Andhra HC (Pre-Telangana)

Union Of India Rep., By The Secretary ... vs B. Lakxmi Narayana, S/O B. Mallaiah, ... on 29 April, 2015

Author:
Ramesh Ranganathan

Bench:
Ramesh Ranganathan

HONBLE SRI JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NOs.39158 OF 2013 AND BATCH

29-04-2015

Union of India rep., by the Secretary (Establishment), Ministry of Railways,
Railway Board, New Delhi. And others.Petitioners

B. Lakxmi Narayana, S/o B. Mallaiah, aged 52 years and others..Respondents

Counsel for the petitioners: Sri G.S. Sanghi, Learned Senior
Standing Counsel for Railways, Smt. Pushpender Kaur, Learned
Standing Counsel for Railways; Sri G. Vidyasagar, Learned
Senior Counsel, Sri J. Sudheer, Sri K. Chidambaram and Sri A.
Durga Bhaskar

Counsel for respondents: Sri K.R.K.V. Prasad

<GIST:

>HEAD NOTE:

? Citations:

1) (2006 (8) SCC 212
2) (2011) 1 SCC 467
3) (2012 (7) SCC 1
4) (2011) 12 SCC 695: (2011) 12 SCC 695
5) (1987)2 SCC 555
6) (2008) 17 SCC 491
7) (2012) 5 SCC 370
8) 167 L Ed 2d 929 : 127 S Ct 1955
9) (2013) 5 SCC 427)
10) AIR 1953 SC 235
11) (2010) 4 SCC 518
12) (2011) 11 SCC 786
13) (2010) 2 SCC 733
14) (2010) 9 SCC 157
15) 1993 Suppl (1) SCC 594
16) (1999) 7 SCC 303
17) (2001) 8 SCC 133
18) (2006) 6 SCC 666
19) (2009) 14 SCC 406
20) (2007) 5 SCC 447
21) (2012) 3 SCC 442
22) (2008) 9 SCC 242
23) (1975) 4 SCC 285
24) (1976) 2 SCC 895
25) (2000) 2 SCC 48
26) (2001) 6 SCC 637
27) (2007) 9 SCC 274
28) (2008) 1 SCC 210
29) (2009) 1 SCC 168
30) (2010) 12 SCC 471
31) (1974) 1 SCC 317
32) (1969) 1 SCC 110
33) 1995 Supl. (3) SCC 231
34) (1996) 6 SCC 267
35) (1995) 5 SCC 680
36) (2013) 12 SCC 489
37) (2014) 1 SCC 144
38) (2011) 6 SCC 570
39) (1984) 4 SCC 251
40) (2009) 1 SCC 768
41) (1974) 4 SCC 335
42) (1983) 3 SCC 601
43) AIR 1993 SC 477
44) (1995) 2 SCC 745
45) (1999) 7 SCC 209
46) (2012) 7 SCC 41
47) (2008) 6 SCC 1
48) (Judgment in Civil Appeal No.209 of 2015 dated 09.01.2015)
49) (2015) 1 SCC 347
50) 1991 Supp (2) SCC 497

THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NOs.39158 OF 2013, 9942, 12704, 15138, 16280,
16733, 20302, 25901, 27439, 32984, OF 2014, 727, 775, 1965,
2710 AND 2844 of 2015

COMMON ORDER:

(per Honble Sri Justice Ramesh Ranganathan)

This batch of Writ Petitions is filed by the Union of India
represented by the Secretary, Ministry of Railways, and the
unofficial respondents in the O.As, aggrieved by the orders passed
by the Central Administrative Tribunal, Hyderabad Bench,
(hereinafter referred to as Tribunal), in allowing the O.As and in
setting aside the action of the Railways in including candidates,
belonging to the Scheduled Castes and the Scheduled Tribes, in
the select panel for different posts, and in directing the Railways to
finalise promotion/selection only after collecting necessary data in
compliance with the pre-conditions laid down in the Constitution
Bench judgment of the Supreme Court in
M. Nagaraj v. Union of
India
.

The respondents herein, i.e., applicants in the O.As, are all
employees of the Railways working in different cadres. They
invoked the jurisdiction of the Tribunal aggrieved by the action of
the Railways in promoting members of the Scheduled Castes and
the Scheduled Tribes, who were juniors to them in service, on the
basis of reservation. They contended before the Tribunal that such
reservation was in violation of the law declared by the Supreme
Court in M. Nagaraj1;
Suraj Bhan Meena v. State of Rajasthan
,
and
Uttar Pradesh Power Corporation Limited v. Rajesh
Kumar
. They sought a direction that the select list, which
included candidates belonging to the reserved category, be set
aside; the select list be revised by following seniority in the feeder
category; and the applicants (other than those who belong to the
reserved category) be promoted with all consequential benefits.

By its order in O.A.No.203 of 2013 and O.A.Nos.1417 and
1433 of 2012 dated 12.07.2013 (which is under challenge in W.P.
No.39158 of 2013), the Tribunal held that post-2006 the question
of reservation in promotion, and consequential benefits etc., would
be governed by the judgment of the Supreme Court in M. Nagaraj1;
the Supreme Court in Suraj Bhan Meena2 and in Uttar Pradesh
Power Corporation Limited3 had followed the earlier judgment of
the Constitution Bench in M. Nagaraj1; the Railways was not able
to demonstrate that they had undertaken the exercise to collect
quantifiable data as envisaged in M. Nagaraj1; the applicants had
rightly urged that the Railways, if they had to continue with
reservation in promotion with consequential benefits, had to collect
quantifiable data, and satisfy the parameters
laid down in
M.
Nagaraj1 and, if they had not done so, their action would be illegal;
the Railways had merely stated, in their reply, that they were
following the Railway Boards Circulars and DOP&T instructions;
the judgment of the Supreme Court, in M. Nagaraj1, was
categorical; and, in the light of
the said judgment
, the O.As should
be allowed.

In its order in O.A. No.125 of 2014 dated 15.01.2015 (which
is under challenge in W.P.No.775 of 2015) the Tribunal rejected the
preliminary objection of the petitioners herein that the O.A. was
barred by limitation. After referring extensively to the judgment of
the Supreme Court in M. Nagaraj1, the Tribunal held that the
applicants had contended that the Railway authorities did not
comply with the directions of the Supreme Court, in M. Nagaraj1,
for providing reservation in promotion; they had further contended
that the Railways was bound to collect data to show that the
reserved candidates were inadequately represented in the services,
and they had overall administrative efficiency; no exercise had
been carried out by the authorities to collect such data; the main
objection raised by the applicants was that the authorities did not
undertake any exercise before providing reservation in promotion;
the mandatory exercise, stipulated by the Constitution Bench in
M. Nagaraj1, required the State to collect quantifiable data showing

(i) backwardness of the class, (ii) inadequacy of representation of
that class, (iii) compliance with
Article 335
of the Constitution of
India; these directions were not complied by the Railways;
admittedly the condition precedent, as
laid down by
the Supreme
Court in M. Nagaraj1, was not satisfied; no exercise had been
undertaken by the Railways before providing reservation in
promotion by the impugned selection; the Railways had merely
stated that reservation was required in promotional posts, without
collecting necessary data of the reserved candidates in the select
list, and without satisfying the preconditions
laid down in
M.
Nagaraj1; and the impugned promotions were not valid. The
selection of reserved candidates, and their inclusion in the select
list, was quashed and the Railways were directed to provide
reservation in promotion, after collecting necessary data, as
laid
down by
the Supreme Court in M. Nagaraj1.

It is contended, on behalf of the petitioners, that no factual
foundation was laid by the applicants before the Tribunal to show
that the order of the Supreme Court in M. Nagaraj1 had been
violated; the O.A. was liable to be dismissed on the ground of
limitation; the burden was on the respondents-applicants to
establish violation of
Articles 14
and
16 (1)
of the Constitution of
India, by the reservation provided under
Article 16 (4)
and
16 (4-
A);
this onus was not discharged by them; the respondents-
applicants had only challenged the covering letter dated
22.01.2014, and not the original order issued by the Railway
Board dated 22.01.2014; the Tribunal had not assigned any
reasons for allowing the O.As; no rule or circular had been
challenged before the Tribunal; there was no plea in the O.As
regarding excessive representation or of persons included in the
select list not being backward; even the seniority list was
challenged belatedly; the Tribunal did not examine the circulars
applicable in this regard; the respondents-applicants, who have
not participated in the selection, cannot turn around and question
the very selection itself; the original selection list dated
24.04.2006, and the subsequent circulars of 2008 and 2010 have
not been challenged; the Tribunal is the Court of first instance; the
material on record could alone have been considered by the
Tribunal; in the absence of pleadings, this Court would not take
upon itself the task of examining this issue; there is no averment
in the O.A. that the Scheduled Castes and the Scheduled Tribes
are not backward or that there is excessive representation or even
that, by providing reservation in promotion, efficiency in
administration would be adversely affected; the grounds of
challenge, to the validity of the selection list, should be clear and
specific; the onus is on the person, who invokes the jurisdiction of
the Tribunal, to show how the judgment in M. Nagaraj1 has not
been followed; neither is there any pleading nor is there any
finding except to refer to the judgment in M. Nagaraj1; contentions,
not even raised in O.A, have been referred to in the order, as if they
had been raised; only the issue was decided in M. Nagaraj1, and all
the cases were referred back to the appropriate Bench; the
judgments in Suraj Bhan Meena2 and Uttar Pradesh Power
Corporation Limited3 were decided on the factual matrix of those
cases wherein there was a challenge to the circulars/rules; the
Supreme Court, in M. Nagaraj1, did not hold that there should be
no reservation in promotion or that reservation should only be
provided after the exercise is completed; any finding recorded,
without any plea, is a perverse finding; the order passed without
factual foundation is liable to be set aside; the policy of the
Railways, in providing reservation in promotion, has been in
existence for several decades; the validity of the action of the
railways can only be examined in properly constituted proceedings
wherein factual foundation is laid; no rejoinder was filed, by the
applicants in the O.A, to the counters filed in reply to the O.As;
even otherwise, the Railways have fulfilled the parameters
,
laid
down in
M. Nagaraj1, in providing reservation in promotion; and
the order of the Tribunal must be set aside.

On the other hand it is contended, on behalf of the
respondents-applicants, that the select list, prepared vide memo
dated 01.08.2011, was initially operated only till serial No.166; the
life of the panel, which was for two years, expired on 31.07.2013; it
is only by letter dated 22.01.2014 was the life of the panel
extended; but for such extension, the earlier select list would have
ceased to operate; the respondents-applicants have invoked the
jurisdiction of the Tribunal within one year of the proceedings
dated 22.01.2014 whereby the life of the panel was extended; the
law
laid down by
the Supreme Court, in M. Nagaraj, required the
Railways to show that they had gathered adequate data to provide
reservation in promotion; as the Railways had failed to place any
such data, the Tribunal was justified in setting aside the select list,
and in directing the Railways to follow the law declared in M.
Nagaraj1; the State is bound to place data before the Court to show
that the law declared by the Supreme Court, in M. Nagaraj1, has
been complied with; the validity of the DoPT circulars was
considered by the Principal Bench of the Central Administrative
Tribunal in O.A.No.2211 of 2008 dated 02.12.2010; and the
impugned order of the Tribunal is valid, and does not necessitate
interference.

Heard Sri G.S. Sanghi, Learned Senior Standing Counsel for
Railways, Smt. Pushpender Kaur, Learned Standing Counsel for
Railways, Sri G. Vidyasagar, Learned Senior Counsel, Sri J.
Sudheer, Sri K. Chidambaram and Sri A. Durga Bhaskar, Learned
Counsel appearing on behalf of the petitioners and Sri K.R.K.V.
Prasad, Learned Counsel appearing on behalf of the respondents.
It is convenient to examine the submissions, made by Learned
Counsel on either side, under different heads.

I. HAS FACTUAL FOUNDATION BEEN LAID, IN THE
PLEADINGS BEFORE THE TRIBUNAL, JUSTIFYING
GRANT OF RELIEF?

It is contended on behalf of the petitioners that no factual
foundation was laid, in the applications filed in the various O.As
before the Tribunal, to show how the order of the Supreme Court
in M. Nagaraj1, Suraj Bhan Meena2; and Uttar Pradesh Power
Corporation Limited3 had been violated by the Railways; in M.
Nagaraj1 the Supreme Court had, after declaring the law, directed
the matters to be posted before the regular bench for examination,
of the applicability of the law declared by it, in each individual
case; a bald and vague averment that the Railways had failed to
adhere to the order of the Supreme Court, in the aforesaid
judgments, would not suffice; factual details, of the manner in
which the Railways had violated the aforesaid judgments of the
Supreme Court, should have been pleaded; it is only if factual
foundation had been laid in this regard, in the applications filed in
support of the various O.As, could the Tribunal have recorded its
findings thereupon; any finding recorded by the Tribunal, not
supported by the pleadings on record, is an error of law apparent
on the face of the record; the burden lies heavily on the
respondents-applicants, who had invoked the jurisdiction of the
Tribunal, to establish that the reservation provided, in terms of

Article 16(4A)
and
16(4B)
, by the Railways violated their
fundamental rights under
Articles 14
and
16(1)
of the Constitution
of India; no rule or circular has been challenged in any of the O.As;
the circulars issued by the Railways between the years 2008 to
2010, (after the judgment of the Supreme Court in M. Nagaraj1),
have also not been put in issue; in the absence of any plea, the
Tribunal was not justified in examining these issues; this Court
would also not examine these issues for the first time in writ
proceedings, as the Tribunal is the Court of first instance; there is
no averment in the O.As, that the members of the Scheduled
Castes, who are being considered for promotion, are not backward;
there is also no averment that the representation in services, of the
Scheduled Castes, is excessive; the O.As do not even state, much
less detail, how providing reservation in promotion for the
Scheduled Castes and the Scheduled Tribes would affect efficiency
in administration; the grounds of challenge to the select list,
whereby members of the Scheduled Castes and the Scheduled
Tribes were sought to be promoted, should be clear and specific;
neither is there any plea in the O.As nor has the Tribunal recorded
any finding on whether and how the Railways had acted contrary
to the judgment of the Supreme Court, in M. Nagaraj1, in providing
reservation in promotion in favour of the Scheduled Castes and the
Scheduled Tribes; mere reference to the judgment of the Supreme
Court in M. Nagaraj1, in the applications filed in support of the
O.As, would not suffice; the Tribunal ought to have dismissed the
O.As. on the ground of lack of pleadings; on the contrary, the
Tribunal has dealt with the contentions which have not even been
pleaded in the O.As, but were put forth only during the course of
arguments; any finding, recorded without any plea, is a perverse
finding; the policy of the Railways, in providing reservation in
promotion, has been in existence for the past several decades;
though the plea, of absence of pleadings, was raised by the
petitioners herein in their counter filed before the Tribunal, the
applicants in the O.As chose not to file any rejoinder thereto; and,
on this short ground alone, the impugned orders of the Tribunal
necessitate being set aside.

On the other hand it is contended, on behalf of the
respondents-applicants, that the contention of the Railways having
providing reservation in promotion even after the law declared by
the Supreme Court in M. Nagaraj1, without first ascertaining
whether the parameters prescribed for providing reservations in
promotion were satisfied, has been raised in the O.As; it would
suffice for the applicants to raise such a plea; it is not necessary
for the said plea to be elaborated in detail; the law declared by the
Supreme Court, in M. Nagaraj1, required the Railways to place
data before the Tribunal to show that the parameters, stipulated in

the said judgment
,were satisfied; no such material was placed by
the Railways before the Tribunal; even in the present Writ
Petitions, the Railways have not shown how the parameters
,
laid
down by
the Supreme Court in M. Nagaraj1, are satisfied; it is only
if these parameters are satisfied, can reservations be provided, in
favour of the Scheduled Castes and the Scheduled Tribes, in
promotion; as the onus was on the Railways to show that they had
complied with the parameters, before providing reservation in
promotion, the Tribunal was justified in setting aside the
promotions of the unofficial respondents in the O.As; and the
pleadings in the O.As sufficiently show that reservation was being
provided, for the Scheduled Castes and the Scheduled Tribes, in
promotion without fulfilling the parameters
laid down by
the
Supreme Court in M. Nagaraj1; and the order of the Tribunal does
not necessitate interference on this ground.

No party should be permitted to travel beyond its pleading,
and all necessary and material facts should be pleaded by the
party in support of the case set up by it. (
National Textile Corpn.
Ltd. v. Nareshkumar Badrikumar Jagad
;
Ram Sarup Gupta v.
Bishun Narain Inter College
;
Bachhaj Nahar v. Nilima
Mandal
). Pleadings are the foundation of litigation. There must be
enough factual allegations to raise a right to relief above the
speculative level. The pleadings must contain something more than
a statement of facts that merely create a suspicion of a legally
cognizable right of action.

(
Maria Margarida Sequeira Fernandes
v. Erasmo Jack
de Sequeira ; Bell Atlantic Corporation v.
Twombly ). A party must take appropriate pleadings, and lay
down the factual foundation, so that the court may reach a just
conclusion.

(
Rajasthan State Industrial Development &
Investment Corpn. v. Subhash Sindhi Coop. Housing Society
).
Pleadings and particulars are necessary to enable the court to
decide the rights of the parties. As a rule relief, not founded on the
pleadings, should not be granted. A decision cannot be based on
grounds outside the pleadings of the parties.

(National Textile
Corpn. Ltd.4;
Trojan & Co. v. Nagappa Chettiar
;
State of
Maharashtra v. Hindustan Construction Co. Ltd.
and
Kalyan
Singh Chouhan v. C.P. Joshi
).

A new ground raising a pure question of law or a legal issue,
for which no inquiry/proof is required, can be permitted to be
raised by the Court at any stage of the proceedings, (National
Textile Corpn. Ltd.4;
Sanghvi Reconditioners (P) Ltd. v. Union
of India
; and
Greater Mohali Area Development Authority v.
Manju Jain
), but a question of fact, which requires investigation
and inquiry and for which no factual foundation has been laid by a
party before the Court or the Tribunal, cannot be allowed to be
agitated. If the Court, for some compelling circumstances, desires
to entertain a new factual plea, it must give due opportunity to the
opposite party to controvert the same and adduce evidence to
substantiate its pleadings. It is not permissible for the Court to
consider a new case on facts or mixed question of fact and law
which was not the case of the parties before the Court or the
Tribunal below.

(Greater Mohali Area Development Authority14;

State of U.P. v. Dr. Anupam Gupta
;
Ram Kumar Agarwal v.
Thawar Das
;
Vasantha Viswanathan v. V.K. Elayalwar
;
Anup
Kumar Kundu v. Sudip Charan Chakraborty
; Tirupati Jute
Industries (P) Ltd. v. State of W.B. and Sanghvi
Reconditioners (P) Ltd.13).

In
Southern Petrochemical Industries Co. Ltd. v.
Electricity Inspector & ETIO
, the Supreme Court held that, for
attracting
Article 14
, necessary facts are required to be pleaded;
the foundational facts, as to how the statutory provision was
discriminatory, had not been stated; the respondents did not have
the opportunity to meet the said contention; and such factual
foundation, unless it was apparent from the statute itself, could
not be permitted to be laid later.

In
Bangalore Development
Authority v. Aircraft Employees Coop. Society Ltd.
, , the
Supreme Court held that, though the applicants had pleaded that a
provision was discriminatory, no factual foundation was laid in
support of this plea; and, in the absence of such foundation, the
Court was not justified in recording its conclusion that the
impugned provision was violative of the equality clause contained
in
Article 14
of the Constitution.

In
Union of India v. Pushpa Rani
, the Supreme Court
held:-

The point which remains to be considered is whether the order of the
Tribunal, which has been confirmed by the High Court, can be maintained by
applying the ratio of M. Nagaraj case6. Dr. Rajeev Dhavan, learned Senior
Counsel appearing for some of the respondents, made strenuous efforts to
convince us that the policy of reservation cannot be applied at the stage of
making promotions because the Railway Administration did not produce any
evidence to show that Scheduled Castes and Scheduled Tribes were not
adequately represented in different cadres and that the efficiency of
administration will not be jeopardised by reserving posts for Scheduled Castes
and Scheduled Tribes, but we have not felt persuaded to accept this submission.
In the applications filed by them, the respondents did not plead that the
application of the policy of reservation would lead to excessive
representation of the members of Scheduled Castes and Scheduled Tribes,
or that the existing policy of reservation framed by the Government of
India was not preceded by an exercise in relation to the issue of adequacy
of their representation. Rather, the thrust of their claim was that
restructuring of different cadres in Group C and D resulted in upgradation
of posts and the policy of reservation cannot be applied qua upgraded
posts. Therefore, the Union of India and the Railway Administration did
not get opportunity to show that the employees belonging to Scheduled
Castes and Scheduled Tribes did not have adequate representation in
different cadres; that the outer limit of reservation i.e. 50% will not be
violated by applying the policy of reservation and that the efficiency of
administration will not be jeopardised by applying the policy of
reservation. Therefore, it is neither possible nor desirable to entertain a
totally new plea raised on behalf of the respondents, more so, because
adjudication of such plea calls for a detailed investigation into the issues of
facts.(emphasis supplied).

As the Learned Counsel appearing on behalf of the
petitioners have referred mainly to the documents filed in W.P.
No.39158 of 2013 and W.P. No.775 of 2015, it is convenient to
refer to the pleadings in the O.As which are the subject matter of
these Writ Petitions to ascertain whether factual foundation was
laid by the respondents-applicants for the relief sought for in the
O.As. In O.A. No.1433 of 2012, (the order passed in which is
under challenge in W.P. No.39158 of 2013), the respondents-
applicants questioned the action of the Railways in observing, vide
memo dated 04.12.2012, the rule of reservation, and the principle
of own merit, in respect of SC/ST employees in promotions while
publishing the select list for the post of Passenger Guards/Senior
Passenger Guards in the Secunderabad Division.
In the said O.A,
the respondent-applicants pleaded that they were working as
Senior Goods Guards; their names were reflected in the seniority
list published by the Secunderabad Division; the Secunderabad
Division of the Railways, without issuing any notification and
without declaring the number of vacancies, had published the
select list for the post of Passenger Guards/Senior Passenger
Guards, vide memo dated 04.12.2012; the railways had followed
the rule of reservation in promotion, in violation of the law declared
by the Supreme Court, and the earlier orders of the Central
Administrative Tribunal; while publishing the panel, the names of
members of the Scheduled Castes and the Scheduled Tribes were
considered on their own merit against unreserved posts; a large
number of employees belonging to SC/ST, who were juniors to the
petitioners, were included in the select list; as the respondents had
followed the rule of reservation in promotion, including the own
merit concept, 15 posts had been filled up by SC/ST employees
who had joined in the goods guard cadre subsequent to the
respondents-applicants; as a result of the policy of reservation in
promotion, employees, who belonged to SC/ST category, were
promoted ahead of them to the post of Senior Goods Guards in the
years 2008-2011; on account of such accelerated promotion, and
the advantage of seniority they gained, members belonging to the
SCs and STs were further promoted to the post of passenger
guards/senior passenger guards; the selection was finalised
without transparency, and without issuing any notification; the
vacancies, which included anticipated vacancies, were filled up by
a large number of juniors to the applicants; some of the promotees
have been impleaded as party respondents in the O.As; as the rule
of reservation in promotions was observed, even after the judgment
of the Supreme Court in M. Nagaraj1, SC/ST employees, who were
juniors to the applicants, would get accelerated promotion to the
post of senior goods guards with the further benefit of seniority;
they would then march ahead of the applicants; the Railways had
filled up vacancies, in the category of Passenger Guards/Senior
Passenger Guards, by providing reservation in promotion, and
applying the principle of own merit in respect of SC/ST
employees, even after Courts/Tribunals have held that the said
policy/instruction is illegal and arbitrary; the action of the
respondents, in considering a large number of SC/ST employees
for promotion to the post of passenger guard/senior passenger
guard, based on the existing seniority list in the feeder category of
senior goods guard, (which list was prepared on the basis of the
accelerated promotion given to SC/ST employees), is arbitrary and
illegal; such promotions were given, despite the law declared by the
Supreme Court; the Government could not follow the policy of
reservation in promotion without complying with the
criteria/parameters
laid down in
M. Nagaraj1 and Suraj Bhan
Meena2; the aforesaid judgments have been followed by the
Principal Bench of the Central Administrative Tribunal and other
High Courts in the country; directions were given by
Courts/Tribunals to the Government not to follow the principle of
own merit in respect of SC/ST employees; the relevant
instructions were struck down as it had resulted in excess
operation of the roster point relating to SC/STs; in view of the
decision of the Supreme Court, in M. Nagaraj1, reservation in
promotion and granting consequential seniority to the SC/ST
employees, without following the pre-conditions
laid down in

Articles 16(4A)
and
16(4B)
of the Constitution, is illegal; and the
respondents had issued the select list resulting in a large number
of junior SC/ST employees being granted higher status/promotion
detrimental to the interests of seniors such as the applicants.

In the application filed in O.A. No.125 of 2014 (the order
passed in which is under challenge in W.P. No.775 of 2015), the
applicants stated that, in view of passage of time resulting in
expiry of the life of panel i.e., two years, they had submitted a
representation dated 31.07.2013 requesting the fourth respondent
to issue a fresh select list in supersession of the operating panel
dated 01.08.2011, as they were seniors to the SC/ST employees
enlisted in the said panel; the respondents should have issued
proceedings to extend the currency of the panel only to the extent
of the unreserved zone, but not to the zone relating to the roster
point of SC/ST, as that would result in juniors to the applicants,
whose names were included in the select list and who belonged to
SC/STs, being promoted in violation of the settled law; the
Railways was promoting juniors, following the principles of
reservation in promotion, in disregard to the law
laid down by
the
Supreme Court and other Courts/Tribunals, though no
quantifiable data, on the parameters
laid down by
the Supreme
Court, has been published; implementation of the policy of
reservation in promotion, without complying with the
criteria/parameters
laid down in
M. Nagaraj1, Suraj Bhan Meena2,
and Uttar Pradesh Power Corporation Limited3, is illegal; as a
result the applicants, who belong to the unreserved category, are
not being promoted; and the action of the Railway Board in seeking
to extend the currency of the panel, even though the Tribunal had
declared such a panel containing junior SC/ST employees as
illegal, is in violation of
Articles 14
, 16
and
of the Constitution
of India.

As shall be referred to in detail hereinafter in this order, the
Constitution Bench of the Supreme Court in M. Nagaraj1, held
that before exercising the enabling power, under
Articles 16(4-A)

and (4-B) of the Constitution of India to provide reservation in
promotion and in conferring the benefit of consequential seniority
in favour of the Scheduled Castes and the Scheduled Tribes, the
State should collect quantifiable data showing backwardness of the
class, inadequacy of representation of that class in public
employment, and compliance of the requirement of maintaining
overall efficiency in administration as stipulated in
Article 335
of
the Constitution. In view of the law declared by the Supreme
Court, in M. Nagaraj1, compliance with the aforesaid parameters
by the Railways is a condition precedent for providing reservation
in promotion in favour of the Scheduled Castes and the Scheduled
Tribes.

As the relief sought for by the respondents-applicants before
the Tribunal was to set aside the promotions given to the members
of the Scheduled Castes and the Scheduled Tribes, on the ground
that the Railways could not have provided reservation in promotion
to higher posts, without complying with the aforesaid parameters

laid down in
M. Nagaraj1, it would suffice if there are specific
averments in this regard in the O.As, filed by the respondents-
applicants, before the Tribunal. As is evident from the averments,
in the O.As referred to hereinabove, the respondents-applicants
have pleaded that the Government was not entitled to follow the
policy of reservation in promotion without complying with the
criteria/parameters
laid down in
M. Nagaraj1 and Suraj Bhan
Meena2; in view of the decision of the Supreme Court, in M.
Nagaraj1, reservation in promotion and granting consequential
seniority to SC/ST employees, without following the pre-conditions

laid down in

Articles 16(4-A)
and
16(4-B)
of the Constitution, is
illegal; the respondents (Railways) were consistently giving
promotion to juniors, following the principles of reservation in
promotion, in disregard to the law
laid down by
the Supreme Court
and other Courts/Tribunals, though no quantifiable data, on the
parameters
laid down by
the Supreme Court, have been published;
and implementation of the policy of reservation in promotion,
without complying with the criteria/parameters
laid down in
M.
Nagaraj1, Suraj Bhan Meena2, and Uttar Pradesh Power
Corporation Limited3 is illegal. Sufficient pleas have been taken
in the O.As, and adequate factual foundation has been laid
therein, for the Court/Tribunal to reach a just conclusion, and to
enable it to decide the rights of the parties to the relief sought for.

In Pushpa Rani22, the applicants did not even plead, in the
O.As filed before the Tribunal, that application of the policy of
reservation would lead to excessive representation of the members
of the Scheduled Castes and the Scheduled Tribes, or that the
existing policy of reservation framed by the Government was not
preceded by an exercise in relation to the issue of adequacy of their
representation. Reliance placed by the petitioners, on Pushpa
Rani22, is misplaced. We see no merit in the contention, urged on
behalf of the petitioners, that the orders passed by the Tribunal
necessitate interference on the ground that they were passed even
in the absence of pleadings sufficient to grant relief.
II. WERE THE O.As FILED BY THE RESPONDENTS-

APPLICANTS BEYOND THE PERIOD OF LIMITATION
PRESCRIBED UNDER SECTION 21 OF THE
ADMINISTRATIVE TRIBUNALS ACT?

It is contended, on behalf of the petitioners, that the select
list dated 01.08.2011, which forms the basis for providing
reservation in promotion for the Scheduled Castes and the
Scheduled Tribes, has not been subjected to challenge in the O.As
filed before the Tribunal; the respondents-applicants have also not
questioned the original order dated 22.01.2014, but have only
questioned the covering letter of the same date; the belated
challenge to the select list, beyond the period of limitation
prescribed in
Section 21
of the Administrative Tribunals Act, could
only have been entertained by the Tribunal if a petition had been
filed to condone the delay; neither was any such petition filed
before the Tribunal, nor did the Tribunal condone the delay; and
as the selection now made, is on the basis of the select list dated
01.08.2011, any belated challenge thereto, beyond the period of
limitation prescribed in
Section 21
of the Administrative Tribunals
Act, should not have been entertained by the Tribunal.

On the other hand it is contended, on behalf of the
respondents in these Writ Petitions (applicants in the O.As), that
the select list, in memo dated 01.08.2011, was initially operated
only upto serial No.166 thereat; it was not operated thereafter; the
currency of the panel is only for two years which expired by
31.03.2013; it is by proceedings dated 22.01.2014 that the life of
the panel was extended; but for such extension the panel,
prepared pursuant to the select list dated 01.08.2011, would not
have been operated; the respondents herein (applicants in the
O.As) are aggrieved by the life of the panel being extended by
proceedings dated 22.01.2014; they invoked the jurisdiction of the
Tribunal just a few months after the proceedings dated 22.01.2014
was issued; the O.As filed by them can neither be said to be
barred by limitation nor to be hit by delay and laches; and the
Tribunal was justified in entertaining the O.As and deciding them
on merits.

No party can claim relief as a matter of right, as one of the
grounds for refusing relief is if the person approaching the court is
guilty of delay and laches. The Court, exercising public law
jurisdiction, does not encourage agitation of stale claims where the
right of third parties have crystallised in the interregnum.
(
Aflatoon v. Lt. Governor of Delhi
;
State of Mysore v. V.K.
Kangan
;
Municipal Council, Ahmednagar v. Shah Hyder
Beig
;
Inder Jit Gupta v. Union of India
;
Shiv Dass v. Union
of India
;
A.P. SRTC v. N. Satyanarayana
;
City and Industrial
Development Corpn. v. Dosu Aardeshir Bhiwandiwala
;
Shiba
Shankar Mohapatra v. State of Orissa
). A party should
approach the court just after accrual of the cause of the complaint.
The principle on which the court proceeds, in refusing relief to the
petitioner on the ground of laches or delay, is that the rights,
which have accrued to others by reason of the delay in filing the
application/writ petition, should not be allowed to be disturbed
unless there is a reasonable explanation for the delay. The action
of courts cannot harm innocent parties if their rights emerge by
reason of delay on the part of the person moving the Court.

(Shiba
Shankar Mohapatra30;
Ramchandra Shankar Deodhar v. State
of Maharashtra
;
Tilokchand Motichand v. H.B. Munshi
).

In Secy. to Govt. of India v. Shivram Mahadu Gaikwad ,
the Supreme Court held:-

..When we turn to the judgment of the Tribunal we find that there is no
mention about the question of limitation even though it stared in the face. It
would immediately occur to anyone that since the order of discharge was
of 7-10-1986 and the application was filed in 1990, it was clearly barred by
limitation unless an application for condoning the delay was made under

Section 21(3)
of the Administrative Tribunals Act. No such application was
in fact made. Even if it was the contention of the employee that he was
suffering from schizophrenia, that could have been projected as a ground for
condonation of delay under sub-section (3) of
Section 21
of the said statute.
Even otherwise without insisting on the formality of an application under

Section 21(3)
if the Tribunal had dealt with the question of limitation in
the context of
Section 21
we may have refrained from interfering with the
order of the Tribunal under
Article 136
, but it seems that the Tribunal
totally overlooked this question which clearly stared in the face. Even the
employee made no effort to explain the delay and seek condonation. We
find no valid explanation on record for coming to the conclusion that the
case for condonation of delay is made out. In the circumstances, there is no
doubt that the application was clearly barred by limitation.. (emphasis
supplied).

As
Section 21(2)
of the Administrative Tribunals Act gives a
right to make an application within one year of the grievances
covered under clauses (a) and (b) of
Section 21(1)
, and within the
outer limit of six months in respect of the grievances covered under

Section 21(2)
, the applicant need not give any explanation for the
delay having occurred during that period. The applicant is entitled,
as of right, to invoke the jurisdiction of the Tribunal for redressal
of his grievance. It is only if the application is filed beyond that
period, does the need arise to give a satisfactory explanation for the
delay caused till the date of filing of the application. The question
of satisfaction of the Tribunal, in this regard, would arise only
thereafter.
Section 21(3)
starts with a non obstante clause, which
wipes out the effect of
Section 21(2)
, and the need arises thereby to
furnish a satisfactory explanation for the delay which occasioned
after the expiry of the period prescribed in
Section 21(1)
and (2).
(
State of Karnataka v. S.M. Kotrayya
).

Among the reliefs sought for in O.A.No.020/00125/ 2014
(the order passed in which is under challenge in W.P.No.775 of
2015), is to declare that the permission accorded by the Railway
Board, vide their letter dated 22.1.2014, extending the currency of
the panel could not be applied to the select list for the post of Loco-

Pilot (goods) as it is illegal. By proceedings dated 01.08.2011, a
select list of employees was prepared for promotion to the post of
Loco Pilot (goods) pursuant to a suitability test conducted by the
committee, on the basis of perusal of the records, on 26.07.2011.
The select list contains, from serial No.167 downwards, members
of the Scheduled Castes and the Scheduled Tribes who were placed
in the select list as reservation was provided in promotion. The
said memo dated 01.08.2011 records that there was a short fall of
12 Scheduled Castes and 35 Scheduled Tribes; there were no
Scheduled Castes/Scheduled Tribes employees eligible and
available for whom the 47 vacancies were kept; and the select list
was provisional.

By proceedings dated 22.01.2014, the South Central
Railways, after referring to the Railway Boards letter of the same
date ie., 22.01.2014, communicated the approval of the Railway
Board for extension of the currency of the panel, for promotion to
the post of Loco Pilot (goods), which had expired on 31.07.2013 for
a period of one year as a special case. It is not in dispute that the
currency of the panel, prepared pursuant to the select list dated
01.08.2011, was for a period of two years and expired by
31.07.2013. But for the extension granted by the Railway Board
vide circular dated 22.01.2014, the panel could not have been
operated after 31.07.2013. If the period of limitation under
Section
of the Administrative Tribunals Act is reckoned from the date of
the Railway Boards Circular dated 22.01.2014, the said O.A. was
filed within the period of limitation.

In
Kuldip Chand v. Union of India
, the Supreme Court
held:-

.. It is next contended by Mr M.M. Kashyap, learned counsel for the
appellant, that Ashok Kumar disputed the correctness of the seniority list made
on 23-12-1982 in his representations dated 10-1-1983 and 1-8-1983 which
were duly considered and rejected. He allowed it to become final as he did not
challenge the same till post of accountant became vacant. When it was rejected,
he filed the writ petition in the High Court. There is a considerable delay in
claiming his seniority over the appellant. It is true that the seniority list
was prepared as early as on 23-12-1982 but no vacancy had arisen
thereafter and, therefore, the mere rejection of the claim for seniority does
not disentitle him to claim his seniority over the appellant for
consideration by the respondent-Union.

When the aforesaid facts are taken into consideration, it would be
obvious that the preparation of seniority list per se was illegal. Therefore,
the mere fact that he did not challenge the seniority list, which was
illegally prepared, till he was aggrieved for non-consideration of the claim
to the post of accountant, his legitimate right to be considered cannot be
denied. Under these circumstances, the delay is of no consequence for
considering the claims of Ashok Kumar for the post of accountant..

(emphasis supplied)

As shall be detailed hereinafter, the select list dated
01.08.2011, providing reservation in promotion, was prepared by
the Railways without gathering data, and even without formation
of opinion on the parameters stipulated in M.Nagaraj1. Having
acting illegally in preparing the select list dated 01.08.2011, the
Railways cannot be heard to contend that a belated challenge to
their illegal act should not have been entertained by the Tribunal.

III. WERE THE O.As, FILED BEFORE THE TRIBUNAL, LIABLE
TO BE DISMISSED FOR NON-JOINDER OF NECESSARY
PARTIES?

It is contended, on behalf of the petitioners, that the affected
candidates have not been impleaded as party respondents to the
O.As; their selection, based on the select list dated 01.08.2011,
cannot therefore be set aside; the O.As ought to have been
dismissed by the Tribunal for non-joinder of necessary parties; and
the Tribunal had erred in entertaining the O.As, and in granting
relief, in the absence of those Scheduled Castes and the Scheduled
Tribes employees, whose names were included in the select list,
being arrayed as respondents in the O.As filed before the Tribunal.

On the other hand it is contended, on behalf of the
respondents (applicants in the O.As filed before the Tribunal), that
the action of the Railways, in providing reservation in promotion
without undertaking the exercise of identifying backwardness,
examining whether or not efficiency in administration would be
effected thereby, and whether members of the Scheduled Castes
and Scheduled Tribes were adequately represented, was under

challenge in the O.As filed before the Tribunal; the law declared by
the Supreme Court, in M. Nagaraj1, required the Railways to
provide reservation in promotion only after obtaining necessary
data and on satisfying itself, on the basis of such data, that these
parameters were satisfied; consequently the Railways could have
provided reservations in promotion, in favour of the Scheduled
Castes and the Scheduled Tribes, only after undertaking such an
exercise; as the Railways have not gathered data, which is the pre-
requisite for providing reservation in promotion for the Scheduled
Castes and the Scheduled Tribes, their action in operating the
select list dated 01.08.2011, and thereby providing reservation in
promotion, was under challenge in the O.As; the promotions, given
to any particular member of the Scheduled Castes and the
Scheduled Tribes, whose name was included in the select list was
not under challenge in the O.As filed before the Tribunal; as such,
the only necessary party was the the Railways, which has been
arrayed as a respondent in all the O.As; persons, whose names are
found in the select list, are not necessary parties to the O.As.
wherein the challenge is to the action of the Railways in providing
reservation in promotion; and the contention, of non-joinder of
necessary parties, necessitates rejection.

In Prashant Ramesh Chakkarwar v. UPSC , the Supreme
Court held that the High Court did not commit any error by non-
suiting the petitioners, on the ground of non-impleadment of the
selected candidates as parties to the original applications and the
writ petitions; if the methodology of moderation adopted by the
Commission was faulted, the entire selection would have to be
quashed; and that was not possible without giving an opportunity
of hearing to those who had been selected and appointed in
different cadres.
In
State of Rajasthan v. Ucchab Lal
Chhanwal
, the Supreme Court held that, on a perusal of the writ
petition, it was noticed that there were specific averments that
juniors in the gradation list had been promoted; they had not been
arrayed as parties; in the event, the order passed by the High
Court was affirmed, persons who were seniors to the respondents
in the promotional cadre were bound to become juniors, regard
being had to their seniority position in the feeder cadre; no order,
that would adversely affect him, could be passed behind the back
of the person; and such an order, if passed, is in violation of
principles of natural justice, and is liable to be ignored as not
binding on such a party.

(Ucchab Lal Chhanwal37;
J.S. Yadav v.
State of U.P.
).

If a person challenges the selection process, successful
candidates or at least some of them are necessary parties. (Ucchab
Lal Chhanwal37;
Prabodh Verma v. State of U.P.
;
Tridip Kumar
Dingal v. State of W.B.
). In the O.As filed by the respondents-
applicants before the Tribunal, some of the persons whose names
were included in the select list, even if not all of them, were
arrayed as respondents.

The order of the Central Administrative Tribunal, Hyderabad
Bench in O.A.No.203 of 2013 and O.A.Nos.1417 and 1433 of 2012,
is under challenge in W.P.No.39158 of 2013. The respondents in
O.A.No.1433 of 2012 are the Union of India represented by the
Secretary (Establishment), Ministry of Railways; the General
Manager, South Central Railway; the Divisional Railway Manager,
South Central Railway; and respondents 4 to 18, the members of
the Scheduled Castes and the Scheduled Tribes who were extended
the benefit of reservation in promotion. The relief sought for in the
said O.A. is to call for the records in Memo dated 04.12.2012,
pertaining to the selection for the post of Passenger Guard/Senior
Passenger Guard, in following the principles of reservation in
promotion, and on own merit, in respect of the Scheduled Castes
and the Scheduled Tribes employees who were the erstwhile
juniors to the applicants, as illegal and in violation of the law
settled by the Supreme Court (ie the judgment of the Constitution
Bench of the Supreme Court in M. Nagaraj1). While a
consequential direction is also sought, among others, that the
applicants also be promoted, the challenge in the O.As are mainly
to the action of the Railways in providing reservation in promotion
without fulfilling the parameters
laid down by
the Supreme Court
in M. Nagaraj1.

The order of the Central Administrative Tribunal, Hyderabad
Bench, in O.A.No.020/00125/2014 dated 01.01.2015, is under
challenge in W.P.No.775 of 2015. The respondents in
O.A.No.020/00125/2014 are the Union of India represented by the
Secretary (Establishment), Ministry of Railways; the General
Manager, South Central Railway; the Chief Personnel Officer,
South Central Railway; the Senior Divisional Personnel Officer,
South Central Railway; and respondents 5 to 15, the members of
the Scheduled Castes and the Scheduled Tribes who were extended
the benefit of reservation in promotion. The relief sought for in the
said O.A. is to declare that the permission accorded by the Railway
Board, to extend the currency of the panel vide letter dated

22.01.2014, cannot be applied to the select list for the post of Loco
Pilot (Goods) as it is illegal and arbitrary; to quash and set aside
the select list dated 01.08.2011 from Sl.No.207 to 259; and to
direct the official respondents to finalise the promotion/selection
after collecting necessary data in accordance with the pre-
conditions
laid down by
the Supreme Court (ie in the Constitution
Bench judgment of the Supreme Court in M. Nagaraj1).

In cases where the validity of policy decisions are impeached,
on the ground of their being violative of Constitutional provisions,
such proceedings are analogous to those in which the
constitutionality of a statutory rule is assailed. In such
proceedings the necessary parties to be impleaded are those
against whom the relief is sought, and in whose absence no
effective decision can be rendered by the Court. In the present
case, the relief is claimed only against the Railways and their
action, in providing reservations in promotion in favour of the
Scheduled Castes and Scheduled Tribes without fulfilling the
parameters prescribed for the exercise of the enabling power under

Articles 16(4A)
and
16(4B)
, has been subjected to challenge. In all
the O.As the Ministry of Railways and their representatives have
been arrayed as respondents. The employees, who are likely to be
affected as a result, are, at the most, proper parties and not
necessary parties, and the non-joinder of all of them would not be
fatal to the O.As filed before the Tribunal. (GM, South Central
Rly. v. A.V.R. Siddhantti ). As relief is sought only against the
Ministry of Railways and their representatives, even if technically
all the promoted employees are not before the court, the petition is
not liable to fail on that ground. (
A. Janardhana v. Union of
India
; A.V.R. Siddhantti41).

IV. HAS THE RAILWAYS FULFILLED THE PARAMETERS,
STIPULATED BY THE SUPREME COURT IN M.NAGARAJ,
BEFORE PROVIDING RESERVATION IN PROMOTION?

Before examining the submission, urged on behalf of the
Railways, that reservation in promotion is justified as the
parameters prescribed in M. Nagaraj1 are satisfied, it is useful to
briefly refer to the circumstances in which the Constitution was
amended by the insertion of
Articles 16(4-A)
and
16(4-B)
and the
proviso to
Article 335
, and to the law declared by the Supreme
Court in M. Nagaraj1 regarding the circumstances in which the
State could exercise its enabling power under
Articles 16(4-A)
and

16(4-B)
to provide reservation in promotion, and to extend the
benefit of consequential seniority, in favour of the Scheduled
Castes and the Scheduled Tribes.

The concept of reservation under
Article 16(4)
is hedged by
three constitutional requirements, namely, backwardness of a
class, inadequacy of representation in public employment of that
class and its effect on the overall efficiency in administration. If the
extent of reservation is excessive, it then makes inroads into the
principle of equality under
Article 16(1).
Backwardness and
inadequacy of representation are compelling reasons for the State
to provide representation in public employment. If, in a given case,
the court finds excessive reservation under the enactment/rules
then such an enactment/rule would be liable to be struck down
since it would amount to derogation of the constitutional
requirements. (M. Nagaraj1).

Prior to the judgment of the Supreme Court in
Indra
Sawhney v. Union of India
, reservation in promotion existed. In
Indra Sawhney43, the Supreme Court held that reservation in
appointments or posts under
Article 16(4)
is confined to the initial
appointment, and does not extend to reservation in matters of
promotion. The Union Government was of the view that the
judgment, in Indra Sawhney43, adversely affected the interests of
the Scheduled Castes and the Scheduled Tribes in services, and
felt it necessary to continue the existing policy of providing
reservation in promotion, confining it to Scheduled Castes and the
Scheduled Tribes alone. Clause (4-A) was inserted after clause (4)
of
Article 16
of the Constitution. (M. Nagaraj1).
Article 16(4A)
of
the Constitution of India, introduced by the Constitution Seventy-
seventh Amendment Act, 1995 with effect from 17.06.1995, read
thus:

Nothing in this article shall prevent the State from making any provision
for reservation in matters of promotion to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in the
services under the State.

By the Constitution Eighty-first Amendment Act, 2000
,

Article 16(4B)
was introduced in the Constitution.
Articles 16(4B)

reads thus:

Nothing in this article shall prevent the State from considering any
unfilled vacancies of a year which are reserved for being filled up in that year
in
accordance with any provision for reservation made under clause (4) or clause
(4A) as a separate class of vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for determining the
ceiling
of fifty per cent reservation on total number of vacancies of that year.

By the Constitution (Eighty-second Amendment) Act, 2000
, a
proviso was inserted to
Article 335
of the Constitution. After its
amendment,
Article 335
and its proviso read thus:

Claims of Scheduled Castes and Scheduled Tribes to services and
postsThe claims of the members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and
posts
in connection with the affairs of the Union or of a State:

Provided that noting in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the Scheduled
Tribes for relaxation in qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of promotion to any class or
classes of services or posts in connection with the affairs of the Union or of a
State.

Article 16(4A)
, which was inserted by the
Constitution
Seventy-seventh Amendment Act, 1995
, was amended by the

Constitution Eighty-fifth Amendment Act, 2001
with retrospective
effect from 17.6.1995, and the words with consequential seniority,
was inserted in
Articles 16(4A)
between the words provision for
reservation in matters of promotion and to any class or classes of posts in
the services under the State. After its amendment
Article 16(4A)
reads
thus:-

Nothing in this article shall prevent the State from making any
provision
for reservation in matters of promotion, with consequential seniority, to any
class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.

In M. Nagaraj1, the validity, the interpretation, and the
implementation of the
Constitution (Seventy-seventh Amendment)
Act, 1995
, the
Constitution (Eighty-first Amendment) Act, 2000
,
the
Constitution (Eighty-second Amendment) Act, 2000
, and the

Constitution (Eighty-fifth Amendment) Act, 2001
was under
challenge. In addition, the Supreme Court was called upon to
examine whether the action taken pursuant thereto, which sought
to reverse with retrospective effect the decisions of the Supreme
Court in matters relating to promotion was valid; and whether, by
virtue of the aforesaid constitutional amendments, the power of
Parliament under
Articles 16(4-A)
and (4-B) was so enlarged as to
obliterate any or all the limitations of
Articles 16(4)
and
of the
Constitution. While upholding the validity of the aforesaid
amendments, the Supreme Court held that
Article 16(4-A)
is
confined to the Scheduled Castes and the Scheduled Tribes; as

Articles 16(4-A)
and
16(4-B)
flow from
Article 16(4)
, and since

Article 16(4)
is an enabling provision,
Articles 16(4-A)
and
16(4-B)

are also enabling provisions; as the constitutional amendments, by
which
Articles 16(4-A)
and
16(4-B)
were inserted, flowed from

Article 16(4)
they did not alter its structure; the boundaries of the
width of the power under
Article 16(4)
were not obliterated by, and
were retained in,
Articles 16(4-A)
and
16(4-B);
when the State fails
to identify and implement the controlling factors then
excessiveness comes in;
Article 16(4-A)
and
16(4-B)
retain the
controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables the
States to provide reservation keeping in mind the overall efficiency
of the State administration under
Article 335;
they do not also
obliterate the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer
(qualitative exclusion), the sub-classification between OBCs on the
one hand and SCs and STs on the other as held in Indra
Sawhney43, and the concept of post-based roster, with inbuilt
concept of replacement, as held in
R.K. Sabharwal v. State of
Punjab
; whether reservation, in a given case, is desirable as a
policy or not, is not for Courts to decide as long as the parameters
mentioned in
Articles 16(4)
and
16(4-A)
are maintained; equity,
justice and merit (
Article 335
)/efficiency are variables which can
only be identified and measured by the State; the discretion of the
State, in providing reservation under the enabling provisions of

Article 16(4)
and
Article 16(4-A)
of the Constitution, is subject to
the existence of backwardness and inadequacy of
representation in public employment; backwardness must be
based on objective factors, and inadequacy should factually exist;
though vesting of the power, by the enabling provisions of

Articles 16(4-A)
and (4-B), is constitutionally valid, yet exercise of
the power by the State, in a given case, may be arbitrary,
particularly if the State fails to identify and measure backwardness
and inadequacy keeping in mind the efficiency of service as
required under
Article 335;
the concepts of efficiency,
backwardness, inadequacy of representation are required to be
identified and measured; that exercise depends on availability of
data, and on numerous factors; if the State has quantifiable data
to show backwardness and inadequacy, it can then make
reservations in promotions keeping in mind maintenance of
efficiency which is a constitutional limitation on the discretion of
the State as indicated by
Article 335;
as
Articles 16(4-A)
and
16(4-
B)
are enabling provisions, the State is not bound to make
reservation for SCs/STs in matters of promotion; however, if they
wish to exercise their discretion and make such provision, the
State has to collect quantifiable data showing backwardness of the
class, and inadequacy of representation of that class in public
employment, in addition to compliance with
Article 335;
and, even
if the State has compelling reasons, it must ensure that its
reservation provision does not lead to excessiveness so as to
breach the ceiling limit of 50% or obliterate the creamy layer or
extend the reservation indefinitely.

There is no fixed yardstick to identify and measure the three
variable factors of equity, justice and efficiency. If the concerned
State fails to identify and measure backwardness, inadequacy and
overall administrative efficiency then, in that event, the provision
for reservation would be invalid. (M. Nagaraj1). The question,
whether the concerned State has identified and valued the
circumstances justifying its making reservation, must be decided
on the facts and circumstances of each case. The Court must be
satisfied, in each case, that the State has exercised its opinion in
making reservation in promotions for SCs and STs, for which the
concerned State should place the requisite quantifiable data, and
satisfy the Court that such reservation has become necessary on
account of inadequacy of representation of SCs/STs in a particular
class or classes of posts without affecting the general efficiency of
service as mandated under
Article 335
of the Constitution. With
regards the extent of reservation, the State will have to show, in
each case, the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency before making provision for reservation. If,
in a given case, the court finds excessive reservation under a State
enactment, then such an enactment would be liable to be struck
down since it would amount to derogation of the constitutional
requirements. (M. Nagaraj1).

Bearing these aspects in mind, let us now examine whether
the petitioner-Railways is justified in its submission that the
reservation provided by them, in favour of the Scheduled Castes
and the Scheduled Tribes for promotion to higher posts, satisfies
the parameters
laid down by
the Supreme Court in M. Nagaraj1.

In the affidavit filed in support of W.P. No.39158 of 2013, by
the Union of India and the South Central Railway, it is stated that,
from out of the total sanctioned posts, posts were reserved in
promotions considering 15% and 7.5% representation for the
Scheduled Castes and the Scheduled Tribes; the backlog unfilled
posts, which were reserved for the Scheduled Tribes was 1941,
which showed that the Scheduled Castes and the Scheduled Tribes
were not adequately represented in promotional categories;
reservation in promotions was, therefore, justified; quantified data
was obtained, with regards adequacy of representation of the
Scheduled Castes and the Scheduled Tribes in the cadre of
passenger guards, before the select list was finalised; the same was
incorporated by the Railways in the counter filed by them before
the Tribunal; the table extracted in the counter showed that, as
against the reservation prescribed for the Scheduled Castes at 15%
and for the Scheduled Tribes at 7.5%, the existing staff, belonging
to these two categories, were lower than the number of posts
required to be provided if reservation, of the aforesaid percentage,
was to be adhered to; and, considering the 15% and 7.5%
reservation required to be provided in their favour, the data
showed that the Scheduled Castes and the Scheduled Tribes were
not adequately represented in the cadre of passenger guards.

With regards backwardness and efficiency in administration,
it is stated that the Scheduled Castes and the Scheduled Tribes
form a separate class by themselves, and are construed to be
backward communities; the Constitution 82nd Amendment Act
provided that nothing in the Article shall prevent, in making any
provision in favour of the members of the Scheduled Castes and
the Scheduled Tribes, relaxation in qualifying marks in any
examination or lowering the standards in so far as evaluation for
reservation, in matters of promotion to any class or classes of
service of posts in connection with the affairs of the Union or the
State, was concerned; in the instant case, as the post of passenger
guards was a safety category post, no relaxation whatsoever, as
enshrined in the Article, had been provided in the Selection in
question; as the aforesaid twin requirements, for providing
reservations, were complied with, the rights of the Scheduled
Castes/Scheduled Tribes, for reservation in promotion, was
protected by the Constitutional Amendments.

Even in their counter, filed before the Tribunal, the Railways
contended that, in terms of the Railway Boards circular dated
29.01.2009, it was clarified that the Scheduled Castes/Scheduled
Tribes who had been promoted, during the period from 07.08.2002
to 06.05.2005, by the non-selection method by virtue of their
seniority in the feeder grade or otherwise, in excess of the
reservation quota were to be adjusted against the reserved
vacancies arising in future; by its Circular dated 01.09.2010, the
Railway Board had clarified that members of the Scheduled Castes
and the Scheduled Tribes, appointed by promotion on their own
merit and seniority and not owing to reservation or relaxation of
qualifications, were required to be adjusted against the unreserved
points of the reservation roster, irrespective of whether the
promotion was made by the selection or the non-selection method;
these orders were made with effect from 21.08.1997 i.e., the date
from which post based roster was introduced in the Railways;
however staff, promoted prior to issuance of the said circulars,
were required to be reverted; the short fall in the categories of
Scheduled Castes and Scheduled Tribes, if any, was required to be
made good through vacancies arising in future.

The counter, filed by the Railways before the Tribunal,
further details the reservation required to be provided for the
Scheduled Castes and the Scheduled Tribes at 15% and 7.5%
respectively. It then takes note of the existing staff in the reserved
category, to conclude that, as the existing staff fall short of the
required number of posts to be reserved for the Scheduled Castes
and the Scheduled Tribes, vacancies still exist which are required
to be filled up. Reference is also made to the Departmental of
Personnel and Training, Union of India O.M. dated 29.09.2007,
and the earlier O.M. dated 29.05.2007 circulated by the Railway
Board. It is further stated that, in terms of the Railway Boards
instructions issued in proceedings dated 01.09.2010 and
20.06.2003, employees belonging to SC/ST category, appointed by
promotion on their own merit and seniority and not owing to
reservation or relaxation of qualifications, were required to be
adjusted against the unreserved points of the reservation roster,
irrespective of whether promotion was made by selection or non-
selection method. Reliance is also placed on the DOP&T circular
dated 29.03.2007 in this regard.

Clause (4-A) of
Article 16
gives freedom to the State to
provide for reservation in matters of promotion to any class or
classes of posts in the services of the State.
Article 16(4-A)
is
governed by two compelling reasons backwardness and
inadequacy of representation, as mentioned in
Article 16(4).
In
every case where the State decides to provide for reservation in
promotion, there must exist two circumstances, namely,
backwardness and inadequacy of representation. The State
must form its opinion on gathering quantifiable data in this regard.
If these two reasons do not exist, then the enabling provision
cannot be enforced. The State can make provision for reservation
only if these two circumstances exist. (M. Nagaraj1). Apart from
backwardness and inadequacy of representation the State
should also keep in mind overall efficiency (
Article 335
). All the
three factors should be borne in mind, by the appropriate
Government, in providing for reservation in promotion for SCs and
STs. (M. Nagaraj1; Ajit Singh (II) v. State of Punjab ).

The law declared by the Supreme Court, in M. Nagaraj1,
requires the State to identify and measure the existence of
backwardness and inadequacy of representation in public
employment, keeping in mind the need to maintain overall
efficiency in administration. It is only if the State has quantifiable
data to show backwardness and inadequacy of representation,
can it then provide reservation in promotion, that too after taking
into consideration the effect of reservation on the overall efficiency
in administration. The exercise of gathering the necessary data
must precede the exercise of formation of opinion on the need to
provide reservation in promotion; and the exercise of formation of
opinion must precede a decision being taken to provide
reservation. A post-decision justification, that too in the counter
filed before the Tribunal or in the Writ Petition filed before this
Court, would not suffice. The petitioner-Railways should have
placed before the Tribunal, the quantifiable data, if any, gathered
by it before making provision for reservation, to show the existence
of compelling reasons (ie (1) backwardness, (2) inadequacy of
representation, and (3) overall administrative efficiency) to provide
reservation.

As reliance is placed thereupon by the Learned Standing
Counsel for the Railways, it is also necessary to refer to the
circulars, issued by the DOPT and the Railways, subsequent to the
judgment of the Supreme Court in M. Nagaraj1. By their memo
dated 21.06.2007, the Southern Railway circulated a copy of the
Railway Boards letter dated 29.05.2007, along with a copy of the
letter issued by the DOPT, Govt. of India dated 29.03.2007. The
Railways circular dated 29.05.2007, refers to the judgment of the
Supreme Court in M. Nagaraj1, and to the DOPT circular dated
29.03.2007, to state that the DOP&T had advised that reference to
creamy layer, in the concluding paragraph and the other portions
of the judgment in M. Nagaraj1, did not relate to the Scheduled
Castes and the Scheduled Tribes; the DOPT had, in consultation
with the law officers of the Government, examined whether the
judgment in M. Nagaraj1 introduced the concept of creamy layer
for the Scheduled Castes and the Scheduled Tribes; they had been
advised that the observations made in M. Nagaraj1, regarding
creamy layer amongst the Scheduled Castes and the Scheduled
Tribes, were mere obiter dicta, per incurium and to not flow from,
and cannot be reconciled with, the nine judge bench judgment of
the Supreme Court in Indra Sawhney43; and the reference to
creamy layer, in the concluding paragraph and other portions of
the judgment, did not relate to the Scheduled Castes and the
Scheduled Tribes.

In its circular dated 29.02.2008, the Railway Board, after
referring to the judgment of the Supreme Court in M. Nagaraj1,
observed that, in the light of the said judgment, the seniority of the
Scheduled Castes/Scheduled Tribes railway servants, promoted by
virtue of the rule of reservation/roster, should be regulated in
terms of the instructions contained in the Boards letters dated
08.03.2002 and 13.01.2005 whereby it was directed that railway
servants, on their promotion by virtue of the rule of
reservation/roster, were entitled to consequential seniority also.
By its proceedings dated 10.08.2010, the DOPT, Government of
India clarified that the members of the Scheduled Castes and the
Scheduled Tribes, 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 the
reservation roster, irrespective of whether promotion was made by
the selection method or the non-selection method; and these
orders would take effect from 02.07.1997 i.e., the date of which the
post based reservation was introduced.

None of these circulars deal specifically with the parameters
required to be satisfied before the enabling power, under
Article
16(4A)
and
16(4B)
of the Constitution of India, can be exercised to
provide reservation in promotion in favour of the Scheduled Castes
and the Scheduled Tribes. The fact that the Union Government
did not find it convenient to gather data, with regards the
parameters laid down in M. Nagaraj1, is evident from their
endeavour to have
Article 16(4A)
of the Constitution amended. By
the Constitution (One Hundred Seventeenth Amendment) Bill,
2012,
Article 16(4-A)
was sought to be substituted by the following
clause, namely:

(4A) Notwithstanding anything contained elsewhere in the Constitution, the
Scheduled Castes and the Scheduled Tribes notified under
Article 341
and

Article 342
, respectively, shall be deemed to be backward and nothing in this
Article or in
Article 335
shall prevent the State from making any provision for
reservation in matters of promotions, with consequential seniority, to any class
or classes of posts in the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes to the extent of the percentage of reservation
provided to the Scheduled Castes and the Scheduled Tribes in the services of the
State..

The statement of objects and reasons for the said Bill
provides that the Scheduled Castes and the Scheduled Tribes have
been provided reservation in promotions since 1955; this was
discontinued following the judgment in Indra Sawhney43, wherein
it was held that it was beyond the mandate of
Article 16(4)
of the
Constitution of India; subsequently, the Constitution was amended
by the
Constitution (Seventy-seventh Amendment) Act, 1995
and a
new clause (4A) was inserted in
Article 16
to enable the
Government to provide reservation in promotion in favour of the
Scheduled Castes and the Scheduled Tribes; subsequently, clause
(4A) of
Article 16
was modified by the
Constitution (Eighty-fifth
Amendment) Act, 2001
to provide consequential seniority to the
Scheduled Castes and the Scheduled Tribes candidates promoted
by giving reservation; the validity of the constitutional amendments
was challenged before the Supreme Court; the Supreme Court,
while deliberating on the issue of validity of Constitutional
amendments in the case of M. Nagaraj1, observed that the
concerned State will have to show in each case the existence of
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency, before making
provision for reservation in promotion; relying on the judgment of
the Supreme Court in M. Nagaraj1, the High Court of Rajasthan
and the High Court of Allahabad had struck down the provisions
for reservation in promotion in the services of the State of
Rajasthan and the State of Uttar Pradesh, respectively;
subsequently, the Supreme Court had upheld the decisions of
these High Courts striking down the provisions for reservation in
respective States; it had been observed that there was difficulty in
collection of quantifiable data showing backwardness of the class
and inadequacy of representation of that class in public
employment; moreover, there was uncertainty on the methodology
of this exercise; in the wake of the judgment of the Supreme Court
in M. Nagaraj1, the prospects of promotion of the employees,
belonging to the Scheduled Castes and the Scheduled Tribes, were
being adversely affected; demands for carrying out further
amendment in the Constitution were raised by various quarters; a
discussion on the issue of reservation in promotion was held in
Parliament on 3.5.2012; demand for amendment of the
Constitution, in order to provide reservation for the Scheduled
Castes and the Scheduled Tribes in promotion, had been voiced by
Members of Parliament; an All-Party Meeting to discuss the issue
was held on 21-08-2012; there was a general consensus to carry
out an amendment in the Constitution, so as to enable the State to
continue the scheme of reservation in promotion for the Scheduled
Castes and the Scheduled Tribes as it existed since 1995; in view
of the above, the Government had reviewed the position, and had
decided to move the constitutional amendment to substitute clause
(4A) of
Article 16
, with a view to provide impediment-free
reservation in promotion to the Scheduled Castes and the
Scheduled Tribes, and to bring certainty and clarity in the matter;
and it was also necessary to give retrospective effect to the
proposed clause (4A) of
Article 16
with effect from the date of
coming into force of that clause as originally introduced, ie from
the 17th day of June, 1995.

Even though
Article 16(4-A)
has not yet been amended, as
was sought to be done by the Constitution (One hundred and
seventeenth amendment) Bill, 2012, the DOPT, Government of
India, by its proceedings dated 07.01.2014, informed the Union
Public Service Commission that, in view of the judgment of the
High Court of Rajastan and Uttar Pradesh striking down
reservation in promotion by the respective State Governments, and
keeping in view the observations of the Supreme Court in M.
Nagaraj1, it was decided by the Government of India to bring the
Constitutional Amendment Bill, by suitably changing
Article
16(4A)
, to do away with the conditions laid down in M. Nagaraj1;
the constitutional amendment bill was passed by the Rajya Sabha
in 2012, and was pending consideration before the Lok Sabha;
since the Government of India had taken an in-principle decision
to continue reservation in promotion by bringing the constitutional
amendment bill, which had already been passed by the Rajya
Sabha, it would be appropriate to continue the existing practice of
continuation of reservation in promotion, as per the existing
procedure adopted by the Departmental Promotional committees.
The Union Public Service Commission was requested to take
further necessary action accordingly. It is evident, therefore, that
the parameters laid down in M. Nagaraj1, as conditions precedent
for the exercise of the enabling power under
Article 16(4-A)
, to
provide reservation in promotion for the Scheduled Castes and the
Scheduled Tribes, have not been fulfilled till date.
V. JUDGMENTS OF THE SUPREME COURT ON WHICH
RELIANCE IS PLACED BY COUNSEL ON EITHER SIDE:

As Learned Counsel on either side have referred to several
judgments of the Supreme Court, it is necessary to note what has
been declared therein.
In
S.V. Joshi v. State of Karnataka
, the
Supreme Court held that
Articles 15
and
of the Constitution
had been amended by the
Constitution (Ninety-third Amendment)
Act, 2005
, and the
Constitution (Eighty-first Amendment) Act,
, respectively; these Amendment Acts were the subject-matter
of the subsequent decisions in
M. Nagaraj1 and Ashoka Kumar
Thakur v. Union of India
in which, inter alia, it had been laid
down that, if a State wanted to exceed fifty per cent reservation, it
was then required to base its decision on quantifiable data; in the
case before it, this exercise had not been done; and keeping in
mind the said parameters, the State should place quantifiable data
before the Tamil Nadu State Backward Classes Commission and,
on the basis of such quantifiable data amongst other things, the
Commission should decide the quantum of reservation.

In Suraj Bhan Meena2, it was contended that, in the
absence of any data in relation to the Scheduled Castes and the
Scheduled Tribes, the parameters
laid down in
M. Nagaraj1 were
not fulfilled; Rule 33 of the Rajasthan Administrative Service
Rules, 1954, providing for consequential seniority, was
unconstitutional as no exercise had been undertaken by the State
pursuant to
Article 16(4-A)
of the Constitution; and since the State
did not undertake the exercise, which was mandatory in terms of
the judgment in M. Nagaraj1, the State could not, either directly or
indirectly, circumvent or ignore or refuse to undertake the exercise
by taking recourse to the
Constitution (Eighty-fifth Amendment)
Act
providing for reservation in promotion with consequential
seniority. It is in this context that the Supreme Court observed
that, in M. Nagaraj1, the Constitution Bench had held that the
State was not bound to make reservation for Scheduled Castes and
the Scheduled Tribes candidates in matters of promotion but, if it
wished, it could collect quantifiable data touching upon the
backwardness of the applicants, and inadequacy of representation
of that class in public employment, for the purpose of compliance
with
Article 335
of the Constitution; and in order to provide for
reservation, if at all, the tests indicated in
Articles 16(4-A)
and

16(4-B)
would have to be satisfied, which could only be achieved
after an inquiry as to identity.

The Supreme Court, in Suraj Bhan Meena2, further held
that the position, after the decision in M. Nagaraj1, was that
reservation in promotion was dependent on the inadequacy of
representation of members of the Scheduled Castes and the
Scheduled Tribes and Backward Classes; it was subject to the
condition of ascertaining whether such reservation was at all
required; the view of the Rajasthan High Court, which was under

challenge before it, was based on the decision in M. Nagaraj1 as no
exercise was undertaken in terms of
Article 16(4-A)
to acquire
quantifiable data regarding the inadequacy of representation of the
Scheduled Caste and Scheduled Tribe communities in public
services; and the Rajasthan High Court had rightly quashed the
notifications issued by the State of Rajasthan providing for
consequential seniority and promotion to members of the
Scheduled Castes and the Scheduled Tribes.

In Uttar Pradesh Power Corporation Limited3 it was
contended, both on behalf of the State Government and the U.P.
Power Corporation, that once the principle of reservation was made
applicable to the spectrum of promotion, no fresh exercise was
necessary; and efficiency in service was not jeopardised. It is in
this context that the Supreme Court held:-

We are of the firm view that a fresh exercise in the light of the
judgment of the Constitution Bench in M. Nagaraj1 is a categorical imperative.
The stand that the constitutional amendments have facilitated the
reservation in promotion with consequential seniority and have given the
stamp of approval to the Act and the Rules cannot withstand close scrutiny
in as much as the Constitution Bench has clearly opined that
Articles 16(4-
A)
and
16(4-B)
are enabling provisions and the State can make provisions
for the same on certain basis or foundation. The conditions precedent have
not been satisfied. No exercise has been undertaken. What has been argued
with vehemence is that it is not necessary as the concept of reservation in
promotion was already in vogue. We are unable to accept the said
submission, for when the provisions of the Constitution are treated valid
with certain conditions or riders, it becomes incumbent on the part of the
State to appreciate and apply the test so that its amendments can be
tested and withstand the scrutiny on parameters laid down therein..

(emphasis supplied).

In Chairman and Managing Director, Central Bank of
India v. Central Bank of India SC/ST Employees Welfare
Association , the order of the Madras High Court, holding that
the O.M. dated 13.08.1997 made a provision for reservation in
favour of the Scheduled Castes and the Scheduled Tribes, was
under challenge before the Supreme Court. After referring to the
Constitution Bench judgment in M.Nagaraj1, the Supreme Court
observed that clauses (4) and (4-A) of
Article 16
of the Constitution
are only enabling provisions which permit the State to make
provision for reservation of certain categories of persons;
reservation in matters of promotion to any class or classes of posts
can be made in favour of SC/ST category employees if, in the
opinion of the State, they are not adequately represented in
services under the State; the power lies with the State to make
such a provision, but the Courts cannot issue any mandamus to
the State to, necessarily, make such a provision; it is for the State
to act, in a given situation, and to take such affirmative action;
wherever there exists such a provision, for reservation in matters
of recruitment or promotion, it would bestow an enforceable right
in favour of persons belonging to the SC/ST category; failure on
the part of any authority to reserve the posts, while making
selections/ promotions, would enable the beneficiaries of these
provisions to approach the Courts to get their rights enforced; and
existence of a provision for reservation, in matters of selection or
promotion as the case may be, is the sine qua non for seeking a
mandamus as only when such a provision is made by the State, a
right accrues in favour of SC/ST candidates, and not otherwise.
The question whether the State could provide reservation in
matters of promotion, without gathering data and forming its
opinion on the parameters laid down by the Supreme Court in
M.Nagaraj1, did not arise for consideration in Central Bank of
India48. Nor were the earlier judgments of the Supreme Court in
Suraj Bhan Meena2 and Uttar Pradesh Power Corporation
Limited3 noticed therein. It is only if the parameters laid down in
M.Nagaraj1 are satisfied and a provision is made for reservation in
promotions in favour of the SCs/STs thereafter, would it confer an
enforceable right in favour of the members of the Scheduled Castes
and the Scheduled Tribes to claim the benefit of reservation in
promotions, and not otherwise. Reliance placed by the petitioners,
on Central Bank of India48, is, therefore, misplaced.
The Supreme Court, in Suraj Bhan Meena2 and Uttar Pradesh
Power Corporation Limited3, have followed and reiterated the law
declared in M. Nagaraj1. It is no doubt true that the rules made by
the Government were under challenge therein. It is also true that
the Supreme Court, in M. Nagaraj1, did not examine the validity of
individual State enactments, and held that the question would be
gone into, in individual writ petitions, by the appropriate Bench in
accordance with the law laid down in the said judgment. In the
present case, the Railways have only been following the policy, of
providing reservation in promotion, which were in existence even
prior to the judgment of the Supreme Court in M. Nagaraj1. As the
Railways was required to gather data, and form its opinion before
providing reservation, continuance of the earlier policy of
reservation in promotion, without undertaking the exercise of
gathering data and formation of opinion, is illegal.
VI. IS NOTIFICATION OF THE SCHEDULED CASTES AND THE
SCHEDULED TRIBES, BY THE PRESIDENTIAL ORDER
MADE UNDER
ARTICLES 341
AND
OF THE
CONSTITUTION OF INDIA, NOT SUFFICIENT PROOF OF
THEIR BACKWARDNESS?

It is also contended, on behalf of the petitioners, that the
very fact that the Scheduled Castes and the Scheduled Tribes are
notified in the Presidential Order, under
Articles 341
and
of
the Constitution, is proof of their backwardness. Similar
contentions did not find favour with the Supreme Court. In Uttar
Pradesh Power Corporation Limited3, it was contended, on
behalf of the appellants, that once an incumbent belongs to the
Scheduled Caste/Scheduled Tribe category, it is conclusive that he
suffers from backwardness and no further enquiry is necessary;
the requirement of having quantifiable data is not a new concept
propounded in M. Nagaraj1, but is a reiteration of the earlier view
enunciated in Indra Sawhney43; the emphasis on backwardness is
absolutely misconceived, for Scheduled Castes/Scheduled Tribes
are duly notified as such in the Presidential List by virtue of

Articles 341
and
of the Constitution; their exclusion from the
list can be done by the amendment of the Presidential Order alone;
hence, any kind of collection of data as regards backwardness is
an exercise in futility; there is only one list of Scheduled
Castes/Scheduled Tribes, and this list constitutes one group for
the purpose of reservation; this list cannot be interfered with,
disturbed, regrouped or reclassified by the State; there may not be
exclusion by engrafting the principle of backwardness for the
purpose of reservation in promotion; data was immediately
collected after the 1994 Act; therefore no fresh data was necessary
to be collected after the decision rendered by the Constitution
Bench in M. Nagaraj1; the efficiency of service, as encapsuled in

Article 335
of the Constitution, has been duly respected by
providing a uniform minimum standard in matters of promotion as
far as the Corporation is concerned; when there was no challenge
to the orders, issued prior to the amendment for reservation in
promotion, no quantifiable data was necessary; the Government, in
its wisdom, had carried out the assessment earlier, and had
decided to continue the policy; to lay down the principle that, in
view of the decision in M. Nagaraj1, a fresh exercise is necessary
would tantamount to putting the concept in the realm of inherent
fallacy; the decision in Suraj Bhan Meena2 is not a binding
precedent; the intention of Parliament, at the time of exercise of its
constitutional power to give retrospective effect to the Eighty-fifth
amendment, is that the representation of Scheduled
Castes/Scheduled Tribes in the services in the States has not
reached the required level, and it is necessary to continue the
existing position of providing reservation in promotion in the case
of Scheduled Castes/Scheduled Tribes; and M. Nagaraj1 does not
lay down that the quantifiable data of backwardness should be
collected with respect to eligible Scheduled Caste/Scheduled Tribe
employees seeking promotion. It is in this context that the
Supreme Court held:-

. from the aforesaid decision in M. Nagaraj case1 and the
paragraphs we have quoted hereinabove, the following principles can be
carved out:

(i) Vesting of the power by an enabling provision may be
constitutionally valid and yet exercise of power by the State in a
given case may be arbitrary, particularly, if the State fails to identify
and measure the backwardness and inadequacy keeping in mind the
efficiency of service as required under
Article 335.

(ii)
Article 16(4)
which protects the interests of certain sections of the
society has to be balanced against
Article 16(1)
which protects the interests
of every citizen of the entire society. They should be harmonised because
they are restatements of the principle of equality under
Article 14.

(iii) Each post gets marked for the particular category of candidates to be
appointed against it and any subsequent vacancy has to be filled by that
category candidate.

(iv) The appropriate Government has to apply the cadre strength as
a unit in the operation of the roster in order to ascertain whether a
given class/group is adequately represented in the service. The cadre
strength as a unit also ensures that the upper ceiling limit of 50% is
not violated. Further, roster has to be post-specific and not vacancy
based.

(v) The State has to form its opinion on the quantifiable data
regarding adequacy of representation. Clause (4-A) of
Article 16
is an
enabling provision. It gives freedom to the State to provide for
reservation in matters of promotion. Clause (4-A) of
Article 16
applies
only to SCs and STs. The said clause is carved out of
Article 16(4-A).

Therefore, clause (4-A) will be governed by the two compelling reasons
backwardness and inadequacy of representation, as mentioned in

Article 16(4).
If the said two reasons do not exist, then the enabling
provision cannot be enforced.

(vi) If the ceiling limit on the carry over of unfilled vacancies is
removed,
the other alternative time factor comes in and in that event, the timescale
has to be imposed in the interest of efficiency in administration as mandated
by
Article 335.
If the timescale is not kept, then posts will continue to remain
vacant for years which would be detrimental to the administration.
Therefore, in each case, the appropriate Government will now have to
introduce the duration depending upon the fact situation.

(vii) If the appropriate Government enacts a law providing for reservation
without keeping in mind the parameters in
Article 16(4)
and
Article 335
,
then this Court will certainly set aside and strike down such legislation.

(viii) The constitutional limitation under
Article 335
is relaxed and not
obliterated. As stated above, be it reservation or evaluation, excessiveness in
either would result in violation of the constitutional mandate. This exercise,
however, will depend on the facts of each case.

(ix) The concepts of efficiency, backwardness and inadequacy of
representation are required to be identified and measured. That
exercise depends on the availability of data. That exercise depends on
numerous factors. It is for this reason that the enabling provisions are
required to be made because each competing claim seeks to achieve
certain goals. How best one should optimise these conflicting claims
can only be done by the administration in the context of local
prevailing conditions in public employment.

(x)
Article 16(4)
, therefore, creates a field which enables a State to
provide
for reservation provided there exists backwardness of a class and inadequacy
of representation in employment. These are compelling reasons. They do not
exist in
Article 16(1).
It is only when these reasons are satisfied that a State
gets the power to provide for reservation in the matter of employment.

In the said Suraj Bhan case21, the State Government had not
undertaken any exercise as indicated in M. Nagaraj1. The two-Judge Bench
has noted three conditions in the said judgment. It was canvassed before
the Bench that exercise to be undertaken as per the direction in M.
Nagaraj1 was mandatory and the State cannot, either directly or
indirectly, circumvent or ignore or refuse to undertake the exercise by
taking recourse to the
Constitution (Eighty-fifth Amendment) Act

providing for reservation for promotion with consequential seniority. While
dealing with the contentions, the two-Judge Bench opined that the State is
required to place before the Court the requisite quantifiable data in each
case and to satisfy the Court that the said reservation became necessary
on account of inadequacy of representation of the Scheduled Caste and
Scheduled Tribe candidates in a particular class or classes of posts, without
affecting the general efficiency of service
We are of the firm view that a fresh exercise in the light of the
judgment of the Constitution Bench in M. Nagaraj1 is a categorical
imperative. The stand that the constitutional amendments have facilitated
the reservation in promotion with consequential seniority and have given
the stamp of approval to the Act and the Rules cannot withstand close
scrutiny inasmuch as the Constitution Bench has clearly opined that

Articles 16(4-A)
and
16(4-B)
are enabling provisions and the State can make
provisions for the same on certain basis or foundation. The conditions
precedent have not been satisfied. No exercise has been undertaken. What
has been argued with vehemence is that it is not necessary as the concept
of reservation in promotion was already in vogue. We are unable to accept
the said submission, for when the provisions of the Constitution are
treated valid with certain conditions or riders, it becomes incumbent on
the part of the State to appreciate and apply the test so that its
amendments can be tested and withstand the scrutiny on parameters laid
down therein. . (emphasis supplied).

The law declared by the Supreme Court, in Uttar Pradesh
Power Corporation Limited3, is binding on this Court and,
notwithstanding the persuasive submission made on behalf of the
petitioners, it is not open to this Court to take a different view.

In Indra Sawhney43 (a nine-judge bench judgment of the
Supreme Court) it was held that backward classes under
Article
16(4)
would also include SCs/STs for whose entry into services,
provision is also made under
Article 335;
while
Article 16(4)
is
couched in an enabling language,
Article 335
is in a mandatory
cast; it became necessary to make the additional provision of
reservation for SCs/STs under
Article 335
because for them the
reservation in services were to be made as obligatory; it is because
of the mandate of
Article 335
and the level of backwardness of the
SCs/STs - the most backward among the backward classes - that
it also became necessary to caution and emphasise in the same
vein, that the imperative claims of the SCs/STs shall be taken into
consideration consistently with the efficiency of the administration,
and not by sacrificing it; as Scheduled Castes and Scheduled
Tribes are also the members of the backward classes of citizens,
within the meaning of
Article 16(4)
, the nature of backwardness of
the backward class of citizens is implicit in
Article 16(4)
itself;
Clause (4) of
Article 15
specifically mentions that nothing in
Article
, or in clause (2) of
Article 29
, shall prevent the State from
making any special provision for the advancement of any "socially
and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes"; it groups "socially and
educationally backward classes" with "Scheduled Castes and
Scheduled Tribes"; and, when it is remembered that
Articles 341

and
enable the President to specify by notification, the
Scheduled Castes and Scheduled Tribes, it can hardly be debated
that such specifications, from time to time, may only be from the
socially and educationally backward classes or from classes whose
economic backwardness is on account of their social and
educational backwardness.

After holding that backwardness and inadequacy of
representation operate as a justification in the sense that the State
gets the power to make reservation only if backwardness and
inadequacy of representation exist, the Supreme Court, in M.
Nagaraj1, held:-

.At this stage, one aspect needs to be mentioned. Social justice is
concerned with the distribution of benefits and burdens. The basis of
distribution is the area of conflict between rights, needs and means. These
three
criteria can be put under two concepts of equality, namely, formal equality
and
proportional equality. Formal equality means that law treats everyone equal.
Concept of egalitarian equality is the concept of proportional equality and it
expects the States to take affirmative action in favour of disadvantaged
sections
of society within the framework of democratic polity. In Indra Sawhney5 all the
Judges except Pandian, J. held that the means test should be adopted to
exclude the creamy layer from the protected group earmarked for
reservation. In Indra Sawhney5 this Court has, therefore, accepted caste
as a determinant of backwardness and yet it has struck a balance with the
principle of secularism which is the basic feature of the Constitution by
bringing in the concept of creamy layer. Views have often been expressed
in this Court that caste should not be the determinant of backwardness
and that the economic criteria alone should be the determinant of
backwardness. As stated above, we are bound by the decision in Indra
Sawhney5. The question as to the determinant of backwardness cannot
be gone into by us in view of the binding decision. In addition to the above
requirements this Court in Indra Sawhney5 has evolved numerical benchmarks
like ceiling limit of 50% based on post-specific roster coupled with the concept
of
replacement to provide immunity against the charge of discrimination.
(emphasis supplied)

As noted hereinabove, the Constitution Bench, in M. Nagaraj1,
has specifically held that the question of determinants of
backwardness could not be gone into by them in view of binding
decision in Indra Sawhney43. The manner in which
backwardness is to be identified is for the Union Government to
decide, and the Supreme Court, in M. Nagaraj1, has not stipulated
the manner in which backwardness should be determined. As the
Supreme Court, in Indra Sawhney43, has held that the Scheduled
Castes and the Scheduled Tribes are the most backward among
the backward classes the Railways are not precluded, after
gathering the required data, from also taking into consideration
the law declared by the Supreme Court in Indra Sawhney43 as
aforementioned, and the Presidential Order issued under
Articles
and
of the Constitution of India, in forming its opinion
regarding backwardness. Needless to state that the Railways
would, in addition, be required to ascertain whether the Scheduled
Castes/Scheduled Tribes are inadequately represented in the
Railway services, and to take into consideration maintenance of
over all efficiency in Railway administration, in forming its opinion
on the need to provide reservation in promotion.

VII. PARITY IN TREATMENT:

As service jurisprudence postulates that all similarly
situated persons should be treated similarly, normally, when a
particular set of employees are given relief by the Court, all other
identically situated persons need to be treated alike by extending
that benefit. Not doing so would amount to discrimination, and
would be violative of
Article 14
of the Constitution of India. The
normal rule is that, merely because other similarly situated
persons did not approach the Court earlier, they are not to be
treated differently. This principle is subject to well-recognised
exceptions in the form of laches and delay as well as acquiescence.
Those persons, who do not challenge the wrongful action in their
cases, acquiesce thereto and wake up after a long delay, only
because their counterparts who had approached the court earlier
had succeeded in their efforts, cannot claim that the benefit of the
judgment, rendered in the case of similarly situated persons,
should be extended to them. They would be treated as fence-sitters
and laches and delay, and/or acquiescence, would be a valid
ground to dismiss their claim. However, this exception may not
apply in those cases where the judgment pronounced by the Court
is a judgment in rem with the intention to give benefit to all
similarly situated persons, whether they had approached the court
or not. (
State of U.P. v. Arvind Kumar Srivastava
).

In
G.C. Ghosh v. Union of India
, the Supreme Court
held:-

..Reliance has been placed by the petitioners on the decision of
the Allahabad High Court in
Union of India v. Smt Afsar Jahan Begum

rendered in Special Appeal No. 9 of 1975 on March 12, 1979. The aforesaid
decision has been accepted by the Railway Administration in the sense
that no special leave petition was preferred in this Court and the matter
finally rested there. The petitioners who are employees of Eastern Railway
have contended that they are entitled to the same treatment as is being
accorded to their counterparts in the Northern Railway in pursuance to the
aforesaid decision rendered by the Allahabad High Court which has become
final as between the Railway Administration on the one hand and the
employees of the Northern Railway on the other. In the light of the
command of
Articles 14
and
of the Constitution of India the same
treatment is required to be accorded to the petitioners regardless of the
fact that they are serving in Eastern Railway unless it is shown that there
is some distinguishing feature, for according a different treatment. Learned
Additional Solicitor General appearing for the Railway Administration is not in
a
position to contend that there is any such special distinguishing feature to
justify denying of uniformity in treatment. The prayer of the writ petitioners
must accordingly be granted to the aforesaid extent. It is therefore directed
that
the petitioners should be accorded the same treatment as their counterparts are
being accorded in the Northern Railway in regard to treating the running
allowance granted to the running staff as part of the pay when they are
transferred or promoted to a stationary post during the period they hold the
officiating in the stationary post to the same extent and in the same manner as
enjoined by the Allahabad High Court pursuant to the aforesaid judgment. .

(emphasis supplied)

The very same issue, relating to reservation in promotions in
the Railways, fell for consideration before the Central
Administrative Tribunal, Principal Bench, New Delhi. The
Principal Bench of CAT, by its order in O.A. No.2211 of 2008 dated
02.12.2010, noted the case of the applicants that the pre-

conditions spelt out in M. Nagaraj1 had not been complied with;
and reservation in promotion, with accelerated seniority, was
required to be worked out as per the settled law on the issue. After
noting that the Railways had not worked out, or even applied their
mind, regarding the preconditions stipulated in the judgment of
the Supreme Court in M. Nagaraj1, before giving effect to the
provisions of
Article 16(4A)
, the Principal Bench, CAT quashed the
circular dated 29.02.2008 by which the seniority of the Scheduled
Castes/Scheduled Tribes railway servants, promoted by virtue of
rule of reservation/roster, was to be regulated. While setting aside
the said circular instructions dated 29.02.2008, the Principal
Bench CAT directed the Railways not to give accelerated seniority
to the members of the Scheduled Castes and the Scheduled Tribes
till such time the preconditions, on which alone
Article 16(4A)
of
the Constitution was to operate, were complied with.

It is represented before us that the aforesaid order of the
Principal Bench of CAT has been implemented by the Railways. If
that be so, it does not stand to reason that employees, belonging to
other zones of the Railways, should be treated differently, more so
as the respondents-applicants are not guilty of delay and laches in
invoking the jurisdiction of the Tribunal.

VIII. CONCLUSION:

As the Tribunal has merely followed the law
laid down by
the
Supreme Court in M. Nagaraj1, in allowing the O.As, the orders of
the Tribunal, to the extent it declared the action of the Railways in
providing reservation in promotion without fulfilling the
parameters
laid down in
M. Nagaraj1 to be illegal, do not
necessitate interference. The fact however remains that, despite
the amendment to the Constitution by insertion of
Articles 16(4-A)

and (4-B) nearly fourteen years ago, the members of the Scheduled
Castes and the Scheduled Tribes still face uncertainty on whether
or not they are entitled for reservation in promotion, and to be
extended the benefit of consequential seniority. This predicament,
they find themselves in, is for no fault of theirs but is on account of
the failure of the Union of India to gather data, and form its
opinion, on the parameters
laid down by
the Supreme Court in M.
Nagaraj1. The prevailing uncertainty can only be put an end to if
the petitioner-Railway is directed to undertake the aforesaid
exercise, and take a decision, within a specified time frame.

The Writ Petitions are, accordingly, disposed of directing
the petitioner-Railways to undertake and complete the exercise of
gathering data, and forming its opinion on the parameters
laid
down by
the Supreme Court in M. Nagaraj1, with utmost
expedition and, in any event, not later than six months from the
date of receipt of a copy of this Order. As this stalemate cannot be
permitted to effect railway administration, and the services it
renders to the public at large, it is open to the petitioner-Railways
to make in-charge arrangements in the interregnum, making it
clear to those, who are given charge of the posts, that this
arrangement is temporary and would continue only till the exercise
of formation of opinion, on the need to provide reservation in
promotion, is completed. The miscellaneous petitions pending, if
any, shall also stand disposed of. No costs.

_______________________________
(RAMESH RANGANATHAN, J)
___________________________________
(M.SATYANARAYANA MURTHY, J)
Date: 29.04.2015.