New Delhi: In a landmark judgement passed on 23 August 2017, the High Court of Delhi has quashed and set aside an Office Memorandum (OM) issued by the Department of Personnel and Training on 13 August, 1997 asking all ministries, departments, their subordinate offices, public sector undertakings and statutory bodies to continue the reservation in promotion for the Scheduled Castes and the Scheduled Tribes in the service posts under the Central Government beyond 15 November 1997 till such time as the representation of each of the above two categories in each reaches the prescribed percentage of reservation where after the reservation in promotion shall continue to maintain the representation to the extent of prescribed percentages for the respective categories in pursuance of Article 16(4A).
The judgement by a two judge Bench, comprising the acting Chief Justice and Justice C. Hari Shankar has come in response to a petition by the All India Equality Forum and others versus the Union of India.
The High Court order underscores that the Central Government in its counter affidavit did not disclose that the requisite exercise of collecting quantifiable data and determining the aspects of backwardness, inadequacy of representation and overall efficiency of the administration was ever undertaken before blindly extending the provision for reservation, in promotion, favouring SCs and STs.
The 77th Amendment to the Constitution, and sub-article (4A), which was inserted in Article 16 thereby, were obviously taken as providing a carte blanche to the Government to extend the provisions of reservation for SCs and STs beyond the period of 5 years stipulated in Indra Sawhney, the order says.
The order goes on to point out that the decision in the M Nagaraj case and the decisions following thereupon show that is not the case. Any reservation (as also consequential seniority) extended to SCs and STs, without, in the first instance, conducting the requisite exercise of garnering quantifiable data, indicating inadequate representation, and juxtaposing, they’re against, the considerations of backwardness and overall efficiency of administration, would necessarily infract Articles 16 (1) and 335 of the Constitution of India and, consequently, be liable to be quashed.
The impugned OM of 13 August 1997 (No.36012/18/95-Estt./(RES) Pt.II), issued by the DOPT cannot, therefore, sustain in view of the law laid down
The High Court has restrained the Government from granting any reservation, in promotion, to Scheduled Castes or Scheduled Tribes, in exercise of the power conferred by Article 16 (4A) of the Constitution of India, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, of the said categories, in service, and evaluating the situation by taking into consideration the said data, along with the competing considerations of backwardness and overall efficiency in administration, and arriving at an empirical decision on the basis thereof.
The Delhi HIgh Court order also says that the prayer by the petitioner exhorting the court to quash all promotions made in pursuance of the impugned OM of 13 August 1997, would stand satisified by the interim order, stated to have been passed by the Supreme Court, in, inter alia, WP (C) 413 of 1997 (M Nagraj case), to the effect that all promotions made would be subject to the outcome of the challenge laid by the petitioners in the instant case. No further orders would, therefore, require to be passed regarding this prayer which would, consequently, also stand allowed, to the extent that all promotions effected on the basis of the impugned OM, of 13 August, 1997, that stands quashed.
On further prayer, in the writ petition, that “the employees of general category be given benefit of promotion retrospectively from the date reserved category employees were promoted illegally” the Order says that it cannot be granted for the simple reason that promotion may be dependent on a variety of factors, including seniority, eligibility, qualifying service, availability of vacancies, application of the quota-rota principle, and the like, and, in the absence of any specific prayer qua any specific post, an omnibus direction, to promote all “employees of general category”, retrospectively, “from the date reserved category employees were promoted illegally”, cannot possibly be issued. All that we can say, on this prayer of the petitioner, is that, if, consequent on this judgement, any general category employee becomes entitled to promotion against a post against which an SC or ST candidate was promoted on the basis of the impugned OM dated 13th August 1997, it shall be open to such general category candidate/candidates to represent to the concerned administrative authorities, or to independently seek her, or his, judicial remedies in that regard. Liberty, to the said extent is, therefore, granted.