Agreeing with the decision of the Rajasthan High Court that the Government of Rajasthan could not have granted "consequential seniority" to those belonging to the Scheduled Castes and Scheduled Tribes "without quantifying the figures of Scheduled Castes and Scheduled Tribes candidates to enable a decision to be arrived at that reservation was required in promotion and also to show that the State had to pass such orders for compelling reasons, such as, backwardness, inadequacy of representation", the Supreme Court in a recent decision has declared that such survey of population and factors relating to backwardness were required before such consequential seniority could be vested by the Government.
The Supreme Court in Suraj Bhan Meena v. State of Rajasthan (later reported as AIR 2011 SC 874), after the survey of the legal position which has emerged through a series of decisions and constitutional amendments, declared the law inter alia as under;
6. The Parliament on 4.1.2002 amended the Constitution by the Constitution (85th Amendment) Act, 2001, in order to give the benefit of consequential seniority to the reserved category candidates with effect from 17.6.1995. The constitutional validity of both the said Constitution Amendment Acts was challenged before this court in other writ petitions, including the writ petition filed by M. Nagaraj and All India Equality Forum. During the pendency of the writ petitions, this Court passed an interim order protecting the promotion and seniority of general/OBC candidates. The Government of Rajasthan, thereafter, deleted the proviso added vide Notification dated 1.4.1997.
7. In M. Nagaraj’s case (supra), 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 this 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.
8. Despite the decision in M. Nagaraj’s case, the State Government by deleting the proviso, which had been inserted vide notification dated 1.4.1997 on the basis of the “catch-up” rule and further deleting the new proviso added on 28.12.2002 in the Various Service Rules of the State, had in effect provided consequential seniority to the Scheduled Castes and Schedule Tribes candidates, without undertaking the exercise indicated in M. Nagaraj’s case in respect of the three conditions laid down in the said judgment. It was the case of the Petitioners that the impugned notification dated 25.4.2008 was liable to be declared ultra vires to the provisions of the Constitution being contrary to the decision of this Court in M. Nagaraj’s case.
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36. The primary question which we are called upon to answer in these five Special Leave Petitions is whether the amended provisions of Article 16(4-A) of the Constitution intended that those belonging to the Scheduled Castes and Schedule Tribes communities, who had been promoted against reserved quota, would also be entitled to consequential seniority on account of such promotions, or would the “catch-up” rule prevail.
37. The said question has been the subject matter of different decisions of this Court, but the discordant note was considered and explained by the Constitution Bench in M. Nagaraj’s case (supra). On account of reservation those who were junior to their seniors, got the benefit of accelerated promotions without any other consideration, including performance. Those who were senior to the persons who were promoted from the reserved category were not overlooked in the matter of promotion on account of any inferiority in their work performance. It is only on account of fortuitous circumstances that juniors who belong to the reserve category were promoted from that category before their seniors could be accommodated.
38. The question relating to reservation in promotional posts fell for the consideration of this Court in Indra Sawhney’s case (supra) for construction of Article 16(4) of the Constitution relating to the State’s powers for making provision for reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, was not adequately represented in services under the State. The further question for determination was whether such power extended to promotional posts. This Court answered the questions by holding that Article 16(4) does not permit provision for reservation in the matter of promotion. Further, such rule was to be given effect to only prospectively and would not affect the promotions already made, whether made on regular basis or on any other basis. Accordingly, apart from holding that Article 16(4) does not permit provision for reservation in the matter of promotion, this Court also protected the promotees who had been appointed against reserved quotas and a direction was also given that wherever reservations are provided in the matter of promotion, such reservation would continue in operation for a period of five years from the date of the judgment. In other words, the right of promotion was protected only for a period of 5 years from the date of the judgment and would cease to have effect thereafter.
39. The matter did not end there. The Constitution (77th Amendment) Act, 1995, came into force on 17th June, 1995. A subsequent question arose in the case of Union of India vs. Virpal Singh Chauhan, [(1995) 6 SCC 684], as to whether the benefit of accelerated promotion through reservation or the roster system would give such promotees seniority over general category promotees who were promoted subsequently. The said question arose in regard to promotion of Railway Guards in non-selection posts by providing concession to Scheduled Castes and Scheduled Tribes candidates and it was sought to be contended that the reservation provided was not only at the stage of initial appointment, but at every stage of subsequent promotions. In the said case, the Petitioners, who were general category candidates and the Respondents who were members of the Scheduled Castes and Scheduled Tribes were in the grade of Guards Grade ‘A’ in the Northern Railway. On 1st August, 1986, the Chief Controller, Tundla, promoted certain general category candidates on ad-hoc basis to Grade ‘A’ Special. Within less then three months, however, they were reverted and in their place members of the Scheduled Castes and Scheduled Tribes were promoted. Complaining of such action as being illegal, arbitrary and unconstitutional, Virpal Singh Chauhan and others moved the High Court, but the petition was transferred to the Central Administrative Tribunal. The Tribunal, inter alia, held that persons who had been promoted by virtue of the application of roster would be given accelerated promotion but not seniority, and that the seniority in a particular grade amongst the incumbents available for promotion to the next grade would be re-cast each time new incumbents entered from the lower grade on the basis of initial Grade ‘C’ seniority. This came to be recognized as the “catch-up” rule. The matter was brought to this Court by the Union of India and this Court confirmed the view taken by the Tribunal.
40. The same view was reiterated in the case of Ajit Singh Januja’s case (supra) wherein it was held further that by accelerated promotion Scheduled Castes/Scheduled Tribes and Backward Class candidates could not supersede their seniors in the general category by accelerated promotion, simply because that their seniors in the general category had been promoted subsequently. It was observed that balance has to be maintained vis-à-vis reservation.
41. After the decision rendered in Virpal Singh Chauhan’s case (supra) and in Ajit Singh-I’s case (supra), in which the claim of reserved category candidates in promotional posts with consequential seniority was negated, the question surfaced once again in the case of Jagdish Lal & Ors. Vs. State of Hayrana & Ors. [(1997) 6 SCC 538], where a Bench of Three Judges took a different view. Their Lordships held that the recruitment rules had provided for fixation of seniority according to length of continuous service on a post in the service. Interpreting the said provisions, Their Lordships held that in view of the said rules those Scheduled Castes and Scheduled Tribes candidates, who though junior to others in the general category, had got promotion earlier than their seniors in the general category candidates and would, therefore, be entitled to get seniority with reference to the date of their promotion. Their Lordships held that the general candidates by relying on Virpal Singh Chauhan’s case (supra) and Ajit Singh Januja’s case (supra) could not derive any benefit therefrom.
42. This resulted in the vexed question being referred to the Constitution Bench. Of the several cases taken up by the Constitution Bench, we are concerned with the decision rendered in the case of Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251] and Ajit Singh-II & Ors. Vs. State of Punjab & Ors. [(1999) 7 SCC 209]. Differing with the views expressed in Jagdish Lal’s case (supra), the Constitution Bench in Ajit Singh-II’s case (supra) affirmed the earlier decision in Virpal Singh Chauhan’s case (supra) and Ajit Singh Januja’s case (supra) and overruled the views expressed in Jagdish Lal’s case (supra). The constitution Bench reiterated the views expressed in Ajit Singh-I’s case (supra) that those who had obtained the benefit of accelerated promotion should not be reverted as that would cause hardship to them, but they would not be entitled to claim seniority in the promotional cadre. Quite naturally, the same view was expressed in Ram Prasad’s case (supra) which was also decided on the same day. In the said case, while affirming the decision in Ajit Singh-I’s case (supra), this Court directed modification of the seniority lists which had been prepared earlier, to fall in line with the decision rendered in Ajit Singh-I’s case (supra) and Virpal Singh Chauhan’s case (supra).
43. Thereafter, as mentioned hereinbefore, on 4th January, 2002, the Parliament amended the Constitution by the Constitution (85th Amendment) Act, 2001, in order to restore the benefit of consequential seniority to the reserved category candidates with effect from 17th June, 1995. The constitutional validity of both the Constitution Amendment Acts was challenged in this Court in several Writ Petitions, including the Writ Petitions filed by M. Nagaraj and the All India Equality Forum. The Constitution Bench while considering the validity and interpretation as also the implementation of the Constitution (77th, 81st, 82nd and 85th Constitutional Amendment) Acts and the effect thereof on the decisions of this Court in matters relating to promotion in public employment and their application with retrospective effect, answered the reference by upholding the constitutional validity of the amendments, but with certain conditions.
44. The vital issue which fell for determination was whether by virtue of the implementation of the Constitutional Amendments, the power of Parliament was enlarged to such an extent so as to ignore all constitutional limitations and requirements. Applying the “width” test and “identity” test, the Constitution Bench held that firstly it is the width of the power under the impugned amendments introducing amended Articles 16(4-A) and 16(4-B) that had to be tested. Applying the said tests, the Constitution Bench, after referring to the various decisions of this Court on the subject, came to the conclusion that the Court has to be satisfied that the State had exercised its power in making reservation for Scheduled Castes and Scheduled Tribes candidates in accordance with the mandate of Article 335 of the Constitution, for which the State concerned would have to place before the Court the requisite quantifiable data in each case and to satisfy the Court that such reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. The Constitution Bench went on to observe that the Constitutional equality is inherent in the rule of law. However, it’s reach is limited because its primary concern is not with efficiency of the public law, but with its enforcement and application. The Constitution Bench also observed that the width of the power and the power to amend together with its limitations, would have to be found in the Constitution itself. It was held that the extension of reservation would depend on the facts of each case. In case the reservation was excessive, it would have to be struck down. It was further held that the impugned Constitution Amendments, introducing Article 16(4-A) and 16(4-B), had been inserted and flow from Article 16(4), but they do not alter the structure of Article 16(4) of the Constitution. They do not wipe out any of the Constitutional requirements such as ceiling limit and the concept of creamy layer on one hand and Scheduled Castes and Scheduled Tribes on the other hand, as was held in Indra Sawhney’s case (supra). Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution.
45. In effect, what has been decided in M. Nagaraj’s case (supra) is part recognition of the views expressed in Virpal Singh Chauhan’s case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of “catch-up” rule and “consequential seniority” are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.
46. The position after the decision in M. Nagaraj’s case (supra) 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. The view of the High Court is based on the decision in M. Nagaraj’s case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes 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 Castes and Scheduled Tribes communities and the same does not call for any interference. Accordingly, the claim of Petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No.6385 of 2010 will be subject to the conditions laid down in M. Nagaraj’s case (supra) and is disposed of accordingly. Consequently, Special Leave Petition (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed.
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