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2019 DIGILAW 261 (UTT)

Gyan Chand v. State of Uttarakhand

2019-04-01

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. Heard Sri M.S. Tyagi, learned counsel for the petitioner and Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand and, with their consent, this writ petition is being disposed of at the stage of admission. 2. Reservation in promotion in favour of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes was extended by the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short ‘the 1994 Act’), which was enacted by the then U.P. State Legislature on 22.03.1994. Section 3(7) of the 1994 Act stipulated that if, on the date of commencement of the Act, reservation was in force under Government Orders, for appointment to posts to be filled up by promotion, such Government Orders shall continue to be applicable till they are modified or revoked. The constitutional validity of Section 3(7) of the 1994 Act was subjected to challenge before the Allahabad High Court and, in the light of two conflicting judgments, the said controversy was resolved by the Supreme Court in U.P. Power Corporation vs. Rajesh Kumar (judgment in Civil Appeal No. 2608 of 2011 and batch dated 27.04.2012) holding that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules were ultra vires as they ran counter to the dictum in M. Nagaraj and others vs. Union of India and others : (2006) 8 SCC 212 ; and any promotion that had been given on the dictum of Indra Sawhney vs. Union of India : 1992 Suppl. (3) SCC 217, and without the aid or assistance of Section 3(7) and Rule 8A, would remain undisturbed. 3. Thereafter, a Division Bench of this Court, in Vinod Prakash Nautiyal and others vs. State of Uttarakhand and others (judgment in Writ Petition (S/B) No. 45 of 2011 dated 10.07.2012), declared Section 3(7) of the 1994 Act, which was adopted by the State of Uttarakhand, as suffering from the same vires as was pronounced by the Supreme Court in its order in Civil Appeal No. 2608 of 2011 and batch. The Division Bench held that no further promotion could be granted; its pronouncement was prospective with effect from the date of the first interim order passed in that writ petition and connected writ petitions, as persons who had been promoted prior thereto were not before the Court. The Division Bench held that no further promotion could be granted; its pronouncement was prospective with effect from the date of the first interim order passed in that writ petition and connected writ petitions, as persons who had been promoted prior thereto were not before the Court. The Division Bench, however, made it clear that, henceforth, no promotion could be given by the State of Uttarakhand by taking recourse to Section 3(7) of the Act; and the said provision should be deemed to be nonexistent from that day. 4. Thereafter an application, seeking review of the said order, was filed and a Division Bench of this Court, in its order in Review Application No. 105 of 2013 dated 01.04.2013, observed that, before the 1994 Act was made by the State of Uttarakhand, the Central Government had issued certain instructions; in terms thereof, certain reservations were available in promotion posts; by the 1994 Act, a statutory recognition was given to those instructions and, accordingly, they became enforceable in law; as those instructions were issued without carrying out the basic necessary work, required to be carried out, as pointed by the Supreme Court in M. Nagaraja, that part of the 1994 Act had been struck down by the judgment and order under review, whereby statutory blessing was given to those instructions; the review applicant had submitted that, while the writ petition was pending, the Government of Uttarakhand was carrying out the exercise, as was required to be carried out and as pointed out in M. Nagaraja, but the said aspect of the matter had not been considered by the Court; and if the State Government had carried out, or was in the process of carrying out any exercise, in terms of the mandate contained in the judgment of the Supreme Court in M. Nagaraja, the judgment and order under review did not affect the same. The Review Application was disposed of accordingly. 5. Thereafter, in Jarnail Singh and others vs. Lachhmi Narain Gupta and others : AIR 2018 SC 4729 , the Supreme Court again examined, among others, the applicability of the earlier Constitution Bench judgment of the Supreme Court in M. Nagaraja to reservation in promotion made in favour of the Scheduled Castes and the Scheduled Tribes. 5. Thereafter, in Jarnail Singh and others vs. Lachhmi Narain Gupta and others : AIR 2018 SC 4729 , the Supreme Court again examined, among others, the applicability of the earlier Constitution Bench judgment of the Supreme Court in M. Nagaraja to reservation in promotion made in favour of the Scheduled Castes and the Scheduled Tribes. The Constitution Bench concluded that the judgment in M. Nagaraja was not required to be referred to a seven-Judge Bench; however, the conclusion in M. Nagaraja, that the State Government was to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney, was invalid to this extent. 6. In the light of the clarification, issued by the Constitution Bench in Jarnail Singh, and in view of the nine-Judge judgment of the Supreme Court in Indra Sawhney, it is wholly unnecessary for the State Government to collect quantifiable data regarding representation of the Scheduled Castes and the Scheduled Tribes in services, or regarding their backwardness, before providing reservation in their favour in promotion posts. 7. This Court, in collateral proceeding, may not be justified in reviving a statutory provision which has been struck down by a Coordinate Division Bench, more so when the review petition, filed there against, has also been disposed of. The only recourse, to have the said judgment of the Division Bench annulled, is by carrying the matter in appeal to the Supreme Court. 8. The Chief Secretary, Government of Uttarakhand had, by proceedings dated 05.09.2012, conveyed the decision taken by the Government that, in the light of the judgment of the Division Bench of this Court in Vinod Prkash Nautiyal, all posts / vacancies of promotion would be filled up without giving reservation to the Scheduled Castes and the Scheduled Tribes, and without applying the earlier roster system of reservation in promotions. In the light of the clarification of the Constitution Bench of the Supreme Court in Jarnail Singh, relying on the nine-Judge judgment in Indra Sawhney, the proceedings dated 05.09.2012, whereby the Government had decided to fill up the promotion posts/ vacancies without providing reservation to the Scheduled Castes / Scheduled Tribes, must be, and is accordingly, struck down as contrary to the law declared by the Supreme Court in Indra Sawhney and in Jarnail Singh. 9. 9. While we may not be justified in reviving Section 3 (7) of the 1994 Act in collateral proceedings, as the earlier order of the Division Bench in Vinod Prakash Nautiyal has attained finality, suffice it to observe that, since the aforesaid judgment of the Division Bench of this Court only struck down Section 3(7) of the 1994 Act and nothing more, reservation can be provided, as held by the Supreme Court in Indra Sawhney, even by way of Government Orders, and not necessarily only by legislation-plenary or subordinate. 10. If the Government of Uttarakhand has either adopted the earlier notifications issued by the Government of Uttar Pradesh, or has issued notifications after its creation on 09.11.2000 providing reservation in promotions in favour of the Scheduled Castes and the Scheduled Tribes, then those notifications would remain in force, as its validity was not put in issue before the Division Bench in Vinod Prakash Nautiyal, and the challenge in those proceedings was confined only to the constitutional validity of Section 3(7) of the 1994 Act whereby legislative sanction was given to the earlier Government Orders in force. We also make it clear that, even if there are no such Government Orders in force in the State of Uttarakhand, Article 16(4-A) of the Constitution of India, an enabling provision, confers power on the Government of Uttarakhand to take necessary steps, if they so choose, to provide reservation in promotion in favour of the Scheduled Castes and the Scheduled Tribes, without having to gather quantifiable data regarding either their backwardness or the adequacy of their representation in services. 11. The writ petition is disposed of accordingly. No costs.