PRAVAKAR MALLICK & ANR. versus THE STATE OF ORISSA & ORS. on 17 April 2020

[2020] 5 S.C.R. 222

SUPREME COURT REPORTS

[2020] 5 S.C.R.

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PRAVAKAR MALLICK & ANR.

v.

THE STATE OF ORISSA & ORS.

(Civil Appeal No. 3240 of 2011)

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APRIL 17, 2020

[MOHAN M. SHANTANAGOUDAR

AND R. SUBHASH REDDY, JJ.]

Constitution (Eighty-Fifth) Amendment Act, 2001 –CArt.16(4A) – Respondents were appointed to Orissa AdministrativeService-II (OAS-II) posts – They were senior to appointeesbelonging to SC/ST category and were subsequently promoted innext higher category, OAS-I(JB) – Appellants and others belongingto SC/ST category, recruited with the respondents in subsequentbatches, were given promotion to the rank of OAS-I(JB) againstDreserved vacancies during 1995 & 2000 – Original seniorityposition in the cadre of OAS-II prepared by Public ServiceCommission was retained without any changes – Irrespective ofgetting promotion in subsequent years, the inter se seniority ofrespondents and the SC/ST roster point promotees in the rank ofEOAS-I was maintained in the seniority list dated 16.05.2001 –Art.16(4A) was amended by 85[th] amendment – State of Orissaissued Resolution dated. 20.03.2002 issuing instructions to all thedepartments to extend the benefit of seniority for SC/ST govt.servants on promotion by virtue of rule of reservation – GradationList dated. 03.03.2008 prepared by altering the seniority ofFrespondents, contrary to the list dated.16.05.2001 – OA filed byrespondents – Dismissed by Tribunal – Writ petition allowed – Held:Seniority for general category officers was restored in theGradation List of OAS-I(JB) dated 16.05.2001, by extending thebenefit of “Catch Up Rule”, evolved by Supreme Court in the case–Gof Virpal Singh Chauhan[,]subsequently accepted in Ajit Singh (II) –Validity of 85[th] amendment was upheld in the case of M.Nagaraj After the said amendment, amending Art.16(4A) which enabled theState to extend the benefit of promotion with consequential seniorityby examining the adequacy of representation to SCs/STs in the Stateservices, the State of Orissa has admittedly not made any provision,Heither by way of legislation or an executive order, to extend such222

benefit in the Class-I Services – Government Resolution dated20.03.2002 is issued merely based on the instructions issued byGovt. of India, without examining the adequacy of representationin posts – It has no legal basis – Seniority/Gradation List dated16.05.2001 of OAS-I (JB) was prepared correctly following theratio laid down by Supreme Court – In absence of any law ordecision by way of executive order based on acceptable materialfor conferring additional benefit of consequential seniority, theGradation List dated 03.03.2008 was prepared by altering thepositions maintained in List dated 16.05.2001 – Well reasonedjudgment of the High Court is not interfered with – Service Law.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1.1 The seniority for general category officers wasrestored in the Gradation List of OAS-I(JB) which was preparedon 16.05.2001, by extending the benefit of “Catch Up Rule”,evolved by this Court in the case of Virpal Singh Chauhan whichis subsequently accepted in the case of Ajit Singh (II). AfterConstitution (Eighty-Fifth) Amendment Act, 2001, amendingArticle 16(4A) of the Constitution which enabled the State toextend the benefit of promotion with consequential seniority byexamining the adequacy of representation to scheduled castesand scheduled tribes in the State services, the State of Orissahas not made any provision, either by way of legislation or byan executive order, to extend such benefit in the Class-IServices. The advocate for State specifically admitted that theGovt. has not issued any executive order or has passed anylegislation. The Government Resolution dated 20.03.2002 isissued merely based on the instructions issued by theGovernment of India, without examining the adequacy ofrepresentation in posts. Government Resolution dated20.03.2002 can neither be termed as law made in exercise ofenabling power of the State under Article 16(4A), nor does itsatisfy the parameters laid down in the various decisions of thisCourt. The Resolution has no legal basis. The Seniority/Gradation List dated 16.05.2001 of OAS-I (JB) was preparedcorrectly by following the ratio laid down by this Court and inabsence of any law or decision by way of executive order basedon acceptable material for conferring additional benefit ofconsequential seniority, the Gradation List dated 03.03.2008 was AB

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Aprepared by altering the positions which were maintained in theList dated 16.05.2001. While it is open for the State to conferbenefit even through an executive order by applying mandatoryrequirements as contemplated under Article 16(4A) but theResolution dated 20.03.2002 is merely issued by referring to theinstructions of the Union of India without examining theBadequacy of representation in promotional posts, as held by thisCourt. [Paras 12, 13] [231-D-H; 232-A-F]

M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8SCC 212 : [2006] 7 Suppl. SCR 336 ; Ajit Singh &Ors. (II) v. State of Punjab & Ors. (1999) 7 SCCC209 : [1999] 2 Suppl. SCR 521 – followed.Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.(2018) 10 SCC 396 : [2018] 10 SCR 663 – heldinapplicable.

Union of India & Ors. v. Virpal Singh Chauhan & Ors.D(1995) 6 SCC 684 ; [1995] 4 Suppl. SCR 158 ; SurajBhan Meena & Anr. v. State of Rajasthan & Ors.(2011) 1 SCC 467 : [2010] 14 SCR 532 ; B.K. Pavitra& Ors. v. Union of India & Ors. (2017) 4 SCC 620 :[2017] 1 SCR 631 – relied on.EIndra Sawhney & Ors. v. Union of India & Ors. (1992)Supp. 3 SCC 217 : [1992] 2 Suppl. SCR 454 ; JagdishLal & Ors. v. State of Haryana & Ors. (1997) 6 SCC538 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3240of 2011.

From the Judgment and Order dated 24.12.2010 of the HighCourt of Orissa at Cuttack in Writ Petition (Civil) No. 6781 of 2008.

With

Civil Appeal No. 4421 of 2011

A. Subba Rao, K.L.D.S. Vinober, Naresh Kumar, Advs. for theAppellants.

Shibashish Misra, S. Debabrata Reddy, Chandan Kumar Mandal,Ms. Rajdipa Behura, Philomon K., Ms. Nansika Sahu, Ms. Neha V.,Ashray Behura, A. Venayagam Balan, Sibo Sankar Mishra, NiranjanSahu, Advs., for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

Civil Appeal No.3240 of 2011

1. This civil appeal is filed, aggrieved by the judgment and orderdated 24.12.2010 passed by the High Court of Orissa at Cuttack inW.P.(C) No.6781 of 2008. By the aforesaid order, writ petition filedby respondent nos.4 to 8 herein, is allowed by setting aside the orderdated 17.04.2008 passed in O.A.No.904(C) of 2008 etc. by the OrissaAdministrative Tribunal and the Government Resolution dated20.03.2002 and the consequential Gradation List dated 03.03.2008 ofOrissa Administrative Services, Class-I (Junior Branch) are quashed.

2. In view of the instructions issued in Office Memorandum dated21.01.2002, by the Government of India, Ministry of Personnel, PublicGrievances and Pensions, the Government of Orissa has passedResolution dated 20.03.2002. By the aforesaid Resolution, whilewithdrawing the earlier instructions, for fixation of seniority of ScheduledCaste/Scheduled Tribe (SC/ST) government servants on promotion byvirtue of rule of reservation, the State Government has issuedinstructions to the effect that the “Catch Up Principle” adopted earlierby the State Government in General Administration DepartmentResolution No.39374 dated 02.11.2000 shall not be followed any longer.It is further ordered that the government servants belonging to SCs/STs shall retain their seniority in the case of promotion by virtue of rule A

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Aof reservation. In the said G.O. it is further clarified that the governmentservants belonging to general/OBC category promoted later will beplaced junior to the SC/ST government servants promoted earlier, byvirtue of rule of reservation.

3. The High Court has allowed the abovementioned writ petitionBand the connected writ petitions and quashed the aforesaid G.O. andGradation List dated 03.03.2008 mainly on the ground that, unless anduntil the State Government makes a law for conferring the benefit ofpromotion with consequential seniority to SC/ST candidates, they arenot entitled to claim seniority in the promoted categories over the generalcategory candidates. The said writ petition is allowed, following theCjudgment of this Court in the case of M. Nagaraj & Ors. v. Unionof India & Ors.[1].

4. The respondent-writ petitioners were appointed to OrissaAdministrative Service-II (OAS-II) posts pursuant to selections madeby the Orissa Public Service Commission. They were recruited duringDthe years 1983, 1984 and 1987. They were assigned different ranks inthe merit list for their respective batches prepared by the Public ServiceCommission. In the above said merit list, persons belonging to SC/STcategory, who were appointed against the reserved vacancies wereplaced below the writ petitioners. Thus, the writ petitioners were seniorEto appointees belonging to SC/ST category. The respondent-writpetitioners were subsequently promoted and appointed in the next highercategory, i.e., Orissa Administrative Service-I (OAS-I)(JB) videGovernment Notification dated 26.08.2000. The appellants and someothers belonging to SC and ST category, recruited along with therespondent-writ petitioners in subsequent batches, were given promotionFto the rank of OAS-I(JB) against reserved vacancies during the year1995 and 2000 as provided under Orissa Reservation of Vacancies inPosts and Services (For Scheduled Castes and Scheduled Tribes) Act,1975 and the rules made thereunder. The seniority of reservedcategories and unreserved categories, including that of the respondent-Gwrit petitioners was not finalised by the Public Service Commission sincethe principles determining seniority, inter se, was the subject matter ofseveral litigations. The original seniority position in the cadre of OAS-II prepared by the Public Service Commission was retained withoutany changes in view of the judgment of this Court in the case of Union H1 (2006) 8 SCC 212

of India & Ors. v. Virpal Singh Chauhan & Ors.[2]. Irrespective ofgetting promotion in subsequent years, the inter se seniority of therespondent-writ petitioners and the SC/ST roster point promotees in therank of OAS-I was maintained in the seniority list prepared on16.05.2001. Article 16(4A) of the Constitution of India was amendedby 85[th] amendment, enabling the State to grant benefit of promotionwith consequential seniority to SC/ST reserved category officers. ByConstitution (85[th]) Amendment Act of 2001, Article 16(4A) wasamended and for the words, “in matters of promotion to any class”,the words, “in matters of promotion with consequential seniority to anyclass” were substituted. In the judgment of this Court in the case ofM. Nagaraj[1]a Constitution Bench of this Court, while upholding theConstitution (85[th]) Amendment Act of 2001 held that, the State is notbound to make reservation for SCs/STs in matter of promotions.However it was held that, if they wish to exercise their discretion andmake such provision, the State has to collect quantifiable data showingbackwardness of the class and inadequacy of representation of thatclass in public employment in addition to compliance with Article 335of the Constitution of India. It is further made clear that even if theState has compelling reasons, the State will have to see that itsreservation provision does not lead to excessiveness so as to breachthe ceiling of 50% or obliterate the creamy layer or extend thereservation indefinitely. In the case of Virpal Singh Chauhan[2], thisCourt has held that reserved promoted candidates are not entitled toseniority in the promoted post and if the general category candidatereaches the said post, he is entitled to seniority over the promotees toreserved vacancies. Subsequently, a three-Judge Bench judgment ofthis Court in the case of Jagdish Lal & Ors. v. State of Haryana &Ors.[3] has held that reserved promoted category candidates are entitledto seniority, in the promoted posts and not as per the feeder cadre.Subsequently, a Constitution Bench of this Court in the case of AjitSingh & Ors. (II) v. State of Punjab & Ors.[4] has overruled thejudgment in the case of Jagdish Lal[3]and upheld the principle, viz.,“Catch Up Rule”, as mentioned in the judgment in the case of VirpalSingh Chauhan[2].

2 AIR 1996 SC 448 = (1995) 6 SCC 684

3 (1997) 6 SCC 538

4 (1999) 7 SCC 209

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A5. In view of the “Catch Up Rule” evolved by this Court in thecase of Virpal Singh Chauhan[2], which is approved by this Court,subsequently in the case of Ajit Singh (II)[ 4], the seniority list dated16.05.2001, of officers of OAS-I(JB Cadre) has been prepared. Insuch list, the roster point promotees belonging to SC/ST category, whowere given promotion to OAS-I(JB) against reserved vacancies earlier,Birrespective of their original seniority in the feeder cadre, were shownbelow the respondent-writ petitioners. It is not in dispute that after 85[th]Constitution Amendment amending Article 16(4A) of the Constitution,the State of Orissa has neither issued any executive order nor enactedany legislation for conferring benefit of seniority for officers belongingCto SC/ST category who are promoted against reserved vacancies.Referring to instructions issued by the Government of India, the Stateof Orissa has issued Resolution dated 20.03.2002 issuing instructionsto all the departments of the Government to extend the benefit ofseniority for scheduled caste and scheduled tribe government servantson promotion by virtue of rule of reservation. Pursuant to suchDGovernment Resolution dated 20.03.2002, Gradation List dated03.03.2008 was prepared by altering the seniority of the respondent-writ petitioners, contrary to the list dated 16.05.2001.

6. At first instance, the respondent-writ petitioners approachedthe Orissa Administrative Tribunal by filing Original Application, but theEsaid application was dismissed on the ground that it was premature.Thereafter, respondent-writ petitioners have approached the High Courtquestioning the orders of the Tribunal and sought further reliefs forquashment of Government Resolution and the consequential GradationList. The writ petition is allowed by a common order in a batch of casesFby the High Court mainly on the ground that, the Government Resolutiondated 20.03.2002 can neither be termed as a law in exercise of enablingpower of the State under Article 16(4A), nor does it satisfy theparameters laid down by this Court. The High Court further held thatthere is no legal basis for such Resolution and accordingly quashed theGovernment Resolution and consequential Gradation List.G

7. We have heard Sri A. Subba Rao, learned counsel appearingfor the appellants; learned counsel for the State of Orissa; and thelearned counsel representing one of the writ petitioners.

8. Sri Subba Rao, learned counsel appearing for the appellantsHhas primarily contended that as per the judgment of this Court in the case of M. Nagaraj[1 ]this Court has upheld the amendment to Article16(4A) of the Constitution by 85[th] Constitution Amendment and heldthat it is always open for the State to extend the benefit of reservationwith consequential seniority, either by executive order or by way oflegislation. When the Government has taken decision by way ofResolution dated 20.03.2002, same is quashed by the High Court withoutassigning any valid reasons. It is further submitted that the Orissa Act38 of 1975, i.e., The Orissa Reservation of Vacancies in Post andServices (For Scheduled Castes and Scheduled Tribes) Act, 1975 is inforce, in the State and by the said Act, benefit of reservation has beenextended to scheduled castes and scheduled tribes, in promotions also.The learned counsel has placed reliance on Section 10 of the said Act,to buttress his submission that as per the same, the promoted SC/STcandidates are entitled for benefit of seniority.

9. The learned counsel appearing for the State of Orissa hasfairly submitted that after 85[th] Constitution Amendment by which Article16(4A) was amended, there is neither any legislation in the State ofOrissa nor any executive order by the Government, to extend the benefitof promotion to the reserved vacancies with consequential seniority.

10. Having heard the learned counsels on both sides we haveperused the impugned order and other material on record.

11. It is clear from the material placed on record that theseniority for general category officers was restored in the GradationList of OAS-I(JB) which was prepared on 16.05.2001, by extendingthe benefit of “Catch Up Rule”, evolved by this Court in the case ofVirpal Singh Chauhan[2 ]which is subsequently accepted in the caseof Ajit Singh (II)[ 4]. After Constitution (Eighty-Fifth) Amendment Act,2001, Article 16(4A) reads as under :

“16. Equality of opportunity in matters of publicemployment.-(1) …. …. ….

(2) …. …. ….(3) …. …. ….(4) …. …. ….

(4A) Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion, withconsequential seniority, to any class or classes of posts in the A

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230SUPREME COURT REPORTS

Aservices under the State in favour of the Scheduled Castes andthe Scheduled Tribes which, in the opinion of the State, are notadequately represented in the services under the State.”

The above said amended constitutional provision makes it clearthat in case the State is of opinion, SC & STs are not adequatelyBrepresented, State is empowered to make a provision for reservationin matters of promotion with consequential seniority, to any class. Whenthe validity of the constitutional amendment was questioned, same wasupheld by this Court in the case of M. Nagaraj[1]. In the aforesaidjudgment, a Constitution Bench of this Court has held that the State isnot bound to make reservation for SCs/STs in matters of promotion.CHowever, if they wish to exercise their discretion and make reservationsin promotion, the States have to collect quantifiable data showingbackwardness of the class and inadequacy of representation of thatclass in public employment, keeping in mind maintenance of efficiency,as indicated by Article 335 of the Constitution of India. It is furtherDheld that such exercise depends on availability of data. In the case ofSuraj Bhan Meena & Anr. V. State of Rajasthan & Ors.[5] a two-Judge Bench of this Court has considered the validity of notifications,providing for promotion of members of SC/ST with consequentialseniority, issued by the State Government. In the aforesaid judgment,it is held by this Court that the need for collecting quantifiable data andEascertaining inadequacy of representation of members belonging to SC/STs is a condition precedent for issuing notifications providing benefitof reservation with consequential seniority. Further, in the case of B.K.Pavitra & Ors. v. Union of India & Ors.[6] this Court has held thatthe determination of ‘inadequacy of representation’, ‘backwardness’

Fand ‘overall efficiency’ is mandatory for exercising power under Article16(4A). It is further held in the said case that the mere fact that thereis no proportionate representation in promotional posts for reservedcategory candidates, by itself is not sufficient to extend the benefit ofconsequential seniority to promotees who are otherwise juniors. It is held that in absence of such mandatory exercise by the State the “CatchGUp Rule” fully applies. In the case of Jarnail Singh & Ors. v.Lachhmi Narain Gupta & Ors.[7] while answering the reference aConstitution Bench of this Court has held that the judgment in the case 5 (2011) 1 SCC 4676 (2017) 4 SCC 620H7 (2018) 10 SCC 396

of M. Nagaraj[1] need not be revisited by referring to a seven-JudgeBench. At the same time it held that the conclusion in M. Nagaraj[1]that the State has to collect quantifiable data showing backwardnessof scheduled castes and scheduled tribes is held to be invalid on theground that the same runs contrary to 9-Judge Bench judgment of thisCourt in the case of Indra Sawhney & Ors. v. Union of India &Ors.[8]. It is also held in the said judgment that Article 16(4A) has beencouched in language which would leave it to the States to determineadequate representation depending upon the promotional post in question.Further in the case of B.K. Pavitra & Ors. v. Union of India &Ors.[9] this Court while considering the validity of KarnatakaDetermination of Seniority of the Government Servants Promoted onthe Basis of Reservation (to the Posts in the Civil Services of the State)Act, 2002 has upheld the Act on the ground that same was enacted bymaking study regarding inadequacy of representation, and overalladministrative efficiency.

12. In view of the judgments as referred above, in this case, it isto be noticed that after Constitution (Eighty-Fifth) Amendment Act,2001, amending Article 16(4A) of the Constitution which enabled theState to extend the benefit of promotion with consequential seniorityby examining the adequacy of representation to scheduled castes andscheduled tribes in the State services, the State of Orissa has not madeany provision, either by way of legislation or by an executive order, toextend such benefit in the Class-I Services. The advocate for Statespecifically admitted that the Govt. has not issued any executive orderor has passed any legislation. The Government Resolution dated20.03.2002 is issued merely based on the instructions issued by theGovernment of India, without examining the adequacy of representationin posts. As is evident from the order of the High Court, the State inits counter affidavit has taken the stand that there is no necessity forbringing out any law to extend the benefit of seniority for those whoare promoted in reserved vacancies. Government Resolution dated20.03.2002 can neither be termed as law made in exercise of enablingpower of the State under Article 16(4A), nor does it satisfy theparameters laid down in the various decisions of this Court. TheResolution has no legal basis. The Seniority/Gradation List dated 8 1992 Supp. (3) SCC 217

9 2019 SCC OnLine SC 694

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A16.05.2001 of OAS-I (JB) was prepared correctly by following the ratiolaid down by this Court and in absence of any law or decision by wayof executive order based on acceptable material for conferringadditional benefit of consequential seniority, the Gradation List dated03.03.2008 was prepared by altering the positions which weremaintained in the List dated 16.05.2001. While it is open for the StateBto confer benefit even through an executive order by applyingmandatory requirements as contemplated under Article 16(4A) but theResolution dated 20.03.2002 is merely issued by referring to theinstructions of the Union of India without examining the adequacy ofrepresentation in promotional posts, as held by this Court.

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13. Further, the submission of the learned counsel – Sri A. SubbaRao – that the benefit of reservation in promotion is given in the servicesof OAS-I for scheduled caste and scheduled tribe officers as perSection 10 of Orissa Act 38 of 1975, but same cannot be countenancedfor the reason that such Act was enacted by the State of Orissa in theDyear 1975 but no provision is brought to our notice in such Act for givingthe benefit of seniority for the promotees who were promoted inreserved vacancies. In absence of any provision in the said Act forconferring the benefit of seniority, and in absence of any amendmentafter Constitution (Eighty-Fifth) Amendment Act of 2001, by whichArticle 16(4A) was amended, benefit of seniority cannot be extendedErelying on Section 10 of the Act. In view of the stand of the respondent-State in the counter affidavit filed in the writ petition and further in viewof the submission made by the learned counsel for the State of Orissathat no benefit of seniority was extended by any State Act or by anyexecutive order by examining adequate representation in terms of Article F16(4A) of the Constitution, we do not find any merit in this appeal soas to interfere with the well reasoned judgment of the High Court. Thejudgment of this Court rendered in the case of Jarnail Singh[7] reliedon by the learned counsel for the appellants also would not take anyfurther the case of the appellants. In the said judgment also for givingthe benefit of promotion with consequential seniority, the need to examineGadequate representation in posts in terms of the judgment of this Courtin the case of M. Nagaraj[1] is maintained. As such, the said judgmentwould not render any assistance for the case of appellants.

14. For the aforesaid reasons, the appeal is dismissed with noorder as to costs.H

Civil Appeal No.4421 of 2011

15. The appellants in this appeal, who were not parties beforethe High Court, have also sought the same relief as has been sought inCivil Appeal No.3240 of 2011. In view of dismissal of Civil AppealNo.3240 of 2011, this appeal also stands dismissed.

Divya Pandey

Appeals dismissed.

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