1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ::J U D G M E N T:: 1. D.B. CIVIL SPECIAL APPEAL (WRIT) No.618/2009 (State of Rajasthan & Anr.Vs.Bajrang Lal Sharma & Ors.) 2. D.B. CIVIL SPECIAL APPEAL (WRIT)No.3/2010 (Suraj Bhan Meena Vs.Bajrang Lal Sharma & Ors.) 3. D.B. CIVIL SPECIAL APPEAL (WRIT) No.611/2009 (State of Rajasthan Vs. Gyan Prakash Shukla) 4. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.610/2009 (State of Rajasthan Vs. M.M. Joshi) 5. D.B. CIVIL WRIT PETITION No.8104/2008 (Bajrang Lal Sharma & Ors.Vs.State of Raj.& Ors.) 6. D.B. CIVIL WRIT PETITION No.6241/2008 (Gyan Prakash Shukla & Anr.Vs.State of Raj.& Ors.) 7. D.B. CIVIL WRIT PETITION NO.7775/2009 (M.M. Joshi Vs. State of Rajasthan & Ors.) Date of Judgment :: 05th February, 2010. P R E S E N T HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN HON'BLE MR.JUSTICE RAGHUVENDRA S. RATHORE Mr.Sanjeev Prakash Sharma with Mr.Shobhit Tiwari for Bajrang Lal Sharma & Others. Mr. Ashok Gaur for Suraj Bhan Meena. Mr. R.C. Joshi for M.M. Joshi. Mr. S.C. Gupta for Gyan Prakash Shukla & Anr. Mr. H.P. Verma for Sriram Choradia. Mr. G.S. Bapna, Advocate General, Mr. S.N. Kumawat, Additional Advocate General for the State of Rajasthan. Mr. Sushil Sharma for the Union of India. Mr. Sanjay Pareek for the UPSC. *** By the Court : (Per N.K. Jain,J.) Reportable 2 1. D.B. Civil Special Appeal (Writ) No.618/2008, State of Rajasthan & Anr. Vs. Bajrang Lal Sharma & Ors. is directed against the order dated 09.07.2009 passed by the learned Single Judge on two applications under Article 226(3) of the Constitution of India i.e.S.B. Civil Misc. Applications No.8046/2009 and 6550/2009 in S.B. Civil Writ Petition No.8104/2008, whereby both the applications were dismissed and the ad-interim ex-parte stay order dated 22.8.2008 was confirmed till the disposal of the writ petition. 2. On 27.7.2009, the said special appeal was listed before the Division Bench presided by the then Hon'ble Acting Chief Justice, and it was directed that appeal be listed on 29.7.2009 alongwith the appeals No.05313/2009, 610/2009, 611/2009 & 612/2009 and writ petition 8157/2009. The above cases were listed on 20.10.2009 and the Division Bench passed an order that, “as suggested and agreed by both the parties, the registry is directed to list the writ petitions as well as the special appeals” (14 in number), as mentioned in the order. Again on 26.10.2009, the Division Bench passed an order to list the cases alongwith the connected matters, as mentioned in the order. Thereafter, the matters were listed on 4.12.2009, and on that date, one of the member of Division Bench made an exception, therefore, 3 the matters were put up before Hon'ble the Chief Justice on 17.12.2009, who constituted this Bench for hearing the above matters as well as other connected matters, as mentioned in the note-sheet of the registry. In these circumstances, these matters have come up before us for hearing. 3. We have heard the learned counsel for the parties and examined the record. 4. Since common questions of fact and law are involved in these matters, therefore, they are being disposed of by this common order. 5. Since the writ petitions as well as special appeals have been tagged together and writ petition No.8104/2008 is the main case, therefore, we are referring the facts of the said writ petition. 6. Petitioners No.1 to 10, who are members of the Rajasthan Administrative Service, have preferred this writ petition under Article 226 of the Constitution of India challenging the Notification dated 25.4.2008 (Annexure-14), whereby the Government of Rajasthan, while exercising powers conferred by the proviso to Article 309 of the Constitution of India, amended the Rajasthan Various Service Rules, (hereinafter referred to as 'the Various Service Rules'), as mentioned in the Schedule appended therewith with effect from 28.12.2002, whereby the following existing proviso to the 4 rule, as mentioned in Column No.3 against each of the Service Rules (110 in number), listed in Column No.2 of the said Schedule, has been deleted:- “Provided that a candidate who has got the benefit of proviso inserted vide Notification No.F.7 (1) DOP/A-II/96 dated 01.04.1997 on promotion to an immediate higher post shall not be reverted and his seniority shall remain uneffected. This proviso is subject to final decision of the Hon'ble Supreme Court of India in Writ Petition (Civil) No.234/2002 All India Equality Forum V/s Union of India & Others.” 7. The petitioners have also prayed; to issue appropriate writ directing the respondents to strictly adhere to the “catch- up” rule and revise the seniority of all the petitioners in comparison to the candidates belonging to Scheduled Castes and Scheduled Tribes (for short' the SCs and the STs) after giving the benefit of regaining of the seniority by the general/OBC category candidates as envisaged by the Notification dated 1.4.1997 (Annexure-3) and provisional seniority list dated 26.6.2000 of Selection Scale of the RAS (Annexure-4); to restrain the respondents from providing the consequential seniority to the candidates belonging to the SCs and the STs as the Rajasthan Administrative Service Rules, 1954 (hereinafter referred to as 'the RAS Rules) were not framed in 5 pursuance of Article 16(4-A) of the Constitution of India. In the alternative, if Rule 33 of the RAS Rules talks about giving benefit of consequential seniority then that rule may be declared unconstitutional to the extent it provides consequential seniority to the employees of the SC and the ST category. 8. The petitioners have given the facts in respect of petitioner No.1 Bajrang Lal Sharma, respondent No.3 Suraj Bhan Meena and respondent No.4 Sriram Choradia. 9. It is pleaded that petitioner No.1, respondent No.3 and respondent No.4 were inducted in the Rajasthan Administrative Service in December 1982 through selection by the Rajasthan Public Service Commission. The respondent-State issued a provisional seniority list of Rajasthan Administrative Service (R.A.S.) Selection Scale vide notice dated 26.6.2000 as on 1.4.1997, wherein petitioner No.1 Bajrang Lal was placed at Serial No.129 whereas the names of respondents No.3 and 4 namely, Suraj Bhan Meena (ST) and Sriram Choradia (SC) were placed at Serial No.142 and 147 respectively. This seniority list was issued in pursuance of order of the Hon'ble Apex Court dated 16.9.1999 in the case of Ajit Singh -II Vs. State of Punjab, (1997) 7 SCC 209 and another order of the Hon'ble Apex Court dated 16.9.1999 in the case of Ram Prasad Vs. 6 D.K. Vijay, (1999) 7 SCC 251 and other judgments of the Rajasthan High Court/Appellate Tribunal and circulars of Department of Personnel (DOP). Again a provisional seniority list was issued on 27.11.2003 and 12.5.2008. Now, the Government of Rajasthan has published the final seniority lists of Super Time Scale and Selection Scale of the RAS on 24.6.2008 as on 1.4.2007 (Annexure-1) and provisional seniority list dated 02.07.2008 as on 1.4.2008 (Annexure-2), wherein names of petitioner No.1 and respondents No.3 and 4 have been mentioned as under:- Petitioner No.1 (Bajrang Lal Sharma) : Seniority Lists dated : 24.6.2008 at S.No.170 as on 01.04.1997(Selection Scale) 02.7.2008 at S.No.107 as on 01.04.2008(Selection Scale) He was given the benefit of Selection Scale against the vacancy of the year 1994-95. Respondent No.3 (Suraj Bhan Meena) : Seniority Lists dated: 24.6.2008 at S.No.72 as on 1.4.1997(Selection Scale) 02.7.2008 at S.No.34 as on 1.4.2008(Super Time Scale) He was given the benefit of Selection Scale against the vacancy of the year 1991-92 and Super Time Scale in the year 2005-06. Respondent No.4 (Sriram Choradia) : Seniority List dated : 7 24.6.2008 at S.No.101 as on 1.4.1997(Selection Scale) 2.7.2008 at S.No.53 as on 1.4.2008 (Selection Scale) He was given the benefit of Selection Scale against the vacancy of the year 1992-93. 10. Shri Sanjeev Prakash Sharma, the learned counsel for the petitioners argued that the impugned Notification dated 25.4.2008 is illegal on two counts. First, is that the proviso dated 28.12.2002 which was added in the Various Service Rules, was subject to the final decision of the Hon'ble Supreme Court in Writ Petition (Civil) No.234/2002 (All India Equality Forum V/s Union of India & Others) but the said writ petition (Civil) No.234/2002 has not been decided finally so far by the Hon'ble Supreme Court vide order dated 19.10.2006. Therefore, during pendency of the said writ petition before the Hon'ble Apex Court, it was not proper for the respondents to delete the proviso in the Various Service Rules including the RAS Rules. Secondly, the deletion of the proviso in the Various Service Rules vide the Notification dated 25.4.2008, amounts to giving consequential seniority to the candidates belonging to the SCs and the STs, which could not have been given without collecting the required quantifiable data to reach to a conclusion that reservation is required in promotion and to show that the State was having 8 any compelling reason, namely, backwardness, inadequacy of representation and that it would not cause any overall administrative efficiency before providing reservation in promotion with consequential seniority, as held by the Hon'ble Supreme Court in the case of M.Nagaraj & Ors. Vs. Union of India & Ors., reported in (2006) 8 SCC 212. Since the State Government has not complied with the direction of the Hon'ble Supreme Court before issuing the impugned Notification dated 25.4.2008, therefore, the said notification is liable to be quashed being violative of the directions of the Hon'ble Apex Court in M.Nagaraj's case (supra). 11. Mr. Sharma further argued that the Hon'ble Supreme Court in the case of Indra Sawhney & Ors. Vs. Union of India & Ors, reported in 1992 Supp.(3) SCC 217, has held that Article 16(4) of the Constitution does not permit reservations in the matter of promotion. Thereafter, the Constitution (Seventy-Seventh Amendment) Act, 1995 came into force on 17.6.1995. Later on, the Hon'ble Supreme Court in the cases of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., reported in (1995) 6 SCC 684, Ajit Singh Januja & Ors. (Ajit Singh-I) Vs. State of Punjab & Ors., reported in (1996) 2 SCC 715 and Ajit Singh (II) & Ors. Vs. State of Punjab & ors., reported in (1999) 7 SCC 209, introduced the 9 “catch-up” rule and held that if the senior general candidate is promoted then he will regain his seniority on promotion post above junior reserved promotees. It was also held that consequential seniority on promotion post is not covered by Article 16(4A). The State Government also added the similar 'proviso' vide Notification dated 1.4.1997 at the next serial number in the Various Service Rules including the Rajasthan Administrative Service Rules. 12. The Parliament, in its wisdom, further amended the Constitution on 4.1.2002 by way of 'The Constitution (Eighty-Fifth Amendment) Act, 2001', to give the benefit of consequential seniority to reserved category candidates with effect from 17.6.1995. The constitutional validity of both the aforesaid Constitution Amendment Acts was challenged before the Hon'ble Supreme Court in number of writ petitions including writ petitions filed by M.Nagaraj and All India Equality Forum and during pendency of the writ petition before the Hon'ble Apex Court, an interim order was passed protecting the promotion and seniority of general/OBC category candidates during pendency of the writ petition. The Government of Rajasthan while deleting the proviso added vide the Notification dated 1.4.1997, inserted the new proviso vide the Notification dated 10 28.12.2002. 13. The Hon'ble Apex Court in M.Nagaraj's case on 19.10.2006, while upholding the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995 and the Constitution (Eighty-Fifth Amendment) Act, 2001, made it clear that it will not be necessary for the State Government to frame rule in respect of reservation in promotion with consequential seniority, but in case the State Government is willing to frame the rule in this regard then it has to satisfy, by quantifiable data, that there is backwardness, inadequacy of representation in public employment and overall administrative efficiency, and unless that exercise is done by the State Government, the rule relating to reservation in promotion with consequential seniority, cannot be introduced. 14. Mr. Sharma further contended that if the State Government was willing to frame rule in this regard then the same could have been done after doing necessary exercise, by collecting quantifiable data and forming an opinion that there is backwardness, inadequacy of representation in public employment and overall administrative efficiency, as observed by the Hon'ble Supreme Court M.Nagaraj's case (supra). But what the State has done in the present case is that they have deleted the 11 'proviso' which was inserted on 1.4.1997 on the basis of “catch-up” rule vide Notification dated 28.12.2002 and further deleted the new 'proviso' added on 28.12.2002 vide Notification dated 25.4.2008 in Various Service Rules of the State. The net result of it is that the State Government has provided consequential seniority to the SCs and the STs, without undergoing any exercise in respect of three conditions as laid down in the judgment of the Hon'ble Apex Court in M.Nagaraj's case(supra). 15. In these circumstances, the impugned Notification dated 25.4.2008 is liable to be declared as ultra vires to the provisions of the Constitution of India as well as contrary to the judgment of the Hon'ble Apex Court in M.Nagaraj's case(supra). 16. The next submission of Mr. Sharma is with regard to the wrongful seniority list published inspite of their being a judgment passed by Division Bench of this Court in the case of B.K. Sharma & Anr. Vs. State of Rajasthan & Ors., reported in WLC (Raj.) 1998 (2) 583 and the judgment of the Hon'ble Apex Court in the case of Ram Prasad & Ors. Vs. D.K. Vijay & Ors., reported in (1999) 7 SCC 251. It is submitted that combined seniority list of the RAS cadre was published by the State Government on 22.4.1995 which carried names of the petitioners alongwith other RAS 12 officers; the same was quashed by the High Court, and it was held that Rule 33 of the RAS Rules nowhere provides for consequential seniority to reserved category promotees. Thus after the judgments in B.K. Sharma's and Ram Prasad's cases (supra), the consequential seniority could not have been assigned to reserved promotees above the senior general/OBC persons. After the judgment in Ram Prasad's case (supra) by the Hon'ble Apex Court, a vested right was created of having seniority over all reserved category persons by general category persons as per interpretation of Rule 33 of the RAS Rules. Rule 33 has not been amended thereafter except to withdraw the notifications dated 1.4.1997 and 28.12.2002. He, therefore, contended that vested or accrued rights in the matters of promotion, seniority, substantive appointments etc. of the employees cannot be taken back retrospectively. Such an act of the State Government is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India. 17. Mr. R.C. Joshi, the learned counsel appearing on behalf of the petitioners contended that he has challenged both the notifications i.e.28.12.2002 and 25.4.2008 in writ petitions No.7774/2009 and 7775/2009. He 13 contended that so far as argument with regard to notification dated 25.4.2008 is concerned, Mr. Sanjeev Prakash Sharma has already argued the case at length, and he adopts his arguments. So far as notification dated 28.12.2002 is concerned, he contended that this notification is also illegal and violative of Articles 14 and 16 of the Constitution. By way of the Constitutional (Seventy-Seventh Amendment) Act, 1995, an enabling provision with regard to accelerated promotion was made by inserting the words “reservation in promotion” in clause (4A) in Article 16 of the Constitution which was considered and it was clarified by the Hon'ble Apex Court in the cases of Union of India Vs. Virpal Singh Chauhan's case (supra) as well as Ajit Singh-I (supra) that the reserved promotees be entitled for accelerated promotion, but they will not be entitled to get accelerated seniority. The same view was further taken by the Constitution Bench of the Hon'ble Apex Court on 16.9.1999 while deciding Ajit Singh-II case. In view of the judgment delivered in Virpal Singh Chauhan's case (supra) and further in the case of Ajit Singh -I, the State Government vide Notification dated 1.4.1997 inserted the new proviso in Various Service Rules, as mentioned in the said notification, whereby benefit of regaining seniority was given to 14 General/OBC candidates above such earlier promoted candidates of the SC/ST in the immediate higher post/grade. Subsequently, “The Constitution (Eighty-Fifth Amendment) Act, 2001 was passed on 4.1.2002 with effect from 16.9.1995 with regard to consequential seniority to reserved promotees. The number of writ petitions were filed before the Hon'ble Apex Court challenging the constitutional validity of “The Constitution (Seventy-Seventh Amendment) Act,1995” as well as “The Constitution (Eighty-Fifth Amendment) Act,2001”. The interim order was passed by the Hon'ble Apex Court in M.Nagaraj's case(supra) as well as in the case of All India Equality Forum Vs. Union of India that the general/OBC candidates who have already been promoted, they will not be reverted and their seniority will not be disturbed. Vide the Constitution (Eighty-Fifth Amendment) Act, the words “with consequential seniority” was inserted in clause (4A) of Article 16 of the Constitution after the words “reservation in promotion”, but it was only an enabling provision and the said amendment was under challenge before the Hon'ble Apex Court. The matter was subjudice before the Hon'ble Apex Court and during that period itself,without waiting for the decision of the Apex Court in M.Nagaraj's case and in the case of All India Equality Forum Vs.Union 15 of India, the State Government wrongly withdrew earlier notification dated 1.4.1997 vide Notification dated 28.12.2002. Now the Hon'ble Apex Court in M.Nagaraj's case vide judgment dated 19.10.2006 while upholding the constitutional validity of the Constitution (Eighty-Fifth Amendment) Act, has made it mandatory on the part of the State Government to go for three exercises, as mentioned in the judgment in case any rule is to be framed by the State for reservation in promotion with consequential seniority. Admittedly, no exercise was done by the State Government before amending the Various Service Rules including the RAS Rules vide Notification dated 28.12.2002, and therefore, it is liable to be quashed. 18. Apart from the above, he further contended that proviso introduced vide notification dated 1.4.1997 had already been upheld and the rights of number of persons belonging to the general/OBC category regarding their regaining seniority above their junior reserved promotees had already been upheld by the Division Bench of this Court in B.K. Sharma's case (supra) and by the Hon'ble Apex Court in the case of Ram Prasad Vs. D.K. Vijay (supra). Therefore, the Notification dated 28.12.2002 whereby earlier proviso introduced vide Notification dated 1.4.1997 has been 16 withdrawn, tantamount to negativing the judgment of the Division Bench of this Court in B.K. Sharma's case (supra) and the judgment of the Hon'ble Apex Court in the case of Ram Prasad Vs. D.K. Vijay (Supra). He, therefore, contended that the Notification dated 28.12.2002 is also liable to be quashed by this Court. 19. Learned counsel for the petitioners, in support of their submissions, referred to the judgment of the Hon'ble Apex Court in the cases of M.Nagaraj & Ors. Vs. Union of India, (2006) 8 SCC 212; Indra Sawhney & Ors. Vs. Union of India & Ors., 1992 Supp.(3) SCC 217; Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., (1995) 6 SCC 684; Ajit Singh Juneja (Ajit Singh-I) & Ors. Vs. State of Punjab & Ors., (1996) 2 SCC 715; Ajit Singh (II) & Ors. Vs. State of Punjab & Ors.,(1997) 7 SCC 209; Ram Prasad & Ors. Vs. D.K. Vijay & Ors, (1999) 7 SCC 251; Anil Chandra & Ors. Vs. Radha Krishna Gaur & Ors., (2009) 9 SCC 454; R.K. Sabharwal & Ors. VS. State of Punjab & Ors., (1995) 2 SCC 745; State of Bihar & Anr. Vs. Bal Mukund Sah & Ors, (2000) 4 SCC 640; Andhra Pradesh Public Service Commission Vs. Baloji Badhavath & Ors., (2009) 5 SCC 1; M.G. Badappanavar & Anr. Vs. State of Karnataka & Ors., (2001) 2 SCC 666; D.P. Sharma & Ors. Vs. Union of India & Anr, 1989 Supp.(1) SCC 244; 17 Chairman, Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors., (1997) 6 SCC 623; S.S. Bola & Ors. Vs. B.D. Sardana & Ors., (1997) 8 SCC 522; Rajesh Kumar Gupta & Ors. Vs. State of U.P. & Ors., AIR 2005 SC 2540; Arun Tewari & Ors. Vs. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Tridip Kumar Dingal & Ors. Vs. State of West Bengal & Ors., (2009) 1 SCC 768; the judgment of the Division Bench of this Court in the case of B.K. Sharma & Anr. Vs. State of Rajasthan & Ors., WLC (Raj.) 1998 (2) 583 and the judgment of the Himachal Pradesh High Court in the case of Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh Vs. State of Himachal Pradesh & Ors.(CWP-T No.2628 of 2008 decided on 18.9.2009). 20. Shri G.S. Bapna, the learned Advocate General contended that the State Government is empowered under proviso to Article 309 of the Constitution to frame, amend, add or delete any rule subject to constitutional limitations, which have not been breached in the present case. Although the Constitution (Seventy- Seventh Amendment) Act, 1995 came into force on 17.6.1995, but in the cases of Virpal Singh Chouhan (supra) and Ajit Singh-I (supra), the Hon'ble Apex Court held that if the senior and general category candidate is promoted then he will regain his seniority on promotion post above junior reserved promotees. It was also 18 held that consequential seniority on promotion post is not covered by Article 16(4A). The State Government, therefore, added similar rule in Various Service Rules including the RAS Rules vide Notification dated 1.4.1997. However, the Constitution (Eighty-Fifth Amendment) Act, 2001 came on 4.1.2002 with effect from 17.6.1995. The number of writ petitions were preferred before the Hon'ble Supreme Court challenging the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995 and the Constitution (Eighty-Fifth Amendment) Act, 2001, wherein interim order was passed that the general/OBC persons who have already got the benefit of promotion will not be reverted and their seniority shall remain unaffected. The respondents, therefore, deleted the proviso from the Various Service Rules, which were added on 1.4.1997 and added new proviso under Various Service Rules vide Notification dated 28.12.2002, which was in consonance with the interim order passed by the Hon'ble Apex Court. 21. Now, the Hon'ble Apex Court upheld the constitutional validity of both the Amendments inserted in the Constitution vide order dated 19.10.2006 in M.Nagaraj's case (supra). Therefore, while exercising the powers under proviso to Article 309 of the Constitution, the State Government vide its Notification dated 19 25.4.2008, deleted the proviso added vide Notification dated 28.12.2002 in Various Service Rules. Since the State Government is empowered to add or delete any rule, there is no illegality in issuing the Notification dated 25.4.2008. It is within competence of the State Government to add or delete any rule and the State Government has exercised its powers. The legislative competence of the State cannot be allowed to be challenged. 22. He further contended that although a seniority list dated 26.6.2000 was issued on the basis of judgment of the Hon'ble Apex Court dated 16.9.1999 in the case of Ajit Singh Juneja Vs. State of Punjab (supra) and order dated 16.9.1999 in the case of Ram Prasad Vs. D.K. Vijay (supra), but no person belonging to RAS was promoted on that basis till issuance of Notification dated 28.12.2002. Therefore, no right vested in any of the petitioners which can be said to have been taken away vide Notification dated 25.4.2008. He contended that seniority is not a fundamental right and if position of petitioner is changed in seniority list on the basis of impugned notification then the same cannot be said to be taking away the vested or accrued right. The petitioners cannot compel the State Government to keep any rule on the statute. The respondents have not done anything vide Notification dated 25.4.2008 20 except deleting the proviso added vide Notification