M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006
Mere fact that there is no proportionate representation in
promotional posts for the population of SCs and STs is not by itself
enough to grant consequential seniority to promotees who are
otherwise junior and thereby denying seniority to those who are
given promotion later on account of reservation policy. It is for the
State to place material on record that there was compelling necessity
for exercise of such power and decision of the State was based on
material including the study that overall efficiency is not
compromised. In the present case, no such exercise has been
undertaken. The High Court erroneously observed [M.
Nagaraj v. Union of India, 2010 SCC OnLine Kar 5407] that it was for
the petitioners to plead and prove that the overall efficiency was
adversely affected by giving consequential seniority to junior persons
who got promotion on account of reservation. Plea that persons
promoted at the same time were allowed to retain their seniority in
the lower cadre is untenable and ignores the fact that a senior
person may be promoted later and not at the same time on account
of roster point reservation. Depriving him of his seniority affects his
further chances of promotion. Further plea that seniority was not a
fundamental right is equally without any merit in the present context.
In absence of exercise under Article 16(4-A), it is the "catch-up" rule
which fully applies. It is not necessary to go into the question
whether the Corporation concerned had adopted the rule of
consequential seniority."