In the absence of any consequential seniority rule, “catch up” rule would apply
|Case name: B. K. Pavitra & Ors. Vs. Union of India & Ors|
|Case number: Civil appeal number-2368 of 2011|
|Court: The Supreme Court of India|
|Bench: Justice Adarsh Kumar Goel , Justice Uday Umesh Lalit|
|Decided on: FEBRUARY 09, 2017|
|Relevant Act/Sections: Sections 3 and 4 of 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, Article 14, 16, 16(4-A) and 335 of the Indian Constitution|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- On 27th April 1978, the policy of Reservation in Promotion was introduced in the state of Karnataka, in which reservation up to 15% and 3% was given to the people of scheduled castes and scheduled tribes category, respectively.
- A roster of 33 points was issued to each cadre of posts, under each appointing authority. Prior to 1st April 1992, no system of carry forward existed, it was introduced after 1st April 1992.
- As per the appellants, the assistant engineers of the SC/ST category recruited in the year 1987 were promoted to the cadre of assistant executive engineers whereas the assistant engineers of general category, recruited in the year 1976, were considered for promotion to the said cadre.
- Therefore, as alleged by the appellants, according to the consequential promotions, the reserved category candidates got promotion early, the overall percentage of representation of the SC/STs was higher than the permissible limit and all top positions would likely be filled by the SC/STs.
- PROCEDURAL HISTORY:
- This matter was initially taken to the Supreme Court under writ petition (CIVIL) no. 61 of 2002, titled M. Nagraj & others vs. Union of India. Within this judgement the court had upheld the constitutional validity of the 77th, 81st, 82nd and 85th amendment acts.
- Thereafter, the matter was remitted to the High Court for deciding the validity of the said enactment and the issue was whether the state government had taken effecting measures in compelling data as to show the backwardness, inadequacy of representation and overall administrative efficiency, before making provisions regarding reservation in promotions.
- The high court upheld the validity of the act and the other contentions of the petitioners as to excessive reservations, no promotions left for the general merit candidates and thus the act being violative of articles 14 and 16 of the Indian constitution, were rejected.
- The petitioners then filed an appeal in the Supreme Court.
- ISSUE BEFORE THE COURT:
- Whether the impugned Act [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] is violative of articles 14 and 16 of the Indian Constitution?
- Whether the high court was erroneous in declaring that it was for petitioners to plead & prove that overall efficiency was adversely affected by giving consequential seniority to juniors getting promotion on account of reservation?
- RATIO OF THE COURT:
- In this case the impugned judgment was challenged on the basis of the judgement in the case of Uttar Pradesh Power Corporation vs. Rajesh Kumar, in which validity of Rule 8A of the U.P. Government Servants Seniority Rules, 1991, inserted by way of an amendment in 2007, was put in issue. This rule was further struck down by the Lucknow bench in the case of Prem Kumar Singh vs. State of U.P., and was further upheld by the supreme court.
- The court had made reference to the case of Indra Sawhney vs. Union of India, wherein the court stated that reservations can only be made at the stage of entry and not at the stage of promotions.
- Then reference was made to the limitations on promotions which were laid in the case of M. Nagaraj, that a state is supposed to take proper measures to ensure that there is:
- inadequate representation of the SC/STs;
- and overall administrative efficiency.
- The court, from the M. Nagaraj case stated that, the power of the state over reservation maybe constitutionally valid, but how the state is exercising such power is a different matter, which can be arbitrary in nature. This exercise of power must be in accordance with article 355 of the Indian Constitution.
- The court further held that the necessary exercises which were laid in the M. Nagaraj case were required to be taken by the state government, which were not properly taken in this case. Thus, the order of the consequential seniority of the SC/STs as per the roster points could not be sustained. Therefore, in the absence of any consequential seniority rule, “catch up” rule would apply.
- Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy.
- The court observed that the High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion.
- DECISION HELD BY COURT:
- In this case the judgment was given by JUSTICE ADARSH KUMAR GOEL that it was held by the court that the sections 3 and 4 of the impugned act are ultra vires of the articles 14 and 16 of the Indian Constitution.
- The court set aside the impugned judgement by High Court allowing the appeals and held that High Court was erroneous in its decision.
- The court held that the seniority list was to be revised within three months from date of the judgement.