Reservation in Promotion : Supreme Court Judgement in Civil Appeal No. 1226 of 2020 [Arising out of S.L.P. (Civil) No. 23701 of 2019]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1226 of 2020
[Arising out of S.L.P. (Civil) No. 23701 of 2019]
[Arising out of S.L.P. (Civil) No. 23701 of 2019]
Mukesh Kumar & Anr.
…. Appellant(s)
Versus
The State of Uttarakhand & Ors.
…. Resondent(s)
WITH
Civil Appeal No. 1227 of 2020
[Arising out of S.L.P. (Civil) No. 22640 of 2019]
Civil Appeal No. 1228 of 2020
[Arising out of S.L.P. (Civil) No. 25508 of 2019]
Civil Appeal No. 1229 of 2020
[Arising out of Dy. No.39572 of 2019 @S.L.P. (Civil) No. 3668
of 2020]
Civil Appeal No. 1230 of 2020
[Arising out of S.L.P. (Civil) No. 27715 of 2019]
Civil Appeal No. 1231 of 2020
[Arising out of S.L.P. (Civil) No. 28039 of 2019]
Civil Appeal No.1232 of 2020
[Arising out of S.L.P. (Civil) No. 27735 of 2019]
Civil Appeal No. 1233 of 2020
[Arising out of S.L.P. (Civil) No. 28947 of 2019]
[Arising out of S.L.P. (Civil) No. 22640 of 2019]
Civil Appeal No. 1228 of 2020
[Arising out of S.L.P. (Civil) No. 25508 of 2019]
Civil Appeal No. 1229 of 2020
[Arising out of Dy. No.39572 of 2019 @S.L.P. (Civil) No. 3668
of 2020]
Civil Appeal No. 1230 of 2020
[Arising out of S.L.P. (Civil) No. 27715 of 2019]
Civil Appeal No. 1231 of 2020
[Arising out of S.L.P. (Civil) No. 28039 of 2019]
Civil Appeal No.1232 of 2020
[Arising out of S.L.P. (Civil) No. 27735 of 2019]
Civil Appeal No. 1233 of 2020
[Arising out of S.L.P. (Civil) No. 28947 of 2019]
J U D G M E N T
L. NAGESWARA RAO, J.
1. The
Controversy in the above Appeals pertains to the reservations to
Scheduled Castes and Scheduled Tribes in promotions in the posts of
Assistant Engineer (Civil) in Public Works Department, Government of
Uttarakhand.
2. The Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 (for short “the 1994 Act”) provided
for reservation in public services and posts in favour of persons
belonging to Scheduled Castes, Scheduled Tribes and Other Backward
Classes of citizens. Section 3(1) of the said Act stipulated reservation
at the stage of direct recruitment. According to Section 3(7) of the
1994 Act, the Government Orders providing reservation for appointment to
public posts filled up by promotion which were existing on the date of
commencement of the 1994 Act shall continue till they are modified or
revoked. After the formation of the State of Uttarakhand in 2001, the
Uttar Pradesh Public Services (Scheduled Caste, Scheduled Tribe and
Other Backward Caste Reservation) Act, 1994 was made applicable to the
State of Uttaranchal by a Notification dated 30.08.2001 with a
modification in the percentage of reservations. 21% reservation for
Scheduled Castes was modified to 19% and 2% for Scheduled Tribes was
increased to 4%. Likewise, 21% reservation provided in the 1994 Act for
Other Backward Classes was altered to 14%.
3. A Division Bench of the High Court of Judicature at Allahabad in Mukund Kumar Shrivastava v. State of U.P.1
upheld the validity of Rule 8-A of the Uttar Pradesh Servants
Government Seniority Rules, 1991 (for short “the Seniority Rules”) which
dealt with consequential seniority of persons belonging to Scheduled
Castes and Scheduled Tribes. Later, in Prem Kumar Singh v. State of U.P.2, another Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench held that the judgment in Mukund Kumar Shrivastava (supra) is per incuriam and not a binding precedent. In Prem Kumar Singh’s
case (supra), the High Court declared Section 3(7) of the 1994 Act and
Rule 8-A of the Seniority Rules unconstitutional. While declaring the
correctness of the judgments of the High Court, this Court by its
judgment in Uttar Pradesh Power Corporation v. Rajesh Kumar3 held that Section 3(7) of the 1994 Act is unconstitutional insofar as it is contrary to the dictum in M. Nagaraj & Ors. v. Union of India & Ors.4
4. The
challenge to Section 3(7) of the 1994 Act, as extended to the State of
Uttarakhand, was upheld by the High Court of Uttarakhand in Vinod Prakash Nautiyal & Others v. State of Uttarakhand & Others5. Relying upon the judgment of this Court in U.P. Power Corporation
(supra), the High Court of Uttarakhand declared Section 3(7) of the
1994 Act unconstitutional and directed that no promotion can be given by
the State by taking recourse to Section 3(7) of the 1994 Act. The
application filed for review of the judgment in Vinod Prakash Nautiyal (supra) was dismissed. By way of implementation of the judgment of the High Court dated 06.07.2011 in Vinod Prakash Nautiyal
(supra), a committee was constituted by the Government of
Uttarakhand for collection of quantifiable data relating to the
backwardness of the reserved communities in the State of Uttarakhand and
the inadequacy of their representation in public posts.
5. On
05.09.2012, the State Government decided that all posts in public
services in the State shall be filled up without providing any
reservations to Scheduled Castes and Scheduled Tribes. All Government
Orders to the contrary were superseded by the proceeding dated
05.09.2012. Mr. Gyan Chand who was working as Assistant Commissioner
(Civil), State Tax and belonging to Scheduled Caste Community filed a
Writ Petition for quashing the proceeding dated 05.09.2012. The High
Court by its judgment dated 01.04.2019 struck down the proceeding dated
05.09.2012 as being contrary to the law declared by this Court in Indra Sawhney v. Union of India & Ors.6 and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.7 While referring to the judgments of this Court in M. Nagaraj (supra) and Jarnail Singh
(supra), the High Court held that Article 16(4) of the Constitution in
an enabling provision. The High Court observed that it is not necessary
for the State Government to collect quantifiable data regarding
representation of Scheduled Castes and Scheduled Tribes in State
services or regarding their backwardness before providing reservation in
their favour in promotion posts. The High Court was of the opinion that
the judgment in Vinod Prakash Nautiyal (supra) related to
the constitutional validity of Section 3(7) of the 1994 Act alone and
the Notifications pertaining to reservation in promotion in favour of
Scheduled Castes and Scheduled Tribes were not set aside. The Appeals
arising out of Civil Appeal @ S.L.P.(Civil) No.25508 of 2019 and Civil
Appeal @S.L.P. (Civil) @ Diary No.39572 of 2019 have been filed
assailing the judgment of the High Court dated 01.04.2019.
6. Vinod
Kumar and three others belonging to the Scheduled Castes working in the
Public Works Department, Government of Uttarakhand filed a Writ
Petition in the High Court of Uttarakhand seeking a direction to the
Respondent therein to prepare a separate list of eligible candidates as
per Rule 5 of the Uttarakhand Promotion by Selection (on posts outside
the purview of Public Service Commission) Eligibility Rules, 2003 and to
prepare a separate list for each category of eligible candidates of
General, Scheduled Castes and Scheduled Tribes for promotion to the post
of Assistant Engineer (Civil) in Public Works Department. A further
direction to the State Government was sought to hold a departmental
promotion committee for promotion to the posts of Assistant Engineers
after providing reservation to Scheduled Castes and Scheduled Tribes in
accordance with the Government Orders dated 30.08.2001, 31.08.2001 and
17.02.2004 by which reservation was provided in promotion. The Writ
Petition was disposed of by the High Court on 15.07.2019 with a
direction to the State Government to implement reservations in promotion
by promoting only members of Scheduled Castes and Scheduled Tribes in
future vacancies to maintain the quota earmarked for the said
categories. Civil Appeals @ S.L.P.(Civil) No. 23701 of 2019 and Civil
Appeal @ S.L.P. (Civil) No.22640 of 2019 are challenging the judgment
dated 15.07.2019.
7. In
the meanwhile, the Respondents in Writ Petition (Civil) No.117 of 2019
i.e. the State of Uttarakhand filed an application for review of the
judgment dated 01.04.2019. The High Court realized that it committed an
apparent error in its judgment dated 01.04.2019, while deciding the Writ
Petition by referring to the judgment of this Court in Jarnail Singh
(supra). The High Court clarified that the State Government is
obligated to collect quantifiable data regarding inadequacy of
representation of the Scheduled Castes and Scheduled Tribes in state
services before providing reservation in promotion. The High Court
clarified that it is not necessary for the State Government to collect
data regarding backwardness of the Scheduled Castes and Scheduled Tribes
in the light of the direction of this Court in Jarnail Singh
(supra). The High Court also observed that the State is not obligated
to provide reservation in promotions to members of Scheduled Castes and
Scheduled Tribes as Article 16(4-A) of the Constitution is an enabling
provision. However, reservation can be provided by the State Government
only after collecting data regarding inadequacy of representation of the
Scheduled Castes and Scheduled Tribes in state services. As such, the
High Court directed the State Government to collect quantifiable data
regarding inadequacy of the representation of the Scheduled Castes and
Scheduled Tribes in Government services which would enable the State
Government to take a considered decision on providing or not providing
reservation. The State Government was directed to take a decision
whether to provide reservation or not only after considering the data
relating to the adequacy or inadequacy of representation of Scheduled
Castes and Scheduled Tribes in the services of the State within a period
of four months from the date of receipt of the judgment. Aggrieved by
the order dated 15.11.2019 passed in Review Petition in W. P. (S/B)
No.117 of 2019, the Civil Appeal @ S.L.P.(Civil) No.27715 of 2019, Civil
Appeal @ S.L.P.(Civil) No.28039 of 2019, Civil Appeal @ S.L.P. (Civil)
No.27735 of 2019 and Civil Appeal @ S.L.P.(Civil) No. 28947 of 2019 have
been filed.
8. Mr. Ranjit
Kumar, learned Senior Counsel appearing for the Appellants in SLP (C)
No. 25508 of 2019, Mr. Mukul Rohtagi and Mr. P.S. Narsimha, learned
Senior Counsel appearing for the State of Uttarakhand contended that
there is no fundamental right to claim reservation in appointments or
promotions to public posts. There is no constitutional duty on the part
of the State Government to provide reservations. Article 16 (4) and 16
(4-A) are merely enabling provisions. On 15.09.2012, the State of
Uttarakhand, after due consideration, decided that there shall be no
reservation in promotions. They relied upon the judgment of the High
Court of Uttarakhand in Vinod Prakash Nautiyal (supra) by
which Section 3 (7) of the 1994 Act was declared unconstitutional. It
was submitted by them that the State Government has not brought any law
in terms of the judgment of this Court in M. Nagaraj & Ors.
(supra). It was urged by the learned Senior Counsel that there is no
necessity for collection of any quantifiable data after the Government
has taken a decision not to provide reservations. The collection of
data, according to them, is required only to justify a decision to
provide reservation. It was also submitted by them that according to a
judgment of this Court in Suresh Chand Gautam v. State of U.P.8 no
direction can be given by the Court to the State Government to collect
quantifiable data on the basis of which a decision to provide
reservation should be taken. They placed reliance on the judgment of
this Court in M. Nagaraj & Ors. (supra) to argue that the State is not bound to make reservations.
9. On
the other hand, Mr. Kapil Sibal, Mr. Dushyant Dave and Mr. Colin
Gonsalves, learned Senior Counsel and Dr. K.S. Chauhan, learned counsel,
appearing for the reserved category employees submitted that the State
cannot refuse to collect quantifiable data regarding the adequacy or
inadequacy of representation of the Scheduled Castes and Scheduled
Tribes in public services. They submitted that there is an obligation on
the State to provide reservations in promotions for upliftment of the
members of the Scheduled Castes and Scheduled Tribes as mandated by
Article 16 (4) and 16 (4-A) of the Constitution of India. The right to
equality of persons belonging to Scheduled Castes and Scheduled Tribes
cannot be defeated by the State Government by not discharging its
constitutional obligation of implementing Article 16 (4) and 16
(4-A) of the Constitution. They urged before this Court that
according to the law laid down by this Court, the State has a duty to
decide not to provide reservations only after the State is satisfied
that the Scheduled Castes and Scheduled Tribes are adequately
represented in public posts on the basis of quantifiable data. According
to them, Suresh Chand Gautam (supra) was not correctly
decided and needs reconsideration. It was also submitted on behalf of
the reserved category candidates that a Committee was constituted by the
Government of Uttarakhand to collect quantifiable data regarding the
adequacy of representation of persons belonging to Scheduled Castes and
Schedules Tribes in public posts in accordance with the judgment of this
Court in M. Nagaraj (supra). According to the report
submitted by the Committee, there is inadequate representation of the
Scheduled Castes and Scheduled Tribes in government services in the
State of Uttarakhand. The said report was approved by the State Cabinet.
It was contended by the learned counsel that the State Government was
duty bound to provide reservations on the basis of the data that was
collected by the Committee.
10. The
central point that arises for our consideration in these appeals is
whether the State Government is bound to make reservations in public
posts and whether the decision by the State Government not to provide
reservations can be only on the basis of quantifiable data relating to
adequacy of representation of persons belonging to Scheduled Castes and
Scheduled Tribes.
11. Article
16 (4) and 16 (4-A) do not confer fundamental right to claim
reservations in promotion9. By relying upon earlier judgments of this
Court, it was held in Ajit Singh (II) (supra) that Article
16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a
discretion on the State Government to consider providing reservations,
if the circumstances so warrant. It is settled law that the State
Government cannot be directed to provide reservations for appointment in
public posts10. Similarly, the State is not bound to make reservation
for Scheduled Castes and Scheduled Tribes in matters of promotions.
However, if they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data
showing inadequacy of representation of that class in public services.
If the decision of the State Government to provide reservations in
promotion is challenged, the State concerned shall have to place before
the Court the requisite quantifiable data and satisfy the Court that
such reservations became necessary on account of inadequacy of
representation of Scheduled Castes and Scheduled Tribes in a particular
class or classes of posts without affecting general efficiency of
administration as mandated by Article 335 of the Constitution11.
12. Article
16 (4) and 16 (4-A) empower the State to make reservation in matters of
appointment and promotion in favour of the Scheduled Castes and
Scheduled Tribes ‘if in the opinion of the State they are not adequately represented in the services of the State’.
It is for the State Government to decide whether reservations are
required in the matter of appointment and promotions to public posts.
The language in clauses (4) and (4-A) of Article 16 is clear,
according to which, the inadequacy of representation is a matter within
the subjective satisfaction of the State. The State can form its own
opinion on the basis of the material it has in its possession already or
it may gather such material through a Commission/Committee, person
or authority. All that is required is that there must be some material
on the basis of which the opinion is formed. The Court should show due
deference to the opinion of the State which does not, however, mean that
the opinion formed is beyond judicial scrutiny altogether. The scope
and reach of judicial scrutiny in matters within the subjective
satisfaction of the executive are extensively stated in Barium Chemicals v. Company Law Board12, which need not be reiterated13.
13. On
the basis of the settled law of this Court pertaining to the scope of
Article 16 (4) and 16 (4-A) of the Constitution, we proceed to determine
the correctness of the judgments of the High Court. As noted above, the
judgment of the High Court in Writ Petition No.117 of 2019 is to the
effect that the proceeding dated 05.09.2012 issued by the Government of
Uttarakhand by which it was decided to fill up the promotional
posts or vacancies without providing reservations to Scheduled
Castes and Scheduled Tribes was struck down. It was held by the High
Court that the notifications that were issued by the Government of
Uttarakhand, providing for reservations, continued to operate. A
direction was issued by the High Court that reservation in promotion in
favour of the Scheduled Castes and Scheduled Tribes can be made by the
State Government without having quantifiable data regarding the
backwardness of the Scheduled Castes and Schedules Tribes or the
adequacy of their representation in the Government services.
14. The
application filed for review of the judgment in Writ Petition No.117 of
2019 was decided by a judgment dated 08.11.2019 by the High Court.
Realising the error committed in its judgment dated 01.04.2019, the
High Court modified the judgment by holding that according to the
decision of this Court in Jarnail Singh v. Lachhmi Narain Gupta14,
the State was obligated to collect quantifiable data regarding the
inadequacy of representation of the Scheduled Castes and Scheduled
Tribes in public services. The High Court observed that Article 16 (4)
and 16 (4-A) of the Constitution are enabling provisions, and the State
Government is not obligated to provide reservations in promotion in
favour of members of the Scheduled Castes and Scheduled Tribes. The High
Court expressed its opinion that reservation in promotion to public
posts can be provided by the State Government only after collecting data
regarding the inadequacy of their representation in service. In light
of the above, the High Court directed the State Government to collect
quantifiable data regarding the adequacy or inadequacy of representation
of Scheduled Castes and Scheduled Tribes in state services which would
enable the State Government to take a considered decision as to whether
or not reservation in promotion should be provided in favour of
Scheduled Castes and Scheduled Tribes. The collection of quantifiable
data was directed to be completed within four months from the date of
receipt of the judgment.
15. The
High Court committed an error by striking down the proceeding dated
05.09.2012 by which a decision was taken not to provide reservation
in promotions without giving any reasons, except stating that the
said decision is contrary to the judgments of this Court in Jarnail Singh and Indra Sawhney
(supra). A perusal of the proceeding dated 05.09.2012 would show that
the decision taken by the State Government was by way of implementation
of the judgment of the High Court of Uttarakhand in Vinod Prakash Nautiyal
(supra) by which Section 3(7) of the 1994 Act, relating to the
provision of reservation in promotion, was struck down. By its judgment
dated 10.07.2012 in Vinod Prakash Nautiyal (supra), the
High Court declared Section 3 (7) of the 1994 Act as contrary to the law
laid down by this Court in M. Nagaraj (supra). There was a further
declaration that no promotion can be given by the State of Uttarakhand
by taking recourse to Section 3 (7) of the 1994 Act. However, the State
Government was given liberty to bring out another legislation in
accordance with the mandate of the Constitution of India, by following
the judgment in M. Nagaraj (supra). This Court dismissed
the SLP filed against the said judgment. At this juncture, it is
relevant to mention that certain notifications were issued after the
formation of the State of Uttarakhand by which reservation in promotion
to public posts as provided in the State of Uttar Pradesh was adapted
with certain modifications. As stated above, the Government of
Uttarakhand appointed a Committee for collection of quantifiable data
pertaining to the adequacy or inadequacy of representation of the
members of Scheduled Castes and Scheduled Tribes in public services in
the State. The Committee submitted its report, according to which the
representation of Scheduled Castes and Scheduled Tribes is
inadequate. The State Cabinet approved the recommendation of the
Committee on 12.04.2012. Ultimately, the State Government by a
proceeding dated 05.09.2012 decided to set aside all previous Government
orders relating to reservation in promotions to Government services in
the State. As the Government is not bound to provide reservation in
promotions, we are of the opinion that there is no justifiable reason
for the High Court to have declared the proceeding dated 05.09.2012 as
illegal.
16. The
direction that was issued to the State Government to collect
quantifiable data pertaining to the adequacy or inadequacy of
representation of persons belonging to Scheduled Castes and
Scheduled Tribes in Government services is the subject matter of
challenge in some appeals before us. In view of the law laid down by
this Court, there is no doubt that the State Government is not bound to
make reservations. There is no fundamental right which inheres in an
individual to claim reservation in promotions. No mandamus can be issued
by the Court directing the State Government to provide reservations. It
is abundantly clear from the judgments of this Court in Indra Sawhney, Ajit Singh (II), M. Nagaraj and Jarnail Singh
(supra) that Article 16 (4) and 16 (4-A) are enabling provisions and
the collection of quantifiable data showing inadequacy of representation
of Scheduled Castes and Scheduled Tribes in public service is a sine
qua non for providing reservations in promotions. The data to be
collected by the State Government is only to justify reservation to be
made in the matter of appointment or promotion to public posts,
according to Article 16 (4) and 16 (4-A) of the Constitution. As such,
collection of data regarding the inadequate representation of members of
the Scheduled Castes and Schedules Tribes, as noted above, is a
pre requisite for providing reservations, and is not required when
the State Government decided not to provide reservations. Not being
bound to provide reservations in promotions, the State is not required
to justify its decision on the basis of quantifiable data, showing that
there is adequate representation of members of the Scheduled Castes and
Schedules Tribes in State services. Even if the under-representation of
Scheduled Castes and Schedules Tribes in public services is brought to
the notice of this Court no mandamus can be issued by this Court to the
State Government to provide reservation in light of the law laid down by
this Court in C.A. Rajendran (supra) and Suresh Chand Gautam
(supra). Therefore, the direction given by the High Court that the
State Government should first collect data regarding the adequacy or
inadequacy of representation of Scheduled Castes and Scheduled Tribes in
Government services on the basis of which the State Government should
take a decision whether or not to provide reservation in promotion is
contrary to the law laid down by this Court and is accordingly set
aside. Yet another direction given by the High Court in its judgment
dated 15.07.2019, directing that ll future vacancies that are to be
filled up by promotion in the posts of Assistant Engineer, should only
be from the members of Scheduled Castes and Scheuled Tribes, is wholly
unjustifiable and is hence set aside.
17. The submission made on behalf of the reserved category candidates that the judgment of this Court in Suresh Chand Gautam
(supra) needs reconsideration is without substance in view of the
findings recorded above. We are in agreement with the decision of this
Court in Suresh Chand Gautam (supra) in which it was held
that no mandamus can be issued by the Court to the State to collect
quantifiable data relating to adequacy of representation of the
Scheduled Castes and Scheduled Tribes in public services.
18.
The High Court was not informed about the appointment of a Committee
for collection of quantifiable data and the completion of such exercise
by the Committee, which was approved by the State Cabinet. However, the
State Government took a conscious decision not to provide reservation in
promotions. The direction given by the High Court to collect
quantifiable data, therefore, is wholly unnecessary as the State is
already in possession of the said data.
19.
In view of the aforesaid, the impugned judgments of the High Court in
Writ Petition (S/B) No. 351 of 2019, Writ Petition (S/B) No. 117 of 2019
and Review Application No. 389 of 2019 in Writ Petition (S/B) No. 117
of 2019 are set aside.
20. The Appeals are disposed of accordingly.
……………………………………………..J.
[L. NAGESWARA RAO]
[L. NAGESWARA RAO]
……………………………………………..J.
[HEMANT GUPTA]
[HEMANT GUPTA]
New Delhi,
February 07, 2020
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