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2011 DIGILAW 374 (ORI)

Sanjay Kumar Das Mohapatra v. State of Orissa

2011-07-22

B.K.MISRA, L.MOHAPATRA

body2011
JUDGMENT L. MOHAPATRA, J. — This writ application is directed against an interim order dated 29.6.2011 passed by the Orissa Administrative Tribunal, Cuttack in O.A. No.2069(C) of 2011. 2.The petitioner, who is the applicant before the Tribunal, has filed the Original Application challenging the order of promotion issued in favour of opposite parties 5 and 6 in super-session of claim of the petitioner that admittedly he is senior to the said opposite parties in the rank of Sub-Inspector of Police. It is the further case of the petitioner before the Tribunal that without finalization of gradation list of Inspectors, no order of promotion could be passed and the impugned order of promotion dated 27th June, 2011 contravenes the Constitutional mandate that under no circumstances reservation would exceed 50% of the total number of vacancies. An interim prayer was also made in the Original application for stay of notification dated 27th June, 2011 in which 57 Inspectors have been promoted to the post of Deputy Superintendent of Police in O.P.S. cadre on ad hoc basis for a period of one year or till recommendation of O.P.S.C. is received and accepted by the Government, whichever is earlier. After hearing the learned counsel appearing for the parties on the above interim prayer, the Tribunal in the impugned order clarified that reservation of more than 50% in a cadre for Scheduled Castes and Scheduled Tribes and O.B.C. cannot be done and also directed that no promotion subsequent to promotion order dated 27th June, 2011 shall be ordered till filing of the counter and it’s adjudication without leave of the Tribunal. The petitioner not being satisfied with the aforesaid interim order passed by the Tribunal has approached this Court in the present writ application. 3.Lengthy arguments were advanced by the learned counsel appearing for the petitioner, learned Advocate General and learned counsel appearing for the private opposite parties on the law of reservation with reference to several decisions of the Hon’ble Supreme Court. A preliminary objection was raised by the learned counsel appearing for the private opposite parties with regard to maintainability of the Original Application:- (1)The petitioner has not worked as Inspector for a period of five years and, accordingly, is not eligible to be considered for promotion. A preliminary objection was raised by the learned counsel appearing for the private opposite parties with regard to maintainability of the Original Application:- (1)The petitioner has not worked as Inspector for a period of five years and, accordingly, is not eligible to be considered for promotion. (2)Considering the position of the petitioner in the seniority list even if 50% of the vacancies available in the promotional posts are to be filled up by unreserved officers, the petitioner does not come within the zone of consideration. According to the learned counsel, there are 57 posts of D.S.P. available to be filled up for promotion. 50% of the said number of posts comes to 29 at best. If three times the number of posts available for unreserved category are considered only 87 officers can be considered for position. The position of the petitioner in terms of seniority being 100+, he does not come within the zone of consideration. 4.Learned counsel for the petitioner with reference to the decisions of the Hon’ble Supreme Court drew attention of the Court in development of law relating to reservation after the judgment in the case of Indra Sawhney Vrs. Union of India and others reported in AIR 1993 S.C. 477 . He also submitted that so long as the Government has not made any provision in terms of Article 16 (4A) of the Constitution of India, no reservation in the promotional post is permissible. It was further submitted that even if the Government makes a provision, it must be in terms of the judgment of the Hon’ble Supreme Court in the case of M. Nagraj and others Vrs. Union of India and others reported in AIR 2007 S.C. 71 . In absence of such provision, it is not open for the State Government to make any reservation in the promotional post. It was also submitted by the learned Senior Counsel appearing for the petitioner that a bare perusal of the notification dated 27th June, 2011 would make it clear that out of 57 posts, 34 posts have gone in favour of the officers belonging to reserved category, and, therefore, there is a clear contravention of the Constitutional mandate that under no circumstances reservation can be more than 50%. Learned Advocate General representing the State submitted that in Class-I Police service in the O.P.S. cadre, Deputy Superintendent of Police is the entry post. Learned Advocate General representing the State submitted that in Class-I Police service in the O.P.S. cadre, Deputy Superintendent of Police is the entry post. This being the lowest rung in the O.P.S. cadre, the judgments relied upon by the learned Senior Counsel appearing for the petitioner have no application and reservation is permissible. It was also contended by the learned Advocate General that Article 16(4A) of the Constitution of India requires the State to make provision for reservation only in the event accelerated promotion is given to the reserved category officers with consequential seniority. In the present case, accelerated promotion has been permitted to the reserved category officers without consequential seniority and, therefore there is no need for the State to make any provision for reservation in the promotional post. Learned Senior Counsel appearing for the petitioner, learned Advocate General and the learned Senior Counsel appearing for the private opposite parties having cited several decisions of the Hon’ble Supreme Court on the issue involved in this case, we think it proper to refer to those decisions for convenience of the Tribunal without expressing any view on merits of the case. 5.Prior to the judgment of the Hon’ble Supreme Court in the case of Indra Sawhney Vrs. Union of India and others reported in AIR 1993 SC 477 , reservation in promotion was in existence. The Apex Court in the said case held that reservation on appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot be extended in the matter of promotion. After the said judgment was delivered by the Apex Court, the Government felt that the said judgment adversely affected the interest of the Scheduled Castes and Scheduled Tribes in service as they have not reached the required level. Consequently, amendment to Article-16 of the Constitution was brought in the year 1995. Article-16 (4A) was added by way of amendment. After the said judgment was delivered by the Apex Court, the Government felt that the said judgment adversely affected the interest of the Scheduled Castes and Scheduled Tribes in service as they have not reached the required level. Consequently, amendment to Article-16 of the Constitution was brought in the year 1995. Article-16 (4A) was added by way of amendment. Following was the provision contained in Article 16(4A) which was brought in by way of amendment in the year 1995:- “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 Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.” 6.After the above amendment was brought in the Constitution, the matter came before the Hon’ble Apex Court for consideration again in the case of Union of India and others Vrs. Virpal Singh Chauhan reported in AIR 1996 SC 448 . In the said decision, it was held that a roster point promotee getting the benefit of accelerated promotion would not get consequential seniority constituting additional benefit and, therefore, the seniority will be governed by the panel position. Another judgment of the Apex Court in the case of Ajit Singh Januja-I reported in AIR 1996 SC 1189 confirmed the view expressed by the Hon’ble Apex Court in the case of Union of India and others Vrs. Virpal Singh Chauhan and it was held that reservation gives accelerated promotion but in accelerated consequential seniority, seniority between the reserved category candidates and general category candidates in the promoted category shall be governed by the panel position i.e. with reference to inter se seniority in the lower grade. Again in the case of Ajit Singh Januja Vrs. The State of Punjab and others reported in AIR 1999 SC 3471 known as Ajit Singh (2) case, it was held that a reasonable balancing of the rights of General candidate and roster candidate would be achieved by the following “catch up” rule as evolved in the said judgment. In view of the above judgment, the Government again thought for amending Rule 16(4A) to confer the benefit of consequential seniority in the year 2001. In view of the above judgment, the Government again thought for amending Rule 16(4A) to confer the benefit of consequential seniority in the year 2001. Following amendment was brought in the year 2001 which received assent of the President on 4th January 2002. “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.” 7.The constitutional validity of the said amendment was questioned in the case of M. Nagraj and others Vrs. Union of India and others reported in AIR 2007 SC 72. In a long judgment, the Hon’ble Apex Court after taking into consideration the several earlier decisions of the same Court; upheld the Constitutional validity of 77th Amendment Act, 1995, 81 Amendment Act, 2000, 82 Amendment Act, 2000 and 85th Amendment Act, 2001. However, the Court arrived at the following conclusions:- “The key question which arises in the matter of the challenge to the constitutional validity of the impugned amending Acts is whether the constitutional limitations on the amending power of the Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution. In the matter of application of the principle of basis structure, twin tests have to be satisfied, namely, the ‘width test’ and the test of ‘identity’. As stated hereinabove, the concept of the ‘catch-up’ rule and ‘consequential seniority’ are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism etc. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to prove for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, ‘backwardness’ and ‘inadequacy of representation’. As stated above equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4A) is derived from clause (4) of Article 16. Clause (4A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicate that the impugned amendments have been promulgated by the Parliament to overrule the decision of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh (1), Ajit singh (II) and Indra Sawhney, were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well-settled that the Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism etc. which are over arching principles have been violated by the impugned constitutional amendments. Equality has two facets “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the Rule of Law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality. The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending power in Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.” 8.Admittedly, the State Government has not come forward with any provision for reservation in promotion. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise.” 8.Admittedly, the State Government has not come forward with any provision for reservation in promotion. The question as to whether there is a requirement of any such provision in terms of Article 16(4) or not, is a matter to be decided by the Tribunal while disposing of the Original Application. We have deliberately refrained from expressing any opinion considering the fact that any observation made by the Court in this regard may influence the Tribunal. 9.Now coming to the question of interim prayer. It is clear from the Original Application that the petitioner prayed for stay of the notification dated 27th June, 2011 in which 57 Inspectors have been promoted to O.P.S. cadre as Deputy Superintendent of Police. From the list of officers mentioned in the notification, it is clear that from Sl. No.24 onward up to last number i.e. 57, all the officers promoted either belong to Scheduled Caste or Scheduled Tribe. In the Original Application, the Tribunal is called upon to decide on the following issues. (1)Whether any provision is required to be made for the purpose of reservation in the promotional posts when consequential seniority is not allowed to the promotees belonging to the reserved categories. (2)Whether in absence of any provision any reservation at all can be made in the promotional posts. (3)Whether the post of D.S.P. is a base level post in O.P.S. cadre and if so, whether reservation can be made treating the same as initial recruitment in the cadre. (4)Whether the Original Application is maintainable because of the deficiencies alleged to be existing in the case as pointed by the learned counsel for the private opposite parties. Since the above issues are to be adjudicated by the Tribunal, we have not expressed any opinion on any one of the issues. 10.So far as interim prayer is concerned, though the entire notification dated 27th June, 2011 has been challenged in the Original Application, all the officers promoted to the rank of D.S.P. in the said notification have not been made parties. Officers appearing against Sl. No.1 to 23 of the said notification include 21 officers belonging to unreserved category and two officers belonging to reserved category. Officers appearing against Sl. No.1 to 23 of the said notification include 21 officers belonging to unreserved category and two officers belonging to reserved category. Two officers, who belong to reserved category, are opposite parties 3 and 4. They were promoted much earlier to the petitioner and, therefore, though the petitioner has challenged their promotion, they having already worked in the promotional post for a considerably length of time before the notification dated 27th June, 2011 came into existence, there is no reason for granting stay on their further promotion to the post of D.S.P. Rest 21 officers belonging to unreserved category are admittedly senior to the petitioner and, therefore, the petitioner cannot have a grievance in the event they are also given promotion. Therefore, the petitioner cannot have a grievance if the officers appearing against Sl. No.1 to 23 of the notification dated 27th June, 2011 are given promotion to the post of D.S.P. So far as rest of the officers are concerned, they all belong to the reserved category. The Court could have considered the prayer or stay had they been added as parties to the Original Application. Out of the said 24 officers belonging to reserved category, only two have been made parties, namely, opposite parties 5 and 6. Therefore, without hearing the rest of the officers, who are not parties to the proceeding, it will not be appropriate on the part of this Court to stay their promotion. However, opposite parties 5 and 6 are the two officers out of 24 unreserved category officers appearing against Sl. No.24 to 57 of the notification dated 27th June, 2011 and we have also heard them in this writ application. Therefore, we grant stay of promotion of the said two officers namely, opposite parties 5 and 6 to the rank of D.S.P. Promotion of rest of the unreserved category officers appearing against Sl. No.24 onwards in the notification except opposite parties 5 and 6 shall be subject to the result of the Original Application. 11.With the above modification in the impugned order, this writ application is disposed of. B.K. MISRA, J.I agree. Application disposed of.