Case: PRAVAKAR MALLICK &amp; ANR Vs. THE STATE OF ORISSA &amp; ORS

2. In view of the instructions issued in Office Memorandum dated 21.01.2002, by the Government of India, Ministry of Personnel, Public Grievances and Pensions, the Government of Orissa has passed Resolution dated 20.03.2002. By the aforesaid Resolution, while withdrawing the earlier instructions, for fixation of seniority of Scheduled Caste/Scheduled Tribe (SC/ST) government servants on promotion by virtue of rule of reservation, the State Government has issued instructions to the effect that the Catch Up Principle adopted earlier by the State Government in General Administration Department Resolution No.39374 dated 02.11.2000 shall not be followed any longer. It is further ordered that the government servants belonging to SCs/STs shall retain their seniority in the case of promotion by virtue of rule of reservation. In the said G.O. it is further clarified that the government servants belonging to general/OBC category promoted later will be placed junior to the SC/ST government servants promoted earlier, by virtue of rule of reservation3. The High Court has allowed the abovementioned writ petition and the connected writ petitions and quashed the aforesaid G.O. and Gradation List dated 03.03.2008 mainly on the ground that, unless and until the State Government makes a law for conferring the benefit of promotion with consequential seniority to SC/ST candidates, they are not entitled to claim seniority in the promoted categories over the general category candidates. The said writ petition is allowed, following the judgment of this Court in the case of M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212  4. The respondent-writ petitioners were appointed to Orissa Administrative Service-II (OAS-II) posts pursuant to selections made by the Orissa Public Service Commission. They were recruited during the years 1983, 1984 and 1987. They were assigned different ranks in the merit list for their respective batches prepared by the Public Service Commission. In the above said merit list, persons belonging to SC/ST category, who were appointed against the reserved vacancies were placed below the writ petitioners. Thus, the writ petitioners were senior to appointees belonging to SC/ST category. The respondent-writ petitioners were subsequently promoted and appointed in the next higher category, i.e., Orissa Administrative Service-I (OAS-I)(JB) vide Government Notification dated 26.08.2000. The appellants and some others belonging to SC and ST category, recruited along with the respondent-writ petitioners in subsequent batches, were given promotion to the rank of OAS-I(JB) against reserved vacancies during the year 1995 and 2000 as provided under Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder. The seniority of reserved categories and unreserved categories, including that of the respondent-writ petitioners was not finalised by the Public Service Commission since the principles determining seniority, inter se, was the subject matter of several litigations. The original seniority position in the cadre of OAS-II prepared by the Public Service Commission was retained without any changes in view of the judgment of this Court in the case of Union of India & Ors. v. Virpal Singh Chauhan & Ors.AIR 1996 SC 448   = (1995) 6 SCC. Irrespective of getting promotion in subsequent years, the inter se seniority of the respondent-writ petitioners and the SC/ST roster point promotees in the rank of OAS-I was maintained in the seniority list prepared on 16.05.2001. Article 16(4A) of the Constitution of India was amended by 85 th amendment, enabling the State to grant benefit of promotion with consequential seniority to SC/ST reserved category officers. By Constitution (85 th ) Amendment Act of 2001, Article 16(4A) was amended and for the words, in matters of promotion to any class, the words, in matters of promotion with consequential seniority to any class were substituted. In the judgment of this Court in the case of M. Nagaraj (2006) 8 SCC 212     a Constitution Bench of this Court, while upholding the Constitution (85 th ) Amendment Act of 2001 held that, the State is not bound to make reservation for SCs/STs in matter of promotions. However it was held that, 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 of the Constitution of India. It is further made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling of 50% or obliterate the creamy layer or extend the reservation indefinitely. In the case of Virpal Singh ChauhanAIR 1996 SC 448   = (1995) 6 SCCthis Court has held that reserved promoted candidates are not entitled to seniority in the promoted post and if the general category candidate reaches the said post, he is entitled to seniority over the promotees to reserved vacancies. Subsequently, a three-Judge Bench judgment of this Court in the case of Jagdish Lal & Ors. v. State of Haryana & Ors.(1997) 6 SCC 538   has held that reserved promoted category candidates are entitled to seniority, in the promoted posts and not as per the feeder cadre. Subsequently, a Constitution Bench of this Court in the case of Ajit Singh & Ors. (II) v. State of Punjab & Ors. (1999) 7 SCC 209  has overruled the judgment in the case of Jagdish Lal(1997) 6 SCC 538  and upheld the principle, viz., Catch Up Rule, as mentioned in the judgment in the case of Virpal Singh Chauhan5. In view of the Catch Up Rule evolved by this Court in the case of Virpal Singh ChauhanAIR 1996 SC 448   = (1995) 6 SCC684 , which is approved by this Court, subsequently in the case of Ajit Singh (II) (1999) 7 SCC 209  , the seniority list dated 16.05.2001, of officers of OAS-I(JB Cadre) has been prepared. In such list, the roster point promotees belonging to SC/ST category, who were given promotion to OAS-I(JB) against reserved vacancies earlier, irrespective of their original seniority in the feeder cadre, were shown below the respondent-writ petitioners. It is not in dispute that after 85 th Constitution Amendment amending Article 16(4A) of the Constitution, the State of Orissa has neither issued any executive order nor enacted any legislation for conferring benefit of seniority for officers belonging to SC/ST category who are promoted against reserved vacancies. Referring to instructions issued by the Government of India, the State of Orissa has issued Resolution dated 20.03.2002 issuing instructions to all the departments of the Government to extend the benefit of seniority for scheduled caste and scheduled tribe government servants on promotion by virtue of rule of reservation. Pursuant to such Government Resolution dated 20.03.2002, Gradation List dated 03.03.2008 was prepared by altering the seniority of the respondent-writ petitioners, contrary to the list dated 16.05.20016. At first instance, the respondent-writ petitioners approached the Orissa Administrative Tribunal by filing Original Application, but the said application was dismissed on the ground that it was premature. Thereafter, respondent-writ petitioners have approached the High Court questioning the orders of the Tribunal and sought further reliefs for quashment of Government Resolution and the consequential Gradation List. The writ petition is allowed by a common order in a batch of cases by the High Court mainly on the ground that, the Government Resolution dated 20.03.2002 can neither be termed as a law in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down by this Court. The High Court further held that there is no legal basis for such Resolution and accordingly quashed the Government Resolution and consequential Gradation List.

Reasoning:
11. It is clear from the material placed on record that the seniority for general category officers was restored in the Gradation List of OAS-I(JB) which was prepared on 16.05.2001, by extending the benefit of Catch Up Rule, evolved by this Court in the case of Virpal Singh ChauhanAIR 1996 SC 448   = (1995) 6 SCC684 which is subsequently accepted in the case of Ajit Singh (II) (1999) 7 SCC 209  12. In view of the judgments as referred above, in this case, it is to be noticed that after Constitution (Eighty-Fifth) Amendment Act, 2001, amending Article 16(4A) of the Constitution which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to scheduled castes and scheduled tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benefit in the Class-I Services. The advocate for State specifically admitted that the Govt. has not issued any executive order or has passed any legislation. The Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts. As is evident from the order of the High Court, the State in its counter affidavit has taken the stand that there is no necessity for bringing out any law to extend the benefit of seniority for those who are promoted in reserved vacancies. Government Resolution dated 20.03.2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down in the various decisions of this Court. The Resolution has no legal basis. The Seniority/Gradation List dated 16.05.2001 of OAS-I (JB) was prepared correctly by following the ratio laid down by this Court and in absence of any law or decision by way of executive order based on acceptable material for conferring additional benefit of consequential seniority, the Gradation List dated 03.03.2008 was prepared by altering the positions which were maintained in the List dated 16.05.2001. While it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4A) but the Resolution dated 20.03.2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, as held by this Court.13. Further, the submission of the learned counsel – Sri A. Subba Rao – that the benefit of reservation in promotion is given in the services of OAS-I for scheduled caste and scheduled tribe officers as per Section 10 of Orissa Act 38 of 1975, but same cannot be countenanced for the reason that such Act was enacted by the State of Orissa in the year 1975 but no provision is brought to our notice in such Act for giving the benefit of seniority for the promotees who were promoted in reserved vacancies. In absence of any provision in the said Act for conferring the benefit of seniority, and in absence of any amendment after Constitution (Eighty-Fifth) Amendment Act of 2001, by which Article 16(4A) was amended, benefit of seniority cannot be extended relying on Section 10 of the Act. In view of the stand of the respondent-State in the counter affidavit filed in the writ petition and further in view of the submission made by the learned counsel for the State of Orissa that no benefit of seniority was extended by any State Act or by any executive order by examining adequate representation in terms of Article 16(4A) of the Constitution, we do not find any merit in this appeal so as to interfere with the well reasoned judgment of the High Court. The judgment of this Court rendered in the case of Jarnail Singh 7 relied on by the learned counsel for the appellants also would not take any further the case of the appellants. In the said judgment also for giving the benefit of promotion with consequential seniority, the need to examine adequate representation in posts in terms of the judgment of this Court in the case of M. Nagaraj (2006) 8 SCC 212     is maintained. As such, the said judgment would not render any assistance for the case of appellants.