Some of them were recruited in 1983 and some others in 1984 and 1987. They were assigned different ranks in the merit lists prepared for their respective batches by the OPSC. In the respective merit list, persons belonging to S.C. & S.T. category, who were appointed as against reserved vacancies, were placed much below in the list than the petitioners. Thus, in terms of the merit list/panel, the petitioners were senior to the appointees belonging to S.C. & S.T. category recruited in the same recruitment year. After rendering service in the post of OAS-II, the petitioners having been found suitable by the D.P.C. were promoted and appointed to the next higher rank, i.e., O.A.S-I (JB) vide Government Notification dated 26.8.2000 (Annexure-2). The petitioners joined the promotional posts and have been continuing as such since then. However, many junior OAS Officers belonging to the SC & ST category recruited along with the petitioners or even in subsequent batches in different recruitment years were also given promotion to the rank of O.A.S.-I (JB) against reserved vacancies in between 1995 and 2000 as per the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act and the Rules, 1975 and 1976 (in short, "O.R.V. Act & Rules"). It is stated by the petitioners that the promotions made both in favour of reserved categories and unreserved categories including the petitioners have not yet been concurred by the OPSC since the principles determining seniority inter se and the gradation list prepared from time to time of the officers in the rank of O.A.S.-II and O.A.S.-I (JB) became the subject-matter of several protracted litigations. However, the roster point promotees belonging to the SC & ST category were given promotion to the rank of O.A.S.-I (JB) against reserved vacancies earlier irrespective of their original seniority below the general category recruits like the petitioners. But the original seniority position in the cadre of O.A.S.-II prepared by the OPSC was retained in the O.A.S.-I (JB) without any changes on the basis of the law laid down by the Hon'ble Apex Court in the case of Union of India & others v. Virpal Singh Chauhan & others; AIR 1996 S.C. 448. Hence, irrespective of getting promotion in subsequent years, the inter se seniority of the petitioners vis-à-vis the S.C. & S.T. roster point promotees in the rank of O.A.S.-I (JB) was maintained in the seniority/disposition list prepared for the rank of O.A.S-I (JB) in the year 2002 and also in the year 2004 as per the panel position prepared by the OPSC for the cadre of O.A.S.-II. The copy of the seniority list dated 16.5.2001-of officers of O.A.S-I (JB) cadre has been filed as Annexure-3. Such seniority list was maintained in view of the 'Catch Up Rule' evolved by the Hon'ble Apex Court in the case of Virpal Singh Chauhan (supra), which was also set at rest by the Apex Court in the case of Ajit Singh & others v. The State of Punjab & others, AIR 1999 S. C. 3471 (herein after "Ajit Singh Januja-II"). It is stated that Article 16(4A) was incorporated in the Constitution by way of 77th and 85th Amendment of the Constitution enabling the State to grant accelerated promotion along with consequential seniority to SC & ST reserved category employees. While the validity of such constitutional amendments was pending adjudication before the Hon'ble Apex Court in several writ petitions, the Government of India in the Department of Personnel, Public Grievances and Pension (D.O.P&T) by its Memorandum dated 21.1.2002 under Annexure-4 decided to grant benefit of accelerated promotion along with consequential seniority in favour of roster point promotees belonging to the S.C. & S.T. category employees under the Central Government in accordance with the constitutional amendment. It is alleged that the Government of Orissa without appreciating the justification for grant of additional benefit of accelerated seniority to S.C. & S.T. category promotees working in different cadres of civil services/posts, decided to grant such benefit by mechanically accepting or adopting the D.O.P.T Office Memorandum under Annexure-4 and issued the G.A. Department resolution dated 20.3.2002 granting such benefit of accelerated promotion with consequential seniority to S.C. & S.T. promotees under Annexure-5.

4. It is submitted by the learned counsel for the petitioners that the petitioners were placed higher in the merit position in the select list above all the S.C. & S.T. candidates in their respective batches at the time of recruitment to O.A.S.-II and, therefore, they were senior to such S.C. & S.T. category Officers. Though such junior S.C. and S.T. Officers were promoted to O.A.S.-I(JB) in respect of S.C & S.T. reserved vacancies as per the O.R.V. Act and Rules earlier than the petitioners, who were originally senior to them, by virtue of the 'Catch up principle' laid down in the case of Virpal Singh Chauhan & others (supra), as affirmed in the case of Ajit Singh Januja-II (supra), which was accepted by the State Government in the resolution dated 2.11.2000, the petitioners' seniority after their promotion to O.A.S.-I (JB) was restored and accordingly gradation list under Annexure-3 has been prepared and that it being the settled principle, as has been held by the Hon'ble Apex Court in the case of M. Nagaraj (supra) that the Constitution 77th and 85th Amendment of Article 16(4A) merely enables the State to enforce such constitutional provision by making law after satisfying the parameters, such as, the backwardness of S.C. & S.T. employees, inadequacy of their representation in the promotional cadre, to be determined on the basis of quantifiable data and maintenance of administrative efficiency in the service, the State Government without making any law could not have issued the provisional gradation list by recasting the seniority position by giving consequential seniority to the S.C. & S.T. promotees from the date of their promotion. It is submitted that without legislating any law after determining the aforesaid parameters, it is not open to the State to implement the provision of Article 16(4A) merely on the basis of Government Resolution under Annexure-5 which cannot be said to be a law. It is contended on behalf of the petitioners that since the Government Resolution under Annexure-5 on the basis of which the provisional list was issued was challenged before the Tribunal, the Tribunal has gone wrong in disposing of the Original Application holding it to be premature.

15. In Indra Sawhney (supra), it was held that reservation in appointment or posts under Article 16(4) is confined to initial appointment and cannot be extended to reservation in the matter of promotion. Feeling that the said judgment adversely affects the interest of S.Cs. & S.Ts. in service, the Government felt it necessary to continue the policy of providing reservation in promotion to S.Cs and S.Ts and, therefore, brought in the 77 th Amendment in 1995 by introducing Clause(4-A) in Article 16 of the Constitution. Similarly, the Government felt that the decisions in Virpal Singh Chauhan and Ajit Singh Januja-II (supra) which evolved the concept of 'catch up rule' adversely affect the interests of the S.Cs and S.Ts in the matter of seniority on promotion in the next higher grade. The Legislature, therefore, once again amended Clause (4-A) of Article 16 by the Constitution 85th Amendment Act 2001 by conferring the benefit of consequential seniority on S.C. & S.T. roster point promotees in the promotional grade. The constitutional validity inter alia of the Constitution 77th Amendment and 85th Amendment was challenged before the Apex Court in M. Nagaraj mainly on the ground that such amendments violate the basic structure of the Constitution. Elucidating the question of application of the principle of basic structure, the Hon'ble Apex Court observed as follows :

(Emphasis supplied) It is apparent from the observation of the Apex Court in the above quoted paragraph (italicised) that the 'catch up rule' still governs the field being law of the land unless and until the appropriate Government enacts law providing for reservation keeping in mind the parameters in Article 16(4) and (4-A). Therefore, though M. Nagaraj (supra) upheld the validity of the constitutional amendment, it has not overruled or given a go-bye to the 'catch up rule'. The Constitution 85th Amendment does not by itself confer the additional benefit of consequential seniority on the S.C. and S.T. candidates in the promotional post for their accelerated promotion against reserved posts/roster points since clause (4-A) of Article 16 is merely enabling in nature. This is amply made clear in the observation of the Apex Court in M. Nagaraj, as seen above. It has further been held therein as follows :