In a significant development, the Bombay High Court has struck down two state Government Resolutions as ultra vires to Article 16 (4A) of the Constitution of India.
The said GRs dated May 25, 2004, grant reservation at the promotion stage to government employees belonging to Scheduled Castes, Scheduled Tribes and De-Notified Tribes, Nomadic Tribes, Special Backward Category and Other Backward Classes.
In a reference arising out of a difference in opinion of two judges of a division bench, Justice MS Sonak upheld the opinion taken by Justice AA Sayed on December 21, 2016, which held the said GRs as ultra vires to the Constitution.
The main petitioner, Vijay Ghogre, challenged the legality of having reservations at the stage of promotions.
The high court directed Maharashtra Administrative Tribunal to decide the issue as per the law.
In a judgment dated November 28, 2014, the MAT held the Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and other backward Classes) Act 2001 (Reservation Act) and the subsequent GR dated May 25, 2004 as ultra vires to the Constitution of India.
In an opinion dated July 26, 2016, Justice Anoop Mohta reversed the MAT judgment and upheld the vires of both the Act and the GR.
However, Justice AA Sayed, in an opinion dated December 21, 2016, held the said GR as ultra vires to the Constitution. But, on the issue of the validity of the said Act, Justice Sayed said the MAT was not justified in examining its constitutional validity as the same was not up for challenge.
Justice Sonak noted that, in his opinion recorded on July 26, Justice Mohta had accepted that MAT need not have gone into the issue of validity of the said Act purely for academic purposes.
He said:“I, therefore, agree with Hon'ble Mr. Justice AA Sayed's opinion dated 21st December 2016 that, in the facts and circumstances of the present cases, the issue of constitutional validity of the Reservation Act was not required to be gone into and decided by the MAT and therefore, the MAT, was not justified in striking down the Reservation Act.”
The court further noted that since Article 16(4A) is carved out of Article 16(4), its interpretation as well as exercise of power thereunder will be governed by the following three factors:
(b) Inadequacy of representation and
(c) Overall efficiency of administration (Article 335)
Article 16(4) provides that nothing in Article 16 shall prevent the state from making any provision for the 'reservation of appointments or posts in favour of any backward class of citizens' which, in the opinion of the state, is not adequately represented in the services under the state.
Although state’s counsel submitted various reports from committees constituted over the years as a form of reference for quantifiable data, upon perusal of these reports, Justice Sonak rejected the premise, referring to the decision of the apex court in M Nagaraj & Ors vs, Union of India & Ors and observed-
“Even if the total strength of the cadre is taken into account, the figures, far exceed the prescribed reservation percentage at least for SC category. It is therefore, apparent that the State has not carried out the exercise of collection of quantifiable data as contemplated by M. Nagaraj and other decisions, which follow it.”
“GR dated 25th May 2004, even proceeds to prescribe the percentage of reservation in favour of such categories of persons. Taking into consideration the provisions of Article 16(4A) as interpreted by the Constitution Bench in M. Nagaraj, the State was not empowered to issue such a GR, without undertaking the exercise of collection of quantifiable data and forming its opinion on basis of such quantifiable data that, SC/STs have not been adequately represented in the services under the State.”
The court partially upheld Justice Sayed’s opinion in the matter, except for the directions issued to the State “to collect such data and take necessary steps in 12 weeks”.
Read the Judgment Here