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Submissions of the petitioner

6. The submissions made by Dr Chauhan can be, broadly, paraphrased as follows:

(i) The Tribunal had made a serious error in not factoring in, the impact of the Constitution (Seventy-seventh Amendment) Act, 1995 [hereafter referred as "77th Amendment Act"] and the Constitution (Eighty-fifth Amendment) Act, 2001 [hereafter referred as "85th Amendment Act"]. By the 77th Amendment Act, clause 4A was inserted in Article 16 of the Constitution, which was further amended, via the 85th Amendment Act. In other words, the amendments in the first instance provided for reservation in matters of promotion, and thereafter, made it clear that consequential seniority would also be accorded to the candidates falling in reserved categories i.e., SC/ST category, who in the opinion of the State, were not adequately represented in the services under the State.

Submissions on behalf of the private respondents i.e., respondent nos. 4 and 5:-

In short "M. Nagraj case"

8. Mr Lal, in rebuttal, made the following submissions:

(i) The amendments brought about by the virtue of the 77th Amendment Act and 85th Amendment Act are merely enabling. The State, while providing reservation in matters of promotion, is required to place quantifiable data before the Court concerning the backwardness of SC/ST employees, inadequacy of their representation in the promotional cadre, and the effect that it would have on administrative efficiency. Thus, without a legislative enactment and/or policy decision, it is not open to the State to implement the provisions of Article 16(4A) of the Constitution, based on the OM dated 21.01.2002. The OM dated 21.01.2002 is not a policy decision, and rather the said OM has been issued on the back of the 85th Amendment Act.

10. In this context, we are required to examine the impact of the OM dated 21.01.2002. Before we get to this point, the following facts need to be borne in mind: The dates of initial appointment and promotion of the litigating parties i.e., the employees are not in dispute. [Admittedly, respondent nos. 4 and 5 were appointed to the post of Cameraman Grade-II on 05.01.1985 (Sudhir Gangahar) and 16.02.1986 (Indu Sunil Dang), while the petitioners were appointed to the same post i.e., Cameraman Grade-II on 16.02.1986 (Gyan Singh), 22.07.1985 (K.K. Ganapathy), 30.03.1999 (Bhagyawan), and 08.12.1987 (Udey Ram).] 10.1. It is also not in dispute that, the petitioners, who fall in the SC/ST category, were promoted to the next higher grade i.e. Cameraman Grade-I much earlier than respondent nos. 4 and 5. [The petitioners were promoted on 16.11.2004, 22.11.2004, 08.12.2005 and 14.02.2013, whereas respondent nos. 4 and 5 were promoted on 29.06.2012.] 10.2. The issue concerning reservation in matters of promotion, and the grant of consequential seniority to such promotees was paved with the passing of the 77th and 85th Amendment Act(s). Concededly, these amendments were given retrospective effect i.e., were brought into force with effect from 17.06.1995.

12.3. Furthermore, the reliance placed on the judgement in Ram Bhog case is misplaced, as the said judgement was rendered, prior to the Supreme Court judgement in Sudhakar Babu Rao case.

12.4. In the instant case as well, as noted above, in our opinion, the OM dated 21.01.2002 is an executive order, which seeks to implement the amendments made in the Constitution, via the 77th and 85th Amendment Act(s).