CWP No. 17280 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 17280 of 2011
Date of Decision: 07.08.2012
Prem Kumar Verma and others
…..PETITIONERS
VERSUS
State of Haryana
…..RESPONDENT
CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT:Mr. D.S.Rawat, Advocate,
for the petitioners.
Ms. Shruti Jain, AAG, Haryana.
AUGUSTINE GEORGE MASIH, J.
Petitioners have approached this Court with a prayer for
issuance of a writ of certiorari for quashing the instructions dated
16.03.2006 (Annexure P-8), vide which the State of Haryana has
granted ‘accelerated seniority’ to the scheduled caste category
employees in violation of Article 16 of the Constitution of India and
the law as laid down by the Supreme Court in M. Nagaraj vs. Union
of India, (2006) 8 SCC 212. Prayer has also been made for
quashing the orders dated 16.09.2010 (Annexure P-5) and CWP No. 17280 of 2011 2
17.09.2010 (Annexure P-6), vide which the claim of the petitioners for
stepping up of their pay at par with their junior scheduled caste
category employee Sh. Amar Singh stands rejected.
Petitioners are general category employees and were
appointed, after clearing the departmental test, as Sub-Divisional
Clerks before Sh. Amar Singh, a scheduled caste category
employee. Since Sh. Amar Singh belongs to the scheduled caste, he
was promoted as Accounts Clerk on 01.02.1982 as per the roster
point granting him the benefit of reservation whereas the petitioners,
who were senior to him in the feeder cadre of Sub-Divisional Clerk,
were promoted as Accounts Clerk after 16.03.2006 on various dates.
It was settled by the Supreme Court in the case of Ajit
Singh Janjua and others vs. State of Punjab and others, JT 1999
(7) S.C. 153 vide its judgment dated 16.09.1999 that though a
reserved category employee can be promoted on a higher post on
the basis of reservation (roster point) but whenever a senior general
category employee will be promoted to the higher post to which the
reserved category candidate stands promoted, the general category
employee on such promotion shall be declared senior to the reserved
category employee on that particular post and will be granted the
benefit accordingly. On the basis of this judgment of the Supreme
Court, Government of Haryana issued instructions dated 14.10.1999
explaining therein that no employee belonging to the reserved
category of scheduled caste or backward class shall be allowed CWP No. 17280 of 2011 3
the benefit of accelerated seniority over his/her senior belonging to
the general category from the feeder service under the policy of
reservation.
Effect of these instructions and the judgment of the
Supreme Court in Janjua’s case (supra) was that the general
category employee, on his promotion to the higher post, regained
seniority over the scheduled caste category employee. Although the
benefit of seniority was granted to the general category employee on
the principle of catching up at the higher post yet the benefit of
equivalence of pay drawn by a junior scheduled caste employee and
the senior general category employee was not given effect to
meaning thereby that the general category employee despite
becoming senior on his promotion was drawing less pay as
compared to his junior scheduled caste category employee who
stood promoted earlier because of the benefit of reservation.
Aggrieved with this discrimination, one Charan Dass
(senior general category employee) filed CWP No. 5956 of 2008
titled as Charan Dass vs. State of Haryana, praying for stepping up
of his pay at par with his junior backward class category employee in
the light of the judgment of the Supreme Court in Janjua’s case
(supra). The writ petition was allowed by this Court vide judgment
dated 18.11.2008 (Annexure P-2). This judgment was accepted by
the Government of Haryana and instructions dated 05.03.2009 were
issued directing all the departments to step up the pay of senior CWP No. 17280 of 2011 4
general category employees at par with junior scheduled caste
category employees, meaning thereby that the judgment in the case
of Charan Dass (supra) was generalized.
Despite this, petitioners were not granted the benefit of
the judgment and the instructions. They thus submitted their
representations claiming the benefit of stepping up of their pay
equivalent to that of Sh. Amar Singh, a junior scheduled caste
category employee. This representation was rejected by the
respondents vide order dated 17.09.2010 on the ground that their
claim cannot be accepted for stepping up of their pay at par with
junior scheduled caste category employee as they were promoted as
Accounts Clerks after issuance of instructions dated 16.03.2006
(Annexure P-8) issued by the Government of Haryana giving effect to
the notification dated 04.01.2002 issued by the Government of India
amending Article 16 (4-A) i.e. the Constitution (Eighty Fifth)
Amendment Act, 2001, according to which, a decision was taken by
the State Government that the scheduled caste category employees
will be entitled to accelerated seniority as a consequence of
promotion under the reservation policy. Reference was also made to
a letter dated 23.11.2009 (Annexure P-7), wherein it was decided that
the stepping up of pay of senior general category employees at par
with their junior counterparts of reserved category employees would
be effective to promotions made on or before 15.03.2006, the date
after which the instructions dated 16.03.2006 (Annexure P-8) have
come into force.CWP No. 17280 of 2011 5
With this situation, petitioners have approached this
Court challenging the Government instructions dated 16.03.2006
(Annexure P-8) vide which the State of Haryana has granted
accelerated seniority to the scheduled caste category employees.
Challenge has also been posed to the orders dated 16.09.2010
(Annexure P-5) and 17.09.2010 (Annexure P-6), vide which the claim
of the petitioners stands rejected in the wake of instructions dated
16.03.2006.
Counsel for the petitioners contends that the Constitution
(Eighty Fifth) Amendment Act, 2001, amending Article 16 (4-A) has
been upheld by the Supreme Court in its judgment reported as M.
Nagaraj vs. Union of India, (2006) 8 SCC 212, wherein the
Supreme Court, in para 123, has held that the impugned provision is
an enabling provision and the State is not bound to make reservation
for scheduled castes and scheduled tribes in matters of promotions.
However, if they wish to exercise their discretion and make such
provision, the State has been mandated to collect quantifiable data
showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to
compliance with Article 335 of the Constitution of India. This
exercise, as mandated by the Supreme Court, has not been
undertaken by the Government of Haryana. No survey has been
conducted, no data has been collected, which would determine as to
whether adequate reservation of scheduled caste categoryCWP No. 17280 of 2011 6
employees in public employment is there or not but has merely, in the
light of the amendment of the Constitution, decided to grant
accelerated seniority to the scheduled caste employees, who have
been promoted as a consequence of reservation policy.
Hon’ble Supreme Court has considered similar decision,
as in the present case, taken by the State of U.P. where benefit of
accelerated seniority was granted in the cases of U.P. Power
Corporation Ltd. Vs. Rajesh and others, JT 2012 (4) SC 459 and
struck it down. In Suraj Bhan Meena and another vs. State of
Rajasthan and others, 2011 (2) SCT 260, the decision of the State
of Rajasthan for granting accelerated seniority to the reserved
category employees, who have been promoted as a consequence of
reservation policy, was struck down on the ground of non-compliance
of the mandate of the Supreme Court in the case of M. Nagaraj
(supra). He, on this basis, contends that the writ petition deserves to
be allowed and the impugned orders/notifications deserve to be
quashed.
Counsel for the respondents could not, on the basis of the
written statement filed by the respondents, indicate as to any
exercise taken out by the respondents which would fulfil the mandate
of the Supreme Court with regard to the grant of accelerated seniority
to the reserved category employees. Nothing has been mentioned in
the reply which would show that any data was collected or any survey
done which would show backwardness of the class and inadequacyCWP No. 17280 of 2011 7
of representation in public employment in addition to compliance with
Article 335 of the Constitution of India to justify the grant of benefit of
accelerated seniority to the scheduled caste employees as enabled
by the Constitution in Article 16 (4-A). A fervent effort was made by
her to contend that once the principle of reservation was made
applicable to the spectrum of promotion, no fresh exercise is
necessary nor it is required as the benefit of reservation has been
given by the respondents after taking that into consideration. The
efficiency of the service will also not be jeopardized in any manner.
She, accordingly, states that the decision of the Government, which
is reflected in the instructions dated 16.03.2006 (Annexure P-8), is in
consonance with the constitutional mandate and the consequential
orders rejecting the claim of the petitioners deserve to be upheld.
I have considered the submissions made by the counsel
for the parties and with their assistance, have gone through the
records of the case.
Article 16 (4-A) of the Constitution of India reads as
follows:-
“ Nothing in this article shall prevent the State from
making any provision for reservation in matter of
promotion with consequential seniority, to any class or
classes of posts in the services under the State in favour
of the Scheduled Castes and Scheduled Tribes which, in
the opinion of the State, are not adequately represented
in the services under the State.”CWP No. 17280 of 2011 8
Hon’ble Supreme Court in Nagaraj’s case in paras 123
and 124 while upholding the Constitutional (Eighty Fifth) Amendment
Act, 2001, has held as follows:
“37.7 In the conclusion portions, in paragraphs 123 and
124, it has been ruled thus:
123. However, in this case, as stated above, the main
issue concerns the “extent of reservation”. In this regard
the State concerned will have to show in each case the
existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency before making provision for
reservation. As stated above, the impugned provision is
an enabling provision. The State is not bound to make
reservation for SCs/STs in matter of promotions. However,
if they wish to exercise their discretion ad make such
provision, the State has to collect quantifiable data
showing backwardness of the class and inadequacy of
representation of that class in public employment in
addition to compliance with Article 335. It is made clear
that even if the State has compelling reasons, as stated
above, the State will have to see that its reservation
provision does not lead to excessiveness so as to breach
the ceiling-limit of 50% or obliterate the creamy layer or
extend the reservation indefinitely.CWP No. 17280 of 2011 9
124. Subject to the above we uphold the constitutional
validity of the Constitution (Seventy-Seventh Amendment)
Act, 1995, the Constitution (Eighty First Amendment) Act,
2000; the Constitution (Eighty-Second Amendment) Act,
2000 and the Constitution (Eighty-Fifth Amendment) Act
2001.”
The Hon’ble Supreme Court has thus laid down the
parameters, in compliance whereof the State Government can
provide for accelerated seniority to the Supreme Court employees.
Instructions dated 16.03.2006 (Annexure P-8) have to be tested on
the touchstone of the law as laid down by the Supreme Court in M.
Nagaraj’s case (supra).
It has been stated by the petitioners that the State of
Haryana did not undertake any survey and did not collect any
quantified data regarding inadequacy of representation in public
service, which fact has not been disputed by the respondents in their
reply filed to the writ petition. It has merely been said that in the light
of the amendment of the Constitution, a decision was taken by the
Government to provide benefit of Article 16 (4-A) of the Constitution.
Paras 2, 3 and 4 of Instructions dated 16.03.2006
(Annexure P-8) read as follows:-
“2. The Government of India has notified the
Constitution (Eighty Fifth) Amendment Act, 2001 on CWP No. 17280 of 2011 10
4.1.2002 amending Article 16 (4-A), which now reads as
under:-
“ Nothing in this article shall prevent the State from
making any provision for reservation in matters of
promotion with consequential seniority, to any class or
classes of posts in the services under the State in favour
of the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not adequately
represented in the services under the State.”
3. In the wake of the above enabling provision, after
careful consideration of the matter, it has been decided
by the State Government that the Scheduled Castes
employees will be entitled to “accelerated seniority” as a
consequence of promotions under the reservation policy.
4. This decision shall come into force with immediate
effect and shall have prospective effect only.
These instructions should be brought to the notice
of all concerned for being adhered to strictly.”
A perusal of these paras would indicate that the decision
was taken by the State Government on consideration of the matter
that there is an enabling provision provided now under the
Constitution and, therefore, the scheduled caste employees will be
entitled to accelerated seniority as a consequence of promotions
under the reservation policy. This would not fulfil the mandate of lawCWP No. 17280 of 2011 11
as laid down by the Supreme Court in Nagaraj's case (supra) for a
decision of the State to be valid. Similar situation had cropped up
before the Supreme Court in the case of Suraj Bhan Meena (supra),
where the Supreme Court had proceeded to quash the decision so
taken by the Government of Rajasthan providing accelerated
seniority to the promoted scheduled caste employees who had taken
the benefit of reservation.
In a recent case in U.P. Power Corporation Ltd. (supra),
the Hon’ble Supreme Court again while considering the validity of a
decision taken by the State of U.P. for granting accelerated seniority,
culled out the principles, which have been laid down by the Supreme
Court in M. Nagaraj (supra) and in paras 39 to 41, has held as
follows:
“39. At this stage, we think it appropriate to refer to the
case of Suraj Bhan Meena and another (supra). In the
said case, while interpreting the case in M.Nagaraj
(supra), the two-Judge Bench has observed:
“10. In M.Nagaraj case, this Court while upholding
the constitutional validity of the Constitution (77th
Amendment) Act, 1995 and the Constitution (85th
Amendment) Act, 2001, clarified the position that it
would not be necessary for the State Government
to frame rules in respect of reservation in promotion
with consequential seniority, but in case the State
Government wanted to frame such rules in thisCWP No. 17280 of 2011 12
regard, then it would have to satisfy itself by
quantifiable data that there was backwardness,
inadequacy of representation in public employment
and overall administrative inefficiency and unless
such an exercise was undertaken by the State
Government, the rule relating to reservation in
promotion with consequential seniority could not be
introduced.”
40. In the said case, the State Government had not
undertaken any exercise as indicated in M. Nagaraj
(supra). The two-Judge Bench has noted three conditions
in the said judgment. It was canvassed before the Bench
that exercise to be undertaken as per the direction in M.
Nagaraj (supra) was mandatory and the State cannot,
either directly or indirectly, circumvent or ignore or refuse
to undertake the exercise by taking recourse to the
Constitution (Eighty-Fifth Amendment) Act providing for
reservation for promotion with consequential seniority.
While dealing with the contentions, the two-Judge Bench
opined that the State is required to place before the Court
the requisite quantifiable data in each case and to satisfy
the Court that the said reservation became necessary on
account of inadequacy of representation of Scheduled
Castes and Scheduled Tribes candidates in a particularCWP No. 17280 of 2011 13
class or classes of posts, without affecting the general
efficiency of service. Eventually, the Bench opined as
follows:-
“66. The position after the decision in M. Nagaraj
case is that reservation of posts in promotion is
dependent on the inadequacy of representation of
members of the Scheduled Castes and Scheduled
Tribes and Backward Classes and subject to the
condition of ascertaining as to whether such
reservation was at all required.
67. The view of the High Court is based on the
decision in M. Nagaraj case as no exercise was
undertaken in the terms of Article 16(4-A) to acquire
quantifiable data regarding the inadequacy of
representation of the Scheduled Caste and
Scheduled Tribe communities in public services.
The Rajasthan High Court has rightly quashed the
notifications dated 28.12.2002 and 25.4.2008
issued by the State of Rajasthan providing for
consequential seniority and promotion to the
members of the Scheduled Caste and Scheduled
Tribe communities and the same does not call for
any interference.”
40.1. After so stating, the two- Judge Bench affirmed the
view taken by the High Court of Rajasthan.CWP No. 17280 of 2011 14
41. As has been indicated hereinbefore, it has been
vehemently argued by the learned senior counsel for the
State and the learned senior counsel for the Corporation
that once the principle of reservation was made applicable
to the spectrum of promotion, no fresh exercise is
necessary. It is also urged that the efficiency in service is
not jeopardized. Reference has been made to the Social
Justice Committee Report and the chart. We need not
produce the same as the said exercise was done regard
being had to be the population and vacancies and not to
the concepts that have been evolved in M. Nagaraj
(supra). It is one thing to think that there are statutory
rules or executive instructions to grant promotion but it
cannot be forgotten that they were all subject to the
pronouncement by this Court in Vir Pal Singh Chauhan
(supra) and Ajit Singh (II) (supra). We are of the firm view
that a fresh exercise in the light of the judgment of the
Constitution Bench in M. Nagaraj (supra) is a categorical
imperative. The stand that the constitutional amendments
have facilitated the reservation in promotion with
consequential seniority and have given the stamp of
approval to the Act and the Rules cannot withstand close
scrutiny inasmuch as the Constitution Bench has clearly
opined that Articles 16(4A) and 16(4B) are enabling CWP No. 17280 of 2011 15
provisions and the State can make provisions for the
same on certain basis or foundation. The conditions
precedent have not been satisfied. No exercise has been
undertaken. What has been argued with vehemence is
that it is not necessary as the concept of reservation in
promotion was already in vogue. We are unable to accept
the said submission, for when the provisions of the
Constitution are treated valid with certain conditions or
riders, it becomes incumbent on the part of the State to
appreciate and apply the test so that its amendments can
be tested and withstand the scrutiny on parameters laid
down therein.”
In LPA No. 1749 of 2011 titled as State of Haryana and
others vs. Kiran Bala and another, decided on 26.09.2011, this
Court while deciding the appeal preferred by the State of Haryana
against the judgment dated 28.04.2011 passed by the learned Single
Judge in CWP No. 8318 of 2010 wherein the orders denying the
benefit of stepping up of their pay at par with the juniors belonging to
the reserved category who were promoted earlier to them on account
of accelerated promotion were set aside on the ground that the
respondents were unable to justify their action of granting the benefit
of 85
th
Amendment Act of 2009 vide instructions dated 16.03.2006
being contrary to the judgment of the Supreme Court in the cases ofCWP No. 17280 of 2011 16
Ajit Singh Janjua (supra) and M. Nagaraj (supra). The Division
Bench of this Court has also observed in its order dated 26.09.2011
that in pursuance to the judgment passed by the Supreme Court in
M. Nagaraj's case (supra), State of Haryana did not carry out any
exercise for ascertaining the factors noticed by the Hon'ble Supreme
Court for grant of accelerated seniority and promotion pursuant to the
85
th
Constitutional Amendment to the reserved categories.
In view of the above, this Court has no option and
hesitation to hold that the decision of the Government of Haryana, as
circulated through its instructions dated 16.03.2006 (Annexure P-8),
granting accelerated seniority to the scheduled caste employees as a
consequence of promotion under the reservation policy, is ultra vires
as the same runs counter to the dictum in M. Nagaraj’s case (supra)
and, therefore, deserves to be quashed.
In view of the above, this writ petition is allowed.
Instructions dated 16.03.2006 (Annexure P-8) are hereby quashed.
Impugned orders dated 16.09.2010 (Annexure P-5) and 17.09.2010
(Annexure P-6) rejecting the claim of the petitioners for stepping up
of their pay at par with their junior Sh. Amar Singh, Accounts Clerk,
being based on and consequential to instuctions dated 16.03.2006
also cannot sustain and are hereby quashed.
Petitioners are held entitled to stepping up of their pay at
par with Sh. Amar Singh from the date of their promotion to the post
of Accounts Clerk. The consequential benefits be released to theCWP No. 17280 of 2011 17
petitioners within a period of two months from the date of receipt of
certified copy of the order.
(AUGUSTINE GEORGE MASIH )
August 07, 2012 JUDGE
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