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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 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07.09.2007 has since been withdrawn as the State intends to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 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 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 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.
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 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 16th 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 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:
“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
"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.”
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 4th
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. 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 11th January, 2013 issued pursuant to interim order
dated 7th 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 7th 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
(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 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] 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 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 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 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 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
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 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 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 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.”
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 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 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 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 26th
April, 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 30th 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.
-----------------------
[1] (1989) Supp 1 SCC 342
[2] 1992 (Supp) 3 SCC 217
[3] 1995 (2) SCC 745
[4] (2006) 8 SCC 212
[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
[11] (2011) 1 SCC 467
[12] (2012) 7 SCC 1
[13] 1968 (1) SCR 721
[14] (2003) 9 SCC 294
[15] [1967] 1 QB 443
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 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 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 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 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 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.
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 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 16th 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 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:
“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
"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.”
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 4th
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. 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 11th January, 2013 issued pursuant to interim order
dated 7th 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 7th 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
(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 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] 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 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 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 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 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
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 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 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 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.”
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 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 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 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 26th
April, 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 30th 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.
-----------------------
[1] (1989) Supp 1 SCC 342
[2] 1992 (Supp) 3 SCC 217
[3] 1995 (2) SCC 745
[4] (2006) 8 SCC 212
[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
[11] (2011) 1 SCC 467
[12] (2012) 7 SCC 1
[13] 1968 (1) SCR 721
[14] (2003) 9 SCC 294
[15] [1967] 1 QB 443
