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Himachal Pradesh High Court · body

2013 DIGILAW 174 (HP)

Ravindra Nath v. NHPC Ltd.

2013-03-11

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in both the writ petitions, these were taken up together for hearing and are being disposed of by this common judgment. However, in order to maintain clarity, the facts of C.W.P No. 11172 have been taken into consideration. C.W.P. No. 11172 of 2011-H 2. Petitioner was appointed as Junior Engineer (Civil) Grade-II (S-I) in the respondent-Corporation on 28.05.2001. He was promoted to the post of Junior Engineer (Civil), Grade-I (S- 2) on 01.04.2006. The post of Junior Engineer is in feeder category for promotion to the post of Assistant Engineer. The process for filling up the post of Assistant Engineer (Civil) (E-1) was commenced by the respondent-Corporation. Petitioner appeared in the written examination and he was also called for the interview. The promotions from the post of Junior Engineer to the post of Assistant Engineer (Civil) were made by the respondent-Corporation vide Reference No./PNC/5/155/559, dated 07.04.2011, whereby 23 posts of Assistant Engineer (Civil) (E-1) were filled up. The Departmental Promotion Committee, though recommended the name of petitioner, but he could not be appointed for want of vacancy of Assistant Engineer. However, the fact of the matter is that the petitioner was promoted to the post of Junior Engineer (S-3) on 08.04.2011 w.e.f. 01.04.2011. Petitioner made a representation for the redressal of his grievance on 19.05.2011, however, the same was rejected by the appellate authority on 21.09.2011. CWP No. 11324 of 2011. 3. The petitioner was appointed as a Junior Engineer and has been promoted to the post of Junior Engineer (S-3) instead of Assistant Engineer on 08.04.2011. The appeal preferred by him was also rejected by the appellate authority. 4. Mr. K.S. Kanwar, learned counsel for the petitioner(s) has vehemently argued that the promotions of respondents No. 24 to 28 in CWP No. 11172 of 2011-H and respondents No. 16 to 22 in CWP No. 11324 of 2011 are in violation of the definitive law laid down by their Lordships of the Honble Supreme Court in M. Nagraj and others v. Union of India and others (2006) 8 Supreme Court Cases 212. In other words, his submission is that the respondent-Corporation has not gathered quantifiable data justifying reservation in terms of parameters of efficiency, backwardness and inadequacy of representation before making promotions of the private respondents against the Scheduled Cast and Scheduled Tribe categories. 5. Mr. In other words, his submission is that the respondent-Corporation has not gathered quantifiable data justifying reservation in terms of parameters of efficiency, backwardness and inadequacy of representation before making promotions of the private respondents against the Scheduled Cast and Scheduled Tribe categories. 5. Mr. K.D. Shreedhar, learned Senior Advocate, for respondents No. 1 to 4 in CWP No. 11324 of 2011 and for respondents No. 1 to 3 in CWP No. 11172 of 2011 and Ms. Shreya Chauhan, learned counsel for the private respondents have argued that the promotions have been made strictly as per O.M., dated 13.08.1997, issued by the Government of India. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. According to the promotion policy and rules for Supervisors, the reservation of posts is to be made as per the directives of Central Government regarding reservation of posts for Scheduled Castes, Scheduled Tribes, Ex-servicemen and other categories, if any, issued from time to time. Petitioners were eligible to be considered for the post of Assistant Engineer. On the basis of their performance in the written examination, they were called for interview. Their suitability was duly adjudged by the Departmental Promotion Committee and their names were recommended for promotion. However, as noticed above, the petitioners could not be considered for promotion to the post of Assistant Engineer (Elect)-E-1 due to non-availability of posts. The petitioners were promoted as Junior Engineers (Elect.)-Spl. (S-3) w.e.f. 01.04.2011 on 08.04.2011. It is specifically averred in the writ petitions that the promotions of respondents No. 24 to 28 in CWP No. 11172 of 2011 and respondents No. 16 to 22 in CWP No. 11324 of 2011 is in violation of the dicta of the Honble Apex Court. This ground was also taken by the petitioner in CWP No. 11172 of 2011-H in his appeal preferred for the redressal of his grievance. What has been stated while rejecting the appeal of the petitioner on 21.09.2011 by the appellate authority, is that the judgment of the Honble Supreme Court is not applicable to the Corporation and the necessary action would be taken by the Corporation only after issuance of the notification and discussion of the judgments of the Supreme Court. What has been stated while rejecting the appeal of the petitioner on 21.09.2011 by the appellate authority, is that the judgment of the Honble Supreme Court is not applicable to the Corporation and the necessary action would be taken by the Corporation only after issuance of the notification and discussion of the judgments of the Supreme Court. This is contrary to the dicta of the Honble Supreme Court in M. Nagraj and others v. Union of India and others (2006) 8 Supreme Court Cases 212. Petitioner has sought information whether as per the law laid down by their Lordships of the Honble Supreme Court, quantifiable data has been prepared by the respondent-Corporation justifying reservation in terms of parameters of efficiency, backwardness and inadequacy of representation. Petitioner has sought this information under the Right to Information Act, 2005. He was informed by the CPIO & Under Secretary, Government of India on 29.03.2012 that no exercise on collection of data in respect of inadequacy of representation of SCs/STs and OBCs in public services has been carried out by the Department and, therefore, the data asked for by the petitioner, could not be made available to him. Thus, it is duly established that no quantifiable data was compiled by the respondent-Corporation at the time of making promotions to the posts for Scheduled Cast and Scheduled Tribe categories. It was imperative for the respondent-Corporation to compile the quantifiable data to see whether the Scheduled Cast and Scheduled Tribe categories are adequately represented or not for the purpose of promotion. 8. Their Lordships of the Honble Supreme Court in M. Nagaraj and others v. Union of India and others (2006) 8 Supreme Court Cases 212 have held as under: "83. 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 ceiling-limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. 86. Clause (4A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4A) of Article 16 emphasizes the opinion of the States in the matter of adequacy of representation. The cadre strength as a unit also ensures that upper ceiling-limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. 86. Clause (4A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4A) of Article 16 emphasizes the opinion of the States in the matter of adequacy 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 services. 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. 123. 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. 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." 9. The law laid down by their Lordships of the Honble Supreme Court in M. Nagaraj and others v. Union of India and others has been followed by their Lordships of the Honble Supreme Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others (2012) 7 Supreme Court Cases 1. Their Lordships have rejected the plea that once the principle of reservation was made applicable to spectrum of promotion, no fresh exercise is necessary. Their Lordships have carved out the following principles from the decision in M. Nagaraj and others v. Union of India and others: " 71. While dealing with reservation and affirmative action, the Constitution Bench opined thus: - "48. It is the equality "in fact" which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination. 49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16 (1) is individual-specific whereas reservation in Article 16 (4) and Article 16 (4-A) is enabling. The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. Equality in Article 16 (1) is individual-specific whereas reservation in Article 16 (4) and Article 16 (4-A) is enabling. The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16 (4) and 16(4-A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist State wise." 83. In the said case, the State Government had not undertaken any exercise as indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions in the said judgment. It was canvassed before the Bench that exercise to be undertaken as per the direction in M.Nagaraj (supra) was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-Fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the two-Judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. 86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein." 10. A Division Bench of this Court in Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh v. State of Himachal Pradesh and others, CWP-T No. 2628 of 2008, decided on 18th September, 2009, has quashed the instructions, dated 7th September, 2007, whereby the provision was made for reservation in the matter of promotions with consequential seniority in all classes of posts in the services under the State in favour of the Scheduled Castes and Scheduled Tribes. The Division Bench has held as under: "From the law laid down by the Apex Court, quoted in extenso herein above, it is clear that the Apex Court has upheld the Constitutional amendments but has laid down that this does not obliterate the Constitutional requirements of ceiling limit of 50%, the concept of creamy layer, the sub classification between OBCs on the one hand and SCs and STs on the other hand, and the concept of post based roster with inbuilt concept of replacements. It has also been clearly laid down that the State is not bound to make reservations for scheduled castes and scheduled tribes. However, if it chooses to exercise the powers vested in it to make such reservations, the State must collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. In addition thereto Article 335 relating to efficiency must be also complied with. It is subject to these guidelines that the Constitutional validity of the amendments was upheld. The instructions now issued by the State, in our considered opinion, totally violate the law laid down by the Apex Court. The State as per the judgment in M. Nagrajs case is bound to collect data to show that the so called backward classes are actually backward and they are inadequately represented in the service under the State. The instructions now issued by the State, in our considered opinion, totally violate the law laid down by the Apex Court. The State as per the judgment in M. Nagrajs case is bound to collect data to show that the so called backward classes are actually backward and they are inadequately represented in the service under the State. The State also has to carry out an exercise to ensure that the efficiency of administration is not adversely affected. A balance has to be struck between the competing interests. In the present case, admittedly, the State before issuing the instructions has not carried out any such exercise to collect such data. The reason given by the State is that in the State of Himachal Pradesh there was already a provision for reservation in promotion prior to the judgment in Indra Sawhneys case and thus collection of data as mandated in M. Nagrajs case is not required. This submission is totally without any basis. In Himachal Pradesh reservation was provided in promotion prior to the judgment in Indra Sawhneys case. After Indra Sawhneys case such reservation could not have been permitted beyond the period of 5 years. To get over this judgment the constitutional amendments were enacted. The Apex Court in no uncertain terms while upholding the constitutional amendments head that the collection of quantifiable data to establish backwardness and inadequacy of representation keeping in view the efficiency of administration of the State is necessary before making reservations. This requirement never existed prior to the judgment. According to the State it had after due consideration decided to make provision for reservations in promotion much earlier. "Due consideration" is totally different from collecting quantifiable data. This exercise has to be conducted and no reservation in promotion can be made without conducting such an exercise. Therefore, the State cannot be permitted to make reservations till such exercise is carried out and clear cut quantifiable data is collected on the lines indicated in M. Nagarajs case. We may also point out that other than making vague reference to "due consideration" having been done, till date the State has not produced before us any clear cut quantifiable data which could establish the need for reservation. Merely because the amended provision of the Constitution enable the State to make reservation is no ground not to collect data. We may also point out that other than making vague reference to "due consideration" having been done, till date the State has not produced before us any clear cut quantifiable data which could establish the need for reservation. Merely because the amended provision of the Constitution enable the State to make reservation is no ground not to collect data. Therefore, the instructions have to be struck down as being violative of the law laid down in M. Nagarajs case by the Apex Court. No doubt under the provisions of Article 16(4B) the State is entitled to grant consequential seniority on promotion to the members belonging to the scheduled castes and scheduled tribes but there must be data available with the State Government to show that the scheduled castes and scheduled tribes are inadequately represented in the services or in the cadre to which promotions have to be made. Therefore, also these instructions are illegal and liable to be set aside. It has also been contended on behalf of the petitioners that the observations of the Apex Court in M. Nagarajs case in para 121 introduce the concept of creamy layer even with regard to scheduled castes and scheduled tribes. This argument cannot be accepted. The observations made in para 121 are general in nature. It would be pertinent to mention that in Indra Sawhneys case it was clearly stated that the concept of creamy layer was only applicable to OBCs. In M. Nagarajs case the Apex Court has only stated that the concept of creamy layer should be kept in mind while making reservations. It has nowhere specifically held that the concept of creamy layer is applicable to SCs and STs also. The reference made to the concept of creamy layer in para 121, appears to be a general observation with regard to the concept of reservation in respect of all classes including OBCs and not in respect of scheduled castes and scheduled tribes only. In view of the above discussion, we allow the writ petition and hold that until the State collects data and material establishing the need for reservation by collecting quantifiable data to show backwardness, inadequacy of representation and keeping in mind the overall efficiency of State administration, the State is not entitled to make reservation in promotion for the scheduled castes and scheduled tribes. The impugned instructions are accordingly quashed." 11. No other point was urged. The impugned instructions are accordingly quashed." 11. No other point was urged. 12. Accordingly, in view of the discussions and analysis made herein above, the writ petitions are allowed. The promotions of respondents No. 24 to 28 in CWP No. 11172 of 2011-H and respondents No. 16 to 22 in CWP No. 11324, are quashed and set aside. The respondent-Corporation is directed to promote the petitioners to the posts of Assistant Engineer (Civil) (E-1) against the resultant vacancies, within a period of eight weeks from today, with all consequential benefits. The pending application(s), if any, also stands disposed of. No costs.