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2001 DIGILAW 721 (JHR)

Sadhna Kumar Acharya v. State Of Bihar

2001-10-08

M.Y.EQBAL

body2001
ORDER M.Y. Eqbal, J. 1. The question raised by the petitioners in this writ application is whether the decision of the respondents to promote the persons to the post of Labour Superintendent, who are much junior to the petitioner, by giving the benefit of reservation in the matter of promotion, is justified. 2. The petitioners have been presently working as Labour Enforcement Officers and they became entitled now for consideration for promotion to the post of Labour Superintendent. It is stated that as per the rules 50% post of Labour Superintendent is to be filled up by way of promotion and the department has already started the process of filling up of the said post from amongst the candidates, who are working as Labour Enforcement Officer. It is alleged that inspite of the clear cut directives and specific rules the respondents have decided to give promotion to such persons who arc much junior to the petitioners by gaving reservation to those candidates belonging to backward classes. It is further alleged that the name of the persons, whose name appears at serial No. 23 or onward and are general candidates have not been recommended whereas name of Junior Officers belonging to BC-I and BC-2 and SC/ST have been recommended. 3. A counter affidavit has been filed by the respondents stating, inter alia, that 102 posts have been sanctioned for the Labour Superintendent in Labour Employment and Training Department, According to the Labour Service Rules, 1951, posts of Labour Superintendent are to be filled up by direct recruitment and 51 posts are to be filled up by appointment through promotion. It is further stated that roster has been cleared by the Personnel and Administrative Reforms Department for 39 posts for the appointment through promotions. The Personnel and Administrative Reforms Department has cleared the roster for appointment through promotion. The roster break up which is 24 posts of general category, 7 posts of OBC, 5 posts of BC I, 1 post of Scheduled Caste, 1 post of Scheduled Tribe and 1 post of Backward Woman. The Personnel and Administrative Reforms Department has cleared the roster for appointment through promotion. The roster break up which is 24 posts of general category, 7 posts of OBC, 5 posts of BC I, 1 post of Scheduled Caste, 1 post of Scheduled Tribe and 1 post of Backward Woman. The respondents further case is that in the meeting of departmental promotion committee held on 22.6.2001 under the Chairmanship of Bihar Public Service Commission, the names of 39 employees were recommended for appointment through promotion on the post of Labour Superintendent, where in the name of the petitioner is at serial No, 98 in the seniority list, while the departmental promotion committee has recommended the names of employees upto serial No. 87 in the Labour Enforcement Cadre. 4. Mr. A.K. Sinha, learned Sr. Counsel appearing for the petitioners, vehemently challenged the decision of the respondents to give reservation to the members of Backward Classes and OBC in the matter of promotion as being illegal and ultra vires to Article 16(4) of the Constitution of India. Learned counsel submitted that in no case reservation can be given tot he members of Backward Classes in the matter of promotion and till date no circular has been issued by the State Government giving reservation to the members of the Backward Classes in the matter of promotion. Learned Counsel put heavy reliance on the decision of the Supreme Court in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477 . 5. On the other hand. Mr. A. Alam, learned counsel appearing for the State of Bihar, submitted that by virtue of circular dated 16.9.2001, reservation has been given to the members of OBC in the matter of promotion. Learned counsel submitted that there is no illegality in giving reservation to the candidates of BC-I and BC-II in the matter of promotion to the post of Labour Superintendent. 6. Before appreciating the rival contentions of the parties, I would first refer Article 16 of the Constitution of India, which reads as under :-- "16. Equality of opportunity in matters of public employment--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 6. Before appreciating the rival contentions of the parties, I would first refer Article 16 of the Constitution of India, which reads as under :-- "16. Equality of opportunity in matters of public employment--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of relation, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) 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, (4-A) 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. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." 7. From reading of the aforesaid provision, it is manifest that Article 16(4) empowers the State for making any provision for reservation of appointments of posts in favour of any Backward Classes of citizen which in the opinion of the State is not adequately represented in the services under the State. Article 16(4-A) was introduced by Constitution (77th Amendment) Act, 1995. From reading of the aforesaid provision, it is manifest that Article 16(4) empowers the State for making any provision for reservation of appointments of posts in favour of any Backward Classes of citizen which in the opinion of the State is not adequately represented in the services under the State. Article 16(4-A) was introduced by Constitution (77th Amendment) Act, 1995. This clause now empowers the State for making provision for reservation in the matter of promotion in favour of Scheduled Castes and Scheduled Tribes, which in the opinion of the State are not adequately represented in the services under the State. Before the 77th Amendment of the Constitution the State was empowered to make provision for reservation in the matter of appointment only. After amendment the State may now make provisions for reservation in the matter of promotion also but such reservation shall be in favour of Scheduled Castes and Scheduled Tribes. The aforesaid clause does not empower the State to make provision of reservation in the matter of promotion in favour of Backward Classes candidates. 8. In the case of Indra Sawhney (supra), while considering Article 16(4) the Apex Court was of the view that it would not be permissible for the State to extend concessions and regularisations to the members of reserved category in the matter of promotion without compromising the efficiency of the administration. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the purpose of reserved category since that would compromise the efficiency of an administration. 9. Recently Article 16(4) and (4-A) came for consideration before the Apex Court in the case of Ajit Singh v. State of Punjab, AIR 1999 SC 3471 . In paragraph 28 their Lordships observed :-- "28. We next come to the question whether Article 16(4) and Article 16(4A) guaranteed any fundamental right to reservation. It should be noted that both these Articles open with a non-obstante clause--"Nothing in this Article shall prevent the State from making any provision for reservation........" Their is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4A). There is no directive or command in Article 16(4) or Article 16(4A), as in Article 16(1). There is no directive or command in Article 16(4) or Article 16(4A), as in Article 16(1). On the fact of it, the above language in each of Articles 16(4) and 16(4), is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963. 10. The Apex Court further considered all the earlier decisions and further held as under :-- "31. Unfortunately, all these rulings of larger Benches were not brought to the notice of the Bench which decided Ashok Kumar Gupta, 1997 (5) SCC 201 , and Jagdish Lal, 1997 AIR SCW 2257 : AIR 1997 SC 2366 : 1997 Lab IC 2301 and to the Benches which followed these two cases. In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. We accordingly hold that on this aspect Ashok Kumar Gupta. Jagdishlal and the cases which followed these cases do not lay down the law correctly." 11. The following passage of the Supreme Court judgment is also worth to be quoted hereinbelow, which reads as under :-- "37. It is necessary to see that the rule of adequate representation in Article 16(4) for the Backward Classes and the rule of adequate representation in promotion for Scheduled Castes and Scheduled Tribes under Article 16(4A) do not adversely affect the efficiency in administration. In fact, Article 335 takes care to make this an express constitutional limitation upon the discretion vested in the State while making provision for adequate representation for the Scheduled Castes/Tribes. Thus, in the matter of due representation in service for Backward Classes and Scheduled Castes and Tribes, maintenance of efficiency of administration is of paramount importance. As pointed in Indira Sawhney, 1992 AIR SCW 3682 : AIR 1993 SC 477 : 1993 Lab IC 129, the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories." 12. As pointed in Indira Sawhney, 1992 AIR SCW 3682 : AIR 1993 SC 477 : 1993 Lab IC 129, the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories." 12. The respondents case in the counter affidavit, as stated above, is that the departmental promotion committee under the Chairmanship of Bihar Public Service Commission held a meeting on 22.6.2001 and names of 39 employees were recommended for promotion on the post of Labour Superintendent. A copy of the minutes of the meeting dated 22.6.2001 has been annexed as Annexure A to the counter affidavit. From perusal of Annexure A, it appears that the committee took a decision for promotion on the basis of 1969 rules and the Governments letter dated 19.6.2001. No letter, circular or order much less the letter dated 19.6.2001 has been brought on record by the respondents to show that the Government issued appropriate order extending the benefit of reservation in the matter of promotion in favour of the candidates belonging to Backward Classes. Even if there is such letter issued by the Government reserving the post for the members of Backward Classes in the matter of promotion, such order of Government, in my view, is ultra vires to Article 16 (4) and (4-A) of the Constitution. It is, therefore, held that if the post of Labour Superintendent is to be filled up by the respondents from amongst the candidates, whose name appears in the letter dated 11.12.1999, by way of promotion, then any reservation granted to the members of Backward Classes and OBC ignoring the seniority of the petitioners is illegal and unjustified. The contention of the petitioners is that if such reservation to the candidates belonging to Backward Classes and OBC is not given effect to then the case of the petitioners will come under the Zone of consideration for promotion. This fact has not been disputed by the respondents. This Court is, therefore, of the view that the matter needs re-consideration by the departmental promotion committee. 13. In para 13 of the counter affidavit it is stated by the respondents that out of 51 posts for the appointment through promotion, 12 posts are already filled up and 39 posts are vacant in which action is being taken for promotion. 14. 13. In para 13 of the counter affidavit it is stated by the respondents that out of 51 posts for the appointment through promotion, 12 posts are already filled up and 39 posts are vacant in which action is being taken for promotion. 14. For the reasons aforesaid, this writ application is allowed and it is declared that the decision of the respondents to make reservation in the matter of promotion in favour of the candidates belonging to Backward Classes and OBC is illegal, unconstitutional and against the law. The respondents including the departmental promotion committee is directed to take a fresh decision in the matter of promotion to the post of Labour Superintendent without giving any benefit of reservation to the candidates belonging to the Backward Classes and OBC. It is needless to say that the case of the petitioners shall also be considered if they come under the Zone of consideration. 15. Petition allowed.