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No Reservation to SC/ST in Promotions Without Examining Adequacy Of Representation In Promotional Post
On Friday Hon’ble Supreme Court passed judgement in the case of Pravakar Mallick & Anr. v. The State of Orissa & Ors. ruled that that reservation in promotions cannot be granted without examining adequacy of representation in promotional posts. The bench was headed by Hon'ble Mr. Justice Mohan M. Shantanagoudar and Hon'ble Mr. Justice R. Subhash Reddy, Justice Mohan in his judgement quashed a resolution passed by Orissa Government.
In view of the instructions issued in Office Memorandum dated 21/01/2002, by the Government of India, Ministry of Personnel, Public Grievances and Pensions, the State Government of Orrisa passed a resolution dated 20/03/2002. This impugned order provided reservation to SC and ST in promotional posts in Orissa Administrative Services with consequential seniority. It is further ordered that the government servants belonging to SCs/STs shall retain their seniority in the case of promotion by virtue of rule of reservation.
The High Court quashed the aforesaid G.O. and Gradation List mainly on the ground that, unless and until the State Government makes a law for conferring the benefit of promotion with consequential seniority to SC/ST candidates, they are not entitled to claim seniority in the promoted categories over the general category candidates.
By Constitution (85th) Amendment Act of 2001, Article 16(4A) was amended and for the words, “in matters of promotion to any class”, the words, “in matters of promotion with consequential seniority to any class” were substituted. In the judgement of the case of M. Nagaraj, a Constitution Bench of this Court, while upholding the Constitution (85th) Amendment Act of 2001 held that, the State is not bound to make reservation for SCs/STs in matter of promotions. However, it was held that, 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 with Article 335 of the Constitution of India.
Further, it was noted that as in the case of Jarnail Singh, it was held that the conclusion in M. Nagaraj case that the State has to collect quantifiable data showing backwardness of scheduled castes and scheduled tribes is held to be invalid on the ground that the same runs contrary to 9-Judge Bench judgment of this Court in the case of Indra Sawhney & Ors. v. Union of India & Ors. In a similar case of B.K. Pavitra & Ors. v. Union of India & Ors, hon’ble court upheld the Act (Reservation (to the Posts in the Civil Services of the State)) Act, 2002) on the ground that same was enacted by making study regarding inadequacy of representation, and overall administrative efficiency.
The Hon’ble Court held that “The Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts” and “Government Resolution dated 20.03.2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down in the various decisions of this Court.” It was also conceded that the resolution has no legal basis.
Sri A. Subba Rao, learned counsel on behalf of petitioner, further submitted that the benefit of reservation in promotion is given in the services of OAS-I for scheduled caste and scheduled tribe officers as per Section 10 of Orissa Act 38 of 1975. The court said that “same cannot be countenanced for the reason that Orissa Act 38 was enacted by the State of Orissa in the year 1975 but no provision is brought to our notice in such Act for giving the benefit of seniority for the promotees who were promoted in reserved vacancies.” Hence In absence of any provision in the said Act for conferring the benefit of seniority, and in absence of any amendment after Constitution (Eighty-Fifth) Amendment Act of 2001, by which Article 16(4A) was amended, benefit of seniority cannot be extended relying on Section 10 of the Act.
Petitioner's Advocate: A. SUBBA RAO
Respondent's Advocate: SHIBASHISH MISRA
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