Writ Petition Nos. 1942, 7003/2011, 7259, 8120, 8215, 8288, 8424, 8976, 9127, 10024, 10296, 10353, 10362, 10514, 10937, 11962, 12306, 12896, 13342/2012, 4567, 10429/2013, 19935/2014, 13100, 18679/2015 and 1552/2016. Case: R.B. Rai and Ors. Vs State of Madhya Pradesh and Ors.. High Court of Madhya Pradesh (India)
| Case Number | Writ Petition Nos. 1942, 7003/2011, 7259, 8120, 8215, 8288, 8424, 8976, 9127, 10024, 10296, 10353, 10362, 10514, 10937, 11962, 12306, 12896, 13342/2012, 4567, 10429/2013, 19935/2014, 13100, 18679/2015 and 1552/2016 |
| Counsel | For Appellant: Akash Choudhary, Vijay Tripathi and Piyush Jain, Advocates and For Respondents: Samdarshi Tiwari, Dy. Advocate General |
| Judges | A. M. Khanwilkar, C.J. and Sanjay Yadav, J. |
| Issue | Constitution of India - Articles 14, 16, 16(4A), 16(4B), 16(1), 16(4), 21, 335 |
| Judgement Date | April 30, 2016 |
| Court | High Court of Madhya Pradesh (India) |
Order:
Sanjay Yadav, J.
1. Validity, rather, workability of Madhya Pradesh Public Services (Promotion) Rules, 2002 (for short 'Rules of 2002') on the anvil of the law laid down in M. Nagaraj v. Union of India (2006) 8 SCC 212, is being questioned vide present batch of writ petitions.
2. These Rules of 2002, as is evident, are brought in vogue in exercise of the powers conferred by the proviso to Article 309 read with Article 16 and 335 of the Constitution of India, relates to determination of the basis for promotion in public services and posts and also, the reservation in promotion in favour of Scheduled Castes and Scheduled Tribes.
3. Shri R.N. Singh, learned Senior Counsel, who led the arguments on behalf of the petitioners, has to submit that, though Articles 16(4A) and 16(4B) of the Constitution of India enables the State to make provisions facilitating reservation in favour of Scheduled Castes and Scheduled Tribes in promotion but the same being enabling provisions, the State is under the constitutional obligation to fulfil the stipulations contained in clauses (4A) and (4B) of Article 16 and Article 335 of the Constitution and as interpreted vide judicial pronouncement by the Constitutional Bench in M. Nagaraj (supra). And, as mandated in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar (2012) 7 SCC 1 that, even in case of Rules of 2002, though brought in vogue at pre M. Nagaraj (supra) stage, fresh exercise of collecting quantifiable data justifying reservation in terms of parameters of efficiency, backwardness and inadequacy of representation in particular class or classes of posts having not taken recourse to, and the Rules of 2002 being not in consonance with the provisions of clauses (4A) and (4B) of Article 16 read with Article 335 of the Constitution has rendered itself unworkable and therefore, deserves to be declared ultra vires Constitution. This is the neat and precise submissions on behalf of the petitioners.
4. To substantiate these submissions, learned Senior Counsel has referred to Rules 2(b), (i) & (j), 5, 6(12), 6(13), 6(14), 7(15), 7(16), 8 and 9 of Rules of 2002 which defines backlog and makes provision for carry forward, wherein no definite period have been provided to carry forward the unfilled vacant posts reserved in favour of SCs/STs.
5. It is contended that the State has not carried out any empirical study to arrive at quantifiable data class-wise and post-wise to ascertain that there is inadequate representation of the members of SCs/STs in promotional posts in various departments of the State Government as would warrant justification of having fixed percentage of reservation on promotional posts as is provided under Rule 5 of Rules of 2002, i.e., 16% for SCs and 20% for STs; as a result whereof, it is urged that, the existing provisions when adjudged in juxtaposition to the constitutional mandate of Articles 16(4A), 16(4B) and 335 of the Constitution of India and the principles of law mandated by the Constitutional Bench in M. Nagaraj (supra). It is urged that the provisions for reservation in promotion being antithetical thereof, cannot be allowed to sustain.
6. Countering these submissions, it has been contended on behalf of the State, that the State being aware of their constitutional obligations mandated under Articles 16 and 335 of the Constitution, a study was undertaken to ascertain the backwardness and inadequate representation while framing the Rules of 2002. It was further contended that at the time of framing of Rules of 2002, the State was conscious of the fact that in the State of Madhya Pradesh, there existed reservation in promotion in State Government service since 1975, brought in vogue vide circular issued by General Administration Department, Government of Madhya Pradesh, bearing No. F-4-1-75-3-One Bhopal dated 2.5.1975 and dated 17.5.1975 and the shortcomings as to reservation in promotion provided in the Madhya Pradesh Civil Services (Reservation in Promotion And Limits on the Extents of Zone of Consideration) Rules, 1997 which were declared ultra vires by the Madhya Pradesh State Administrative Tribunal by its order-dated 17.7.2000 passed in batch of Original Application Nos. 606/97, 719/97, 85/99 and 936/99. It was further urged that the order passed by the Tribunal was later set aside by the Division Bench of this High Court vide order dated 12.2.2002 passed in Writ Petition No. 6205/2002 and other connected writ petitions, whereby the validity of the provisions contained in Rules of 1997 and 2002 relating to reservation in promotion were upheld. It is further contended that the judgment in W.P. No. 6205/2002 was challenged before the Supreme Court forming subject matter of SLP(C) Nos. 4915-4919 of 2003: C.P. Mathur v. State of M.P., which were disposed of on 18.3.2010 in the light of decision in M. Nagaraj (supra) giving liberty to the parties concerned to re-agitate before High Court. It is contended that being conscious of these developments, the State Government in the year 2011 again collected fresh data from different departments regarding vacancies against the backlog of promotional posts and found that about 16763 posts reserved for Scheduled Castes and Scheduled Tribes are vacant in different departments. Chart filed alongwith return has been relied on. Reliance is also placed on the report prepared by Scheduled Tribe Research and Development Institution, Bhopal, reflecting comparative study as to 2002 and 2011-12 regarding social, economic, educational and administrative backwardness of the members belonging to Scheduled Castes and Scheduled Tribes. On these submissions, the State Government has justified the workability of Rules of 2002 to be in consonance with the constitutional provisions and the principles thereof reiterated in M. Nagaraj (supra).
7. Considered the submissions led on behalf of the parties and perused the documents on record.
8. Since the workability of the Rules of 2002 is being questioned on the anvil of Articles 16(4A), 16(4B) and 335 of the Constitution of India and the interpretation thereof in M. Nagaraj (supra), we set on to examine various provisions contained in the Rules of 2002 relating to reservation in promotion in service to which the said Rule is applicable on the anvil of these constitutional provisions and the law laid down in M. Nagaraj (supra). It being the mandate of the Constitutional Bench as ordered in SLP(C) Nos. 4915-4919 of 2003 permitting the petitioners to re-agitate the issue afresh before the High Court, we are not falling upon the analysis of Rules of 2002 undertaken by the Division Bench in Writ Petition No. 6205/2002: State of Madhya Pradesh v. C.P. Mathur; decided on 12.12.2002.
9. The relevant provisions in Rules of 2002 which relate to reservation in promotion, which we are concerned with, are:
2(b): 'Backlog' means the reserved vacancies for Scheduled Castes and Scheduled Tribes in all cases of promotion which have remained unfilled during the earlier year or years due to any reason whatsoever to be filled up by promotion as a distinct group in the next year/years;
2(i): 'Reservation' means reservation of posts in the services for the members of Scheduled Castes and the Scheduled Tribes;
2(j): 'Roster' means a prescribed register of running account of all clear vacancies to be filled up by promotion of public servants belonging to Scheduled Castes, Scheduled Tribes and unreserved category as provided in Rule 9 of these Rules.
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5. Reservation in promotion:-- Reservation in promotion in all classes of posts/services for the Public servants belonging to the Scheduled Castes and the Scheduled Tribes shall be as under:
6. Promotion on the basis of seniority subject to fitness:--
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(12): The names of public servants promoted on the basis of above combined select list shall be placed en bloc below the name of last public servant promoted on the basis of the immediately preceding year's combined select list.
(13): The reserved posts which remain unfilled due to non-availability of suitable public servants of the category for which the post is reserved despite consideration of the names of all public servants eligible for consideration as per the Recruitment Rules shall be carried forward, that is to say, shall be kept vacant until the suitable public servants belonging to that reserved category is available. In no circumstances any vacancy of reserved category shall be filled-up by promotion from the public servant belonging to any other category.
(14): Wherever the reserved vacancies for...
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