IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1749 of 2011(O&M) Date of Decision: 26.9.2011. State of Haryana & others --Appellants Versus Kiran Bala & Another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MS.JUSTICE RITU BAHRI. Present:- Mr. Indresh Goel, Addl. A.G., Haryana for the appellants. *** PERMOD KOHLI.J (ORAL) C.M. No. 4710 of 2011 Heard. For the reasons recorded in the application, same is allowed. Delay in filing the appeal is condoned. LPA No. 1749 of 2011 This L.P.A arises out of judgement dated 28.4.2011 passed in CWP No. 8318 of 2010 by the learned Single Judge of this Court, whereby the writ petition filed by the respondents herein challenging the orders dated 23.4.2010 and 27.4.2010 (Annexures P-7 & P-8 respectively in the writ petition) have been quashed. Resultantly, it is directed that the writ petitioner shall be entitled to the benefit of the stepping up of pay at par with his junior belonging to the reserved category, who was promoted earlier to them on account of accelerated promotion. It is admitted position that the private respondents (writ petitioners) belong to general category. One Ramesh Kumar, who belongs to reserved category got accelerated promotion on 25.9.2002 to the post of Assistant. Later on the private LPA No. 1749 of 2011(O&M) -2- respondents were also promoted as Assistants. It is also equally admitted position that the private respondents are senior to the reserved category candidates in the feeding channel. On their promotion their pay was stepped up at par with the reserved category candidate. The State-appellants, however, passed the impugned order, referred to above withdrawing the benefit on the basis of some Govt. Instructions dated 16.3.2006 said to be issued as a consequence of the 85th Constitutional Amendment. It is not in dispute that pursuant to the 85th Constitutional Amendment the State never collected any data nor enacted any law or issued any instructions on that basis to grant benefit of seniority and promotion to the reserved category candidates from the day they were granted accelerated promotion. The controversy is squarely covered by a judgement of the Hon'ble Supreme Court rendered in case of Ajit Singh Janjua (2) Vs. State of Punjab & others reported as J.T 1999 (7) SCC 159. Even in case of M.Nagaraj and others Vs. Union of India and others reported as 2006(8) SC 212 Hon'ble Supreme Court while upholding the 85th Constitutional Amendment has held as under:- “ 123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provisions for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for Scs/STs in matters 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 with Article 335. It is made clear that even if the LPA No. 1749 of 2011(O&M) -3- 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.” Pursuant to the aforesaid judgement the State did not carry out any exercise for ascertaining the factors noticed by the Hon'ble Supreme Court for grant of seniority and promotion pursuant to the 85th Constitutional Amendment. 2006 Instructions are not in consonance with the aforesaid directions of the Hon'ble Supreme Court. We find no merit in this appeal, which is, accordingly dismissed. (PERMOD KOHLI) JUDGE (RITU BAHRI) JUDGE 26.9.2011. lucky