Nirmal Singh vs State of Punjab

Tejinder Singh Dhindsa, J.—State of Punjab has filed the instant application seeking review of judgment dated 9.1.2014 passed by this Court in Civil Writ Petition No. 7699 of 2013. Suffice it to notice that in the judgment, the review of which is being sought, the seniority list dated 26.3.2013 of the Assistant Directors under the Department of Animal Husbandry Fisheries and Dairy Development, Punjab to the extent of determination of seniority inter se petitioners therein and respondent No. 4 had been set aside and directions had been issued to revise the seniority by granting benefit to the petitioners on the principle of "catch up" as enunciated in Ajit Singh Janjua and others v. State of Punjab and others, 1996(2) SCT 278: 1999(4) RSJ 211.

The instant application seeking review of the judgment is being pressed on the sole ground that the effect of 85th Amendment of 2001 in the Constitution of India as also ratio of judgment rendered by the Hon''ble Supreme Court in M. Nagaraj and Others Vs. Union of India (UOI) and Others, had not been considered and in the light whereof it was open to the State Government to make provision for reservation in the matter of promotion along with consequential seniority to any class of post in the services under the State in favour of Scheduled Castes and Scheduled Tribes. It has been contended on behalf of the State that since respondent No. 4 had been given promotion on a roster point, accordingly, he was entitled for consequential seniority vis-�-vis petitioners in view of the 85th amendment of the Constitution of India and pursuantly, the benefit of "catch up" principle would not be available to the petitioners.

Learned State counsel has been heard at length.

Article 16(4A) of the Constitution of India was introduced by virtue of the 85th constitutional amendment in the year 2001. Such amendment became subject matter of challenge in M. Nagaraj''s case (supra) and while upholding the 85th Constitutional Amendment, the Hon''ble Supreme Court interpreted the object, purport and its true application in the concluding paras of the judgment held as under :

"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 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 matters 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 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. 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. Reference is answered accordingly."

The scope of the 85th Amendment and insertion of Article 16(4A) of the Constitution of India came to be considered by the Hon''ble Apex Court subsequently in U.P. Power Corporation Ltd. Vs. Rajesh Kumar and Others, and it was summed up in the following terms :

"From the aforesaid decision and the paragraphs we have quoted hereinabove, the following principles can be carved out: -

i) Vesting of the power by an enabling provision may be constitutionally valid and yet ''exercise of power'' by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.

ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14.

iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.

iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated. Further roster has to be post-specific and not vacancy based.

v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) will be governed by the two compelling reasons "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.

vi) If the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact-situation.

vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.

viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.

ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.

x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment."

From the principles culled out and as re-produced hereinabove, it is clear that the 85th Constitutional Amendment and Article 16(4A) per se do not provide the benefit of consequential seniority unless the concerned State on the basis of relevant material/data makes a provision for consequential seniority.

On a specific query having been put to learned State counsel in such regard, it stands conceded, upon instructions from Shri KS Nangal, Assistant Director Fisheries, Punjab, who is present in Court, that there is no quantifiable data available with the Welfare Department, State of Punjab and on the strength of which any reservation in promotion could be given to an employee belonging to a Scheduled Caste category. Still further, State counsel could not bring to the notice of this Court any order/notification issued by the State Government making a provision for consequential seniority in the light of the enabling provision i.e. Article 16(4A) inserted by virtue of 85th Constitutional Amendment. In the absence of any quantifiable data being available with the State Government as has been conceded and without there being any provision for grant of consequential seniority based on reservation, principle of "catch up" laid down in the case of Ajit Singh Janjua (supra) would apply.

In view of the observations made above, the present review application is dismissed being totally mis-conceived. Dismissed.