The Delhi High Court has quashed the Centre's office memorandum dated August 13, 1997, by which it had extended reservation in promotion to SC and ST staff beyond five years stipulated by the Supreme Court in the year 1992 in the famous Indra Sawhney vs UoI case.
A bench of Acting Chief Justice Gita Mittal and Justice C Harishankar quashed the office memorandum issued by the Department of Personnel and Training, which means all promotions made on its basis stand quashed too.
The bench restrained the government from granting reservation in promotion without first collecting the data on inadequate representation.
It said so as it was of the view that the reservation was being "blindly extended" beyond the 5-year period since 1993, without any supporting data on inadequate representation of SCs and STs.
"Any reservation (as also consequential seniority) extended to SCs and STs, without, in the first instance, conducting the requisite exercise of garnering quantifiable data, indicating inadequate representation, and juxtaposing, they’re against, the considerations of backwardness and overall efficiency of administration, would necessarily infract Articles 16 (1) and 335 of the Constitution of India and, consequently, be liable tobe quashed," it said.
"The impugned OM dated 13th August 1997, issued by the DoPT cannot, therefore, sustain in view of the law laid down..." the bench ordered.
The court said so while deciding a batch of petitions filed by the All-India Equality Forum and others, saying blindly extending reservation in promotion would affect the quality of administration.
"The respondents are restrained from granting any reservation, in promotion, to Scheduled Castes or Scheduled Tribes, in exercise of the power conferred by Article16 (4A) of the Constitution of India, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, of the said categories, in service, and evaluating the situation by taking into consideration the said data, along with the competing considerations of backwardness and overall efficiency in administration, and arriving at an empiricaldecision on the basis thereof," the court said.
On the prayer to quash all promotions made in pursuance of the impugned OM, the bench said the same "stand satisfied by the interim order, stated to have been passed by the Supreme Court, in, inter alia, WP (C) 413 of 1997 filed by the petitioner, to the effect that all promotions made would be subject to the outcome of the challenge laid by the petitioners in the instant case”.
"No further orders would, therefore, require to be passed by us (with regard to prayer for quashing all promotions made on the basis of 1997 OM) which would, consequently, also stand allowed, to the extent that all promotions effected on the basis of the impugned OM, dated 13th August, 1997, would stand quashed," it observed.The genesis of the case dates to the apex court decision in Indra Sawhney's case on November 16, 1992, wherein a period of 5 years was stipulated for the said reservation.
The period of 5 years expired on 15th November, 1996.
Transgressing the 5-year window, the Centre inserted sub-article (4A) in Article 16 of the Constitution, vide the Constitution (77th Amendment) Act, 1995, which came into force on 17th June, 1995, providing a carte blanche to the State to make any provision, for reservation in promotion, in favour of SCs and STs, provided they were "not adequately represented in the services under the State".
The petitioners, in the instant case before the high court, filed case before the apex court in 1997. The SC, in 2010, granted them liberty to move the high court, while noting that all promotions would be subject to the outcome of the petitions.
Meanwhile, the apex court and several other fora ruled that reservation in promotion cannot be without quantifiable data of backwardness and inadequate representation.
The high court, in its decision, relied heavily on the SC decision in M Nagaraj vs UoI, wherein the court expressly opined that the government has to rely on quantifiable data on adequate representation.
It also quoted from the Supreme Court in BK Pavitra vs UoI (2017) as, “It is clear from the above discussion in S.Panneer Selvam case that exercise for determining “inadequacy of representation” , “backwardness” and “overall efficiency”, is a must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation in promotionalpost for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees, who are otherwise junior and, thereby, denying seniority to those who are given promotion later on account of reservation policy.
The Centre, in its response to the instant petitions, said its decision did not warrant any interference as the same is a policy decision taken in bona fide exercise of powers under the Constitution.
While deciding the petition, the high court refused to grant the prayer that the employees of general category be given benefit of promotion retrospectively from the date reserved category employees were promoted illegally.
It only said consequent to the OM being quashed, if any general category employee is found deserving, he may be promoted to the position which may stand vacated after quashing of the promotion of reserved category employee.