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



The Director, Post Graduate Institute of Medical Education & Research, Chandigarh & Others v/s The Central Administrative Tribunal, Chandigarh Bench, Chandigarh & Others


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

    CWP Nos. 10681 of 2013, 19920 to 19922, 19924, 25628, 14450, 19294, 19296 to 19303 & 25660 of 2013

    Decided On, 13 January 2016

    At, High Court of Punjab and Haryana

    By, THE HONOURABLE MR. JUSTICE M. JEYAPAUL & THE HONOURABLE MR. JUSTICE DARSHAN SINGH

    For the Petitioners: Rajesh Garg, Senior Advocate with Nimrata Shergil, Advocate. For the Respondents: Brijesh Mittal, Jagdeep Jaswal, Ashwani Kumar, Monika Jalota, R.P. Singh, Kapil Kakkar, Satbir S. Katnoria, Babbar Khan, Ravi Kant, Ashwani Kumar Munjal, Advocates.



Judgment Text

M. Jeyapaul, J.

Introduction:-

1. a) Aggrieved by the impugned order passed by the Tribunal directing the Post Graduate Institute of Medical Education and Research, Chandigarh (PGI) to grant the benefit of 'Catch up Rule' to the contesting private respondents herein, (PGI) has preferred these batch of Writ Petitions except Writ Petition No. 14450 of 2013 which has been filed by the Scheduled Caste and Scheduled Tribe category employees.

b) C.W.P. Nos. 10681 of 2013, 19302 of 2013, 19303 of 2013 and 19924 of 2013 relate to the claim made by the Senior Laboratory Technicians/Technical Assistant, CWP No. 19921 of 2013 by the Private Secretaries, CWP No. 25660 of 2013 by the Store Officer and the remaining Writ Petitions by the Nursing Establishment of the medical dispensation for grant of the benefit of 'Step up Rule' enunciated by the Hon'ble Supreme Court of India.

Pleadings :-

2. a) The pleadings of the parties in the respective Original Applications are found to be quite identical in character. For the sake of brevity and also to avoid repetition, let us give a brief account of the averments made by the applicants in O.A. No. 56/CH/2012 relating to CWP NO. 10681 of 2013.

b) The applicants belong to General Category whereas the 2nd respondent belongs to Scheduled Caste category. The applicants were initially appointed with PGI as Junior Laboratory Technicians on different dates and were Senior to the 2nd respondent Surinder Singh Banga. The next promotional post for Junior Lab Technician is Senior Laboratory Technician which is filled up 100% by promotion since 1981. the 2nd respondent therein being an employee belonging to Scheduled Caste category was promoted as Senior Lab Technician prior to the applicants w.e.f. 14.8.1997 applying the rule of reservation. The applicants who belong to General Category were promoted as Senior Laboratory Technician on various dates during the period from 27.9.2001 to 20.12.2002. At the time of promotion of the applicants as Senior Laboratory Technician, respondent no.2 also was in the same cadre.

c) The applicants seek benefit of 'Catch up Rule' in terms of judgment passed by the Constitutional Bench of the Hon'ble Supreme Court of India in the case of M. Nagaraj and others versus Union of India and others (2006) 8 SCC 212. All the applicants are eligible for grant of 'Catch up Rule' and fixation of seniority above their juniors. They also seek quashment of the impugned promotion order dated 15.1.2011 vide which their junior Surinder Singh Banga shown as 2nd respondent therein has been promoted as Technical Assistant. Similar orders granting the benefit of 'Catch up Rule' have been passed by the PGI on 14.9.2010 and 13.4.2011. Parity of treatment in applying the principles of 'Catch up Rule' has also been sought by the applicants. Similar benefit of 'Catch up Rule' granted to one Gurmail Ram vide order dated 14.9.2010 w.e.f. 1.3.1992, as per the judgment of the Central Administrative Tribunal, Chandigarh in T.A. No. 146 of 2009 pronounced on 25.5.2010 be extended to the applicants also.

d) PGI has contended in its written statement that the Original Applications filed by the applicants are time barred, as they have failed to claim the benefit of the judgment in M.Nagaraj (supra) which came to be pronounced in the year 2007 within 1 years from the date of pronouncement of the above judgment as provided for in the Central Administrative Tribunal's Act, 1985. The 85th Constitutional amendment which introduced the phrase 'with consequential seniority' was validated by the Hon'ble Supreme Court in M. Nagaraj. The seniority of Gurmail Ram was fixed above Jasmer Singh as Senior Lab Technician w.e.f. 1.3.1992, but he is not entitled to further promotion as Technical Assistant in view of the 85th Constitutional amendment w.e.f. 17.6.1995.

3. Verdict of Tribunal:-

The Tribunal having referred to the judgments in Indra Sawhney versus Union of India (1993 Vol.I SCT 448), Virpal Singh Chauhan etc. 1995(4) SCT 695, M. Nagaraj and others versus Union of India and others (2006) 8 SCC 212, Suraj Bhan Meena and another versus State of Rajasthan and others SLP(Civil) No. 6385 of 2010 decided on 7.12.2010 and Laxmi Narayan Gupta versus Jas Singh & Others CWP No. 13218 of 2009 decided on 15.7.2011 held that so long as no survey was undertaken by the State to find out inadequacy of representation in respect of members of the Scheduled Caste and Scheduled Tribe in the services, the benefit of 'Catch up Rule' will have to be granted to the General Category employees.

4. March of Law :-

a) Article 16(4) of the Constitution :-

Article 16(4) of the Constitution of India which has made departure from the principle of equality asserting positive discrimination reads as follows :-

'Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.'

b) Indra Sawhney and others versus Union of India and others 1992 (supp.) (3) Supreme Court cases 217 :-

Article 16(4) of the Constitution of India which enables the State to make provision for reservation of appointments of posts in favour of Backward Class of citizens was put to test in the above case. It was held therein that provision for reservation for Backward Class can be made only in the matter of initial appointments. However, there would be no reservations for them in the matter of promotions. Union of India Versus Virpal Singh Chauhan and others 1995(4) SCT 695 affirmed the above decision in Indra Sawhney (supra).

c) 77 th Amendment :-

The parliament having found that the Scheduled Caste and Scheduled Tribe employees have been enjoying the facility of reservation in promotion since 1955 but the ruling of the Hon'ble Supreme Court in Indra Sawhney (supra) has the propensity to adversely effect the interest of Scheduled Caste and Scheduled Tribe employees, felt the necessity of continuing the existing dispensation of providing reservation in promotion in the case of the Scheduled Caste and the Scheduled Tribe employees. In a positive expression of commitment of the government to protect the interest of Scheduled Castes and Scheduled Tribes, the government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes. To carry out the above avowed object, the Parliament amended Article 16 of the Constitution of India by inserting a new clause 4A in the said Article to provide for reservation in promotion of the Scheduled Castes and Scheduled Tribes on introduction of constitutional 77th amendment. Article 16(4A) of the Constitution of India reads as follows :-

'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.'

It is to be noted that Article 16(4) of the Constitution of India speaks of reservation of appointments in favour of any Backward Class of citizens but Article 16(4A) enables the State to make provision for reservation in the matters of promotion to any post in the services under the State in favour of the Scheduled Castes and Scheduled Tribes. Of course, the State will have to arrive at a decision before resorting to the above Constitutional provision that the Scheduled Castes and Scheduled Tribes are not adequately represented in the services.

d) Union of India and others versus Virpal Singh Chauhan etc.1995(6) SCC 684 :-

The question that arose for determination before the Hon'ble Supreme Court of India in the above case was whether any employee belonging to Scheduled Caste or Scheduled Tribe category who got promotion earlier than his senior in General Category because of reservation would also get consequential seniority in the promotion post. The Hon'ble Supreme Court held that Scheduled Caste or Scheduled Tribe category employee who was promoted earlier by virtue of Rule of reservation/roster shall not be entitled to seniority over his senior in the feeder category and that as and when a General Category candidate who was senior to him in the feeder category is promoted, such General candidate will gain his seniority over the reserved candidate, not withstanding the fact that he is promoted subsequent to the reserved candidate. The above judicially formulated principle is called as 'Catch up Rule'.

(e) 85 th Constitutional amendment :-

The government felt that government servants belonging to the Scheduled Caste and Scheduled Tribe who had been enjoying the benefit of consequential seniority on their promotion on the basis of Rule of Reservation had received a jolt by the judgment of the Hon'ble Supreme Court in Virpal Singh Chauhan (supra). The government reviewed the position in the light of the views received from the various quarters and in order to protect the interest of the government servants belonging to Scheduled Caste and Scheduled Tribe it decided to bring an amendment to Article 16(4A) of the Constitution of India to provide for consequential seniority in the case of promotion by virtue of Rule of Reservation. It also decided to giveretrospective effect to the Constitutional amendment introduced to Article 16(4A) from the date of coming into force of Article 16(4A) itself i.e. from the 17th day of June, 1995. The amended Article 16(4A) by virtue of the Constitutional 85th Amendment Act 2001 reads as follows :-

'Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class 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.'

5. Submissions :-

a) It is the admitted case of PGI that they have never collected quantifiable data disclosing inadequacy of representation of the Scheduled Castes and Scheduled Tribes. In the above background it was submitted by the 5th respondent in CWP No. 19924 of 2013 and the learned counsel appearing for the contesting respondents in all the Writ Petitions that the contesting respondents are entitled to the benefit of 'Catch up Rule' even after 85th constitutional Amendment. They also cited the decision of the Hon'ble Supreme Court in Suraj Bhan Meena and another versus State of Rajasthan and others Special Leave Petition (Civil) No. 6385 of 2010 decided on 7.12.2010, Lachhmi Narain Gupta and others versus Jarnail Singh and others CWP No. 13218 of 2009 decided on 15.7.2011 by the Coordinate Bench of this Court and S. Panneer Selvam and others versus Government of Tamil Nadu and Others Civil Appeal Nos. 6631-6632 of 2015 decided on 27.8.2015 by the Hon'ble Supreme Court to strengthen their submissions that in the absence of quantifiable data reflecting inadequacy of representation of the Scheduled Castes and Scheduled Tribes, the 'Catch up Rule' should be applied.

b) Per contra, the learned Senior Counsel appearing for PGI who is the petitioner in all the Writ Petitions except CWP No. 14450 of 2013 submitted that though the quantifiable data as regards inadequacy of representation of the Scheduled Caste and Scheduled Tribe employees had not been collected by the PGI or the Union of India who has control over PGI, the benefit of 'Catch up Rule' is applicable only upto 17.6.1995, the date from which the 85th amendment introducing the phrase 'with consequential seniority' in Article 16(4A) of the Constitution has been made effective. It is his further submission that even assuming that the State cannot give effect to the above amendment introduced to Article 16(4A), unless quantifiable data as stated above has been collected, the rider introduced by the Hon'ble Supreme Court in M. Nagaraj (supra) will be effective only from the date of the judgment. At any rate, it is submitted by him that the concept of 'Catch up Rule' was completely erased by M. Nagaraj (supra). Learned counsel for the Writ Petitioners in CWP No. 14450 of 2013 submitted that in view of the clear mandate in Article 16(4A) of the Constitution and memorandum and clarificatory memorandum issued by Government of India, the Writ Petitioners are entitled to promotion with consequential seniority.

6. Discussion :-

a) M. Nagaraj :-

In M. Nagaraj and others versus Union of India and others (2006) 8 SCC 212, it has been held by the Hon'ble Supreme Court, while upholding the validity of 85th amendment which introduced the important phrase 'with consequential seniority' in Article 16(4A) of the Constitution of India as follows:-

'81. Reading the above judgments, we are of the view that the concept of 'Catch up Rule' and 'consequential seniority' are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom 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. It cannot be said that 'equality code' under Article 14, 15 and 16 is violated by deletion of the 'Catch up Rule'. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the 'Catch up Rule' nor the concept of 'consequential seniority' are implicit in clauses (1) (4) of Article 16 as correctly held in Virpal Singh Chauhan (1995) 6 SCC 684.

83. The judgment in the case of M.G. Badappanavar 2001 (2) SCC 666 was mainly based on the judgment in Ajit Singh (I) 1996(2) SCC 715 which had taken the view that the departmental circular which gave consequential seniority to the 'roster- point promotee', violated Articles 14 and 16 of the constitution. In none of the above cases, the question of the validity of the constitutional amendments was involved. Ajit Singh (I) 1996(2) SCC 715, Ajit Singh (II) 1999 (7) SCC 209 and M.G. Badappanavar 2001 (2) SCC 666 were essentially concerned with the question of 'weightage'. Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy of representation in public employment and overall efficiency of services. The above judgments, therefore, did not touch the questions which are involved in the present case.

84. Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawnhey 1992 Supp. (3) SCC 217 and R.K. Sabharwal (1995) 2 SCC 745. In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However in R.K. Sabharwal (1995) 2 SCC 745, this court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota-limit has been reached. It was clarified that the judgment in Indra Sawhney 1992 Supp. (3) SCC 217 was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensure that the reservation remains within the ceiling-limit of 50%.

85. In our view, 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 upper ceilinglimit of 50% is not violated. Further, roster has to be post-specific and not vacancy based.

124. 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 1992 Supp. (3) SCC 217, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal (1995) 2 SCC 745.

125. 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.

126. 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.

127. 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.'

There is a clear mandate in M. Nagaraj that the State which prefers to exercise its discretion to make provision for reservation in promotion with consequential seniority for the Scheduled Caste and Scheduled Tribe employees is duty bound to collect quantifiable data reflecting backwardness of the class and inadequacy of the representation of that class in public employment in addition to compliance of Article 335 of the Constitution of India.

b) Suraj Bhan Meena :-

The effect of failure on the part of the State to comply with the above rider in M. Nagaraj has been dealt in Suraj Bhan Meena as follows :-

'46. 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. 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 notification 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. Accordingly, the claim of Petitioners Suraj Bhan Meena and Sriram Choradian 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 of 2010, filed by the State of Rajasthan, are also dismissed.'

In the aforesaid case, State of Rajasthan made provision for consequential seniority by issuing notifications dated 28.12.2002 and 25.04.2008. It was put to challenge before the Rajasthan High court which took a decision to quash the notifications as the mandate in M. Nagaraj was not complied with by the State of Rajasthan while issuing the above notifications. The Hon'ble Supreme Court interpreted the import of M. Nagaraj and held that Rajasthan High Court has rightly quashed the above notifications providing for consequential seniority in the matter of promotion to the members of the Scheduled Castes and Scheduled Tribes as inadequacy of representation of that class was not quantified and demonstrated.

c) Laxmi Narayan Gupta :-

The coordinate Bench of this Court following the decisions in M. Nagaraj and Suraj Bhan Meena observed in Laxmi Narayan Gupta (supra) as follows :-

'38. When the principles laid down in the case of M. Nagaraj (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 ini 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 along with 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 suffer 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. Nagaraj's case (supra) as well as in Suraj Bhan Meena's case (supra).'

This Court has observed in the above judgment that the State should have embarked upon the exercise of assessing the inadequacy of representation of the members of the Scheduled Castes and Scheduled Tribes before issuing instructions to give promotion with consequential seniority to the employees of the Scheduled Castes and Scheduled Tribes.

d) S. Paneer Selvem :-

In S. Paneer Selvem (supra) the same question which has arisen for determination in these Writ Petitions came up for consideration and the Hon'ble Supreme court has ruled as follows :-

'31. The respondents' submission regarding inadequacy of representation of Scheduled Castes/Scheduled Tribes in the Tamil Nadu Highways Engineering Service by itself is not sufficient to uphold the inadequacy of representation of SCs/STs in the said service. Even after Eighty-fifth Amendment, the State is duty bound to collect data so as to assess the adequacy of representation of the Scheduled Caste candidates in the service and based on the same the State should frame a policy/rules for consequential seniority. No material is placed on record that the State of Tamil Nadu has ever undertaken such exercise of collecting date of adequacy of representation of the SC/ST candidates in the Tamil Nadu Highways Engineering Service. In the absence of any rule conferring consequential seniority in the State of Tamil Nadu 'Catch up Rule' is applicable even amongst Junior Engineers promoted as ADEs following rule of reservation and also for their inter-se seniority amongst AEs promoted as ADEs and JEs promoted as ADEs following rule of reservation.'

In the above decision, the Hon'ble Supreme Court finding that the there was no quantifiable data collected by the State before making provisions for consequential seniority categorically held that 'Catch up Rule' will apply and as a result of which senior General Category candidates who were promoted later in point of time than that of their juniors belonging to Scheduled Caste and Scheduled Tribe Category will regain their seniority once they are promoted. The above decision of the Hon'ble Supreme Court completely answers the question that has arisen for determination in these Writ Petitions. Therefore, we have no hesitation to hold that Union of India who has not collected any quantifiable data reflecting inadequacy of representation of the members of Scheduled Castes and Scheduled Tribes cannot validly contend that 'Catch up Rule' will not apply to the General Category promotees.

7. Doctorine of overruling :-

a) The learned Senior Counsel appearing for PGI raised a very interesting issue touching the doctrine of over ruling. It is his submission that the judgment in M. Nagaraj upholding the 85th Constitutional amendment with a rider will apply only prospectively and that, therefore, the action of the PGI prior to the verdict in M. Nagaraj cannot be faulted. Per contra, the learned counsel appearing for the other private respondents in all the Writ Petitions contended that it is a well settled proposition of law that a decision rendered by the Court deciding the validity of a statute under challenge will take effect from the date when the statute was made operative.

b) The above controversy came up for determination by the Hon'ble Supreme Court in M.A. Murthy versus State of Karnataka 2003 (7) SCC 517 wherein it was observed as follows :-

'8. ........... The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643). In Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others (1993 (4) SCC 727) : 1994(1) SCT 319 (SC) the view was adopted. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applied to future cases. (See Ashok Kumar Gupta vs. State of U.P., (1997) 5 SCC 201 : 1997(2) SCT 381 (SC), Baburam v. C.C. Jacob (1999) 3 SCC 362) : 1999(2) SCT 529 (SC). It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective over-ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling.'

c) In a later decision in General Manager, Uttranchal Jal Sansthan versus Laxmi Devi and others 2010(1) SCT 187, the Hon'ble Supreme Court reiterated the above view and held as follows:-

'29. Submissions of the learned counsel for the respondents is that the said decision is not applicable : a) as it was rendered in 2006 whereas the cause of action for filing the writ petitions arose in 2002 and b) a distinction must be made between the appointment on ad hoc basis and appointment on compassionate ground. As to the first submission above, it is worth mentioning that judicial decisions unless otherwise specified are retrospective. They would only be prospective in nature if it has been provided therein. Such is clearly not the case in Umadeyi (supra).'

d) There is no observation in M. Nagaraj that the precondition mandated for providing reservation in promotion and consequential seniority while upholding 85th amendment would apply only prospectively. Therefore, applying the above ratio laid down by the Hon'ble Supreme Court, we have no hesitation to hold that the mandates in the shape of rider contemplated in M. Nagaraj (supra)will take effect from 17.6.1995, the date on which 85th amendment was supposed to take effect.

8. Claim on parity :-

a) Learned Senior Counsel appearing for PGI submitted that the contesting respondents have also been given the benefit of 'Catch up Rule' upto 17.6.1995 in terms of the judgment in Gurmail Ram in T.A. No. 146/CH/2009 dated 7.12.2009 and 25.5.2010. Therefore, it is contended that the claim of the contesting respondents for application of 'Catch up Rule' has been taken care of by applying the decision in Gurmail Ram. Per contra, the 5th respondent in CWP NO. 19924 of 2013 and the learned counsel appearing for private respondents in other Writ Petitions vehemently contended that they are entitled to the benefit of 'Catch up Rule' even after 17.6.1995 as M. Nagaraj has retrospective application.

b) We are in full agreement with the submissions made on the side of the contesting respondents. We have already held relying upon the decision in M.A. Murthy and Laxmi Devi that the ruling in M. Nagaraj will apply retrospectively. In other words, the amendment introduced vide 85th amendment to Article 16(4A) of the Constitution will apply with the above rider in M. Nagaraj from the date when 85th amendment was supposed to have come into force. Therefore, the contesting respondents are entitled to enjoy the concept of 'Catch up Rule' evolved by the judiciary. But we make it clear that the above 'Catch up Rule' will have no application to the employees belonging to Scheduled Caste and Scheduled Tribe category who have been promoted on their own merit/seniority sans any concession granted to them.

9. Limitation :-

a) It was lastly urged by the learned Senior Counsel appearing for PGI that the claim of the contesting respondents are hopelessly barred by limitation, inasmuch as they have not challenged the seniority fixed at the relevant point of time. It was contended by the 5th respondent in CWP NO. 19924 of 2013 and the learned counsel appearing for the other private respondents that they were under legitimate expectation that the benefit granted to the co-employee Gurmail Ram in T.A. No. 146/CH/2009 would be extended to them. But unfortunately it was denied and, therefore, they had to step into the portals of the Court of Law to redress their grievances.

b) Some of the aggrieved parties to the common judgment under challenge before this Court earlier challenged before the Coordinate Bench of this Court which has already held that the claim of the contesting respondents was not barred by limitation. Further, it is noticed that the benefit of 'Catch up Rule' accorded to a co-employee by name Gurmail Ram in T.A. No. 146/CH/2009 was not extended to the contesting respondents. Therefore, we are of the view that the contesting respondents cannot be shown the doors on the technical ground that they have knocked at the doors of the Court belatedly.

10. Victims of circumstances & wake up call :-

a) The State has a constitutional duty to empower certain sections of society who needed succor to uplift themselves from their contemptible situation. Article 46 of the Constitution of India, though a directive principle, is in the nature of benchmark for good governance to the government. The above Article was intended to help the depressed classes who otherwise had little opportunity of raising their standards.

b) M.Nagaraj was pronounced by the Hon'ble Supreme Court on 19.10.2006. The 85th amendment which was upheld in M. Nagaraj, of course, with a rider, has taken effect from 17.6.1995, the date on which 85th amendment was supposed to take effect. The parliament in its wisdom has introduced a provision in Article 16(4A) to grant reservation in promotion with consequential seniority to the Scheduled Caste and Scheduled Tribe category employees, if in the opinion of the State they have not been adequately represented. The Courts have interpreted that quantifiable data to reflect the inadequacy of representation of the employees of Scheduled Caste and Scheduled Tribe should be collected by the State before venturing into the affirmative action in terms of Article 16(4A) of the Constitution. It is really paining to note that the employees of the Scheduled Caste and Scheduled Tribe, who have been given such a Constitutional protection under Article 16(4A) have been compelled to approach the Courts to give effect to the Constitutional provision introduced by 85th amendment. On the other hand, General Category employees taking advantage of the fact that the State is reluctant to take required efforts to comply with the mandates in M. Nagaraj institute number of cases before the Court of law. In the unequal fight, the Scheduled Caste and Scheduled Tribe employees have suffered very much. In spite of such a Constitutional provision introduced to grant benefit to the socially, economically, culturally and educationally disadvantaged sections of the society, they could not enjoy the fruits thereof.

c) I am aware of the dictum in M. Nagaraj that the provision in Article 16(4A) is only an enabling provision. In other words the State is not bound to make reservation for SC/ST in matters of promotion. But once they have chosen to make reservation in promotion in terms of the above Article, they have to collect quantifiable data showing inadequacy of representation of SC/ST. In the instant case official memorandum No. 20011/1/2001- Estt.(D) Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi dated 21.1.2002 reflects that the Union of India has exercised its discretion to make provision for reservation in promotion. Learned counsel for Union of India also admitted the above position. But it failed its constitutional duty to collect quantifiable data as mandated in M. Nagaraj. In fact in a subsequent decision in S.V. Joshi and others vs. State of Karnataka and others (2012) 7 SCC 41, the Hon'ble Supreme Court had an occasion to direct the States concerned in terms of M. Nagaraj to collect quantifiable data for validating reservation.

d) There was patent failure on the part of the States in not following the mandates in M. Nagaraj in spite of the fact that they have decided to exercise their option to make reservation in promotion and left the members of the Scheduled Caste and Scheduled Tribe to suffer for the past nine long years. It appears that the States expect a Writ of Mandamus to embark upon an affirmative action. Such a despicable attitude of the State in not adhering to the mandates of the Court while making an attempt to enforce the benevolent provision of the Constitution is really contemptible. Had the States woken up to the reality in the light of the decision in M. Nagaraj, hundreds of Original Applications before the various Administrative Tribunals and hundreds of Writ Petitions before the High Courts in our country could have been avoided. The callous inaction on the part of the States in not collecting the quantifiable data as mandated in M. Nagaraj has virtually generated resourceful litigation in the country. In fact, injustice had been perpetuated to the members of the Scheduled Castes and Scheduled Tribes who longed to reap the benefit of Article 16(4A). Now it is time to wake up the sleeping giant.

11. Mandate to remove injustice :-

a) In view of the above, Union of India is directed to collect quantifiable data as regards the inadequacy of representation of the Scheduled Caste and Scheduled Tribe employees in promotion post of all cadres in all the departments, institutions and undertakings under its domain and control in which they have exercised their discretion to accord reservation in promotion and formulate a policy to grant the benefit of reservation in promotion with consequential seniority to the members of the Scheduled Caste and Scheduled Tribe in terms of Article 16(4A) of the Constitution of India.

b) Article 335 of the Constitution of India provides that while making appointment to services and posts in connection with the affairs of the Union of India or of a State, the claim of the members of Scheduled Caste and Scheduled Tribe shall be taken into consideration consistently with the maintenance of efficiency of administration. A provision has been introduced in the Article 335 by the Constitution (82nd Amendment) Act, 2000 w.e.f. 8.9.2000 to the effect that while making reservation in matters of promotion to the members of the Scheduled Castes and Scheduled Tribes, there is no bar for the States to give relaxation in qualifying marks in any examination or lower the standards of evaluation. Union of India shall also address the above proviso provided under Article 335 of the Constitution of India while formulating the policy referred to above. The above exercise as directed by us shall be completed by Union of India within three months from the date of this judgment.

12. Result :-

In the result, I find that there is virtually no scope for review of the well merited common judgment passed by the Tribunal. Therefore all these Writ Petitions stand dismissed with the above direction.

Darshan Singh, J.

I have the honour to go through the judgment authored by my esteemed brother. I fully agree with the result /final conclusion arrived at in the judgment that the contesting respondents are entitled to enjoy the concept of catch up Rule and the consequent dismissal of all the writ petitions.

But, with due respect, I have not able to persuade myself to agree with the mandate to remove injustice issued in the judgment to the Union of India to collect quantifiable data and formulate a policy to grant the benefit of reservation in promotion with consequential seniority to the members of the Scheduled Castes/Scheduled Tribes (for short SCs/STs). The Constitution Bench of the Hon'ble Apex Court in M. Nagaraj and others case (Supra) has categorically laid down that clause (4 A) of Article 16 of the Constitution of India is an enabling provision. It gives freedom to the State to provide reservation in the matter of promotion. The observations of the Hon'ble Apex Court can be reproduced below with advantage:-

'87. Clause (4A) follows the pattern specified in clauses (3) (4) of Article 16. Clause (4A) of the Article 16 emphasizes the opinion of the States in the matter of adqeuacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the service. 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 (4). 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 come into force. The State can make provision for reservation only if the above two circumstances exist. Further in Ajit Singh (II)3, this Court has held that apart from 'backwardness' and 'inadequacy of representation' the State shall also keep in mind 'overall efficiency' (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government by providing for reservation in promotion for SCs and STs.'

(emphasis supplied)

It was further laid down as under:-

'124. 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 rezones, 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 doe

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s not lead to excessiveness so as to breach the ceiling- limit of 50 % or obliterate the creamy layer or extend the reservation indefinitely.' (emphasis supplied) The ratio of law laid down by the Hon'ble Apex Court in M.Nagaraj and others case (Supra) shows that 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 has been upheld. However, there is no mandate in this judgment to the State for formulating any policy to grant benefit of reservation in promotion with consequential seniority to the members of the Scheduled Castes and Scheduled Tribes. Rather, it is evident from the afore quoted observations of the Hon'ble Apex Court that the State is free to provide for reservation in the matter of promotion. It has been categorically mentioned by the Hon'ble Apex Court that the State is not bound to make reservation for SCs/ STs in the matter of promotion. However, if they wish to exercise this discretion and make such provision the State has to collect the quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335 of the Constitution. Thus, it is evident that the exercise to collect the quantifiable data is only required to be carried out if the State wishes to exercise its discretion and make the provision for reservation for SCs/STs in the matter of promotion. Once the Hon'ble Apex Court has held that clause (4 A) of Article 16 is only an enabling provision which gives freedom to the State to provide reservation in the matter of promotion and the State is not bound to make reservation for SCs/STs in the matter of promotion, the direction to collect quantifiable data will virtually amount going beyond the observations of the Hon'ble Apex Court in M.Nagaraj and others case (Supra). The Hon'ble Apex Court in case Divisional Manager, Aravali Golf Club & Anr. Vs. Chander Hass & Anr. 2008(1) S.C.T 279 while dealing with a direction with respect to creation of the posts authoritatively laid down that judges cannot cross their limits and try to take over the functions which belong to another organ of the state. It was further observed that if there is a law, Judges can certainly enforce it, but Judges cannot create law and seek to enforce it. Judges, must restraint themselves from the area reserve to the other separate branches like executive and legislature. In case Mullkikarjuna Rao and others etc Vs. State of A.P and others 1990 (2) SCC 707, the Hon'ble Apex Court has laid down as under:- 'It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory-sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the constitution. We are bound to react scowlingly to any such advice. This Court relying on Narender Chand Hem Raj &Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940 and State of Himachal Pradesh v. A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 held in Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors., [1989] Supp. 2 SCC 364, as under: "When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate b ranchof the Government. While exercising power-of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive." Thus, in my humble opinion, the issuance of mandate to the Union of India for collection of quantifiable data showing backwardness of the class and inadequacy of representation of the SCs/STs employees in the promotional post and to formulate a policy to grant benefit of reservation in promotion with consequential seniority to the members of SCs/ STs is not appropriate.
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