IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16733 of 2006 (O&M) Date of decision : 01.04.2011 Hari Singh … Petitioner Versus State of Punjab and others …Respondents CORAM : HON’BLE MR.JUSTICE PERMOD KOHLI Present: Mr.Deepak Sibal, Advocate for the petitioner. Ms.Charu Tuli, Sr.DAG, Punjab. Mr.Rajiv Atma Ram, Sr.Advocate with Mr.Arjun Partap Atma Ram, Advocate for respondent No.10. Permod Kohli, J. CM No.4850 of 2011 CM is allowed and additional affidavit is taken on record. CWP No.16733 of 2006 This petition has been filed seeking quashment of the order dated 3.10.2006 (Annexure P-9) and final seniority list (Annexure P-10). Annexures P-9 and P-10 are the seniority list of Superintendent Grade-I in the Financial Commissioners’ Secretariat, Punjab. Further prayer made in the writ petition is for a direction to the respondents to re-frame the seniority of the petitioner by treating the petitioner as Superintendent grade-I w.e.f. 1.6.1992, the date he was granted the benefit of reservation. This prayer has been made seeking implementation of the 85th Constitutional Amendment whereby Article 16(4A) of the Constitution was amended. It may be useful to briefly notice the factual background of the case. Petitioner is a member of Scheduled Caste community and he was appointed as a Clerk on 1.8.1973 in the office of Financial Commissioners’ Secretariat, Punjab. On being selected by the Subordinate Selection Board, Punjab, the petitioner was placed at Serial No.176 in the merit list. The petitioner thereafter, earned promotion as Assistant and later, designated as CWP No.16733 of 2006 (O&M) Senior Assistant. The petitioner came to be appointed as a Tehsildar by transfer, though he was allowed to retain the lien in the parent department. While working as Tehsildar, he was given proforma promotion as Superintendent grade-I vide order dated 6.7.1995, subject to the final decision in CA No.4763-65 of 1989 and other connected applications pending before the Hon’ble Supreme Court of India. He was assigned the date as Superintendent Grade-I w.e.f. 1.6.1992 and later on the basis of the judgment of Hon’ble Supreme Court in CA No.3792-94 of 1989 and CA No.4763-65 in a famous case of Ajit Singh Janjua Vs. State of Punjab decided on 1.3.1996, petitioner and some other persons were promoted as Superintendent Grade-I. This promotion being in excess of their prescribed quota of reservation, they were reverted back to their substantive post of Senior Assistant vide order dated 31.5.1996. All reverted persons filed CWP No.8573 of 1996 in this Court. This writ petition came to be disposed of vide judgment dated 6.11.1991 with the following observations:- “The only grievance made in the writ petition was in regard to reversion to the posts which petitioners were holding prior to their promotion in the light of the judgment of the Supreme Court in Ajit Singh Janjua and others Vs. State of Punjab and others, JT 1996 (2) SC 727. The grievance of the petitioners has been redressed by notification dated 05.11.2001 of the Government of Punjab, Department of Personnel (personnel polices Branch-I). Para 2 of the instructions read as under:- “2. This matter has been engaging the attention of this department for some time past. After thorough consideration of the matter, it has now been decided that the persons belonging in the reserved category who were promoted wrongly in excess of quota prior to 01.03.1996 but were reverted consequent upon the implementation of Ajit Singh Janjua-I judgment, may be restored status quo as prevailing before 1st March, 1996 and supernumerary posts may be got created by the concerned Administrative Department from the Department of Finance to accommodate them. All such persons are to be treated as ad hoc till they are adjusted on their turn for promotion. The senior general candidates will, however, keep on working against the regular posts meant for the general category, and will be promoted as per the revised seniority list.” In view of the instructions of the Government, orders of reversion would stand set aside and the petitioners would continue to hold promotional post in terms of para 2 of the instructions. Since the promotion of the petitioners would continue to be ad hoc till such time they are adjusted on their turn for promotion, they 2 CWP No.16733 of 2006 (O&M) shall be entitled to all other monetary benefits attached to the posts except seniority. Writ petition stands disposed of accordingly. In view of the disposal of the writ petition, interim order dated 14.7.1997 shall be deemed to have been vacated. It is made clear that in case petitioners have any grievance in regard to implementation of the instructions, they shall be at liberty to make representation in that regard to the appropriate authority. Sd/- V.K.Jhanji 6.11.2001” From the above order, petitioner was deemed to be promoted as Superintendent Grade-I on ad hoc basis till the vacancy belonging to his quota, is available. The vacancy belonging to his quota became available w.e.f. 10.1.2002 and accordingly, the petitioner was promoted as Superintendent Grade-I on regular basis with effect from the said date. It is pertinent to note that in the aforesaid judgment dated 6.11.2001, the petitioner and the similarly situated persons were denied seniority for the period of ad hoc promotion. It seems that the petitioner earned promotion in his parent cadre as Superintendent Grade-I which is a normal hierarchy of service in the Supervisory cadre. This is a normal practice of promotion from Ministerial cadre to Supervisory cadre in the parent cadre of the petitioner. He became Superintendent Grade-I vide order dated 6.7.1995. From the order dated 11.09.1995 (Annexure P-4), it appears that on the basis of certain interim directions passed by Hon’ble the Supreme Court in CA No.4763-65 of 1989, the State issued the seniority list of Superintendent Grade-I. Under this seniority list, petitioner was granted the seniority in the cadre of Superintendent Grade-I and was assigned the cadre of Superintendent Grade-I w.e.f. 1.6.1990. This seniority position has now been revised vide the impugned seniority list (Annexures P-9 and P-10) and instead of assigning the seniority to the petitioner w.e.f. 1.1.1992. The petitioner has been assigned seniority as Superintendent Grade-I w.e.f. 10.1.2002. It is under these circumstances, the petitioner has filed this petition challenging the revised seniority list (Annexures P-9 and P-10). 3 CWP No.16733 of 2006 (O&M) The case of the petitioner as projected, in the writ petition is simplicitor to grant him the benefit of seniority from the date he was granted roster accelerated promotion to the post of Superintendent Grade-I. According to the averments made in the petition, he was granted roster promotion to the post of Superintendent Grade-I vide order dated 6.7.1995. However, from Annexure P-4, it appears that he was assigned seniority w.e.f. 1.6.1992, though the basis for such assignment of seniority w.e.f. 1.6.1992 has not been disclosed anywhere in the writ petition. It is a matter of regret even the State in its reply, did not mention any reason for grant of seniority to the petitioner w.e.f. 1.6.1992 though admittedly, the petitioner was granted accelerated promotion as Superintendent Grade-I vide order dated 6.7.1995. The petitioner is in fact, seeking the benefit of the 85th Constitutional Amendment whereby Article 16(4A) was introduced vide amendment of the year 2001. This amendment became subject matter of challenge before the Apex Court in case of M Nagaraj and others Vs. Union of India and others. Hon’ble Supreme Court while upholding the 85th Constitutional Amendment, interpreted the object purport, its import and true application in the concluding para of the judgment which reads as under:- “121. The impugned constitutional amendments by which Articles 16 (4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling facts or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney the concept of post based roster with inbuilt concept of replacement as held in R.K.Sabharwal. 122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 4 CWP No.16733 of 2006 (O&M) 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 provision 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 or representation of that class in public employment in addition to compliance with 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. 124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001. 125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate Bench in accordance with law laid down by us in the present case. 126. Reference is answered accordingly.” The entire claim of the petitioner is based upon the 85th Constitutional Amendment for ‘consequential seniority’ from the date of accelerated promotion against the roster vacancy. To substantiate his contention, reliance is being placed upon Article 16(4-A) introduced by the 85th Constitutional Amendment and the final judgment in M Nagaraj and others Vs. Union of India and others, as also an earlier circular dated 15.12.2005 (Annexure P-7). Insofar as Annexure P-7 is concerned, this circular was admittedly issued on the strength of interim directions issued by the Hon’ble Supreme Court during the pendency of M Nagaraj and others Vs. Union of India and others. The final judgment in M Nagaraj and others Vs. Union of India and others was pronounced on 19.10.2006. The interim direction issued does not survive thereafter. In view of the observations/directions issued in the case of M Nagaraj and others Vs. Union of India and others quoted hereinabove, 5 CWP No.16733 of 2006 (O&M) the State was directed to inform the Court whether any provision has been made by the State for granting ‘consequential seniority’ to the roster promottees of the reserved category candidates. After Court’s persuasion, the State has only placed on record two communications; first communication dated 7th March, 2011 addressed by Under Secretary, Revenue (Admn.) to the office of Advocate General, Punjab and 2nd communication signed by the Chief Secretary to Govt. of Punjab, addressed to Advocate General, Punjab, Chandigarh, it is desirable that this communication may be reproduced:- “D.O.No.9/2/2006-1Admn.1/5448 Chief Secretary to Govt. of Punjab Dated Chandigarh 30.3.2011 Sub: Civil Writ Petition No.16733 of 2006-Hari Singh Vs. Punjab State. Dear Sh.Khosla, Please refer to D.O. letter No.4222 dated 22/23.3.2011 from Smt. Charu Tuli, Senior Deputy Advocate General, Punjab on the subject noted above. 2. In this connection, it is informed that in view of interim orders of the Hon’ble Apex Court in IA No.2 in Writ Petition (Civil) No.61/2002-M.Nagraja and others versus Union of India and others and Writ Petition (Civil No.234/2002- All India Equality Form and others versus Union of India and others and other allied cases, the Punjab Government vide its letter No.3/34/99-3PP-1/.17646 dated 15.12.2005 has decided that the Scheduled Caste employees promoted to any class or classes of posts under he reservation policy, will be prospectively entitled to “consequential seniority’ on the post to which they are promoted subject to the final decision of the Hon’ble Apex Court in the said cases. The Supreme Court of India has finally decided the matter M.Nagraja and others versus Union of India, the Punjab Government has decided to continue the instructions issued in this regard vide its letter No.3/34/99-3PP-1/17646 dated 15.12.2005. I shall be grateful if you please inform the Punjab and Haryana High Court accordingly. With regards, Yours sincerely, (S.C. Agarwal) Shri Rupinder Singh Khosla, Advocate General, Punjab. Chandigarh.” 6 CWP No.16733 of 2006 (O&M) Vide order dated 22.3.2011, both the sides were allowed to place on record any additional evidence in support of their respective contentions. The State has placed on record the above mentioned communications whereas learned counsel for the petitioner has placed on record a Cabinet memo dated 30.9.2010 which indicates that a proposal was placed before the Cabinet to consider the question on grant of ‘consequential seniority’ on roster promotion in view of the 85th Constitutional Amendment and the directions of the Hon’bel Supreme Court in M Nagaraj and others Vs. Union of India and others. In view of the affidavit filed by the learned counsel for the petitioner, it is stated that State cabinet has already taken a decision. However, the only decision which has been placed on record by the State is the aforesaid communication dated 30.3.2011. I have carefully perused the aforesaid communication. This communication only indicates that the State has taken a decision to grant ‘consequential seniority’ to the roster promottees by continuing the Govt. Circular dated 15.12.2005. It may be mentioned here that the decision of the State govt. does not reflect a true application of mind as was the mandate of the judgment of the Apex Court in M Nagaraj and others Vs. Union of India and others. This Court in an earlier decision dated 9.9.2009 in CWP No.1960 of 2008 titled as Pritpal Singh Versus State of Punjab reported as 2010(1) SCT 774, examined the controversy in depth in the light of the 85th Constitutional Amendment. Interim order was passed by the Hon’ble Supreme Court dated 15.12.2005 pending final judgment of the Supreme Court in case M Nagaraj and others Vs. Union of India and others and on such examination, the following observation have been made:- “15. From the above, it is crystal clear that the 85th Constitutional Amendment and Section 16(4A) per so do not provide the benefit of the consequential seniority unless the concerned State on the basis of the relevant material/ data makes a provision for consequential seniority. After the delivery of the aforesaid judgment of even the 85th Constitutional Amendment the State of Punjab has not made any provision for consequential seniority in the State f Punjab. The Reservation Act of 2006 does not contain any such provision. In absence of there being any provision the principle of catch-up rule laid down by the Hon’ble Apex Court in case of Ajit Singh Janjua 7 CWP No.16733 of 2006 (O&M) shall apply. A similar issue came up in consideration before this Court in CWP No.17880 of 2008, wherein following observations were made:- “From reading of the aforesaid Act, it appears that there is no provision for consequential seniority or roster promotion. No other law or even government instruction has been brought to the notice of this Court that the State Government has made any provision for consequential seniority on the basis of roster promotion after 85th Constitution Amendment. In the absence of any such provision or till the State Government makes any future provision on the basis of the observations of the Hon’ble Supreme Court in the case of M.Nagraj & Others (supra), the ratio of the judgments of the Hon’ble Supreme Court in case of Ajit Singh Janju-II (supra) as also in the case of R.K.Sabhawal (supra) shall apply and will hold the field. As noticed above, in the Constitution Bench, judgment passed in the case of Ajit Singh II (supra), it has been held that the Roster appointment/promotion does not determine seniority. Even if a Reserved category candidate is appointed at Level-I in the initial recruitment and he is placed on Roster Point, it will not determine the seniority in the cadre of service and the seniority will remain on the basis of the inter-se merit of the appointees in the selection. Even on promotion from Level 1 to Level II, the reserved category candidates may be promoted prior to General Category candidates senior to him, on account of accelerated roster promotion. On promotion of the General Category Candidates at any late date, he will catch up his seniority and will rank senior to the reserved category candidates, notwithstanding, length of service of reserved category promote on the promotional post. 16. In view of the dictum of the aforesaid judgments, the position which prevails in the State of Punjab is that (1) roster point appointment/promotion will not determine the seniority; and that (2) seniority will remain on the basis of merit in the case of direct recruitment and on the basis of length of service on substantive basis in the feeding channel, on the promotional post.” 17. In view of the legal position referred to herein above the impugned seniority list (Annexure P-6) is unsustainable in law and is liable to be quashed. The Govt. instructions (Annexure P-3) as also the Govt. instructions (Annexure P-9) also do not survive in view of the observations made herein above. The inter se seniority amongst the general category candidate and the reserved category candidates continue to be determined in view of the Ajit Singh Janjua’s judgment. The petitioner was senior to the private respondents as Sub Divisional Engineer and even on promotional post as Executive and Superintending Engineer, will continue to be senior to them on his promotion to the higher posts on account of the application of the catch up rule. The same position has to continue for further promotion 8 CWP No.16733 of 2006 (O&M) as Chief Engineer. It was argued during the course of the arguments that as many as 15 posts of Chief Engineers are available comprising of cadre and ex-cadre posts. As against 15 pots 5 posts are occupied by the Scheduled Castes candidates. The roster point under the 1974 instruction with 14% reservation in promotion are 1.7 and 15 that means only 3 scheduled category candidates can be promoted against reserved vacancies. Rest of the vacancies are to be occupied by the general category candidates subject to their eligibility and suitability in accordance with law. Presently, most of the promottees are Chief Engineers are holding the current duty charge.” This judgment has been affirmed by a Division Bench of this Court in LPA No.1080 of 2009. I am informed by Mr.Rajiv Atma Ram Senior counsel for respondent No.10 that a Special Leave Petition preferred against the Division Bench judgment of this Court already stands dismissed, I have no reason to disbelieve this statement. In the above circumstances what emerges is that the State has the absolute power and authority to make provisions for grant of ‘consequential seniority’ on roster promotion in implementation of the 85th Constitutional Amendment under Article 16(4A). However, with a view to enforce the Constitutional mandate, the State is under constitutional obligation to collect the data/ material in respect of the entire gamut of reservation which inter alia, includes the population of the State, the infirmity being suffered by the class of reserved categories, their representation in services and the desire of the State to grant them such benefit of seniority as a social reform in the State of Punjab. No such material has been placed on record except a letter of the Chief Secretary which does not indicate any material which might have been collected and taken into consideration by the State. A decision simplicitor to continue seniority on roster promotion on the strength of interim orders passed by the Supreme Court is in fact, not in inconsonance with the mandate of Article 16 (4A), rather it is derogation of the spirit of the 85th Constitutional Amendment as also judgment of Hon’ble Supreme Court in case of M Nagraja (supra). While rejecting the contention of the State as well as of the petitioner, the Court is left with no option but to hold that as on date, the 9 CWP No.16733 of 2006 (O&M) State has not enacted or made any provision for grant of ‘consequential seniority’ to roster promottees as mandated by Article 16(4A). This writ petition is accordingly, dismissed. However, it will not prevent the State from making any provision in accordance with the mandate of the judgment in M Nagaraj and others Vs. Union of India and others. ( Permod Kohli ) Judge 01.04.2011 sd Whether this judgment is to be referred to the Reporter or not? Yes 10