New Delhi: The supreme court on Friday upheld the quashing of a resolution of Odish government following the principle that reservation in promotions cannot be granted without examining adequacy of representation in promotional post.
The impugned resolution passed in 2002 had provided reservations for Scheduled Castes and Scheduled Tribes in promotional posts in Orissa Administrative Service with consequential seniority.
The resolution was quashed by the Odishs high court mainly on the ground that, it can neither be termed as a law in exercise of enabling power of the State under Article 16(4A) of the Constitution, nor does it satisfy the parameters laid down by the supreme court. The high court further held that there was no legal basis for such resolution and accordingly quashed the same and the consequential Gradation List.
In the appeal challenging the HC judgment, the appellants contended that it was always open for the State to extend the benefit of reservation with consequential seniority, either by executive order or by way of legislation, following the 85th amendment to the Constitution which inserted Article 16(4A). It was also highlighted that this Constitution Amendment was upheld in the decision M Nagaraj v Union of India.
The Odisha government conceded that there was neither any legislation nor any executive order by the government, to extend the benefit of promotion to the reserved vacancies with consequential seniority.
The bench comprising Justices Mohan M Shantanagoudar and R Subhash Reddy noted that in Nagaraj decision, while upholding the 85th Constitution Amendment, the Court held that the State is not bound to make reservation for SCs/STs in matters of promotion. However, if they wish to exercise their discretion and make reservations in promotion, the States have to collect quantiable data showing backwardness of the class and inadequacy of representation of that class in public employment, keeping in mind maintenance of efficiency, as indicated by Article 335 of the Constitution of India.
In the case of Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors, while answering the reference a Constitution Bench of SC held that the judgment in the case of M. Nagaraj need not be revisited by referring to a seven-Judge Bench. However, it was held that the conclusion in M. Nagaraj that the State has to collect quantiable data showing backwardness of SC/STs was invalid on the ground that the same runs contrary to 9-Judge Bench judgment of SC in the case of Indra Sawhney & Ors. v. Union of India & Ors. At the same time, Jarnail Singh decision maintained the need to examine adequate representation in posts in terms of the judgment in the case of M. Nagaraj.
Further, in the case of B.K. Pavitra & Ors. v. Union of India & Ors, the SC while considering the validity of Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002 has upheld the Act on the ground that same was enacted by making study regarding inadequacy of representation, and overall administrative e ciency.
In this backdrop, the bench observed : “While it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4A) but the Resolution dated 20.03.2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, as held by this Court”
The bench specifically noted the fact that in
“In view of the stand of the respondent-State in the counter a davit led in the writ petition and further in view of the submission made by the learned counsel for the State of Orissa that no benet of seniority was extended by any State Act or by any executive order by examining adequate representation in terms of Article 16(4A) of the Constitution, we do not nd any merit in this appeal so as to interfere with the well reasoned judgment of the High Court”, the Court said.
The bench held: “In view of the judgments as referred above, in this case, it is to be noticed that after Constitution (Eighty-Fifth) Amendment Act, 2001, amending Article 16(4A) of the Constitution which enabled the State to extend the benet of promotion with consequential seniority by examining the adequacy of representation to scheduled castes and scheduled tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benet in the Class-I Services. The advocate for State specically admitted that the Govt. has not issued any executive order or has passed any legislation.
The Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts. As is evident from the order of the High Court, the State in its counter a davit has taken the stand that there is no necessity for bringing out any law to extend the benet of seniority for those who are promoted in reserved vacancies. Government Resolution dated 20.03.2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down in the various decisions of this Court. ” Resolution has no legal basis”.