H.P. Scheduled Tribes Emp.Fedn Vs Himachal Pradesh S.V.K.K .

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

INTERLOCUTORY APPLICATION NO.6 OF 2012

IN

SPECIAL LEAVE PETITION (C.) No. 30143 OF 2009

H.P. Scheduled Tribes Employees Federation & Anr. … Appellants

Versus

Himachal Pradesh S.V.K.K. & Ors. …Respondents With

CONTEMPT PETITION (C.) NO. 91 OF 2013 IN

SPECIAL LEAVE PETITION (C.) No. 30143 OF 2009

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This Interlocutory Application No.6 was filed on

16th March, 2012, by the appellants herein in the

S.L.P. (Civil) No. 30143 of 2009, seeking direction to the State

of Himachal Pradesh to take a decision on the issue of

reservation in promotions on basis of data already collected or

submitted to Cabinet Sub Committee on 25th April, 2011 within

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a period of one month. For the purpose of adjudicating the

present I.A., it would be pertinent to make a reference to facts

concerning S.L.P. (Civil) No. 30143 of 2009 that was disposed

of by this Court on 26th April, 2010.

2. SLP (Civil) No. 30143 of 2009 was filed against judgment

and order dated 18th September, 2009 passed by the High

Court of Himachal Pradesh. By the said judgment/order, the

High Court allowed the CWP-T No. 2628 of 2008 and thereby

quashed the instructions dated 7th September, 2007 issued by

the State of Himachal Pradesh. The said instructions made

provision for reservation in promotions with consequential

seniority in favour of Scheduled Castes and Scheduled Tribes

in all classes of posts in services under the State.

3. The aforesaid S.L.P. was disposed of on 26th April, 2010

by passing the following order:-

“The State of Himachal Pradesh has issued a Circular on 07.09.2007 as regards the promotion of SCs/STs in the State service. The said circular was challenged by the respondent no.1 and the circular was quashed by the High Court by the impugned judgment. Learned counsel appearing for the State submits that the circular issued on 07.09.2007 has

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since been withdrawn as the State intends to collect more details with regard to representation of SCs/STs and to pass appropriate orders within reasonable time i.e. approximately within three months after collecting necessary details and datas. The petitioner would be at liberty to take appropriate steps, if any adverse order is passed. This Special Leave Petition and the Contempt Petition are thus disposed of finally.”

4. Although the present I.A.No.6 is filed in the disposed of

SLP, it would be appropriate to notice the manner, in which the

order dated 16th April, 2010 came to be passed.

5. On 27th November, 1972, Government of India issued

instructions vide letter No. 27-2/71-Estt(SCT), whereby

provision was made for providing reservation in promotion for

the members of Scheduled Castes and Scheduled Tribes. On

24th April, 1973, State of Himachal Pradesh issued instructions

vide Letter No. 2-11/72-DP (Appt.), whereby reservation was

provided for promotion of employees. On 9th/13th August, 1973,

State of Himachal Pradesh issued instructions vide Letter

No 2-11/72-DP (Apptt.), and thereby, followed the Reservation

policy of the Union Government relating to promotion for the

members of Scheduled Castes and Scheduled Tribes. It may

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be mentioned here that the Reservation Policy of the Union

Government was set out in Letter/Order dated 2nd March, 1972,

24th March, 1972 and 11th August, 1972, 28th October 1972, 30th

January, 1973 and 12th March, 1973.

6. Meanwhile on 31st October, 1988, this Court in the case of

Karam Chand Vs. Haryana State Electricity Board & Ors. 1 ,

approved the grant of consequential seniority in promotions

given to Scheduled Castes and Scheduled Tribes. The State of

Himachal Pradesh, by instructions vide letter No. PER

(AP-II) F (1)-1/87 dated 31st January, 1989, introduced

Reservation Roster in both direct recruitment and promotions.

7. Later, a Constitution Bench of this Court in Indra

Sawhney & Ors. Vs. Union of India & Ors.2 held that

reservation in promotion is not permissible under Article 16(4)

of Constitution and directed to discontinue such reservations

after 5 years. Thereafter, in R.K. Sabharwal & Ors. Vs. State

of Punjab & Ors.,3 this court held that the operation of roster

1 (1989) Supp 1 SCC 342 2 1992 (Supp) 3 SCC 217 3 1995 (2) SCC 745

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must stop running when the prescribed quota of posts have

been occupied by the reserved category. It was in this backdrop

that the Parliament of India enacted Constitution

(77th Amendment) Act, 1995, thereby adding Article 16(4A)

which permits the State to provide reservation in matters of

promotion to Scheduled castes and Scheduled Tribes. In 2001,

Parliament approved Constitution (85th Amendment) Act,

permitting promotions with consequential seniority to

government service.

8. On 7th September, 2007, with a view to give effect to the

85th Amendment to the Constitution, the State of Himachal

Pradesh issued instructions vide letter No. PER (AP)-C-F (1)-

1/2005, and thereby provided for assignment of consequential

seniority to the members of Scheduled Castes and Scheduled

Tribes in service under the State. The policy was to take effect

from 17th June, 1995. The instructions further provided, as

under:-

“Thus as a result of this decision of State Government to implement the aforesaid amendment with effect from 17.6.1995, State Government employees belonging to Scheduled Castes and Scheduled Tribes shall also be entitled to

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consequential seniority on promotion by virtue of rule of reservation. However, controlling factors or compelling reasons, namely, backwardness and inadequacy of representation which enable the State to provide for reservation keeping in mind the over all efficiency of State administration under Article 335 will continue to apply with mandatory compliance of Constitutional requirement of Ceiling limit of 50% quantitative limitation. Moreover it is made clear that in the State of Himachal Pradesh the State Government has already made provision for reservation in promotion after due consideration prior to 19.10.2006, thus, collection of data as mandated by para 124 of the judgment in M.Nagaraj case (AIR 2007 Sc.71) is not required.”

9. The instructions were challenged by respondent No.1

herein by filing Original Application No. 19 of 2008 before the

Himachal Pradesh Administrative Tribunal, Shimla. Since the

Administrative Tribunal was thereafter abolished, the O.A. was

transferred to be heard and adjudicated by the High Court of

Himachal Pradesh at Shimla and was renumbered as

Civil Writ Petition –T No. 2628 of 2008. By the impugned order

dated 18th September, 2009, the High Court allowed the writ

petition, and quashed the instructions dated 7th September,

2007.

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10. In its judgment, the High Court inter alia relied upon the

law laid down in M. Nagaraj & Ors. Vs. Union of India & Ors. 4

The High Court noticed that the State was bound to collect data

to show that the so called backward classes are actually

backward and they are inadequately represented in the service

under the State. It was also held that the State has to provide

for reservations in such a manner that the efficiency of

administration is not adversely affected. The High Court then

proceeded to determine that whether such an exercise was

undertaken by the State while issuing instructions dated

7th September, 2007. The High Court came to the conclusion

that the State admittedly has not carried out any such exercise

to collect such data. The reason provided by the State for not

carrying out such an exercise was that since there was already

a policy for providing reservation in promotion in the State prior

to the judgment in Indra Sawhney’s case (supra), collection of

data as mandated in M. Nagaraj’s case (supra) is not

required. It was also urged on behalf of the State that the

decision for providing reservations in promotions was taken

after “due consideration”. These reasons were rejected by the

4 (2006) 8 SCC 212

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High Court, and it was held that:

“‘Due Consideration’ is totally different from collecting quantifiable data. This exercise has to be conducted and no reservation in promotion can be made without conducting such an exercise. Therefore, the State cannot be permitted to make reservations till such exercise is carried out and clear-cut quantifiable data is collected on the lines indicated in M.Nagaraj’s case. We may also point out that other than making vague reference to “due consideration” having been done, till date the State has not produced before us any clear-cut quantifiable data which could establish the need for reservation.

Merely because the amended provision of the Constitution enable the State to make reservation is no ground not to collect data. Therefore, the instructions have to be struck down as being violate of the law laid down in M. Nagaraj’s case by the Apex Court.”

11. In compliance with the aforesaid directions, the State of

Himachal Pradesh, vide letter No. PER (AP)-C-F (1)01/2009

dated 16th November, 2009, rescinded the instructions dated

7th September, 2007. In the letter (dated 16 th November, 2009),

the State of Himachal Pradesh also directed that all the

promotions made on or after 7th September, 2007 may be

regulated in accordance with the procedure applicable prior to

the said date. The letter also made it clear that promotion policy

has to be interpreted in the manner “as if the instructions dated

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7th September, 2007 and subsequent instructions thereof had

never been issued.”

12. The judgment of the High Court dated 18th September,

2009 was challenged in the Civil Appeal @ SLP (Civil)

No. 30143 of 2009, filed by Himachal Pradesh Schedules

Tribes Employees Federation, and Himachal Pradesh SC/ST

Government Employees Welfare Association. This Court, by

order dated 4th December, 2009 issued notice and granted

interim stay on the operation of the impugned judgment.

Meanwhile, the State Government withdrew the instructions

dated 16th November, 2009 and issued fresh instructions vide

letter dated 20th January, 2010, which were further amended by

letter dated 16th March, 2010. By the aforesaid two letters, the

Government Departments were refrained from making further

promotions where consequential seniority is involved.

13. By order dated 26th April, 2010, this Court disposed of the

S.L.P. (Civil) No. 30143 of 2009 and the contempt petition

No. 27 of 2010 on the undertaking given by the State. In the

said order, this court inter alia observed as under:

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“Learned counsel appearing for the State submits that the circular issued on 07.09.2007 has since been withdrawn as the State intends to collect more details with regard to representation of SCs/STs and to pass appropriate orders within reasonable time i.e. approximately within three months after collecting necessary details and datas (sic). The petitioner would be at liberty to take appropriate steps, if any adverse order is passed. This Special Leave Petition and the Contempt Petition are thus disposed of finally.”

14. This Court, by order dated 7th July, 2010, dismissed I.A.

No. 5 in the aforesaid SLP seeking modification/clarification of

the aforesaid order.

15. It appears that the State of Himachal Pradesh collected

the necessary data as on 31st December, 2011. This is evident

from the answers given to the Assembly Question

Unstarred No.196, to which the reply was given on 4th April,

2012. The question was specific in the following terms:

“(a) How much is the present SC/ST backlog in the

State; and

(b) What steps the Government is taking to fill-

up the backlog of these categories?”

The answer to the aforesaid question (a) and (b) was that

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"The necessary information is at Annexure - "A"."

16. A perusal of the Annexure-A shows that the details of

backlog position of Scheduled Castes/Scheduled Tribes in

direct recruitment and promotion in the services of the State

and Boards/Corporations/Public Sector Undertakings etc. as on

31st December, 2011, is clearly indicated.

17. It was in this backdrop that I.A. No. 6 came to be

preferred by the petitioner herein on 16th March, 2012, seeking

a direction to the State to take a decision on the issue of

reservation on the basis of data already collected or submitted

to Cabinet Sub Committee on 25th April, 2011 within a period of

one month. The petitioner also prayed for stay on all the

promotions, pending the decision taken in this case. This Court,

by order dated 6th September, 2012, directed inter alia as

under:

“In our opinion, in the facts and circumstances of this case, it is necessary for the State of Himachal Pradesh to take the necessary policy decision on the question of providing reservation to the members of Scheduled Castes and Scheduled Tribes in the matter of promotion in the services within the State of Himachal Pradesh, within a period eight weeks from the date of receipt of a copy of this order.”

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The State of Himachal Pradesh is directed to place on record the compliance report before the next date of hearing.”

This direction was given upon consideration of the

submission of the State in its reply to this I.A. dated 4 th July,

2012, that the petitioners themselves had reservations with

regard to the data placed before the Cabinet Sub-Committee on

25th April, 2011. Accordingly, the Government decided to

collect afresh data and material showing position as

on 30th June, 2011. According to the respondent State, the

policy decision would have to relate to the data showing the

position as on 30th June, 2011, which would be available

shortly.

18. On 2nd November, 2012, an I.A. was filed by the State of

Himachal Pradesh in the Civil Appeal, seeking extension of

time for complying with the order of this Court until 31st January,

2013. By order dated 7th January, 2013, this Court granted

extension to the State of Himachal Pradesh as sought and

further directed it not to make any promotions in the meantime.

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On 11th January, 2013, the State of Himachal Pradesh issued

instructions to all the departments to stop granting promotions.

On 31st January, 2013, the State of Himachal Pradesh in Letter

No. PER (AP)-C-F(1)-2/2011 noticed that since the Constitution

(117th Amendment) Bill, 2012 is pending consideration in the

Parliament, the matter regarding implementation of Constitution

(85th Amendment) Act, 2001 in the state may be deferred.

It was also decided that the instructions dated 11 th January,

2013 issued pursuant to interim order dated 7 th January, 2013

in I.A. No. 6 of 2012 in SLP (Civil) No. 30143 of 2009 will

continue in operation in the meantime. On 4th February, 2013,

the State of Himachal Pradesh sought modification of the

restriction placed by this Court by order dated 7 th January,

2013, whereby the State was directed not to make any

promotions. The stand taken in the said affidavit was that since

the Constitution (117th Amendment) Bill, 2012 is pending

consideration in the Parliament, the matter regarding

implementation of Constitution (85th Amendment) Act, 2001 in

the state may be deferred. The State Government also prayed

that the existing reservation system in promotions be continued

till the finalization of matter relating to the Constitution

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(117th Amendment) Bill, 2012.

Submissions:

19. Mr. Vijay Hansaria, learned senior counsel appeared for

the appellants. Whereas, Dr. Rajeev Dhawan, learned senior

counsel appeared for the respondent no.1, State of Himachal

Pradesh.

20. Mr. Hansaria submitted that the State Government has

already taken a decision to provide reservation in promotion. In

its order dated 31st January, 2013, the State Government

mentions that the existing system for providing reservation,

prior to order dated 7th September, 2007 will continue.

Therefore, mandamus is to be issued not for providing

reservations but to direct the State to implement its own policy

decision.

21. Mr. Hansaria further submitted that the data collected by

the State reveals that there is backlog in the government

services. Further, it was submitted that data was available to

the State Government on 31st October, 2009, but this fact was

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suppressed from this Court. It was also argued that the defence

put by the State that they deferred the matter concerning

implementation of 85th Amendment on the ground

of 117th Amendment Bill is without any basis since it already

has the data. Thus, they must take a decision thereon.

Learned senior counsel relied upon Salauddin Ahmed & Anr.

Vs. Samta Andolan 5 , to submit that this Court had earlier

directed the State to comply with the directions given in

M. Nagaraj (supra) and Suraj Bhan Meena (supra).

22. Dr. Dhawan, learned senior counsel, firstly, reiterated the

well known principles concerning the concept of reservation laid

down by this Court in the following cases: Indra Sawhney

(supra), R.K.Sabharwal (supra), Union of India & Ors. Vs.

Virpal Singh Chauhan & Ors. 6 , Ajit Singh Januja & Ors. Vs.

State of Punjab & Ors. 7 , Chander Pal & Ors. Vs. State of

Haryana 8 , Jagdish Lal & Ors. Vs. State of Haryana & Ors. 9 ,

Ajit Singh & Ors. (II) Vs. State of Punjab & Ors. 10

5 (2012) 10 SCC 235 6 (1995) 6 SCC 684 7 (1996) 2 SCC 715 8 (1997) 10 SCC 474 9 (1997) 6 SCC 538 10 (1999) 7 SCC 209

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Dr. Dhawan relied upon M. Nagaraj’s case (supra), and

submitted that this Court has laid down certain conditions which

are required to be complied with by the State before providing

Reservation under Article 16(4). The learned senior counsel

relied on the following observations of this Court:

“As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.”

Further, Dr. Dhawan submitted that this Court, applying

the aforesaid ratio in M. Nagaraj’s case(supra), quashed the

reservation policy of the respective states in Suraj Bhan

Meena & Anr. Vs. State of Rajasthan & Ors. 11 and Uttar 11 (2011) 1 SCC 467

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Pradesh Power Corporation Limited Vs. Rajesh Kumar &

Ors. 12

23. Dr. Dhawan further submitted that no mandamus would

lie to order reservations or de-reservations because

Article 16(4), (4A) & (4B) are enabling provisions. Learned

senior counsel relied upon C.A. Rajendran Vs. Union of India

(UOI) & Ors.13 Union of India Vs. R. Rajeshwaran & Anr.14

and Ajit Singh (II)’s case (supra).

24. We have very carefully considered the submissions made

by the learned counsel for the parties.

25. Undoubtedly, in the case of C.A. Rajendran (supra), this

Court has held as follows:-

“Our conclusion therefore is that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words, Article 16(4) is an enabling provision and confers a discretionary power on the State to make

12 (2012) 7 SCC 1 13 1968 (1) SCR 721 14 (2003) 9 SCC 294

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a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case.”

26. Similarly, in R.Rajeshwaran (supra), this Court observed

as follows:-

“9. In Ajit Singh (II) v. State of Punjab this Court held that Article 16(4) of the Constitution confers a discretion and does not create any constitutional duty and obligation. Language of Article 15(4) is identical and the view in Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan and Superintending Engineer, Public Health v. Kuldeep Singh that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be held to be laying down the correct law. In these circumstances, neither the respondent in the present case could have sought for a direction nor the High Court could have granted the same.”

27. The aforesaid dicta reiterated the earlier pronouncement

of this Court in Ajit Singh (II)’s case (supra), wherein this

Court observed as follows:-

28. We next come to the question whether Article 16(4) and Article 16(4-A) guaranteed any fundamental right to reservation. It should be noted that both these articles open with a non obstante clause — “Nothing in this Article shall prevent the

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State from making any provision for reservation….” (emphasis supplied) There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A) on the other. There is no directive or command in Article 16(4) or Article 16(4-A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963.

28. In our opinion, the reliance placed on the aforesaid

observations by Dr. Dhwan is misplaced. Controversy herein is

not about whether the court can issue mandamus to introduce

the policy of reservation. The issue relates only to ensuring that

the respondent-State implements its own decisions. The only

excuse given by the State for not implementing its decision

dated 31st January, 2013 is the pendency of

the 117th Amendment Bill. As noticed earlier, the State had

admitted in answer to the unstarred Assembly question that

necessary data had been collected. Furthermore, in the reply

dated 4th July, 2012 to this application the State has admitted

the existence of the data which was placed before the Cabinet

Sub-Committee on 25th April, 2011, which has the base as on

31st October, 2009. The State also affirmed that fresh data

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showing the position as on 30th June, 2011, would be available

shortly. Therefore, it is patently apparent that there is no

impediment in the way of the respondent State to take the

necessary policy decision on the basis of the available data.

Non-compliance of the direction in M. Nagaraj was the sole

reason for which the High Court had quashed the instructions

dated 7th September, 2007. With the collection of the

necessary data, there exists no justifiable reason not to take the

required decision.

29. The State has very skilfully avoided a decision on merits

in SLP (C) No.30143 of 2009. Thereafter, it is a series of false

starts to avoid the implementation of their own decision and the

directions issued by this Court. In our opinion, that this cat and

mouse game has gone far enough. Therefore, we will not

content ourselves with the justification that the State has to

await the outcome of the 117th Amendment. We see no

relevance of the amendment to the implementation by the State

of its earlier decision making reservation in promotions. It has

taken a policy decision for implementation of

the 85th Constitution Amendment Act. Instructions

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dated 7th September, 2007 had been issued for implementation

of the policy decision. In these instructions, H.P. Government

had decided to grant seniority to SC/ST employees. But this

circular dated 7th September, 2007 was withdrawn in

compliance of the High Court judgment by issuing Circular

No. PER(AP)-CF(1)-1/2009 dated 16th November, 2009. But

the implementation of this Circular was stayed by this Court in

SLP (C) No.30143 of 2009 on 4th December, 2009. The State

then issued another Circular No. PER(AP)-C-F(1)-1/2009 dated

20th January, 2010 withdrawing circular dated 16th November,

2009. Thus, the situation prevalent prior to the Circular dated

7th September, 2007 was again operative for making

promotions. Thereafter another Circular was issued

on 23rd January, 2010 amending the circular

dated 16th November, 2009 by substituting words “wherever

reservation is available” with the words “wherever

consequential seniority by virtue of reservation will be

applicable.” The issuance of so many circulars is indication of

the intention of the State not to comply with the earlier decision

to implement the policy of reservation in promotions and the

grant of consequential seniority. Therefore, a clever statement

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was made before this Court on 26th April, 2010 on the basis of

which the SLP was disposed of. We are of the opinion that the

statement was only to avoid a decision on merits with regard to

the correctness of the impugned judgment of the High Court.

30. When a statement is made before this Court it is, as a

matter of course, assumed that it is made sincerely and is not

an effort to over-reach the court. Numerous matters even

involving momentous questions of law are very often disposed

of by this Court on the basis of the statement made by the

learned counsel for the parties. The statement is accepted as it

is assumed without doubt, to be honest, sincere, truthful,

solemn and in the interest of justice. The statement by the

counsel is not expected to be flippant, mischievous, misleading

and certainly not false. This confidence in statements made by

the learned counsel is founded on the assumption that the

counsel is aware that he is an officer of the Court. Here we

would like to allude to the words of Lord Denning, in the case of

Rendel vs. Worsley 15 about the conduct expected of an

Advocate. “As an advocate, he is a minister of justice equally

15 [1967] 1 QB 443

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with the Judge…………………I say “all he honourably can”

because his duty is not only to his client. He has a duty to the

Court which is paramount. It is a mistake to suppose that he is

the mouthpiece of his client to say what he wants: or his tool to

do what he directs. He is none of these things. He owes

allegiance to a higher cause. It is the cause of truth and justice.

He must not consciously mis-state the facts. He must not

knowingly conceal the truth. He must not unjustly make a

charge of fraud, that is, without evidence to support it. He must

produce all the relevant authorities, even those that are against

him. He must see that his client discloses, if ordered, the

relevant documents, even those that are fatal to his case. He

must disregard the most specific instructions of his client, if they

conflicts with his duty to the court. The code which requires a

Barrister to do all this is not a code of law. It is the code of

honour.” In our opinion, the aforesaid dicta of Lord Denning is

an apt exposition of the very high standard of moral, ethical and

professional conduct expected to be maintained by members of

the legal profession. We expect no less of an

Advocate/Counsel in this country. Here, in this case,

on 26th April, 2010 a statement was made on behalf of the State

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of H.P. that “the state intends to collect more details with regard

to representation of the SCs/STs and to pass appropriate

orders within a reasonable time, i.e., approximately within three

months after collecting the necessary details and datas.”

Having very deftly avoided a decision on merits in the SLP (C)

No.30143 of 2009, the State has totally failed to live up to the

solemn statement made to this Court. It has hedged and

hemmed and prevaricated from 26th April, 2010 till date. Inspite

of the requisite data being available, the policy of reservation

already adopted by the State has not been implemented. We,

therefore, do not agree with Dr. Dhawan that the applicants are

seeking a mandamus to adopt a policy in reservation. From the

above narration, it is evident that the applicants want the State

to implement its own decisions.

31. The prayer is :

“Direct the Respondent/State Government to decide the case in time bound manner on the basis of data already available/submitted to Cabinet Sub Committee on 25.4.2011 within a period of one month and ;

Further direct stay on all promotions pending decision taken in this Case.”

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32. The final excuse offered by the State for not granting the

aforesaid relief is that the State now awaits the finalisation of

the 117th Constitution Amendment. We decline to accept the

reasons put forward for not honouring the statement solemnly

made to this Court on 26th April, 2010. This Court has been

more than considerate to the requests made by the State for

extension of time. This last excuse about awaiting the

finalisation of the proposed 117th Constitutional Amendment is

the proverbial last straw on the camel’s back. As stated earlier,

the proposed 117th Constitutional Amendment would not

adversely affect the merits of the clam of the petitioner for grant

of promotion with consequential seniority. By the aforesaid

proposed amendment, the existing Article 16 clause (4A) is to

be substituted by the following clause 4A:-

“(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

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the Scheduled Castes and the Scheduled Tribes in the services of the State.”

33. A bare perusal of the aforesaid would show that the

purpose of amendment is to remove any impediment in the

grant of consequential seniority upon promotion on the basis of

reservation. The aforesaid conclusion is stated explicitly in the

Statement of Objects and Reasons for the proposed

117th Constitutional amendment. For facility of reference, the

Statement of Objects and Reasons is reproduced hereunder:-

“Statement of Objects and Reasons

The Scheduled Castes and the Scheduled Tribes have been provided reservation in promotions since 1955. This was discontinued following the judgment in the case of Indra Sawhney Vs. Union of India, wherein it was held that it is 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

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validity of Constitutional amendments in the case of M. Nagaraj Vs. UOI & Ors., observed that the concerned 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 in promotion.

Relying on the judgment of the Supreme Court in M. Nagaraj case, the High Court of Rajasthan and the High Court of Allahabad have 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 has upheld the decisions of these High Courts striking down provisions for reservation in respective States.

It has been observed that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise.

Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are 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 has been voiced by the Members of Parliament. An All-Party Meeting to

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discuss the issue was held on 21-08-2012. There was a general consensus to carry out 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 has reviewed the position and has 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. It is 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, that is, from the 17th day of June, 1995.”

34. The aforesaid leaves no manner of doubt that the

amendment is with the view to provide impediment free

reservation in promotion to the Scheduled-Castes and

Scheduled-Tribes and to bring certainty and clarity in the

matter. Furthermore, the aforesaid proposed amendment is to

be introduced with retrospective effect from 17th June, 1995. In

view of the above, there can be no impediment in the way of

the State Government to implement the policy of reservation

which existed till the issuance of the various instructions prior to

the making of the Statement before this Court on 26 th April,

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2010. It is time to put an end to this charade; this never ending

process of extensions and hold the State to honour its

statements.

35. We, therefore, allow this Interlocutory Application and

direct the State of Himachal Pradesh to take a final decision on

the issue either on the basis of the data already submitted to

the Cabinet Sub-Committee on 25th April, 2011 or on the basis

of the data reflecting the position as on 30 th June, 2011, within a

period of three months from today. Till a final decision is taken,

the direction restraining the State of Himachal Pradesh from

making any promotion shall continue.

….….…………………..J. [Surinder Singh Nijjar]

….…………………,……J. [Pinaki Chandra Ghose]

New Delhi; September 13, 2013.

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