ORDER : NAGESH BHEEMAPAKA, J. Petitioners approached this Court aggrieved by the action of the State Government in issuing Memo No. 73, dated 24.07.2021 and Memo No.1356 dated 24.07.2021 in particular Para 5 thereof, by which the Government contemplated a review of promotions granted after 02.06.2014. The purported basis for this exercise was the Division Bench judgment of this Court dated 11.12.2018 in Writ Petition No. 4415 of 2016; however, petitioners contend that the impugned action, instead of being a faithful implementation of that judgment, is in clear violation of constitutional provisions, the mandate of Articles 14 and 16 of the Constitution of India, and the settled principles laid down by the Hon'ble Supreme Court in a catena of cases as well as by this Court. 1.1. Pursuant to the impugned memo, dated 24.07.2021, consequential proceedings were issued on 27.08.2021, whereby the objections submitted by petitioners 1 to 3 were rejected without due application of mind and without consideration of the specific contentions raised. These rejection orders, along with the consequential Government Orders and steps taken by the respondents to give effect to the revised panels, have confirmed the illegal procedure adopted and caused grave prejudice and severe injustice to petitioners, whose settled promotions and consequential seniority stand disturbed without lawful justification. They contend that the impugned action is illegal, arbitrary, violative of Articles 14 and 16 of the Constitution of India, and contrary to the law laid down by the Hon'ble Supreme Court. 2. It is the case of petitioners that their promotions were effected under G.O.Ms.No.5 dated 14.02.2003 and G.O.Ms.No.26 dated 20.02.2009, which provided for reservation in promotion with consequential seniority to members of Scheduled Castes and Scheduled Tribes. They assert that after the judgment of this Court in Writ Petition No. 4415 of 2016, the State constituted a Committee, collected cadre-wise data and affirmed before this Court in contempt proceedings that the exercise prescribed in M. Nagaraj v. Union of India , (2006) 8 SCC 212 had been duly undertaken. 2.1. According to petitioners, once this exercise was completed and promotions were granted on that basis, the right to consequential seniority became a constitutional incident of promotion and could not be unsettled by an executive fiat.
2.1. According to petitioners, once this exercise was completed and promotions were granted on that basis, the right to consequential seniority became a constitutional incident of promotion and could not be unsettled by an executive fiat. They urge that Para 5.2 of Memo No.1356 dated 24.07.2021, by providing that after adequacy is achieved seniority shall revert to the feeder cadre, effectively revives the "catch-up" principle which had been legislatively abrogated by the 85 th Constitutional Amendment. They also contend that their objections to the provisional list were rejected by order dated 27.08.2021 without reasons, which vitiates the decision-making process. 3. Learned counsel for petitioners Sri Jogram Tejavath draws attention of this Court to the constitutional background and case law. He contends that this Court in its order dated 11.12.2018 in Writ Petition No. 4415 of 2016 upheld G.O.Ms.No. 26, dated 20.02.2009 with regard to consequential seniority to the individual who got promoted under Rule of Reservation. In the said judgment, it was advised to review the promotions which were considered earlier in the State. According to learned counsel, the intention of this Court is to review the matter where consequential seniority is not considered, but the State Government had misinterpreted and revised the seniority status that if the adequate is raised in the particular cadre, the promotions’ should be considered based on the initial category seniority which is quash against the above said order. Promotions which were considered earlier degrades the SC/ST candidates against the constitutional amendment and verdict of the Supreme Court of India. Learned counsel accuses that the Law Department and Finance Department have not followed the said procedure and they have followed the consequential seniority. 3.1. Learned counsel further argued that fixing or revision of seniority up to 01.06.2014 has to be done by the unified Andhra Pradesh but not by Telangana, so the revision of seniority done in the various cadres in the Telangana is null and void. Revision of seniority based on the order till 01.06.2014 has to be done by the Government of Andhra Pradesh as per the A.P. Reorganisation Act. Accordingly, from 02.06.2014, the seniority should be done by Government of Telangana, but in violation of the said Act, Telangana has reviewed and revised the seniority of the Secretariat staff since 1988 to2021 which is irregular and not tenable in law. 3.2.
Accordingly, from 02.06.2014, the seniority should be done by Government of Telangana, but in violation of the said Act, Telangana has reviewed and revised the seniority of the Secretariat staff since 1988 to2021 which is irregular and not tenable in law. 3.2. Reliance was placed on the nine-Judge Bench decision in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 , wherein it was held that reservation under Article 16(4) could not extend to promotions but was confined to initial appointments. This prompted Parliament to enact the 77th Constitutional Amendment introducing Article 16(4A), thereby constitutionally enabling reservation in promotions for Scheduled Castes and Scheduled Tribes. Reference was also made to the Constitution Bench judgment in M. Nagaraj’s case , which upheld the validity of the 77th and the 85th Amendments but required the State to collect quantifiable data showing inadequacy of representation, establish backwardness and ensure efficiency under Article 335 before granting reservation in promotions with consequential seniority. 3.3. Further reliance was placed on Jarnail Singh v. Lachhmi Narain Gupta , (2018) 10 SCC 396 , where the Hon’ble Supreme Court clarified that the requirement in Nagaraj’s case of proving backwardness afresh was erroneous, as backwardness of Scheduled Castes and Scheduled Tribes is presumed; what the State obliged to establish is only inadequacy of representation coupled with consideration of efficiency. 3.4. Learned counsel placed strong emphasis on B.K. Pavitra v. Union of India , (2019) 16 SCC 129 , where the Hon’ble Supreme Court held that consequential seniority is not a mere statutory benefit but a constitutional incident flowing from Article 16(4A). It was categorically observed that once the exercise stipulated in M. Nagraj’s case (supra) is undertaken and promotions are granted under the roster, the consequential seniority attaches by operation of law and cannot be withdrawn by administrative instructions, for that would amount to a reintroduction of the "catch-up" principle which had been expressly nullified by the 85th Amendment. Finally, reliance was placed on Kranti Associates v. Masood Ahmed Khan , (2010) 9 SCC 496 , which held that reasons are the heartbeat of every conclusion and any order that affects civil rights but is unaccompanied by reasons is arbitrary and unsustainable. 4.
Finally, reliance was placed on Kranti Associates v. Masood Ahmed Khan , (2010) 9 SCC 496 , which held that reasons are the heartbeat of every conclusion and any order that affects civil rights but is unaccompanied by reasons is arbitrary and unsustainable. 4. In response, learned Additional Advocate General and learned counsel for unofficial respondents argued that reservation policy was applied in such a manner that in certain cadres, Scheduled Castes and Scheduled Tribes candidates came to occupy far more than their constitutionally-permissible representation, thereby resulting in reverse discrimination against other categories. It was urged that Article 16(4A) is merely an enabling provision and does not confer a fundamental right to claim reservation in promotions. Reliance was placed on Suraj Bhan Meena v. State of Rajasthan , (2011) 1 SCC 467 , where the Hon’ble Supreme Court quashed a notification granting consequential seniority because the State had not carried out the Nagaraj exercise. 4.1. Reliance was also placed on U.P. Power Corporation Ltd. v. Rajesh Kumar , (2012) 7 SCC 1 , where an amendment granting consequential seniority was struck down as it was unsupported by quantifiable data regarding inadequacy and efficiency. Attention was invited to S. Paneer Selvan v. State of Tamil Nadu , (2015) 10 SCC 292 , in which it was held that where promotions are not based on general seniority but on roster points, consequential seniority cannot be claimed as of right Finally, the judgment in Mukesh Kumar v. State of Uttarakhand , (2020) 3 SCC 1 was cited, where the Hon’ble Supreme Court reiterated that Article 16(4A) is only enabling, that no mandamus can be issued to compel the State to grant reservation in promotion, and that it is for the State to decide whether such reservation is necessary on the basis of quantifiable data. 5. Having considered the rival submissions, this Court is of the view that the controversy turns on the question whether, after the State has undertaken the cadre-wise exercise mandated in Nagaraj’s case (supra) and affirmed its compliance before this Court, can they still issue executive instructions to deprive employees of consequential seniority? On this issue, the decision in B.K. Pavitra ’s case (supra) is binding authority. The Supreme Court therein, after considering Nagaraj’s case and Jarnail Singh’s case , held that consequential seniority is a constitutional incident of promotion under Article 16(4A).
On this issue, the decision in B.K. Pavitra ’s case (supra) is binding authority. The Supreme Court therein, after considering Nagaraj’s case and Jarnail Singh’s case , held that consequential seniority is a constitutional incident of promotion under Article 16(4A). It categorically observed that once the State has carried out the mandated exercise and promotions are granted, consequential seniority cannot thereafter, be withdrawn by administrative instructions, for such withdrawal would amount to reintroducing the catch-up principle abrogated by the 85th Amendment. 6. The reliance placed by respondents on Suraj Bhan Meena’s case and Rajesh Kumar’s case is distinguishable. In both those cases, reservation in promotion with consequential seniority was struck down because the State had entirely failed to undertake the exercise in Nagraj’s case (supra) or had attempted to do so without supporting data. Similarly, in Paneer Selvan’s case (supra), the infirmity was that the State had sought to grant seniority on the basis of a general rule even though promotions were granted out of turn by virtue of roster points. The judgment in Mukesh Kumar’s case also does not assist respondents, as that decision arose in the context of a State that had consciously chosen not to provide reservation in promotion and the Hon’ble Supreme Court held that Article 16(4A) does not compel the State to make such provision. 7. The present case stands on a different footing because the State of Telangana has already exercised its discretion to provide reservation in promotion through G.O.Ms.Nos.5 and 26, has carried out the cadre-wise exercise mandated by Nagaraj’s case , and has even affirmed compliance before this Court in contempt proceedings. Having done so, it cannot now turn around and unsettle the promotions already effected. 8. This Court also finds considerable merit in the submission that rejection of petitioners' objections by orders dated 27.08.2021 without reasons vitiates the decision. As held in Kranti Associates’s case , reasons are indispensable to sustain the validity of any decision affecting rights. A cryptic order merely recording that objections were considered and rejected does not satisfy this requirement and renders the action arbitrary. 9. The attempt of respondents to justify the impugned action by referring to creation of supernumerary posts through G.O.Ms.No.94 and allied orders is equally misconceived. Supernumerary posts may prevent immediate reversion or dislocation, but they cannot cure the underlying illegality of depriving promotees of their constitutional entitlement to consequential seniority.
9. The attempt of respondents to justify the impugned action by referring to creation of supernumerary posts through G.O.Ms.No.94 and allied orders is equally misconceived. Supernumerary posts may prevent immediate reversion or dislocation, but they cannot cure the underlying illegality of depriving promotees of their constitutional entitlement to consequential seniority. This Court is therefore, of the considered view that the impugned Memo No.1356 dated 24.07.2021, rejection orders dated 27.08.2021, and G.O.Ms.No.246 dated 27.08.2021, to the extent they disturb promotions and consequential seniority of petitioners, are unsustainable in law. They offend Articles 14 and 16 of the Constitution, are contrary to the constitutional mandate under Article 16(4A), and run contrary to the law laid down by the Hon’ble Supreme Court in B.K. Pavitra’s case and allied judgments. 10. Accordingly, the Writ Petition is allowed. Memo No.1356 dated 24.07.2021, rejection orders dated 27.08.2021, and G.O.Ms.No.246 dated 27.08.2021 are quashed to the extent they disturb or seek to disturb the promotions and consequential seniority of petitioners. Promotions of petitioners shall stand restored with all consequential benefits including consequential seniority. It is, however, clarified that this order shall not preclude the State from initiating specific proceedings against any individual promotion, if justified by cogent material, provided such proceedings are undertaken strictly in accordance with law and after affording due opportunity of hearing. No costs. 11. Consequently, Miscellaneous Applications, if any shall stand closed.