Interlocutory Application No. 6 of 2012 in Special Leave Petition (C.) No. 30143 of 2009 and Contempt Petition (C.) No. 91 of 2013 in Special Leave Petition (C.) No. 30143 of 2009. Case: H.P. Scheduled Tribes Employees Federation and Anr. Vs Himachal Pradesh S.V.K.K. and Ors.. Supreme Court

Case Number:Interlocutory Application No. 6 of 2012 in Special Leave Petition (C.) No. 30143 of 2009 and Contempt Petition (C.) No. 91 of 2013 in Special Leave Petition (C.) No. 30143 of 2009
Party Name:H.P. Scheduled Tribes Employees Federation and Anr. Vs Himachal Pradesh S.V.K.K. and Ors.
Counsel:For Appearing Parties: Vijay Hansaria and Rajeev Dhawan, Sr. Advs., Kanika Singh, Ashok Mathur, Debasis Misra, Kiran Suri, S.J. Amith, Suryanaryana Singh, Pragati Neekhra, Varinder Kumar Sharma and P.V. Yogeswaran, Advs.
Judges:S.S. Nijjar and Pinaki Chandra Ghose, JJ.
Issue:Constitution (77th Amendment) Act, 1995; Constitution (85th Amendment) Act, 2001; Constitution of India - Articles 15(4), 16, 16(1), 16(4), 16(4A), 16(4B), 335, 341, 342
Judgement Date:September 13, 2013
Court:Supreme Court
 
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Judgment:

S.S. Nijjar, J.

  1. This Interlocutory Application No. 6 was filed on 16th March, 2012, by the Appellants herein in the S.L.P. (Civil) No. 30143 of 2009, seeking direction to the State of Himachal Pradesh to take a decision on the issue of reservation in promotions on basis of data already collected or submitted to Cabinet Sub Committee on 25th April, 2011 within a period of one month. For the purpose of adjudicating the present I.A., it would be pertinent to make a reference to facts concerning S.L.P. (Civil) No. 30143 of 2009 that was disposed of by this Court on 26th April, 2010.

  2. SLP (Civil) No. 30143 of 2009 was filed against judgment and order dated 18th September, 2009 passed by the High Court of Himachal Pradesh. By the said judgment/order, the High Court allowed the CWP-T No. 2628 of 2008 and thereby quashed the instructions dated 7th September, 2007 issued by the State of Himachal Pradesh. The said instructions made provision for reservation in promotions with consequential seniority in favour of Scheduled Castes and Scheduled Tribes in all classes of posts in services under the State.

  3. The aforesaid S.L.P. was disposed of on 26th April, 2010 by passing the following Order:

    The State of Himachal Pradesh has issued a Circular on 07.09.2007 as regards the promotion of SCs/STs in the State service. The said circular was challenged by the Respondent No. 1 and the circular was quashed by the High Court by the impugned judgment. Learned Counsel appearing for the State submits that the circular issued on 07.09.2007 has since been withdrawn as the State intends to collect more details with regard to representation of SCs/STs and to pass appropriate orders within reasonable time i.e. approximately within three months after collecting necessary details and data's. The Petitioner would be at liberty to take appropriate steps, if any adverse order is passed. This Special Leave Petition and the Contempt Petition are thus disposed of finally.

  4. Although the present I.A. No. 6 is filed in the disposed of SLP, it would be appropriate to notice the manner, in which the order dated 16th April, 2010 came to be passed.

  5. On 27th November, 1972, Government of India issued instructions vide letter No. 27-2/71-Estt.(SCT), whereby provision was made for providing reservation in promotion for the members of Scheduled Castes and Scheduled Tribes. On 24th April, 1973, State of Himachal Pradesh issued instructions vide Letter No. 2-11/72-DP (Appt.), whereby reservation was provided for promotion of employees. On 9th/13th August, 1973, State of Himachal Pradesh issued instructions vide Letter No. 2-11/72-DP (Apptt.), and thereby, followed the Reservation policy of the Union Government relating to promotion for the members of Scheduled Castes and Scheduled Tribes. It may be mentioned here that the Reservation Policy of the Union Government was set out in Letter/Order dated 2nd March, 1972, 24th March, 1972 and 11th August, 1972, 28th October 1972, 30th January, 1973 and 12th March, 1973.

  6. Meanwhile on 31st October, 1988, this Court in the case of Karam Chand v. Haryana State Electricity Board and Ors. (1989) Supp 1 SCC 342, approved the grant of consequential seniority in promotions given to Scheduled Castes and Scheduled Tribes. The State of Himachal Pradesh, by instructions vide letter No. PER (AP-II) F (1)-1/87 dated 31st January, 1989, introduced Reservation Roster in both direct recruitment and promotions.

  7. Later, a Constitution Bench of this Court in Indra Sawhney and Ors. v. Union of India and Ors. 1992 (Supp) 3 SCC 217 held that reservation in promotion is not permissible under Article 16(4) of Constitution and directed to discontinue such reservations after 5 years. Thereafter, in R.K. Sabharwal and Ors. v. State of Punjab and Ors. 1995 (2) SCC 745 this Court held that the operation of roster must stop running when the prescribed quota of posts have been occupied by the reserved category. It was in this backdrop that the Parliament of India enacted Constitution (77th Amendment) Act, 1995, thereby adding Article 16(4A) which permits the State to provide reservation in matters of promotion to Scheduled castes and Scheduled Tribes. In 2001, Parliament approved Constitution (85th Amendment) Act, permitting promotions with consequential seniority to government service.

  8. On 7th September, 2007, with a view to give effect to the 85th Amendment to the Constitution, the State of Himachal Pradesh issued instructions vide letter No. PER (AP)-C-F (1)-1/2005, and thereby provided for assignment of consequential seniority to the members of Scheduled Castes and Scheduled Tribes in service under the State. The policy was to take effect from 17th June, 1995. The instructions further provided, as under:

    Thus as a result of this decision of State Government to implement the aforesaid amendment with effect from 17.6.1995, State Government employees belonging to Scheduled Castes and Scheduled Tribes shall also be entitled to consequential seniority on promotion by virtue of rule of reservation. However, controlling factors or compelling reasons, namely, backwardness and inadequacy of representation which enable the State to provide for reservation keeping in mind the over all efficiency of State administration under Article 335 will continue to apply with mandatory compliance of Constitutional requirement of Ceiling limit of 50% quantitative limitation. Moreover it is made clear that in the State of Himachal Pradesh the State Government has already made provision for reservation in promotion after due consideration prior to 19.10.2006, thus, collection of data as mandated by para 124 of the judgment in M. Nagaraj case (AIR 2007 SC 71) is not required.

  9. The instructions were challenged by Respondent No. 1 herein by filing Original Application No. 19 of 2008 before the Himachal Pradesh Administrative Tribunal, Shimla. Since the Administrative Tribunal was thereafter abolished, the O.A. was transferred to be heard and adjudicated by the High Court of Himachal Pradesh at Shimla and was renumbered as Civil Writ Petition -T No. 2628 of 2008. By the impugned order dated 18th September, 2009, the High Court allowed the writ petition, and quashed the instructions dated 7th September, 2007.

  10. In its judgment, the High Court inter alia relied upon the law laid down in M. Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC 212. The High Court noticed that the State was bound to collect data to show that the so called backward classes are actually backward and they are inadequately represented in the service under the State. It was also held that the State has to provide for reservations in such a manner that the efficiency of administration is not adversely affected. The High Court then proceeded to determine that whether such an exercise was undertaken by the State while issuing instructions dated 7th September, 2007. The High Court came to the conclusion that the State admittedly has not carried out any such exercise to collect such data. The reason provided by the State for not carrying out such an exercise was that since there was already a policy for providing reservation in promotion in the State prior to the judgment in Indra Sawhney's case (supra), collection of data as mandated in M. Nagaraj's case (supra) is not required. It...

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