The Supreme Court on Friday has dismissed an appeal wherein the Court had held that unless the State Government makes a law for conferring the benefit of promotion with consequential seniority to SC/ST candidates, they are not entitled to claim seniority in the promoted categories over the general category candidates.
The present appeal was filed being aggrieved by the judgment of the High Court of Orissa by which the Court had set aside the order of Orissa Administrative Tribunal and quashed the impugned Government Resolution and the consequential Gradation List of Orissa Administrative Services, Class-I (Junior Branch).
The impugned Government Resolution: The Government of Orissa, on instructions by the Government of India had issued a resolution by which the following directions were given:
- The earlier instructions, for fixation of seniority of Scheduled Caste/Scheduled Tribe (SC/ST) government servants on promotion by virtue of rule of reservation were withdrawn.
- The instructions issued by the State Government regarding adoption of the “Catch Up Principle” by the State Government shall not be followed any longer. The government servants belonging to SCs/STs shall retain their seniority in the case of promotion by virtue of rule of reservation.
- The government servants belonging to general/OBC category promoted later will be placed junior to the SC/ST government servants promoted earlier, by virtue of rule of reservation.
Brief facts of the case is that the petitioners belonging to general category were appointed to Orissa Administrative Service-II posts pursuant to selections made by the Orissa Public Service Commission, in 1983, 1984 and 1987. They were assigned different ranks in the merit list for their respective batches prepared by the Public Service Commission. According to that merit list, persons belonging to SC/ST category, who were appointed against the reserved vacancies were placed below the writ petitioners and therefore the writ petitioners were senior to appointees belonging to SC/ST category. After that further promotions were made for both the petitioners and respondents who belong to the SC/ST category.
The seniority of reserved categories and unreserved categorieswas not finalised by the Public Service Commission since the principles determining seniority, was the subject matter of several litigations. The original seniority position in the cadre of OAS-II prepared by the Public Service Commission was retained without any changes in view of the judgment of the Supreme Court in the case of Union of India &Ors. v. Virpal Singh Chauhan & Ors.2 . Irrespective of getting promotion in subsequent years, the seniority of the non reserved category people and the SC/ST promotees in the rank of OAS-I was maintained in the seniority list.
Later, Article 16(4A) of the Constitution of India was amended in 2001 by 85th amendment enabling the State to grant benefit of promotion with consequential seniority to SC/ST reserved category officers. This provision was challenged before the Supreme Court of India.
A Constitution Bench of the Supreme Court, in M. Nagaraj vs Union of India, upheld the Constitutionality of the 85th Amendment and said that the State is not bound to make reservation for SCs/STs 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 inadequate representation of that class in public employment. The State also needs to make sure that it does not breach the ceiling of 50% or obliterate the creamy layer or extend the reservation indefinitely.
The case was heard by the division bench comprising of Justice M. M. Shantanagoudar and Justice R Subhash Reddy, while dismissing the appeal made following observations:
- It is clear that the seniority for general category officers was restored in the Gradation List of of2001, by extending the benefit of “Catch Up Rule”, evolved by this Court.
- The amended Article 16 (4A) makes it clear that in case the State is of opinion, SC & STs are not adequately represented, State is empowered to make a provision for reservation in matters of promotion with consequential seniority, to any class. The amended article has enabled the State to extend the benefit 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 benefit in the Class-I Services.
- The impugned Government Resolution is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts.
- The State has stated that there is no necessity for bringing out any law to extend the benefit of seniority for those who are promoted in reserved vacancies.
- Therefore, the impugned Government Resolution 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. The Resolution has no legal basis.
- The Seniority/Gradation List of 2001 was prepared correctly by following the ratio laid down by the Supreme Court and in absence of any law or decision by the State for conferring additional benefit of consequential seniority, the Gradation List dated of 2008 was prepared by altering the positions which were maintained in the previous list.
- The said list was made without examining the adequacy of representation in promotional posts, as held by the Supreme Court.
-India Legal Bureau