Punjab-Haryana High Court

Lachhmi Narain Gupta And Others vs Jarnail Singh And Others on 15 July, 2011

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

CWP No. 13218 of 2009 (O&M)

Date of Decision: July 15, 2011

Lachhmi Narain Gupta and others

...Petitioners

Versus

Jarnail Singh and others

...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR

HON'BLE MR. JUSTICE A.N. JINDAL

Present:

For the petitioners: Mr. Rajiv Atma Ram, Sr. Advocate, with
Mr. Vikas Kuthiala, Advocate.

For the respondent(s): Mr. M.K. Tiwari, Advocate,
for respondent No. 1.

Mr. Deepak Sibal, Advocate,
for respondent Nos. 2 and 3.

Ms. Renu Bala Sharma,
Sr. Panel Counsel, UOI,
for respondent No. 5.

Mr. A.S. Grewal, Sr. Panel Counsel,
Income Tax Department,
for respondent No. 6.

1. To be referred to the Reporters or not? YES

2. Whether the judgment should be reported in YES
the Digest?

M.M. KUMAR, J.

1. The instant petition under
Article 226
of the Constitution

has been filed by the Income Tax Inspectors belonging to the

General category, against the orders dated 11.12.2008 (P-6) and

7.5.2009 (P-9) passed by the Chandigarh Bench of the Central

Administrative Tribunal (for brevity, 'the Tribunal'), in OA No. 519-

CWP No. 13218 of 2009 (O&M) 2

PB-2007 and RA No. 24 of 2009 respectively. The Tribunal has

issued directions for consideration of the cases of the Income Tax

Inspectors belonging to Scheduled Caste category for promotion to

the posts of Income Tax Officer on the basis of their 'own merit'

resulting in consumption of General category posts as against the

roster point promotion, relaxed qualification promotion and other

concessions. The necessary consequence is shrinking of General

category seats for the inspectors belonging to General category and

more posts becoming available to Schedule Caste category. The

Tribunal has issued directions for consideration of their cases with

effect from 11.6.1995 when 85th amendment of the Constitution

came into operation.

2. Sarvshri Jarnail Singh, Balbir Singh and Som Parkash-

respondent Nos. 1 to 3, who belong to the reserved category of

Scheduled Caste, and working as Income Tax Inspectors filed O.A.

No. 519-PB-2007 before the Tribunal with a prayer for quashing

circular/order dated 5.7.2007 (P-1). It was vide circular and order

dated 5.7.2007 that an eligibility list of Income Tax Inspectors was

circulated, who were to be considered for promotion to the cadre of

Income Tax Officer for the relevant year 2007-08, after their

clearance by vigilance. The applicant-respondent Nos. 1 to 3

claimed that as a result of the proceedings held by the

Departmental Promotion Committees from 1997 to December,

2006, no candidate belonging to Scheduled Caste category was

promoted by complying with the rule of reservation. All the

Scheduled Caste category candidates who had been promoted were

those persons who got promotion on the basis of their own merit-

CWP No. 13218 of 2009 (O&M) 3

cum-seniority and not on account of grant of benefit of reservation.

Referring to OM No. 36028/17/2001Estt (Res.), dated 11.7.2002

(R-1), the applicant-respondent Nos. 1 to 3 agitated before the

Tribunal that they had to be adjusted against unreserved roster

points belonging to General category post and then the roster

points meant for reserved candidates are required to be filled up

from amongst the candidates belonging to reserved categories. In

case, this exercise is carried out then applicant-respondent Nos. 1

to 3 were likely to be benefited. Prior to filing of the original

application, the applicant-respondent Nos. 1 to 3 sought

information regarding proceedings of the DPC for promotion of

Income Tax Officers held during the years 1997 to 11.12.2006 as

well as copies of the panels. Those were accordingly supplied to

them on 11.6.2007 and 25.4.2007 (P-2 and P-3). From the said

information the following facts and data is revealed:-

"Total Strength of ITO working in 322

North West Region

Name and Total No. of ITO belonging 59*
To SC Category working at present

[*The list does not include 3 SC category officers who
were promoted as own Merit candidates.]"

3. It has further been stated by the applicant-respondent

Nos. 1 to 3 that as per proceedings of the meeting dated

12.11.2006, the sanctioned strength of ITOs were raised to 329.

Against 46 roster points, 62 points were being occupied by

candidates belonging to Scheduled Caste category, which also

includes 3 SC category officers who were promoted as per their own

merit/seniority. In this manner, only 59 SC candidates were

CWP No. 13218 of 2009 (O&M) 4

working in the department against reserved points, which was in

excess of the prescribed quota for SC category. In para 3(ix) of the

OA, the applicant-respondent Nos. 1 to 3 have also furnished the

detail of candidates who were selected on the basis of their 'own

merit' during the period from July 1997 to October 2000. They

claimed that out of 42 SC candidates, 20 SC candidates were

promoted to the posts of ITO on the basis of their 'own merit' and

without granting any relaxation in respect of qualification etc.

because they had cleared the ITO Examination with standard

prescribed for General category. The applicant-respondent Nos. 1

to 3 also filed representations dated 7.12.2006 (P-4) and 20.7.2007

(P-5) asserting that the SC category candidates who got their

promotion as per their own merit must be held to have consumed

the posts belonging to General category and promotion of

additional SC candidates as per their quota is required to be

ordered.

4. In the written statement filed on behalf of the official

respondents the stand taken before the Tribunal was that eligibility

list of Income Tax Inspectors was prepared by including those

candidates who were eligible in terms of the recruitment rules and

who were within the zone of consideration. The list included those

officials who were having three years of service and who had

qualified the Departmental Examination for Income Tax Officers. It

has been asserted that there was already excess representation of

Scheduled Caste category candidates as against the prescribed

roster points and, hence, there was no need to extend the zone of

consideration. The concept of 'Own Merit' was introduced in

CWP No. 13218 of 2009 (O&M) 5

promotion vide O.M. No. 36028/17/2001-Estt.(Res.), dated

11.7.2002 (R-1). Another O.M. No. 36028/17/2001-Estt.(Res.),

dated 31.1.2005 (R-2) was issued clarifying that the O.M. dated

11.7.2002 would be effective from the date of its issue.

Controverting the claim of the applicant-respondent Nos. 1 to 3, it

has been submitted that the reservation has been provided to

Scheduled Caste category candidates as per the instructions issued

by the Department of Personnel and Training (DoPT).

5. In reply to para 3(ix) of the OA it has been highlighted

that out of 20 officials named by the applicant-respondent Nos. 1 to

3, as many as 14 officials were promoted in the DPCs held prior to

the issuance of the instructions dated 11.7.2002. For becoming

eligible for promotion to the post of Income Tax Officer, the official

is required to qualify the Departmental Examination for Income Tax

Inspector for confirmation in that cadre. With regard to the officers

pointed out by the applicant-respondent Nos. 1 to 3, it has been

stated that Smt. Ritu Wariah had qualified the Departmental

Examination for Income Tax Inspectors with relaxed standards,

therefore, she was not considered as 'own merit' candidate for

promotion to the post of Income Tax Officer. The remaining

officers, who were promoted in DPCs held subsequent to the

issuance of instructions dated 11.7.2002 on the basis of 'own

merit', it has been pointed out that they were promoted by

extending them the benefit of relaxed standards in qualifying the

Departmental Examination as under:-

CWP No. 13218 of 2009 (O&M) 6

Sr. Name of the Subject (Marks) and year in which benefit
No. Officers of Relaxed Standard

1. Baldev Raj Book Keeping (55) in the year 1996

2. Ishar Dass LT (88) in the year 1996

3. Ramji Dass OT (54) in the year 1994

4. Roshan Lal OT (55) in the year 1994

5. Gurcharan Singh BK (56) in the year 1996

6. It has been submitted that out of 20 candidates who

according to the applicant-respondent Nos. 1 to 3 were to be

treated as 'own merit' candidates, 14 candidates were promoted in

the DPCs, which were held prior to the issuance of instructions

dated 11.7.2002 and 6 candidates, who were promoted in DPCs

held after issuance of instructions, had availed the benefit of

relaxed standards. Therefore, those 20 candidates could not be

treated as 'own merit' candidates.

7. In the rejoinder, the applicant-respondent Nos. 1 to 3

urged before the Tribunal that there was a shortage of 46 posts of

ITO belonging to SC category upto the date of DPC held on

23.12.2005 and 49 were short in the category of SC at the time of

DPC on 9.8.2007 on the basis of post based roster system.

According to them, total 430 candidates were promoted to the post

of ITO during the years 1996 to 2007. DPC proceedings were held

on 23.4.1996, 11.11.1997, 13.11.2000, 18.6.2001, 15.1.2003,

4.12.2003, 15.7.2004, 28.10.2004, 7.4.2005, 4.10.2005,

23.12.2005, 18.7.2006, 11.12.2006 and 9.8.2007. It has also been

submitted that a review DPC was held on 10.2.2003 reviewing DPCs

held on 11.11.1997, 13.11.2000 and 18.6.2001. Out of 430

candidates promoted to the posts of ITO, 80 candidates belonging

CWP No. 13218 of 2009 (O&M) 7

to Schedule Caste category were promoted as per their own

seniority-cum-fitness and only two SC candidates, namely, Shri

Hans Raj and Shri Ram Dass Banga, were promoted as ITOs by

giving benefits of relaxed standard following the rule of reservation,

as per the DPC held on 23.4.1996.

8. It has further been submitted that once the posts

earmarked for the reserved categories as per roster are filled up

then the reservation is complete. The roster cannot operate any

further and it should be stopped. Any post falling vacant, in a cadre

thereafter, is to be filled up by promoting a person of that category

who have caused the vacancy be it General, Scheduled Caste or

Scheduled Tribe. According to the applicant-respondent Nos. 1 to 3

the concept of 'own merit' relates back to 10.2.1995 when 5-Judge

Bench of Hon'ble the Supreme Court issued comprehensive

directions in the case of
R.K. Sabharwal v. State of Punjab,
Punjab
, (1995) 2

SCC 745.
9. The official respondents also filed additional affidavit

dated 20.11.2008 and reiterated the position qua vacancy based

roster being converted to post based roster as also the factum of

issuance of instructions dated 2.7.1997, 11.7.2002 and 31.1.2005.

10. On 11.12.2008, the Tribunal allowed the O.A. filed by the

applicant-respondent Nos. 1 to 3 holding that the instructions dated

2.7.1997 were modified by the instructions dated 11.7.2002 (R-1),

which are clarificatory in nature and, therefore, would relate back to

the date of issuance, namely, 2.7.1997. On that basis, the Tribunal

has held that w.e.f. 2.7.1997 all members of the reserved category

are required to be promoted whether on reserved roster point or on

CWP No. 13218 of 2009 (O&M) 8

their 'own merit' which would consume General category vacancies,

leaving reserved roster point post for other members of the SC

category candidates, who may not make the grade on merit. The

Tribunal further held that the stand of the official respondents

concerning excess representation of the SC/ST candidates on the

basis of post based roster is mis-conceived. The concept of 'own

merit' is applicable since 1995 when the judgment in
R.K.

Sabharwal
's case (supra) was delivered. Accordingly, the Tribunal

has issued mandamus to the official respondents for

reconsideration of promotions with further directions that if on

verification, it is found that the seniority list and the SC roster

register is incorrect and that the representation of the SC category

is less than the prescribed quota, then the official respondents

would fill up the backlog of SC category according to their seniority

on qualifying the departmental examination and further promotions

of the persons belonging to the SC category to the posts of Income

Tax Officer would be made from the due date with all consequential

benefits. However, while doing so, persons likely to be affected

would be afforded an opportunity of being heard in the matter.

11. On 21.1.2009, the Chief Commissioner of Income Tax-

respondent No. 6 prepared a list of the officials to be considered for

promotion in the cadre of ITO and forwarded the same to the

concerned Chief Commissioner of Income Tax for securing

clearance from Vigilance department in respect of the said officials

(P-10).

12. The petitioners, who belong to the General category,

were not impleaded as party respondents in the Original Application

CWP No. 13218 of 2009 (O&M) 9

before the Tribunal. Aggrieved by the orders dated 11.12.2008,

passed by the Tribunal at their back, the petitioners had earlier filed

CWP No. 4537 of 2009, which was disposed of by a Division Bench

of this Court on 23.3.2009 (P-7) giving liberty to them to file a

review application before the Tribunal highlighting their grievances.

Their grievance was that they have not been heard and that they

were necessary parties before the Tribunal.

13. The petitioners then filed review application bearing R.A.

No. 24 of 2009 in O.A. No. 519/PB/2007. The Tribunal dismissed the

review application vide its order dated 7.5.2009. The petitioners

have also challenged the order dated 7.5.2009 in the instant

petition. Their grievance is that instructions dated 11.7.2002 (R-1)

fail to satisfy the mandatory pre-conditions before making

reservation. It has been emphasised on the basis of Supreme Court

judgments that - (a) an exercise is required to be undertaken by the

competent authorities of the Union of India to conclude that there

are compelling reasons for reservation concerning backwardness of

Scheduled Caste category which would warrant grant of promotion

to the members of the Scheduled Castes/Scheduled Tribes; and (b)

grant of promotion to them would not in any way adversely affect

the administrative efficiency and working of the office. Primarily,

the plea has been raised that no such survey has been carried out

and the instructions dated 11.7.2002 have been issued without any

basis, which is against the mandate of law as incorporated by

Article 16(4A)
and interpreted by a Constitution Bench of Hon'ble

the Supreme Court in the case of
M. Nagaraj v. Union of India,
India
,

(2006) 8 SCC 212.
CWP No. 13218 of 2009 (O&M) 10

14. It is pertinent to mention that after hearing the

arguments the judgment was reserved vide order dated 20.7.2010.

However, before the judgment could be pronounced, The Director,

Ministry of Personnel, Public Grievances and Pensions, Department

of Personnel and Training, Government of India issued an office

memorandum dated 10.8.2010 (P-16) on the issue concerning

reservation in promotion and treatment of SC/ST candidates

promoted on their 'own merit', which reads thus:

" The undersigned is directed to refer to this

Department's O.M. No. 36028/17/2001-Estt (Res.) dated

11th July 2002 which clarified that SC/ST candidates

appointed by promotion on their own merit and not

owing to reservation or relaxation of qualifications will be

adjusted against unreserved points of the reservation

roster and not against reserved points. It was

subsequently clarified by the Department's O.M. No.

36028/17/2001-Estt.(Res.) dated 31.1.2005 that the

above referred O.M. took effect from 11.7.2002 and that

the concept of own merit did not apply to the promotions

made by non-selection method.

2. Central Administrative Tribunal Madras Bench in

O.A. No. 900/2005 (
S. Kalugasalamoorthy V/S Union of

India and others
) has set aside the O.M. No.

36928/17/2001-Estt. (Res.) dated 31.1.2005 and held

that when a person is selected on the basis of his own

seniority, the scope of considering and counting him

against quota reserved for SCs does not arise.

The High

CWP No. 13218 of 2009 (O&M) 11

Court of judicature at Madras in the matter of
UOI V/S S.

Kalugasalamoorthy (WP No.
15926 of 2007) has upheld

the decision of the Central Administrative Tribunal.

3. The matter has been examined in the light of the

above referred judgments and it has been decided to

withdraw O.M. No. 36028/17/2001 Estt (Res.) dated

31.1.2005
referred to above
. It is clarified that SC/ST

candidates appointed by promotion on their own merit

and seniority and not owing to reservation or relaxation

of qualifications will be adjusted against unreserved

points of reservation roster, irrespective of the fact

whether the promotion is made by selection method or

non-selection method. These orders will take effect from

2.7.1997 on the dated on which post based reservation

was introduced.

4. These instructions may be brought to the notice of

all concerned."

15. It is obvious that the said office memorandum has been

issued in purported compliance of the order passed by the Madras

Bench of the Tribunal, passed in O.A. No. 900/2005, withdrawing

the earlier office memorandum dated 31.1.2005. The office

memorandum dated 10.8.2010 (P-16) has also clarified that the

SC/ST candidates appointed by promotion on their 'own merit and

seniority' and not owing to reservation or relaxation of

qualifications would be adjusted against unreserved points of

roster, irrespective of the fact whether the promotion is made by

selection method or non-selection method. The said clarification

CWP No. 13218 of 2009 (O&M) 12

has been made effective retrospectively w.e.f. 2.7.1997 when the

post based reservation was introduced.

16. In order to bring on record the office memorandum

dated 10.8.2010 and to challenge the same either by filing a

separate petition or by amending the pending petition a request

was made. Accordingly, the Registry was directed to list the matter

for re-hearing. Thereafter, the instant petition was amended by the

petitioners after due permission of this Court.

17. Mr. Rajiv Atma Ram, learned counsel for the petitioners

has argued that the Original Application in the instant case was

filed on 9.7.2007 and no order passed beyond the period of 1½

years, as postulated by
Section 21
of the Central Administrative

Tribunals Act, 1985, could have been challenged. The submission is

that the OA is badly hit by the delay and laches. Therefore, it

suffers from the statutory bar created by
Section 21
of the said Act.

Mr. Atma Ram also urged that the original applicant-respondents

became eligible for promotion to the post of ITO on 4.12.2004,

13.8.2004 and 24.12.2004 after completing three years minimum

service on the post of Inspector and after passing the departmental

examination. They could not have challenged any promotion made

before acquiring eligibility by them.
In support of his submission,

learned counsel has placed reliance on the judgments of Hon'ble

the Supreme Court rendered in the cases of
Chattar Singh v. State

of Rajasthan,
Rajasthan
, AIR 1997 SC 303;
Roshni Devi v. State of Haryana,
Haryana
, AIR

1998 SC 3268 and Union of India v. N. Y. Apte,
Apte, AIR 1998 SC 2651.
18. Learned counsel has also submitted that the order dated

14.9.2007 (R-3) and dated 29.11.2007 (R-4), passed by the Deputy

CWP No. 13218 of 2009 (O&M) 13

Commissioner of Income Tax have nowhere been challenged, which

has resulted in rendering the OA as infructuous.
In that regard,

learned counsel has placed reliance on the observations made in

para 7 of the judgment of Hon'ble the Supreme Court in the case of

Piare Lal v. Union of India,
India
, AIR 1975 SC 650.

650 He has further

submitted that the option to amend the OA, which was available to

the Original Applicants, has not been availed either before the

Tribunal or before this Court. Therefore, the OA should have been

dismissed as having been rendered infructuous.

19. According to the learned counsel the view taken by the

Tribunal holding that there was no necessity to challenge office

orders dated 14.9.2007 and 29.11.2007 (R-3 and R-4) is erroneous

because these orders have taken the same view which was pleaded

before the Tribunal in the written statement filed by the official

respondents. Mr. Atma Ram contended that even a void order has

to be necessarily challenged as has been held by Hon'ble the

Supreme Court in the case of
State of Punjab v. Gurdev Singh,
Singh, JT

1991 (3) SC 465.

465 In any case, the petitioners, who belongs to

General category, were necessary parties before the Tribunal, as for

making appointment on the basis of 'Own merit' of the candidate

belonging to SC/ST category could have been possible only after

replacing the General Category candidate. They would face

reversion or would be on the road otherwise. Another limb of the

argument is that the Tribunal has adopted absolutely unwarranted

approach by saying that the petitioners were to be heard by the

authorities while implementing the judgment.

20. Learned counsel has also relied upon the observations of

Hon'ble the Supreme Court in the case of
M. Nagaraj
(supra).

(supra)

CWP No. 13218 of 2009 (O&M) 14

According to the learned counsel the power to make reservation

must be preceded by an exercise which is to be undertaken in

respect of each cadre of each department to show that there are

compelling reasons on account of backwardness to make

reservation, inadequacy of representation of such class keeping in

mind the overall administrative efficiency in public administration.

In that regard he has drawn our attention to the averments made in

para 19 of the writ petition and reply to corresponding para 19 of

the written statement of respondent Nos. 4 and 5 as well as the

private respondents. It has been specifically averred that no

exercise was undertaken for making reservation reach to a definite

conclusion that there are compelling reasons of backwardness of

Scheduled Castes and showing inadequacy of representation.
In

order to support his submission, learned counsel has placed

reliance on paras 103 to 108 and paras 114 to 118 and 122 of the

judgment of Hon'ble the Supreme Court in
M. Nagaraj
's case

(supra).

(supra)

21. Mr. Rajiv Atma Ram has also argued that 'own merit'

instructions concerning promotion have been issued for the first

time on 11.7.2002 and specifically confined to operate

prospectively vide letter dated 31.1.2005 (R-2). Therefore, the

Tribunal could not have issued directions for operating these

instructions with a retrospective date i.e. from 17.6.1995 when the

85th amendment was brought into effect. He has further submitted

that even otherwise a general principle of law has to prevail that

executive instructions can never operate retrospectively, as has

been held by Hon'ble the Supreme Court in the case of
Sant Ram v.

State of Rajasthan,
Rajasthan
, AIR 1967 SC 1910.
CWP No. 13218 of 2009 (O&M) 15

22. Learned counsel then argued that even if the instructions

are made applicable, the Tribunal has miserably failed to consider

the concept of 'Own Merit Promotion'. In the light of the factual

position of the present case, the respondents who were the Original

Applicants before the Tribunal, could not have claimed the benefit

of the instructions because they have either been given 2-3

promotions on the roster point or have been granted relaxation in

qualification like securing of marks etc.
In support of his

submission learned counsel has placed reliance on two judgments

of Hon'ble the Supreme Court rendered in the cases of
Union of

India v. Satya Prakash,
Prakash
, 2006(3) SLR 56 and Jitender Singh v. State of

U.P.,
U.P., JT 2010 (1) SC 177.

177 In any case, the instructions itself

postulate the aforesaid situation.

23. He has also referred to the affidavit of the Deputy

Commissioner of Income Tax in the form of written statement.

According to sub-para IX and X of para 4, the details of various

officers have been given with further clarification whether they

have availed promotion on roster point by relaxed standard. The

aforesaid position was not disputed by the respondents in their

rejoinder dated 6.3.2008 filed before the Tribunal (P-3). The

corresponding para of the rejoinder merely reads that the contents

of the written statement filed by the department are denied being

incorrect and those of the petition were reiterated. Even in the

preliminary submissions, there is no rebuttal to the aforesaid

averments made by the deponent in the written statement. In

Entry No. 720 of 2008, merely roster register has been placed on

record, which constituted the basis for the observation made by the

Tribunal that the members belonging to reserved category have not

CWP No. 13218 of 2009 (O&M) 16

been adequately represented. The aforesaid is the legislative

function and could not have been undertaken by the Tribunal.

Learned counsel has also relied upon the following judgments on

'Own Merit Promotion':

Uday Pratap Singh v. State of Bihar,
Bihar, JT 1994 (6) SC 344;

Union of India v. Satya Parkash,
Parkash, JT
2006 (3) SLR 56;

Jitender Singh v. State of U.P.,
U.P., JT 2010 (1) SC 177;

Union of India v. Ramesh Ram,
Ram, JT
2010 (5) SC 212;

Union of India v. Bharat Bhushan,
Bhushan
, 2008 (7) AC (Delhi) 420

24. Mr. Atma Ram has raised another issue, namely, that the

appointment/promotions made long years ago cannot now be

unsettled. He has pointed out that the petitioners were promoted

fourteen years ago on the post of Income Tax Officers i.e. in the

year 1996 and, therefore, the settled promotions on equitable

consideration should not be reopened. In support of the

submission, learned counsel has placed reliance on a Full Bench

judgment of this Court rendered in the case of Krishna Gopal v.

Haryana,, 2010 (1) SCT 538 and a judgment of Hon'ble the
State of Haryana

Supreme Court rendered in the case of
Roshni Devi v. State of

Haryana,
Haryana
, (1998) 8 SCC 59.

59.

25. Learned counsel has then argued that office

Memorandum dated 10.8.2010 (P-16) purported to have been

issued by the Government of India, Ministry of Personnel, Public

Grievances and Pension, in fact, has been issued by the Director as

is evident from the perusal of the aforesaid document. According

to the learned counsel the business of the Government is required

to be transacted in the manner postulated by the statutory rules

framed under
Article 77(3)
of the Constitution, which are known as

CWP No. 13218 of 2009 (O&M) 17

'Government of India (Transaction of Business) Rules, 1961 (for

brevity, 'the Transaction of Business Rules'). The aforesaid rules

have also been placed on record (P-17). It has been emphasised

that according to Rule 3 of the Transaction of Business Rules,

disposal of business by Ministries has to be in consultation with

other departments and submission of cases to the Prime Minister,

the Cabinet and its Committees, and the President. All business

allotted to a department under the Government of India (Allocation

of Business) Rules, 1961 (for brevity, 'the Allocation of Business

Rules') must be disposed of by or under the general of special

directions of the Minister-in-charge. The argument is that as per

Rule 4 of the Transaction of Business Rules inter-departmental

consultations would be necessary where more than one department

is involved. Learned counsel has drawn our attention to para 35(i)

and (ii) where specific averments have been made that office

memorandum dated 10.8.2010 has not been issued in accordance

with and in furtherance of the Transaction of Business Rules. The

written statement filed by respondent Nos. 5 and 6 (by the Union of

India and Chief Commissioner of Income-tax) to the aforesaid

averments would show that the assertion concerning incompetence

of the Director to issue such an order has not been controverted.

Likewise, the written statement filed by respondent Nos. 2 and 3

has also been read out to us showing that categorical averments

made in para 35 by the petitioners have not been controverted,

insofar as, the competence of the Director to issue such

memorandum is concerned. Referring to the stand taken by

respondent Nos. 2 and 3 on the basis of the Allocation of Business

Rules, learned counsel has pointed out that the said Rules (R-2/2)

CWP No. 13218 of 2009 (O&M) 18

only talks of allocation of business but the manner in which the

business is to be transacted is clarified by the Transaction of

Business Rules (P-17). The submission in nutshell is that the

executive power by virtue of
Article 73
of the Constitution vests

only in the Government and not in the Director who is merely an

official of the Government. Accordingly, it has been submitted that

there is neither any express delegation under
Article 77
of the

Constitution to any of the officers of the Government much less a

Director.

26. The other submission made by Mr. Atma Ram is that in

any case the office memorandum dated 10.8.2010, only at best is

to be regarded as an executive order and it can operate

prospectively and it cannot have any retrospective operation.

According to the learned counsel executives have not been clothed

with the power to issue executive orders to have retrospective

effect. In that regard reliance has been placed on a judgment of

Hon'ble the Supreme Court rendered in the case of Uday Pratap

Singh v. State of Bihar,
Bihar, JT 1994 (6) SC 344.
27. The principal stand taken by respondent Nos. 5 and 6,

namely, Union of India and the Chief Commissioner of Income Tax

respectively is that instructions dated 11.7.2002 are prospective

and it first time recognises the principle of 'own merit promotion'.

Therefore, it has been submitted that these instructions cannot be

regarded as clarificatory of earlier instructions issued on 2.7.1997.

Accordingly, it has been pleaded that the Tribunal cannot give

retrospective effect to the instructions issued on 11.7.1996 or from

a date the amendment was made in the Constitution. In order to

clarify the whole position, instructions dated 31.3.2005 have also

CWP No. 13218 of 2009 (O&M) 19

been issued which categorically provide that instructions dated

11.7.2002 are clarificatory in nature. It has, however, been

admitted in the reply to para 3 of the writ petition that the

members of the General category were bound to be affected on

account of cancellation/quashing of their promotion order and that

no member of the General category who is likely to be affected had

been impleaded as party respondent before the Tribunal by the

Original Applicant-respondent Nos. 1 to 3. It is only the official

respondent Nos. 5 and 6 who were made parties.

28. Mr. A.S. Grewal and Ms. Renu Bala Sharma, adopts the

arguments which have been submitted in the reply of respondent

Nos. 5 and 6. Ms. Renu Bala Sharma has pointed out that in para

(iii) of the letter dated 15.9.2010 (R-1) it has been stated that

before issuing the office memorandum, the approval of the

Secretary (Personnel) was obtained and, therefore, the argument

that the instructions have been issued by the Director would not

stand the scrutiny of law and the office memorandum dated

10.8.2010 has been issued by an authority who is competent to

issue the same.

29. The private respondent No. 1 also filed a reply and

separate written statement has been filed by private respondent

Nos. 2 and 3. Mr. M.K. Tiwari, learned counsel for respondent No. 1

has argued that the instructions dated 10.8.2010 cannot be

challenged before this Court as per the law laid down by Hon'ble

the Supreme Court in the case of Raj Kumar and others v. Hem Raj

Singh Chauhan,
Chauhan, (2010) 4 SCC 554,
554 and the only remedy is to file an

original application before the Tribunal.
It has also been submitted

by Mr. Tiwari that the writ petitioners belonging to General category

CWP No. 13218 of 2009 (O&M) 20

has no locus standi to file a review application against the order

dated 11.12.2008 passed by the Tribunal because they were not

party to the litigation and they were not even affected persons as

per the law laid down by Hon'ble the Supreme court in paras 14 and

18 of the judgment rendered in the case of
V.P. Shrivastava v. State

of M.P.,
M.P.
, (1996) 7 SCC 759.

759 Mr. Tiwari has argued that the

petitioners are not necessary party as an effective order can always

be passed in their absence particularly when their interest has been

take care of by the Tribunal requiring the official respondents to

issue notice before touching their rights. Mr. Tiwari has submitted

that the petitioners are junior to the private respondents and the

present writ petition is nothing but it is an abuse of the process of

the Court. The writ petition has been filed to delay the claim of the

SC/ST candidates who have been denied their due claim of

promotion to the post of Income-tax Officer for the last 16 years.

Supporting the order of the Tribunal, Mr. Tiwari has submitted that

as per the rules all the posts of Income Tax Officer are required to

be filled up as backlog of excess candidates has been continuing.

He has maintained that respondent Nos. 1, 2 and 3 are the Income

Tax Inspectors and belong to SC category. They are eligible for

promotion to the post of Income Tax Officer Grade-II on their own

merit without consuming the vacancies of SC/ST category.

30. Similar stand has been taken in the similar reply filed by

respondent Nos. 2 and 3. However, Mr. Deepak Sibal has argued on

the basis the rules concerning Allocation of Business (R-2/2) that

memorandum dated 10.8.2010 has been issued by an authority

which is fully competent because the approval of the Secretary

(Personnel) was obtained.

CWP No. 13218 of 2009 (O&M) 21

31. Having heard learned counsel for the parties and perusal

of the paper book with their assistance, particularly the judgment of

the Tribunal, we are of the view that the most fundamental issue

raised by the learned counsel for the petitioners needs to be

answered. It is well settled that all laws must take guidance from

the Constitution. The present case present decades old

controversy whether the provision for reservation in promotion

could be made by the State/Union of India without imposing any

conditions. The whole controversy was settled by a 9-Judge

Constitution Bench of Hon'ble the Supreme Court in Indra Sawhney

India,, 1992 Supp (3) SCC 217.

v. Union of India 217 In that case the

Constitution Bench interpreted
Article 16(4)
of the Constitution

relating to the State's power for making provision for reservation in

appointments/posts in favour of any Backward Class of citizen,

which in the opinion of the State was not adequately represented in

services of the State. Another principal question decided by the

Constitution Bench in Indra Sawhney's case (supra) was whether

such power is extended to making a provision on a promotional

post. It was held that
Article 16(4)
did not permit provision for

reservation in the matter of promotion. It was further held that

such a rule was to be given effect only prospectively and would not

affect the promotions already made whether on regular basis or

any other basis. A direction was issued by the Constitution Bench

that wherever reservation is provided in the matter of promotion, it

was to continue for a period of five years from the date of the

judgment and time was given to all the concerned authorities to

amend their rules within the aforesaid period. However, by virtue

of the
Constitution (Seventy-seventh Amendment) Act, 1995
,
Article

CWP No. 13218 of 2009 (O&M) 22

16(4A)
was added stipulating that the State is not prevented from

making any provision for reservation in matters of promotion in any

class or classes of posts in the services under the State in favour of

the SC/ST which in their opinion are not adequately represented in

the services. The aforesaid amendment came up on 17.6.1995.

32. Another question which was debated before Hon'ble the

Supreme Court in the cases of
Union of India v. Virpal Singh

Chauhan,
Chauhan
, (
1995) 6) SCC 684 and Ajit Singh Januja v. State of Punjab,
Punjab
,

(1996) 2 SCC 715,
715 was as to whether the benefit of accelerated

promotion through reservation on roster point would give such

promotees seniority over his senior General category promotees

albeit promoted subsequently. In other words whether roster point

promotee was entitled to retain his date of promotion as

sacrosanct. The aforesaid principle became known as 'catch up

principle'. In both the judgments it was held that the benefit of

accelerated promotion through reservation or roster point would

not result into conferring seniority over and above General category

senior promotees who were promoted subsequently.

A discordant

note was struck when a 3-Judge Bench took a contrary view in the

case of
Jagdish Lal v. State of Haryana,
Haryana
, (1997) 6 SCC 538.

538 In the

aforesaid judgment Hon'ble the Supreme Court placed reliance on

the recruitment rules which provided for fixation of seniority

according to the length of continuous service on a post in the

service. The aforesaid view was overruled by the Constitution

Bench in the cases of Ajit Singh (II) v. State of Punjab,
Punjab, (
1999) 7 SCC

209 and Ram Prasad v. D.K. Vijay,
Vijay
, (1999) 7 SCC 251.

251 The view

taken by Hon'ble the Supreme Court in its earlier judgments

rendered in the cases of
Virpal Singh Chauhan
(supra) and
Ajit Singh

CWP No. 13218 of 2009 (O&M) 23

Januja
(supra) was affirmed.

33. The controversy was reopened when the Parliament

amended the Constitution on 4.1.2002 by brining in the

Constitution (Eighty-fifth Amendment) Act, 2001
, so as to restore

the benefit of consequential seniority to the reserved categories

w.e.f. 17.6.1995. The 77th and 85th amendments were challenged

before Hon'ble the Supreme Court and the matter was decided in

the case of
M. Nagaraj
(supra).

(supra) The Constitution Bench upheld the

77th, 81st, 82nd and 85th Amendment Acts and their retrospective

effect. However, it proceeded to impose certain conditions.
In the

present case this Court is concerned with the conditions which are

discernible from the perusal of following extracts of the judgment

rendered in
M. Nagaraj
's case (supra):

(supra)

" The Constitution Bench proceeded to

determine the issues related to the:

A. (i) validity, (ii) interpretation, and (iii)

implementation of the 77th, 81st, 82nd and 85th

Constitution Amendment Acts; and,

B. action taken in pursuance thereof which

sought to reverse decisions of the Supreme

Court in matters relating to promotion in

public employment and their application with

retrospective effect.

The key issue which arose for determination

was whether by virtue of the impugned constitutional

amendments, the power of Parliament was so enlarged

so as to obliterate any or all of the constitutional

limitations and requirements. Answering the reference

CWP No. 13218 of 2009 (O&M) 24

the Supreme Court held that in the matter of application

of the principle of basic structure, twin tests have to be

satisfied, namely, the "width test" and the test of

"identity". The test for judging the width of the power

and the test for adjudicating the exercise of power by

the State concerned are two different tests which

warrant two different judicial approaches.

Firstly, it is the width of the power under the

impugned amendments introducing and amending

Articles 16(4-A)
and
16(4-B)
that has to be tested.

Therefore the "width test" has to be applied. The

boundaries of the "width" of the power, namely, (1) the

ceiling limit of 50% (quantitative limitation), (2) the

principle of creamy layer (qualitative exclusion), (3) the

compelling reasons, namely, backwardness, inadequacy

of representation, and (4) the overall administrative

efficiency are not obliterated by the impugned

amendments. The constitution limitation under
Article
is relaxed and not obliterated. These impugned

amendments are confined only to SCs and STs and the

sub-classification between OBCs on one hand and SCs

and STs on the other hand as held in Indra Sawhney,

1992 Supp (3) SCC 217, and the concept of post-based

roster with inbuilt concept of replacement as held in R.K.

Sabharwal, (1995) 2 SCC 745, have also not been

obliterated. (emphasis added)

Secondly, applying the test of "identity" there

is no alteration in the existing structure of the equality

CWP No. 13218 of 2009 (O&M) 25

code (
Articles 14
, 15
and
) in the Constitution by the

impugned amendments. Equity, justice and efficiency

are the limitations on the mode of the exercise of power

by the State. None of these limitations have been

removed by the impugned amendments. None of the

axioms like secularism, federalism, etc. which are

underlying principles have been violated by the

impugned constitution amendments. There is no

violation of the basic structure of the Constitution by any

of the impugned amendments. 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).

Articles 16(4-

A) and 16(4-B) form a composite part of the scheme

envisaged and fall in the pattern of
Article 16(4)
, and as

long as the parameters mentioned in those articles are

complied with by the States, the provision of reservation

cannot be faulted. They are curative by nature.
Article

16(4)
is enacted as a remedy for the past historical

discriminations against a social class.
Articles 16(4-A)

and
16(4-B)
are both inspired by observations of the

Supreme Court in Indra Sawhney, 1992 Supp (3) SCC

217 and R.K. Sabharwal, (1995) 2 SCC 745. They have

nexus with
Articles 17
and
of the Constitution.
Articles

16(4-A)
and
16(4-B)
are classifications within the

principle of equality under
Article 16(4).
Therefore, the

classification envisaged by
Articles 16(4-B)
is upheld.

Thirdly, every discretionary power is not

CWP No. 13218 of 2009 (O&M) 26

necessarily discriminatory. Equality is not violated by

mere conferment of discretionary power. It is violated by

arbitrary exercise by those on whom it is conferred. This

is the theory of "guided power". This theory is based on

the assumption that in the event of arbitrary exercise by

those on whom the power is conferred, the same would

be corrected by the courts. This is the basic principle

behind the enabling provisions which are incorporated in

Articles 16(4-A)
and
16(4-B).
These enabling provisions

are permissive in nature. They leave it to the States to

provide for reservation. If the appropriate Government

enacts a law providing for reservation without keeping in

mind the parameters in
Article 16(4)
and
Article 335
then

the Supreme Court will certainly set aside and strike

down such legislation. The field of exercise of the

amending power is retained by the impugned

amendments, as the impugned amendments have

introduced merely enabling provisions because merit,

efficiency, backwardness and inadequacy cannot be

identified and measured in a vacuum.
Articles 16(4-A)

and
16(4-B)
are enacted to balance equality with positive

discrimination. Be it reservation or evaluation,

excessiveness in either would result in violation of the

constitutional mandate. This exercise, however, will

depend on facts of each case. The constitutional law is

the law of evolving concepts. Some of them are generic

others have to be identified and valued. The enabling

provisions of
Articles 16(4-A)
and
16(4-B)
deal with the

CWP No. 13218 of 2009 (O&M) 27

concept, which has to be identified and valued as in the

case of access vis-a-vis efficiency which depends on the

fact situation only and not abstract principle of equality

in
Article 14
as spelt out in detail in
articles 15
and
16.

Equality before the law, guaranteed by the first part of

Article 14
, is a negative concept while the second part is

a positive concept which is enough to validate equalizing

measures depending upon the fact situation. (emphasis

added)

The impugned provisions are enabling

provisions. 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 reservations

in promotions, the States have to collect quantifiable

data showing backwardness of the class and inadequacy

of representation of that class in public employment,

keeping in mind maintenance of efficiency, as indicated

by
Article 335.
The concepts of efficiency,

backwardness, inadequacy of representation are

required to be identified and measured. That exercise

depends on availability of data. That exercise depends

on numerous factors. It is for this reason that enabling

provisions are required to be made because each

competing claim seeks to achieve certain goals. How

best one should optimize these conflicting claims can

only be done by the administration in the context of

prevailing local conditions in public employment. If the

State concerned fails to identify and measure

CWP No. 13218 of 2009 (O&M) 28

backwardness, inadequacy and overall administrative

efficiency then in that event the provision for reservation

would be invalid. Furthermore, 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 exclusion

requirement or extend the reservation indefinitely.

Ultimately the present controversy is regarding the

exercise of the power by the State Government, as to

whether the State concerned has identified and valued

the circumstances justifying it to make reservation.

When the State fails to identify and implement the

controlling factors then excessiveness comes in, and this

has to be decided on the facts of each case. In each

case the Court has got to be satisfied that the State has

exercised its discretion in making reservations in

promotions for SCs and STs and for which the State

concerned will have to place before the Court the

requisite quantifiable data in each case and satisfy the

Court that such reservations became necessary on

account of inadequacy of representation of SCs/STs in a

particular class or classes of posts without affecting

general efficiency of service as mandated under
Article
of the Constitution. (emphasis added)

34. Subject to the above limitations, the constitutional

validity of the
Constitution (Seventy-seventh Amendment) Act,
, the
Constitution (Eighty-first Amendment) Act, 2000
, the

CWP No. 13218 of 2009 (O&M) 29

Constitution (Eighty-second Amendment) Act, 2000
and the

Constitution (Eighty-fifth Amendment) Act, 2001
, have been upheld

in
M. Nagaraj
's case (supra).

(supra) It has also been observed that the

compelling reasons, namely, backwardness, inadequacy of

representation and the overall administrative efficiency are all

constitutional requirements without which the structure of equality

of opportunity in
Article 16
would collapse.
Article 16(4)
enables a

State to provide for reservation in cases where it is satisfied on

basis of quantifiable data that there exists backwardness of a class

and inadequacy of representation in employment. Backwardness

has to be based on objective factors whereas inadequacy has to

factually exist. This is where judicial review comes in. However,

whether reservation in a given case is desirable or not, as a policy,

is not for the Court to decide as long as the parameters mentioned

in
Articles 16(4)
are maintained.

35. On the question of necessity of quantifiable data it has

been held that reservation is necessary for transcending caste and

not for perpetuating it. Reservations has to be used in a limited

sense otherwise it will perpetuate casteism in the country. The

extent of reservation depends on facts of each case and in this

regard the State concerned would have to show in each case the

existence of backwardness, inadequacy of representation and

overall administrative efficiency before making provision for

reservation. If in a given case Court finds excessive reservation

under the State enactment then such an enactment would be liable

to be struck down. The need to balance the context specific

independent variable requirements of equity, justice, and

merit/efficiency on the basis of quantifiable date in each case, the

CWP No. 13218 of 2009 (O&M) 30

conflicting claim of individual rights under
Article 16(1)
and the

preferential treatment given to a Backward Class has to be

balanced. Therefore, in each case a contextual case has to be

made out depending on different circumstances which may exist

Statewise and the problem has to be examined on the facts of each

case. Wheat needs to be found is a stable equilibrium between

justice to the backwards, equity for the forwards and efficiency for

the entire system.

36.
In paras72, 73, 79, 81 and 102 of the judgment in
M.

Nagaraj
's case (supra),
(supra) their Lordships' have dealt with the 'catch-

up' rule, which had been explained in detail in para 26 of the

judgment in
Virpal Singh Chauhan
's case (supra).

(supra) As per the 'catch-

up' rule a reserved category candidate promoted on the basis of

reservation earlier than his senior general category candidates in

the feeder grade, shall necessarily be junior in the promoted

category to such general category candidates. The 'catch-up' rule

is not imlicit in
Articles 16(1)
to (4). The concept of the 'catch-up'

rule and 'consequential seniority' are not constitutional

requirements or limitations. They are judicially evolved concepts to

control the extent of reservation, derived from service

jurisprudence. They are not constitutional principles so as to be

beyond the amending power of parliament. Principles of service

jurisprudence are different from constitutional limitations. They are

not axioms like, secularism, federalism, etc. Nor can these concepts

be elevated to the status of an axiom like secularism, constitutional

sovereignty, etc. it cannot be said that by insertion of the concept

of 'consequential seniority' the structure of
Article 16(1)
stands

destroyed or abrogated. Obliteration of these concepts or insertion

CWP No. 13218 of 2009 (O&M) 31

of these concepts do not change the equality code indicated by

Articles 14
, 15
and
of the Constitution. hence, the same cannot

bind the amending power of Parliament and is not beyond the

amending power of Parliament. However, whether weightage of

earlier accelerated promotion with consequential seniority should

be given or not are matters which would fall within the discretion of

the appropriate Government, keeping in mind the backwardness,

inadequacy and representation in public employment and overall

efficiency of services.

37. The matter has been again considered by their

Lordships' of Hon'ble the Supreme Court in the case of
Suraj Bhan

Meena v. State of Rajasthan,
Rajasthan
, (2011) 1 SCC 467,
467 wherein the

aforesaid principles have been reiterated.

Placing the whole

history, Hon'ble the Supreme Court has held that the principles
laid

down in

M. Nagaraj
's case (supra) are binding. It has been found

that the concepts of 'catch-up' rule and 'consequential seniority'

are judicially evolved concepts and were not to be elevated to the

status of a constitutional principle so as to place them beyond the

amending power of the Parliament, however, the requirement of

Articles 16(4A)
and
16(4B)
would have to be maintained and the

tests indicated therein would have to be satisfied, which could only

be achieved after an inquiry as to identity. In cases where no

exercise was undertaken in terms of
Article 16(4A)
to acquire

quantifiable data regarding the inadequacy of representation of

SC/ST communities in public services, the Courts have rightly

quashed the notifications.

CWP No. 13218 of 2009 (O&M) 32

38. When the principles
laid down in
the case of
M. Nagaraj

(supra) and
Suraj Bhan Meena
(supra) are applied to the

notifications impugned in the present proceedings, namely,

11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated

21.1.2009 and 10.8.2010, it becomes clear that no survey has been

undertaken to find out inadequacy of representation in respect of

members of the SC/ST in the services. The aforesaid fact has been

candidly admitted in the written statement filed by respondent Nos.

5 and 6. The aforesaid fact has also been conceded by the

respondent-Union of India in the communication dated 15.9.2010.

In para (iv) of the aforesaid communication it has been stated that

no exercise was carried out to assess the inadequacy of

representation of SC/STs in the services under the Government of

India before issue of instructions dated 31.1.2005. The

aforementioned communication has been placed on record along

with CM No. 14865 of 2010. In the absence of any survey with

regard to inadequacy as also concerning the overall requirement of

efficiency of the administration where reservation is to be made

alongwith backwardness of the class for whom the reservation is

required, it is not possible to sustain these notifications.

Accordingly, it has to be held that these notifications suffers from

violation of the provisions of
Articles 16(4A)
, 16(4B)
read with

Article 335
of the Constitution as interpreted by the Constitution

Bench in
M. Nagaraj
's case (supra) as well as in Suraj Bhan Meena's

case (supra).

(supra)

39. The net result is that no reservation in promotion could

be made in pursuance to office memorandum dated 2.7.1997. We

CWP No. 13218 of 2009 (O&M) 33

are not dealing with many other contentions raised by the learned

counsel for the petitioners for the reason that the core issue going

to the roots of the matter has been determined in their favour and

such a necessity is obviated.

40. As a sequel to the above discussion, the judgment of the

Tribunal is set aside. The instructions dated 31.1.2005 (R-2) stands

withdrawn on 10.8.2010 (P-10). Therefore, no order is required to

be passed in respect of those instructions dealing with the subject

of reservation in promotion and the treatment of SC/ST candidates

promoted on their own merit. Likewise, the instructions dated

10.8.2010 (P-16) are hereby quashed because they are in direct

conflict with the view taken by the Constitution Bench in M.

Nagaraj's

Nagaraj
's case (
supra) and Suraj Bhan Meena
's case (supra).

(supra) It is

further directed that the seniority and promotion of the Income Tax

Inspectors shall be made without any element of reservation in

promotion.

41. The writ petition stands disposed of in the above terms.

(M.M. KUMAR)
JUDGE

(A.N. JINDAL)
JINDAL)
July 15
15, 201
2011 JUDGE
Pkapoor