w w w . L a w y e r S e r v i c e s . i n



Shiva Bhatnagar, Chandigarh & Others v/s Post Graduate Institute of Medical Education & Research & Others


Company & Directors' Information:- SHIVA CORPORATION (INDIA) LIMITED [Active] CIN = U15532RJ1998PLC015036

Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- E-GRADUATE INSTITUTE INDIA PRIVATE LIMITED [Strike Off] CIN = U80302TN2003PTC051577

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- INSTITUTE OF EDUCATION AND RESEARCH [Active] CIN = U80904UP2012NPL048973

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

Company & Directors' Information:- SHIVA AND CO PVT LTD [Strike Off] CIN = U51909KL1934PTC001030

    O.A No. 060/00418 of 2014

    Decided On, 20 August 2014

    At, Central Administrative Tribunal Chandigarh Bench

    By, THE HONOURABLE MR. SANJEEV KAUSHIK
    By, MEMBER (J) & THE HONOURABLE MR. UDAY KUMAR VARMA
    By, MEMBER (A)

    For the Appearing Parties: R1, R2, Rajesh Garg, Senior Advocate Along with Nimrata Shergill, R3, R.D. Bawa, Advocates.



Judgment Text

Sanjeev Kaushik, Member (J):

1. The moot question that arises in the petition which is to be answered is as to whether the respondents can be allowed to grant seniority to those, who were promoted earlier than their senior general category candidates to next higher grade without firstly following the law lay down in the case of M. Nagaraj & Others vs. Union Of India 2006(8) SCC 212 by undertaking exercise as mandated therein and they have to follow catch up principle as held in case of Suraj Bhan Meena Vs. State of Rajasthan, (2011) 1 SCC 467, till such exercise is carried out.

2. The facts which led to filing of the present application are that all the applicants, who belong to general category, entered into the service as Staff Nurse with the respondent- Post Graduate Institute of Medical Education and Research (in short PGIMER) in the year 1978. They were promoted as Sister Grade-I w.e.f. 01.03.1992 on the basis of their seniority in the pay scale of Rs. 1640-2900. The detail of their joining, date of confirmation and date of promotion is given in a tabulated form in paras 4 (IV) & 4 (v) of the O.A. In the hierarchy, the applicants were promoted as Assistant Nursing Superintendent (for short ANS) vide order dated 19.02.2010 in the pay scale of Rs.15600-39100 with Grade pay of Rs. 5400/-. The private respondents no. 3 to 5, belong to reserve category of Scheduled Caste, and are much juniors to the applicants, as they joined the PGIMER as Staff Nurse in the year 1988/1989. Thereafter, they got further promotion as Sister GradeI, in the year 1993, after getting the benefit of reservation in promotion, as Sister Grade-I and they were further promoted as Assistant Nursing Superintendent w.e.f. 30.01.2009, under reservation quota by ignoring the claim of the general category candidates who were senior to them. It is the case of the applicants that as per judicial pronouncement in the case of Indra Sawhney Vs. Union of India & Ors. 1993 (1) SCT 448 reservation would apply only in the matter of initial appointment and there could not any reservation in promotions with consequential seniority. The same view has been followed in the case of Union of India Vs. Virpal Singh Chauhan JT 1995 (7) SC 231 decided on 10.10.1995 wherein validity of Article of 16(4) was considered and it was held that it is for the state to offer reservation for appointments under Article 16(4) only qua the initial appointment and it cannot be extended to the matter of promotion. Based upon the above judgment, the Government of India Department of Personnel & Training (in short DoPT) issued OM No. 20011/96-Estt. (D) dated 30.01.1997 under the heading of Seniority of SC/ST officers promoted earlier vis-`-vis general candidate promoted later. This clarifies that once a reserved category candidate after getting the benefit of accelerated promotion, promoted at earlier point of time than the general category candidate who is senior to the reserved category candidate in feeder cadre, later on gets promoted to higher post to which the SC/ST category candidate has already been promoted, then the department has to prepare a fresh seniority list based upon their seniority in the feeder cadre. In other words, one could get promotion by virtue of reservation but not the seniority. It is the case of the applicants that despite the above OM dated 30.01.1997 where under the respondents were duty bound to recast the seniority under the principle of catch-up rule, they are bent upon to give further promotion to the reserved category candidate without complying the mandate of recasting the seniority, which is illegal.

3. Pursuant to notice, the official respondents no. 1 to 2 and private respondents no. 3 to 5 have contested the claim of the applicant by filing separate written statements. In written statement filed by official respondents, they do not dispute the fact that the private respondents have been promoted as Assistant Nursing Superintendent against the reserved category by granting benefit of accelerated promotion. It is also submitted that the matter regarding the catch up rule is under consideration before the jurisdictional Honble High Court as this Court in, another case, has held that there shall be no reservation in promotion in view of the judgment passed in case of M. Nagaraj & Others vs. Union Of India 2006(8) SCC 212, and as such the question of accelerated promotion does not arise. Therefore they proposed deferment of hearing of this matter, whereas, the private respondents opposed the claim of the applicants on the ground that the applicants herein did not posses the requisite experience for promotion to next higher post i.e. Deputy Nursing Superintendent for which they lack experience, therefore, it can not be said that till they acquire the experience to be considered for promotion, the posts will remain vacant and private respondents be not promoted. With regard to factual accuracy of facts as pleaded by the applicant in OA, there is no denial, by the respondents.

4. We have heard Sh. Barjesh Mittal, learned counsel for the applicants, Sh. Rajesh Garg, learned Senior Advocate for official respondents and Sh. R. D. Bawa, learned counsel for the private respondents.

5. Sh. Barjesh Mittal, Learned counsel for the applicants vehemently argued that action of the respondents in not fixing seniority in terms of OM dated 30.01.1997, and making promotion is illegal, arbitrary and against the mandate of the judgment of the Honble Supreme Court in case of Union of India Vs. Virpal Singh Chauhan JT 1995(7) SC 231 and also against the instructions issued by the Government of India which are applicable to the respondent-PGMIER. To elaborate his argument, he submitted that concededly the applicants are senior to the private respondents as Staff Nurse Assistant Grade I. They were promoted as Assistant Nurse Superintendent in year 2009 after getting the benefit of accelerated promotion which was given without considering their suitability and eligibility by relaxing standards. The applicants who are senior to them were promoted later in the year 2010 as Assistant Nursing Superintendent. Based upon the OM dated 30.01.1997 when the general category candidates were promoted as Assistant Nursing Supreintendent, then Department has to recast their seniority list based upon their initial seniority in feeder cadre, only thereafter, further promotion is to be carried out for the post of Deputy Nursing Superintendent. It is not that the private respondents who were promoted as DNS at earlier point of time under relaxed standards will be given seniority over and above the applicants be promoted to the post of DNS without firstly following catch up rule i.e. without first recasting seniority at the level of DNS from the initial point and there to promote as per seniority, otherwise, it amounts to further reservation in promotion and depriving the right of the general category candidates who are senior.

6. He submitted that this issue has already dealt by the Constitutional Bench of Supreme Court in case of Ajit Singh & Ors. Vs. State of Punjab & Others , 1999 (4) RSJ 11. He then submitted that this proposition was again considered in the case of Suraj Bhan Meena & Another Vs. State of Rajasthan & Others 2011(1) SCC 467 which upheld the validity of insertion of Clause 4 (A) to Article 16. The said provision is reproduced as under:-

(4A). Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion 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..

7. The aforesaid 85th Constitutional amendment was subject matter in case of M. Nagraj (supra) where it has been held that there will be no reservations in promotion until Government of India carries out certain deliberations. He also submitted that respondents during the pendency of the O.A have conducted the DPC whereby the reserved category candidates, who were promoted earlier than the applicants as ANS, have been promoted to the post of DNS without casting the seniority by giving the benefit of reservation which is contrary to the law settled in case of M. Nagraj (Supra). He then contended that even reservation is to be granted according to the replacement of the vacancy once the reservation is full. He submitted that the promotion in reservation is to be given against the particular point only when that point becomes available. It is not that at each point reserved category candidate is to considered and granted promotion.

8. Per contra, Sh. Rajesh Garg, learned Senior Advocate for the official respondents did not dispute the fact that the OM dated 30.01.1997 mandate for recasting of seniority if general category candidate is promoted subsequent to the SC category candidate, and thereafter further promotion is to be made. He also did not dispute this fact that in case of M. Nagraj (supra) , the Honble Supreme Court has already held that there shall be no reservation in promotion until they come with data. He however, submitted that respondents are not granting the benefit of reservation to the private respondents as their cases were considered by DPC for further promotion to the post of Deputy Nursing Superintendent as per their merit as ANS. He submitted that since they are senior to them in the cadre of ANS, therefore, they were considered and promoted as DNS.

9. Sh. R.D. Bawa, learned counsel for the private respondents apart from the arguments advance by learned counsel for the official respondents submitted that it has been held by the courts of law that in case of promotion, there should not be stay and if a person lacks experience then the promotion to the other eligible can not be postponed till acquiring of eligibility in this regard. For this proposition, he placed reliance upon the judgment passed in case of Punjab State Electricity Board, Patiala & Anr. Vs. Ashok Kumar Sehgal & Ors.; AIR 1990 Punjab and Haryana 117 and in case of Sukhdev Singh Sidhu Vs. State of Punjab, 2003(4) SLR 12. He also submitted that the Tribunal in grant of interim order will not ignore the public interest and that of large number of employees.

10. We have given our thoughtful consideration to the entire matter and perused the pleadings of the parties as available on record and the judgments cited by counsels with the able assistance of respective counsels.

11. The primary question which came up consideration in this O.A is whether the amended provision of Article 16 (4-A) of the Constitution of India intended that those belonging to the SC/ST communities, who have been promoted against reserved quota, would also be entitled to consequential seniority on account of such promotion or the Catch up rule would prevail. Before answering the above poser, we would like to notice here that question relating to reservation in promotional posts fell for the consideration of the Honble Apex Court in case in Indra Sawhneys case (supra) ( AIR 193 SC 477) wherein impact of Article 16(4) of the constitution, relating to the States powers for making provision for reservation 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, was considered. Further question for determination was whether such power extended to promotional posts. The Honble Supreme Court answered the question 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. Ultimately the court held that that Article 16(4) does not permit provision for reservation in the matter of promotion.

12. Another issue which was debated before Hon’ble the Supreme Court in the case of Union of India Vs. Virpal Singh Chauhan, 1995(6) SCC 689 and Ajit Singh Januija Vs. State of Punjab, 1996(2) SCC 715 was as to whether the benefit of accelerated promotion through reservation on roster point would give such promotion Seniority over his senior general category promotion albeit promotion subsequently. In other words whether roster point promotee was entitled to retain his date of promotion as Sacrosanct. It is this principle which is known as Catch Up Principle. In both the above named judgments, it was held that the benefit of accelerated promotion would not result into conferring seniority over and above General Category seniors, who were promoted subsequently. This view was again conferred by the Constitutional Bench in the case of Ajit Singh I Vs. State of Punjab 1997(7) SCC 269 and the view taken earlier in the case of Virpal Singh Chauhan (supra) and Ajit Singh Januijas (supra) was affirmed.

13. Then came 85th Amendment Act, 2002 by Parliament on 04.01.2002 which also came up for consideration before the Honble Constitutional Bench of Supreme Court in case of M. Nagaraj & Others Vs. Union of India 2006(8) SCC 212 wherein validity of Article 16 ( 4-A) of Constitution of India was deliberated by their Lordships. After analyzing the complete law on the subject, conclusion has been recorded in paras 120, 121 & 122 in the judgment holding that the clause empowers the state to make any provision for reservation in matters of promotion with consequential seniority to any class of posts in the service under the state in favour of Scheduled Castes and Scheduled Tribes where the state is of the opinion that such classes are not adequately represented in the service of the state. It is not that consequential seniority on promotion against Roster Point is automatic. The state can frame rule based upon the survey conducted by State showing that there is inadequacy in representation of the State SC & ST category. Till such survey is conducted, constitutional seniority can not be extended. The conclusion as recorded in paras 120 to 123 of M. Nagarajs case, reads as under:-

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.

122. 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.

123. 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.

14. It is only in this case their Lordships have dealt with the Catch up rule which have also been explained in detail in para 26 in Virpal Singh Chauhans Case (supra). It has been held that as per the catch-up rule a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidates in the feeder grade shall necessarily be junior in the promoted category to such general category candidates. The catch-up-rule is not implicit in Articles 16 (1) to (4). The concept of the catch-up rule and consequential seniority are not constitutional requirements or limitations. They are judicially evolved concepts to control the extent of reservation, derived from service jurisprudence. Principles of service jurisprudence are different from constitutional limitations. They are not axioms like secularism, constitutional sovereignty, etc, it cannot be said that by insertion of the concept of consequential seniority the structure of Article 16(1) stands destroyed or abrogated. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15, 16 of the Constitution. Hence, the same can not bind the amending power of parliament and is not beyond the amending power of Parliament. However, whether weight age of earlier accelerated promotion with consequential seniority should be given or not are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and overall efficiency of services.

15. The matter has been again considered by their Lordships of the Honble Supreme Court in case Suraj Bhan Meena (supra) wherein aforesaid principle has been reiterated. Noticing the whole history, Hon’ble Supreme Court has held that principles laid down in M.Nagarajs case(supra) are binding. It has been found that the concepts of catch up rule and consequential seniority are judicially evolved concepts and were not to be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament, however, the requirement of Articles 16(4-A) & 16 (4-B) would have to be maintained and the testes indicated therein would have to be satisfied, which could only be achieved after an inquiry as to identity. In cases where no exercise was undertaken in terms of Article 16 (A-A) to acquire quantifiable date regarding the inadequacy of representation of SC/ST communities in public services, the Courts have rightly quashed the notifications. As noticed above, the catch up rule has already been considered and answered by their Lordship in case of Suraj Bhan Meena (supra) wherein it has been held as under:-

60. 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.

61. 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.

62. The Constitution Bench went on to observe that the Constitutional equality is inherent in the rule of law. However, its 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.

63. 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).

64. 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.

65. 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.

66. 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.

67. 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.

68. 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.

69. Having regard to the nature of the facts involved, each party will bear its own cost.

16. It may also be mentioned here that somewhat but in similar circumstances, the UP Government issued a Notification on 14th of September, 2007 by which the U. P. Government Servants Seniority (3rd Amendment) Rules, 2007, were issued, rule 8A of which stated that Notwithstanding anything contained in Rules 6, 7 or 8 of these rules, a person belonging to the SC or ST shall, on his promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also from 17.6.1995 in the seniority rules, 1991 and also provided for consequential seniority to the scheduled Castes and scheduled tribes from the date of their promotion as per the Roster/rule of reservation. The Honble Supreme Court of India, in the case of U.P.Power Corp.Ltd. vs Rajesh Kumar & Ors. (2012) 7 SCC 1, struck down the above Rule 8-A stating that neither the state government nor the UP Power Corporation had conducted any exercise as per the M. Natrajs case. For applying reservation in promotions the government / corporation needed to show (a) backwardness of the class; (b) inadequacy of representation; (c) overall administrative efficiency. In the UP Power case, the state government had not undertaken any exercise or collected any data showing the backwardness of the class and inadequacy of representation in service. Therefore, the rule 8-A was declared ultra-vires and set aside by the Honble Supreme Court. The observations of the court are reproduced as under :-

38. 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.

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 (77thAmendment) 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.

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 particular 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 terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule 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 After so stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan.

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 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 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.

42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed.

17. A Full Bench of the Principal Bench of this Tribunal has also considered the issue earlier in great detail in its order dated 02.12.2010 in O.A No. 2211/2008 All India Equality Forum and Others Vs Union of India and Others. The said order has also directed the respondents Railways therein not to give accelerated promotion and consequential seniority to Scheduled Caste and Scheduled Tribe Category employees till such time pre-conditions on which Article 16(4-A) of the Constitution is to operate, are complied with. The concluding part of the said order reads as under:-

37. We have applied our mind to the pleadings and the contentions raised by the learned counsel representing the applicants on the issues as mentioned above, but are of the view that once, in brevity, it is the case of the applicants that when no compliance of pre-conditions as spelled out in M. Nagarajs case has been done, reservation in promotion with accelerated seniority shall have to be worked in the way and manner as per the law settled earlier on the issue. If that be so, we need not have to labour on the issues raised by the applicants, as surely, if the position is already settled, the only relevant discussion and adjudication in this case can be and should be confined to non-observance of the pre-conditions for making accelerated promotions as valid. We have already held above that the railways have not worked out or even applied their mind to the pre-conditions as mentioned above before giving effect to the provisions of Article 16(4A), and for that reason, circular dated 29.2.2008 vide which the seniority of SC/ST railway servants promoted by virtue of rule of reservation/roster has to be regulated in terms of instructions contained in Boards letter dated 8.3.2002 and 13.1.2005, has to be quashed. There is a specific prayer to quash instructions dated 8.3.2002 and 13.1.2005 as well, but there would be no need to do so as the same have been discussed in the case of railways itself in the matter of Virpal Singh Chauhan (supra), and commented upon. While setting aside instructions dated 29.2.2008, our directions would be to not to give accelerated seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which alone Article 16(4A) of the Constitution is to operate, are complied with. No directions in this case can be given as regards seniority of the applicants vis-a-vis those who were appointed with them and have stolen a march over them because of reservation and have obtained accelerated seniority. No such specific prayer has been made either. However, it would be open for the parties to this lis or any one else to seek determination of their proper seniority for which legal proceedings shall have to be resorted to. It would be difficult to order across the board that all those who have obtained the benefit of reservation and have also been accorded accelerated seniority be put below general category candidates who may have been senior to the reserved category employees and became below in seniority on the promoted posts because of conferment of accelerated seniority to the reserved category employees. Surely, for seeking seniority over and above Scheduled Caste and Scheduled Tribe employees, number of things shall have to be gone into, as for instance, as to when was the promotion made and seniority fixed, and whether the cause of general category employees would be within limitation. There can be number of issues that may arise. We have mentioned only one by way of illustration.

18. The Honble jurisdictional High Court in CWP No. 13218/2009 titled Lachhmi Narain Gupta and Others Vs. Jarnail Singh and Others decided on 15.07.2011 has also followed the Apex Courts dictum in the case of M. Nagarajs case (supra) and held as under:-

38. When the principles laid down in the case of M. Nagaras (supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation in respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos. 5 and 6. The aforesaid fact has also been conceded by the respondent-Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagarajs case (supra) as well as in Suraj Bhan Meenas (supra).

Subsequently, in case of Salauddin Ahmed Vs. Samta Andolan 2012 (10) SCC 235, the matter was again considered by the Honble Supreme Court and their lordship held that in absence of necessary data which is required to be collected as per the mandate in case of M. Nagarajs case (supra) and Suraj Bhan Meenas case (supra). It is not possible for state and its authority to act in terms of observation made in case of M. Nagaraj (supra) and Suraj Bhan Meena (supra).

19. Now reverting back to the fact of the present case.

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Undisputedly, the applicants enter into the service of PGIMER prior than the private respondents. The private respondents were given accelerated promotion by relaxing the standard to the post of Assistant Nursing Superintendent in year 2009. The applicants who belong to General Category were promoted subsequently in year 2010 as per their merit and norms prescribed for promotion. As office memorandum dated 30.01.1997 which is applicable to the respondents they have the seniority at the level of Assistant Nursing superintendent on the basis of their seniority from the date when person enter into the service for further promotion in the hierarchy i.e. DNS. The O.M. 30.1.1997, which still hold the field until the respondents collect data in terms of case of M. Nagaraj (supra) which reads as under:- Subject:- Seniority of SC/ST officer s promoted earlier vis-a-vis general candidate promoted later. According to the general principle 5(i) contained in MHA OM No. 9/11/55-RPS dated 22.12.1959 and para 2.2 in DOPT OM No. 22011/7/86-Estt. (D) Dated 3.7.1986 read with DOPT OM No. 20011/5/90-Estt. (D) dated 4.11.1992, (copy enclosed) seniority of a person regularly appointed to a post according to rule would be determined by the order of merit indicated at the time of initial appointment and seniority of persons promoted to various grades shall be determined in the order of selection for such promotion. Thus, persons appointed through an earlier selection will enbloc be senior to those promoted through subsequent selection. 2. The Supreme Court has in its judgment date 10.10.95 in the case of Union of India Vs. Virpal Singh Chauhan etc. (JT 1995(7) SC.231) held as follows:- Even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category. 3. Having regard to the above judgment of the Supreme Court, it has been decided to modify the existing policy of fixing seniority on promotion on the lines mentioned in para 2 above. Accordingly, it has been decided to add the following proviso to general principle 5(i) contained in MHA (now DOPT) OM No. 9/11/55-RPS dated 22.12.59 and para 2.2 of this Department OM No. 22011/7/86-Estt. (D) dated 3.7.1986 :- Provided that if a candidate belonging to the Scheduled Caste or the Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted later to the said immediate higher post/grade, the general/OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste and the Scheduled Tribe in the immediate higher post/grade. 4. These orders shall take effect from the date of issue of this Office Memorandum. Sd/- (K.K. JHA) Director(E) 20. Perusal of the above make it clear that above O.M was issued in the light of the observation made in case of Union of India Vs. Virpal Singh Chauhan etc. (supra). Neither in the written statement nor at the time of arguments, it is remotely suggested by learned counsel for the PGMIER that any exercise was carried out to assess the inadequacy of representation of SC/STs in the service under the PGIMER before conducting DPC for promotion to the post of DNS. In absence of this exercise to be carried out in view of the mandate of Constitution Bench of Hon’ble Apex Courts decision in the case of M. Nagaraj (supra), the respondents cannot grant them seniority on promotion on accelerated basis. In other words the SC/ST candidates i.e. private respondents who were promoted on roster point were not entitled to retain their date of promotion as sacrosanct for the purpose of seniority. Accordingly, in backdrop of above dictum, we are left with no other option but to quash the promotion of the private respondents to the post of Deputy Nursing Superintendent. The respondents are at liberty to proceed ahead afresh in accordance with rules and law and observations made hereinabove. 21. No costs.
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