The Madras High Court on Friday directed the State Government of Tamil Nadu to redo the exercise of fixation of seniority in state appointments, after finding the fixation of seniority and conferring promotion based on reservation in promotions unconstitutional.
The State of Tamil Nadu followed 200 Roster Point System, leading to mandatory 69% vertical reservation on communal basis, along with horizontal and internal reservations. This was held to be in violation of the settled law that reservation cannot surpass the 50% ceiling limit.
"the Apex Court has held that the outer limit of 50% for reservation shall not be breached. It is accordingly breached, through the 200 point roster by providing 69% reservation along with horizontal and internal reservation," the bench of Justices MM Sundresh and RMT Teekaa Raman said while disposing of a batch of petitions.
Notably, a roster fixed is also taken for the fixation of seniority as per the TN Rules. Thus, a person selected under the roster will get his seniority determined accordingly as against merit in a single selection process. This system was earlier set aside by a division bench of the high court in N. Santhosh Kumar & Ors. v. Tamil Nadu Public Service Commission, rep., by its Secretary, Government, Chennai-2 & Ors., 2015 (4) MLJ 281.
The order was later upheld by the Supreme Court, thus upholding that selected candidates may be conferred seniority based upon merit and not the roster point. Nevertheless, the state government superseded the judgment by bringing in the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and prescribing reservation in promotions.
"We find the presence of 'manifest arbitrariness' in the impugned provisions. Neither there appears to be any power available nor procedure followed. This appears to be a knee jerk reaction to circumvent and nullify the judgment of the Division Bench in Santhosh Kumar case, which attained finality," the bench said.
The court set aside Section 40 of the Act which governed seniority in service as per the rule of reservation and the order of rotation.
"This is introduced to remove the basis of the judgment of the Division Bench in Santhosh Kumar case by bringing seniority through roster point.
The 200 point roster is nothing but a mechanism to fill up vacancies in the respective quota and therefore, cannot be elevated to that of merit when it comes to seniority," the court said.
The court also set aside Section 70 of the Act which 'validated' the seniority of the candidates selected for appointment to a service, class or category determined on the basis of the roster, 'notwithstanding' any judgment, decree or order of Court or other authority.
Reliance was placed upon the ruling of the Apex Court in Bimlesh Tanwar v. State of Haryana, 2003 (5) SCC 604, whereby it was held that,
"the fundamental principle relating to drawal of seniority list was that it should be based on merit list of selection and that the list drawn based on roster point can have no application for the purpose of seniority list."
The bench did not accept the argument made by the Advocate General that Article 16(4) had sufficient resource to take care of situation warranting reservation in promotion, which would include seniority.
It said, as per the law laid down in Bimlesh Tanwar case, Article 16(4) of the Constitution of India could only be applied in the case of appointment and therefore, not in the seniority.
Reference was also made to the ruling in Ajith Singh & Ors. (II) v. State of Punjab & Ors., 1999 (7) SCC 209, to state,
"Article 16(4-A) is only enabling provision and therefore, a roster point promotee belonging to reserved category cannot count his seniority in the promotive category on that basis."
The court also said that the State could not take umbrage under Article 16(4) to get over the dictum of the Court. It clarified that the State could not have prescribed such a scheme of reservation in absence of an authorization.
"the Constitutional Bench of the Apex Court has already held and which was taken note of by other decisions, that Article 16(4) does not authorise such an action unless there is an express provision like the one introduced by way of 77th and 85th amendments in Article 16(4A) of the Constitution of India. As it is an express statement of law, we are constrained to hold that the State of Tamil Nadu does not have the power, authority or cachet to introduce the impugned provisions tracing Article 16(1) and 16(4) of the Constitution of India as their source of power, we are constrained to note that we are dealing with a case involving all sort of reservations at the level of seniority when there is no material available nor produced before this Court."
The court went on to observe that the reservation scheme prepared by the State to grant reservation in promotions was not backed by any empirical data and in such circumstances, it remarked, "reservation is not automatic but can only be on need basis".
"there is no fundamental right involved for reservation, it has to be backed up with empirical data and material. More such extent of quantifiable data is required for a special reservation, viz., horizontal and internal. It is trite that horizontal and internal reservation cannot be compared with a vertical one. Therefore, the extent of material required for such reservation is much more. Hence, when reservation is sought to be made without adequate material, leading to a satisfaction on the part of the State with respect to the need, the same cannot be sustained in the eye of law being an affront to Article 16 of the Constitution of India as a whole. As Article 16(4) of the Constitution of India is designed to ameliorate social inequality, it cannot be used to enchance it," it elaborated.
It is pertinent to mention at this juncture that Rule 22(c) of the Act provide for meritorious reserved candidate to choose either a 'general turn' or 'reserved', which is beneficial to him. However, selection in the 'general turn' would not affect the filling up of reserved list.
In this regard the court added,
"The respondent cannot follow a system by fixing a cut off mark for each category and thus, prevent a meritorious candidates for being considered for the post under 'general turn'. Take a case of a Backward Community candidate who has got higher mark than a Most Backward community candidate, but does not get a seat in the 'general' turn filled up with the latter. This is totally arbitrary and illegal. We are not concerned with the filling up of the 'reserved category', but of 'general turn' category. When it comes into 'general turn' every candidate is entitled to contest as stipulated both under the Rules and the impugned Act over which there is no quibble. However, it cannot be stated that a candidate belonging to the Most Backward Community is entitled to be considered in 'general turn', when otherwise not having requisite marks, consequent to a decision made by a candidate in the 'general turn' though belonging to the Most Backward Community, coming into the reserved quota."
Reliance was placed on Ritesh R. Sah v. Y.L.Yamul, 1996 (3) SCC 253, wherein it has been held that the said principle cannot be applicable to the selection process involving public employment.
Concluding with the remarks that "seniority is not a fundamental right but only a civil right", the court set aside Sections 40 and 70 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 being ultra vires and directed the State government to redo the exercise of fixation of seniority within a period of 12 weeks.
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