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5. Learned counsel for the appellant submitted that since the
petitioner/appellant was promoted on the post of Executive Engineer in
1980 and respondents were promoted in 1985, therefore,
petitioner/appellant had already had a march over the respondent and
he also submitted that by virtue of the 77th and 85th constitutional
amendment of Article 16 (4A), the promotion of these persons shall be
deemed to be validly made, therefore, the petitioners are entitled to
that higher seniority and consequential benefit of earlier promotion
to the post of Executive Engineer, Superintending Engineer and
likewise to the post of Chief Engineer. It was submitted that this
was a constitutional mandate and Court cannot ignore the
constitutional mandate. Therefore, the learned counsel submitted that
the view taken by the High Court cannot be sustained. He also
submitted that the ratio laid down in the case of Ajit Singh I and
Ajit Singh II (Supra) does not hold good anymore in view of the 77th
and 85th constitutional amendment and that shall deem to be come into
force retrospectively. Consequently, all the benefit given by the
petitioner is correct. As against this, the learned counsel for the
respondent strenuously urged before us that the constitutional
amendments i.e. 77th and 85th were retrospective with effect from
17.6.1995 and it cannot go beyond that. Therefore, present case has
to be decided on the basis of legal position obtaining at the relevant
time. The retrospectivity cannot be given to constitutional mandate
beyond what Parliament has already given.
6. Before we proceed to consider the rival submissions, it would be
appropriate to reproduce both the 77th and 85th constitutional
amendments. The 77th amendment in the Constitution was inserted by
Article 16 (4A) with effect from 17.6.1995 enabling State Government
to make provision for reservation in State services in favour of
scheduled castes and scheduled tribes in matter of promotion which was
not there prior to this amendment, but it did not provide any benefit
of seniority. Therefore again Article 16 (4A) was amended by the
Constitution (85th Amendment) Act, 2001 with effect from 17.6.1995
providing consequential seniority. Both amendments reads as under:
7. As a result of this subsequent amendment which came into force by
the Constitution (85th Amendment) Act, 2001 with effect from 17.6.1995,
the candidates who have been given promotion against reserved category
could possibly claim a consequential seniority. In fact, both these
amendments in Article 16 (4A) facilitated the rules to be framed by
the State Government. Prior to this, the State Government had issued
only executive instructions to cover this omission. This
constitutional mandate came to the rescue of the State so as to enable
the State to provide reservation in promotion and consequential
seniority with effect from 17.6.1995. In fact, these two amendments
necessitated because of the decision given in the Ajit Singh II vs.
State of Punjab wherein their Lordships observed as under:
8. In fact, by virtue of this ratio laid down the Constitution
Bench, 85th Amendment was necessitated which came by the Amendment Act
of 2001 and it was made retrospective with effect from 17.6.1995. In
case of Ajit Singh II, all earlier cases were considered by this
Court, therefore, no useful purpose will be served by referring to all
the decisions referred by learned counsel for the petitioner. After
the 85th amendment, the position has now been crystallized and the
State Government also framed consequently, Rules of 2002, known as
Madhya Pradesh Public Service Commission (Services Promotion Rules
2002). Prior to that the State Government had already framed the Act
known as Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan
Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994.