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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.