21 Yrs Later, Jharkhand HC Stays Further Effect Of 2003 Resolution On SC/ST Reservations In Service Promotions Citing Variance With SC Order

After a lengthy legal battle spanning 21 years, the Jharkhand High Court has stayed further effect of a 2003 Resolution passed by the State government for providing reservations to Scheduled Castes and Scheduled Tribes in service promotions.The division bench of Acting Chief Justice Shree Chandrashekhar and Justice Navneet Kumar allowed 12 writ petitions on finding the Resolution to be in non-compliance with Supreme Court guidelines. It observed,“The Resolution dated 31st March 2003 simply reproduces the provisions under Article 16(4-A) of the Constitution with a little elaboration. The validity of this Resolution has to be seen with reference to the object and purpose behind Article 16(4-A) of the Constitution. This is well-settled that even a subordinate legislation can be challenged on the grounds of (i) violation of the fundamental rights (ii) violation of any provision of the Constitution of India (iii) failure to confirm to the Parent Act (iv) exceeding the limits of authority under the Parent Act (v) manifest arbitrariness and (vi) unreasonableness. This is also a well-settled principle that the conferment of authority by the Parent Act for subordinate legislation does not enable the authority to make a provision which travels beyond the scope of the Enabling Act or which is inconsistent therewith or repugnant thereto.”“Tested on the aforementioned principles, this Court comes to a conclusion that the Resolution dated 31st March 2003 does confer a blanket power to provide reservation in promotions with protection to the consequential seniority to the Scheduled Castes and Scheduled Tribes in government employment. However, having regard to a possible cascading effect in any cadre in the government service about two decades after the first writ petition was filed questioning the validity of the Resolution dated 31st March 2003, this Court is not inclined to interfere with the benefits already conferred pursuant to the seniority/civil list prepared by different departments of the Government,” the bench added. After the completion of the hearing on March 6, the court had reserved its decision in the case which was going on since 2003. Notably, the government had issued a resolution on 31 March 2003 and decided to give reservation to SC-ST in promotion, after which, many other petitions including that of Raghuvansh Prasad Singh were filed.Notably, the Resolution dated 31st March 2003 refers to the judgment in Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and the amendment in Article 16(4-A) of the Constitution by the Constitution Eighty-Fifth Amendment Act, 2001 and provides that (i) the resultant seniority of the government servant belonging to the Scheduled Castes and Scheduled Tribes upon their promotion following the rules of reservation/roster shall remain intact and (ii) this decision shall be effective from 17th June 1995 that is the date of the enforcement of Eighty-Fifth Amendment. This Resolution further provides that the government servants belonging to SC/ST category shall be promoted from the date of promotion of their immediate junior belonging to General category/Other Backward Classes and for the intervening period they shall be given notional promotion.In this batch of 12 writ petitions, the constitutional validity of 85th Amendment Act, 2001 was challenged primarily on the ground that the amended Article 16(4-A) violates the right to equality under Article 14 and the right to equal opportunity in service under Article 16 of the Constitution. The petitioners were aggrieved by refixation of their seniority in the cadre pursuant to the Resolution No.1862 dated 31st March 2003 which was issued by the State of Jharkhand to give effect to Article 16(4-A) of the Constitution. Therefore, the petitioners also challenged their respective seniority/civil list on a similar ground of violation of Article 14 and Article 16 of the Constitution. The petitioners also questioned the Resolution dated 31st March 2003 issued by the State of Jharkhand adopting the office memorandum issued by the Union of India.The Court in its verdict, pointed that there is unanimity at the Bar that the constitutional validity of Eighty-Fifth Amendment Act, 2001 after having been affirmed by the Supreme Court in M. Nagaraj v. Union of India (2006) 8 SCC 212 cannot be debated before this Court. However, the petitioners challenged the Resolution dated 31st March 2003 on the ground that the instructions/directions contained thereunder are unguided, arbitrary and do not conform to the law laid down by the Supreme Court in M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta” (2018) 10 SCC 396 and other cases.Advocate Rahul Kumar, the counsel who appeared for the petitioners (in WP(S) Nos.3963 of 2006 and 109 of 2017) took the Court through the history of reservation in service. The counsel referred to General Manager, S. Rly. v. Rangachari (1962) 2 SCR 586 wherein the majority decision was that reservation in promotions is ...

21 Yrs Later, Jharkhand HC Stays Further Effect Of 2003 Resolution On SC/ST Reservations In Service Promotions Citing Variance With SC Order

Bhavya Singh

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