M.K. Srivastava vs Union of India And Ors

V. Ajay Kumar, J

Heard both sides.

With the consent of the parties, the main OA itself is taken up for hearing.

The applicant, who is presently working as Section Engineer and belongs to Unreserved Category, filed the OA seeking the following reliefs :-

"1. To quash the impugned notification/ order dated 24.05.2016 and 13.01.2016 contained as Annexure No.1 and 2 to the extent, they provide reservation and promote the reserved category candidates;

To carry out necessary exercise in terms of judgment passed by the Hon"ble Supreme Court in the matter of Ajit Singh-II, S. Paneer Selvam and also in the light of M. Nagraj before making any promotion in the matter.

To consider the applicant for promotion to the post of ASTE/NR with all consequential benefits after releasing the reserved posts as indicated in the impugned orders.

Any other relief, which this Hon"ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.

Cost of the present case."

This Tribunal by its order dated 07.06.2016 after hearing both sides passed the following order :-

"In view of the submissions made by learned counsel for the applicant, I am inclined to pass an interim order restraining the respondents from making any promotion based on the principle of reservation as per notification contained in Annexure nos.1&2 till the disposal of this O.A.

Respondents may file CA within four weeks. RA, if any, may be filed within 2 weeks thereafter. Issue notice to the respondent nos.3 and 4, who may also file Counter Reply within the aforesaid period.

List this case on 17.8.2016."

It is the case of the applicant that the respondents vide impugned Annexure-A/1 Notification dated 13.01.2016, out of the total notified vacancies, sought to fill up three vacancies by following the principle of rule of reservation in promotions for the post of ASTE (Group „B") and the applicant stood at Sl. No.6 under the general seniority and in view of the illegal action of the respondents in filling up of three vacancies by following the rule of reservation against the law declared by the Hon"ble Apex Court in M. Nagaraj & Ors. Vs. Union of India & Others (2006) SCC 212, he will be deprived of promotion against the 6 vacancies for which he is entitled by virtue of his seniority.

On the other hand, learned counsel for respondent Railways submits that the issue of following the rule of reservation in promotions and also the decision of the Hon"ble Apex Court in M. Nagaraj (supra) was considered by the Hon"ble Punjab and Haryana High Court in WP(C) No.15782/2015 in its decision dated 18.01.2017 in Ram Kishan Singh & Others Vs. Union of India & Others and batch and keeping in view the administrative exigencies, permitted the respondents to make a temporary arrangement and in view of the same and following the said decision, the respondent Railways formulated certain guidelines vide letter dated 08.02.2017, a copy of which is produced before us today, and, accordingly, they are entitled to proceed in terms of the said decision and the guidelines, referred to above and accordingly, prays for vacation of the interim order and also for dismissal of the OA.

In M. Nagaraj (supra), the Constitution Bench of the Hon"ble Apex Court observed as under :-

"2. The facts in the above writ petition, which is the lead petition, are as follows. Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union of India and others v. Virpal Singh Chauhan and others , Ajit Singh Januja and others v. State of Punjab and others (Ajit Singh-I), Ajit Singh and others (II) v. State of Punjab and others , Ajit Singh and others (III) v. State of Punjab and others , Indra Sawhney and others v. Union of India , and M. G. Badappanavar and another v. State of Karnataka and others . Petitioners say that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. Petitioners say that the equality in the context of Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority. Petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). Petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. Petitioners say that in the case of Indra Sawhney5 decided on 16.11.1992, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion. Petitioners say that contrary to the said judgment delivered on 16.11.1992, the Parliament enacted the Constitution (Seventy- Seventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-Seventh Amendment) Act, 1995 is also challenged by some of the petitioners. Petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous...."

After referring to a series of authorities, the Court concluded as follows :

"121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.

We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 SC/ST in matter of promotions. However if they wish to exercise their discretion and 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 of 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.

Subject to 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.

We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.

The  Hon"ble  High  Court  of  Punjab  and  Haryana  in  WP(C) No.15782/2015 dated 18.01.2017 in Ram Kishan and Others Vs. Union of India & Ors. (supra) observed as under :-

"[8] With a view to give effect to the statement made by learned Solicitor General of India, Northern Railway, Ferozepur Division, has issued Circular dated 12.01.2017 observing that since for the safety aspects in train operation the promotions of staff are required to be made provisionally subject to the outcome of the final decision of the Hon'ble Supreme Court, the Competent Authority has decided to follow the following procedures for promotions on provisional basis subject to the final outcome of the Court cases:-

"1. All the promotions are to be done as per General Seniority.

Zone of consideration will not be extended.

No jumping of candidates will be allowed.

Seniority will not be violated in any case.

All the SC & ST candidates coming in the purview of General Seniority shall be considered against available Roster Points, even if they were acquiring UR points in the past,.

Whenever, in any case if Roster Points are consumed and the number of SC and ST candidates still appears as per the zone of consideration in the General Seniority, they shall be adjusted against UR Roster Points on temporary basis to be adjusted against future SC/ST vacancies.

Once SC/ST Roster Points are available in future these UR points will be vacated and SC/ST candidates will be adjusted against newly available points.

In case there is no SC & ST candidates available in the zone of consideration but vacancies are available the vacancies shall be kept as shortfall for future adjustment."

[9] It is undeniable that parties to these cases shall also be bound by the final verdict of the Hon'ble Supreme Court and their fate shall also be decided in terms of the decision of the Hon'ble Supreme Court even if no formal SLP/civil appeals are filed in these cases. Till the final decision comes, we find that the arrangement made by Northern Railway, Firozepur is fair, just and a workable solution.

[10] Consequently, all these writ petitions are disposed of with a direction to the Railway Authorities to provisionally implement the orders passed by the Tribunal in these cases subject to the terms and conditions contained in its above re-produced letter dated 12.01.2017 and further subject to the final decision of the Hon'ble Supreme Court.

[11] There is no reason as to why the other Divisions of Northern Railways or the Railway Coach Factory, Kapurthala should deviate or have a different criteria to follow. Consequently, it is directed that the above-stated provisional arrangement shall be followed by all the Divisions as well as Rail Coach Factory/ production units till the final decision of the Hon'ble Supreme Court.

12] Let the needful be done within two months."

The letter dated 08.02.2017 (supra) referred by the respondents is guidelines issued by them which is reiteration of the observations made by the Hon"ble High Court, as referred to above.

The examination of the above clearly indicates that the observations made by the Hon"ble High Court of Punjab and Haryana as well as guidelines issued by the respondents are in accordance  with  law  declared  by  the  Hon"ble  Apex  Court  in  M. Nagaraj (supra) only, though it was allowed to make the arrangement subject to the final outcome of the various court orders pending on the issue.

In the circumstances, the OA is disposed of. The respondents shall proceed with the impugned Annexure-A/2 dated 13.01.2016, however, by following the law declared by the Hon"ble Apex Court in M. Nagaraj (supra) as well as observations made by the Hon"ble High Court of Punjab and Haryana at Chandigarh in Ram Kishan and Others Vs. Union of India & Ors. No costs.