Gopinath, J.1. These original petitions have been filed challenging the order of the Central Administrative Tribunal, Ernakulam Bench in OA No. 180/00310/2018 dated 05.07.2019. O.P (CAT) No.212/2019 has been filed by the respondent numbers 6 to 8 and 10 to 12 in that original application and O.P (CAT) No.218/2019 has been filed by the Union of India and its officers challenging the very same order.2. The petitioners in O.P (CAT) No.212/2019 and the 1st respondent entered service as Assistant Executive Engineers in the Military Engineering Service. The 1st respondent was senior to the petitioners in the cadre of Assistant Executive Engineers. The petitioners were however promoted as Executive Engineers earlier than the 1st respondent as they were found entitled to the posts reserved for members of the Scheduled Castes/Scheduled Tribes (SC/ST) in the cadre of Executive Engineers. The 1st respondent, as well as the petitioners, were further promoted as Superintending Engineers which is the feeder category for the post of Chief Engineer. The 1st respondent claimed that he was entitled to the restoration of his seniority on the application of the rules of ‘regain’ and ‘catch up’ evolved in Union of India vs Virpal Singh Chauhan; (1995) 6 SCC 684 and consequently for promotion/consideration for promotion as Chief Engineer over and above the petitioners. The Tribunal found merit in the claim put forth by the 1st respondent and directed that the seniority list of Superintending Engineers be re-cast by restoring the seniority of the 1st respondent vis-vis the petitioners in OP (CAT) 212/2019, by applying the ‘catch up’ Rule evolved in Virpal (supra).3. We have heard Sri. K.S Chauhan, learned counsel appearing for the petitioners in O.P (CAT) No. 212/2019 (contesting party respondents before the Tribunal), Sri. P. Vijayakumar, the learned Assistant Solicitor General of India for the petitioners in O.P (CAT) No. 218/2019 (Official respondents before the Tribunal) Sri. Kaleeswaram Raj & Maitreyi S. Hegde, the learned counsel appearing for the 1st respondent (the applicant before the Tribunal), in both these cases.4. Sri. Chauhan would contend that the petitioners in O.P (CAT) No. 212/2019 were granted promotions as Executive engineers either immediately before or immediately after the judgment of the Supreme Court in Indira Swahney v. Union of India; 1992 (Supp.3) SCC 217. He submits that even while Indira Swahney (supra) categorically declared that the provisions of Article 16(4) of the Constitution of India did not enable the State to provide for reservations in the matter of promotions, this declaration was to apply only prospectively and that too after 5 years from the date of pronouncement of the judgment. He would specifically refer to paragraph 829 of Indira Swahney (supra) and reiterates with reference to the dates on which the promotions in question were made, that the promotions in question were not hit by the declaration in Indira Swahney. He would further contend that at any rate the effect of the declaration in Indira Swahney (supra) was taken away by the Constitution 77th amendment Act which introduced Article 16 (4A) specifically providing for reservations in promotions. He states that effect of the ‘catch-up Rule’ evolved in the case of Virpal (supra) was negated by the Constitution 85th Amendment Act by amending the text of Article 16 (4A) replacing the words “in matters of promotion to any class” with “in matters of promotion, with consequential seniority to any class.”. He would further submit that the law laid down in M.Nagraj v. Union of India; (2006) 8 SCC 212 that reservations in promotion could be effected only on the basis of ‘quantifiable data’ regarding under-representation has been undone in Jarnail Singh & ors v. Lachhmi Narain Gupta & ors; (2018) 10 SCC 396. He would therefore contend that the Tribunal misdirected itself in law when it directed that the seniority of the 1st respondent has to be restored in the cadre of Superintending Engineer on the application of the catch-up Rule and on the finding that the 5 year period mentioned in paragraph 829 of Indira Swahney (supra) having expired, the 1st respondent was entitled to such relief. He has also drawn our attention to B.K Pavithra & ors v. Union of India & ors –(B.K Pavithra-II); (2019) 16 SCC 129 where the Supreme Court upheld the provisions of a Karnataka Act (The Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2018). Sri.P.Vijayakumar, the learned Assistant Solicitor General of India would support the contentions of Sri. Chauhan and assert that the Tribunal order is clearly contrary to law and ought to be set aside.5. Per contra, the learned counsel appearing for the 1st respondent in both these cases would support the order of the Tribunal. They would rely on S.Paneer Selvam & ors v. State of Tamil Nadu & ors; (2015) 10 SCC 292 and the observations in B.K Pavithra-I (2017) 4 SCC 620 & B.K Pavithra-II; (2019) 16 SCC 129 to contend that the ‘catch up’ Rule evolved in Virpal (supra) was clearly applicable and to establish that requirement of ‘quantifiable data’ as set out in M.Nagraj (supra) was applicable and to be followed. They would also contend, on facts, that the next promotion which the 1st respondent can aspire for is to the post of Chief Engineer which is one among the posts which is very high up in the organization and that the Constitution Bench in paragraphs 34 & 35 of Jarnail Singh (supra) had held that in respect of higher posts the principle of the reservation may even be done away with completely, in the interest of efficiency of administration.6. We have considered the submissions. The short question to be considered is whether the 1st respondent who was admittedly senior to the petitioners in the cadre of Assistant Executive Engineer is entitled to the benefit of the catch-up Rule evolved in Virpal (supra) and consequently for seniority above them in the cadres of Executive Engineer and Superintending Engineer despite that fact that he got promoted to these cadres only after the petitioners. Incidentally, the issue as to whether reservations in promotion can be provided for at all without ‘quantifiable data’ as that term is understood in the context of the Judgment in M.Nagraj (supra) will also have to be examined.7. Indira Swahney (supra) categorically declared that the provisions of Article 16(4) do not permit the grant of reservation in promotions. It was held:-“ It is true that General Manager, S.Rly. v. Rangachari has been the law for more than 30 years and that attempts to re-open the issue were repelled in Akhil Bharatiya Soshit Karamchari Sangh. It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and State services but we are convinced that the majority opinion in Rangachari, to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of 'State' in Article 12-such reservations shall continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise modify or reissue the relevant Rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so.”The judgment in Indira Swahney (supra) resulted in the Constitution 77th amendment Act inserting Article 16 (4A) to provide for reservation in promotions as well.8. After the introduction of Article 16 (4A) the Supreme Court decided Virpal Singh (supra). There the Supreme Court evolved what is referred to as the ‘catch-up Rule’. It was held: -"In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier under 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."The judgment in Virpal Singh was applied and followed in Ajit Singh Januja & Ors vs State Of Punjab & Ors; AIR 1996 SC 1189. It was held: -“We respectfully concur with the view in Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813 : JT (1995) 7 SC 231], that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated “consequential seniority”. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis--vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.”The judgments in Virpal Singh (supra), Ajit Singh Januja (supra) and possibly the view taken in Ajit Singh (2) v. State of Punjab; (1999) 7 SCC 209 [Ajith Singh (2) was a matter placed before a 5 Judge Bench in view of the perceived conflict between Virpal & Ajit Singh Januja on one hand and the view taken in Jagdish Lal v. State of Haryana; (1997) 6 SCC 538 on the other. Ajith Singh (2) holds that the view in Virpal & Ajit Singh Januja is the correct one] prompted the Parliament to amend article 16(4A). The statement of objects and reasons of the Constitution (Eighty-fifth Amendment) Act 2001 reads as follows:-“The Government servants belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of consequential seniority on their promotion on the basis of rule of reservation. The judgments of the Supreme Court in the case of Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh No. I AIR 1996 SC 1189, which led to the issue of the O.M. dated 30th January, 1997, have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. This has led to considerable anxiety and representations have also been received from various quarters including Members of Parliament to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes.2. The Government has reviewed the position in the light of views received from various quarters and in order to protect the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes, it has been decided to negate the effect of O.M. dated 30th January, 1997 immediately. Mere withdrawal of the O.M dated 30th January, 1997 will not meet the desired purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Government servants will also be necessary. This will require amendment to article 16(4A) of the Constitution to provide for consequential seniority in the case of promotion by virtue of rule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to article 16(4A) with effect from the date of coming into force of article 16(4A) itself, that is, from the 17th day of June, 1995.3. The Bill seeks to achieve the aforesaid objects.” Following the amendment, Article 16(4A) reads as under (with effect from 17 June 1995):-“Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, 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.”In the meanwhile, Article 335 of the Constitution of India had also been amended by the Constitution 82nd Amendment Act, by inserting a proviso to Article 335. Under Article 335 (as it stood prior to its amendment), the claims of SCs/STs to services and posts had to be consistent with overall administrative efficiency. The effect of the proviso was that nothing in Article 335 would prevent the State from relaxing the qualifying marks or lowering the standard of evaluation for reservation in matters of promotion to members of the Scheduled Castes and Scheduled Tribes.9. In Nagaraj (supra), a challenge was raised to the 77th, 81st, 82nd and 85th amendments to the Constitution, before the Supreme Court. The Constitution Bench which decided Nagaraj (supra) found the amendments to be constitutionally valid. However, that judgement introduced the principle that reservations in promotion could be effected only on the basis of ‘quantifiable data’ regarding under-representation. It was held:-“If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between “equality in law” and “equality in fact” (see Affirmative Action by William Darity). If Articles 16(4- A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law.”B.K Pavithra-I (supra) found that the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 was invalid essentially for the reason that there was no determination of any quantifiable data as laid down in Nagaraj (supra). The Karnataka State Legislature then enacted the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2018 which was upheld in B.K Pavithra-II (supra). The issue as to whether there is any quantifiable data regarding the requirement of continuing the reservations in promotions in the military engineering services need not detain us since the view taken in Nagaraj (supra) regarding the requirement of quantifiable data has been expressly overruled in Jarnail Singh (supra). Paragraph 36 of the judgment in Jarnail Singh reads as under:-“Thus, we conclude that the judgment in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine- Judge Bench in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] is held to be invalid to this extent.”Therefore despite the assertion of the learned counsel for the 1st respondent we are unable to hold that Jarnail Singh did not completely do away with the requirement of quantifiable data regarding under-representation to enable the state to make reservations in promotion. The submission of the learned counsel for the 1st respondent that the observations in paragraph 34 and 35 of the judgment in Jarnail Singh suggest that there can be no reservation in promotions to the highest category of posts in the hierarchy also cannot be accepted as the observations in paragraph 35 do not lead to the conclusion that such a principle of law has been laid down in the judgment.10. Then the question is whether the catch-up Rule enunciated in Virpal Singh (supra) and followed in Ajith Singh (I) (supra) & Ajith Singh (II) (supra) is required to be applied in the facts and circumstances of the present case. In S.Paneer Selvam (supra), on which considerable reliance was placed by the learned counsel for the 1st respondent [which, it is significant to note was decided after the Constitution 85th amendment Act came into force] it was held:-17. The Constitution Bench in Ajit Singh (2) case [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] held that Articles 16(4) and 16(4-A) did not confer any fundamental right to reservation and that they are only enabling provisions. Overruling the judgment in Jagdish Lal case [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and observing that rights of the reserved classes must be balanced against the interests of other segments of society in para 77, this Court held as under: [Ajit Singh (2) case [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , SCC p. 246]“77. We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post—vis--vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate—he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ajit Singh [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] have been correctly decided and that Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] is not correctly decided. Points 1 and 2 are decided accordingly.”18-23……………………..24. Article 16(4-A) [sic Article 16(4)] of the Constitution is only an enabling provision which specifically provides that the State concerned may make any provision for providing reservation of appointments or posts in favour of any backward class citizens which is not adequately represented in the services under the State. Articles 16(4) and 16(4-A) have to be read with Article 335 of the Constitution which deal with norms of the Scheduled Castes and the Scheduled Tribes to services and posts and lay down that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. In the absence of any policy decision taken by the State of Tamil Nadu, the Eighty-fifth Amendment per se will not protect the consequential seniority granted to the respondents who were promoted to the post of Assistant Divisional Engineers following the rule of reservation.(emphasis is ours)A reading of the judgment S.Paneer Selvam (supra), without doubt, suggests that the catch-up Rule will continue to apply notwithstanding the introduction of the words ‘consequential seniority’ in Article 16(4A) unless it were to be shown that there is a conscious policy decision to grant the benefits of consequential seniority to persons promoted over and above the seniors in the feeder cadre.11. This issue was specifically considered by the Supreme Court recently, in Sudhakar Baburao Nangnure v. Noreshwar Raghunathrao Shendw & ors; 2019 SCC OnLine SC 326. In Nangnure (supra) the Bench noticed the provisions contained in a Government Resolution (GR) of the State of Maharashtra which provided as under: -“3. Considering the said amendment made by the Union Government to Constitution of India and accordingly the orders issued on 21.1.2002, the State Government has now decided that the instructions issued for regulating the seniority amongst the employees/officers of Backward Classes/Non-Backward Classes in Government Service in the promoted cadre vide the circular of 21st June 1982 and the instructions stipulated in the orders dated 20.10.1997 shall continue to remain in force. Hence, seniority amongst the Backward Classes/Non Backward Class candidates in government service in the promoted cadre shall be fixed on the basis of their respective regular date of promotion given to them as per their sequence in the select list of Backward Class and non-Backward candidates.”It was categorically found that the grant of consequential seniority to members of the scheduled castes and scheduled Tribes can be through an Executive order as well. The Bench placed reliance on Indira Sawhney (supra) to hold so. In this regard our attention has been drawn to the office memorandum issued by the Ministry of Personnel, Public Grievances and Pensions, on 21.1.2002, after the 85th amendment of the Constitution, specifically withdrawing an earlier O.M dated 30.1.1997 which provided that the seniority of those promoted on the basis of or after getting their benefit of reservation were to rank below the seniors in the feeder category notwithstanding the fact that the senior in the feeder category was promoted only on a later date. The office memorandum dated 21.1.2002 (Annexure R.6(f) – see page 311 of the paper book in O.P (CAT) 212/2019) specifically provides that persons promoted again
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st reserved vacancies will continue to enjoy all the benefits of the promotion including consequential seniority. As already indicated Nangnure (supra) holds that even an executive instruction (in that case a government resolution) would be sufficient to provide consequential seniority to candidates and further that in the absence of a specific challenge to the executive instructions granting or protecting seniority the Court cannot be compelled to apply the principle of catchup evolved in Virpal Singh. Paragraphs 84 & 85 of Nangnure (supra) reads:-“84. A challenge to the GR dated 20 March 2003 is conspicuous by its absence in the reliefs which were sought before the Maharashtra Administrative Tribunal. We have adverted to the reliefs claimed in an earlier part of this judgment and they are indicative only of a challenge to seniority. Entertaining a challenge to the validity of a Government Resolution incorporating the principle of consequential seniority without a specific challenge being addressed before the Tribunal would simply be impermissible. Entertaining such a challenge at this stage will have serious consequences in the entire State of Maharashtra by upsetting a significant number of promotions which may have already been granted to candidates belonging to the reserved category. The State government, in the pleadings before the Tribunal and the High Court was not called upon to justify the basis of its decision to adopt consequential seniority in the absence of a challenge being squarely set up in the forum of first instance.85. A challenge to the resolution providing for consequential seniority is indeed a serious matter. Such a challenge calls upon the court to upset a policy circular which has been issued with the avowed objective of safeguarding consequential seniority which was, as our constitutional history indicates, a clear purpose underlying the 85th Amendment to the Constitution. Such constitutional challenges cannot be bandied about without specific pleadings. We are clearly of the view that such an exercise would be impermissible in the absence of a frontal challenge.”The office memorandum dated 21.1.2002 has not been challenged by the 1st respondent before the Central Administrative Tribunal. Thus on the application of the law laid down in Nangure (supra), the catch-up Rule cannot be applied in the case of the 1st respondent.We, therefore, have no hesitation to hold that the Tribunal went wrong in granting relief to the 1st respondent. Accordingly, these original petitions are allowed and the order dated 05.07.2019 in O.A No. 180/00310/2018 is set aside. By virtue of this order O.A No. 180/00310/2018 on the files of the Central Administrative Tribunal, Ernakulam Bench will stand dismissed. In the facts and circumstances of the case, we make no order as to costs.