Jabalpur: A two Judge Bench of the High Court of Madhya Pradesh today gave a landmark judgment on the issue of reservation in promotions (in government service) for the SC/ST category by declaring as ultra vires and non-est in law the existing provision relating to reservation, backlog, vacancies, carry forward of backlog vacancies and the operation of roster, contained in the Madhya Pradesh Rules of 2002.
The High Court order says that the provision for reservation for promotions granted to the SC/ST category under Madhya pradesh Rules 2002 runs contrary to the constitutional provisions contained in clause (4A) and (4B) of Article 16 and Article 335 of the Constitution.
The Madhya Pradesh Rules with provision for reservation in promotions for SC/ST category were framed and brought in force by the previous Madhya Pradesh Congress Government led by Digvijay Singh.
The order passed today by the High Court bench, comprising of Chief Justice A.M. Khanwilkar and Justice Sanjay Yadav, categorically points out that various promotions of SCs/STs category made on the basis of the Rules of 2002 are held to be nonest in the eyes of law and the persons be placed in the position as if the said Rules (i.e. the Rules which are declared ultra vires) never existed and all actions taken in furtherance thereof must be reverted to status quo ante.
The Madhya Pradesh Rules of 2002, were 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.
The High Court was considering the Validity, rather, workability of Madhya Pradesh Public Services (Promotion) Rules, 2002 “on the anvil of the law laid down in M. Nagaraj v. Union of India (2006) 8 SCC 212,” that had been questioned through a batch of writ petitions.
During the course of hearing, it was submitted by the counsel appearing for the State that in case if the relevant Rules of 2002 are ultimately found to be unworkable and ultra vires the Constitution and the law predicated in M. Nagaraj, the same may be overruled prospectively.
The High Court took note of these submissions and the plea that these be rejected in the light of judgment in State of H.P. vs. Nurpur Private Bus Operators’ Union (1999) 9 SCC 559, wherein it is held – the doctrine of prospective overruling cannot be utilized by the High Court. Once the High Court came to the conclusion, rightly, that the provisions concerned were invalid, it was obliged to so declare …” In view of this the plea for prospective overruling of the provisions relating to reservation in promotion in the Rules of 2002, have been negatived by the Madhya Pradesh High Court.
As pointed out in the High Court order, R.N. Singh, Senior Counsel, who led the arguments on behalf of the petitioners, submitted 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. 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 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.
To substantiate these submissions, the petitioners’ counsel 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. It was 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 was 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. It is urged that the provisions for reservation in promotion being antithetical thereof, cannot be allowed to sustain.
Countering these submissions, it was 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 May 1975 and dated 17 May 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 of 17 July 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 the Madhya Pradesh High Court vide its order of 12 February 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 was 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 March 2010 in the light of decision in M. Nagaraj giving liberty to the parties concerned to reagitate 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 along with return was relied upon by the High Court. Reliance was also placed on the report prepared by the State Government’s Scheduled Tribe Research and Development Institution in 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 justified the workability of Rules of 2002 to be in consonance with the constitutional provisions and the principles reiterated in M. Nagaraj.
As the Constitutional Bench of the Supreme Court, as ordered in SLP(C) Nos.4915-4919 of 2003, permitted the petitioners to re-agitate the issue afresh, the High Court chose not to rely upon the analysis of Rules of 2002 undertaken by the Division Bench of the High Court in Writ Petition No.6205/2002 : State of Madhya Pradesh v. C.P. Mathur; on 12 December 2002.
Today’s High Court order takes into consideration the Constitution (Seventy-Seventh Amendment) Act, 1995 that led to insertion of clause (4A) in Article 16, providing –
Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
Also the Constitution (Eighty-First Amendment) Act, 2000 led to insertion of clause (4B) in Article 16, providing –
Nothing in this article shall prevent the State from considering any unfilled vacancies
of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
These two amendments along with the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001 were the subject matter of challenge in M. Nagaraj wherein, while upholding the constitutional validity thereof, it was held by by Supreme Court that the test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches.
Citing the principle of law laid down in M. Nagaraj also reiterated later in Suresh Chand Gautam v. State of Uttar Pradesh AIR 2016 SC 1321, wherein it was specifically pointed out that Vesting of the power by an enabling provision may be constitutionally valid and yet “exercise of power” by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14. Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
Moreover the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. It was also underlined that the State has to form its opinion on the quantifiable data regarding adequacy of representation.
The court took note of Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. This clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons—“backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced. Besides, if the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact situation. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.
The order places on record that the constitutional limitation under Article 335 is relaxed and not obliterated be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.
The High Court order emphasises that Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.”
Furthermore, the High Court order says it has been held in Rajesh Kumar case that the Suraj Bhan case (2011) 1 SCC 467, the State Government had not undertaken any exercise as indicated in M. Nagaraj. The two-Judge Bench noted three conditions in this judgment. It was canvassed before the Bench that exercise to be undertaken as per the direction in M. Nagaraj was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-Fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the
two-Judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service.
The High Court order says: The Madhya Pradesh Civil Services (Reservation in Promotion and Limits on the Extent of Zone of Consideration) Rules, 1997, the Madhya Pradesh Civil Services (Determination of the Basis for Promotion) Rules, 1998 and all other rules and instructions corresponding to these Rules enforce immediately before the commencement of these Rules and which applies to such public servants to whom these Rules shall apply are hereby repealed, provided that any order made or action taken under the Rules and instructions so repealed shall be deemed to have been made Of taken under the corresponding provisions of these Rules.