Exclude Creamy Layer Before Granting Reservation In Promotion To SC/ST Candidates: High Court Tells Haryana Govt

The Punjab & Haryana High Court while upholding the Haryana Government's instruction to grant reservation to Scheduled Caste candidates in promotion in Group 'A' & 'B' posts in State Government Services directed to exclude "creamy layer."Justice Jagmohan Bansal said, "this Court finds that respondent has duly complied with attributes of Article 16(4A) of the Constitution of India as well as law laid down by the Apex Court, thus, impugned instructions dated 07.10.2023 (Annexure P-2) are valid and hereby upheld. Nevertheless, the respondent shall exclude employees belonging to creamy layer before implementing impugned instructions."A batch of petitions was filed challenging the instruction of Haryana Government to grant reservation to Scheduled Castes in promotion in Group 'A' & 'B' posts, on multiple grounds including that the power to provide for reservation is with the State Government and the same cannot be delegated to the Departmental Promotion Committee.It was also argued that it is necessary to exclude the creamy layer of the employees belonging to Scheduled Castes before providing for reservation in the aforesaid promotional posts.While analysing the submissions in detail, the Court noted that from the record produced during course of hearing and reports of Committees, the State before issuing impugned instructions had collected quantifiable data and found that there is inadequate representation of SC in the promotional posts i.e. Group A & B though there is sufficient representation in Group C & D."There was reservation to the extent of 20% in Group A & B posts for direct recruitment. As number of posts filled through promotion were more than direct recruitment and recruitment through direct mode was not made annually, thus, total representation of the SC was inadequate. The State by collecting quantifiable data has duly complied with requirement of Article 16(4A) of the Constitution of India as well as mandate of the Constitution Bench judgments," it added.Relying on landmark decision of the Jarnail Singh and others Vs Lachhmi Narain Gupta and Ors. [2022 (10) SCC 595] (II), Court found that "State was required to collect data cadre wise. As noted hereinabove, the State has collected data cadre wise as well as group wise."Furthermore, the bench noted that the Departmental Committees have been asked to implement decision of the Government while making promotion. The role of Committee is confined to implementation of reservation policy of the State, thus, there is no delegation of power to subordinate authorities. It is State which has exercised its power in terms of Article 16(4A) of the Constitution of India.While considering that Article 335 requires that while considering claim of SC/ST, State shall take into account question of efficiency of administration, the Court noted that the respondent has not provided for out of turn promotion ignoring quality and efficiency of the officers to be promoted e.g. in case of promotion to the post of Deputy Superintendent of Police.Justice Bansal highlighted that in the instructions, word “eligible” would mean that the Inspector whether belonging to the Scheduled Caste or not, has to comply with the provisions of Rules and the said aspects have been taken into consideration by the State before providing for reservation to meet the requirements of Article 335 of the Constitution of India."If a person is not eligible for promotion, he is not going to be promoted or would be demoted if does not comply with conditions prescribed for promotion. In such circumstances, it cannot be held that State has not considered or complied with requirement of efficiency of administration in terms of Article 335 while issuing impugned instructions," added the Court.However, relying on M. Nagaraj and others v. Union of India and others, [(2006) 8 SCC 212] and other decisions, the Court said that the State is required to comply with principle of creamy layer before granting reservation in promotion to SC/ST.Title: Deepak Bamber v. State of Haryana and Ors [along with other decisions]Click here to read/download the order

Exclude Creamy Layer Before Granting Reservation In Promotion To SC/ST Candidates: High Court Tells Haryana Govt

Aiman J. Chishti

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