THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION NOs.18931, 19007, 19032 AND 19117 OF 2021
COMMON ORDER:
Since all the writ petitions arise out of a common notification,
therefore, they are disposed of by a common order.
2. These writ petitions are filed seeking to declare the action of
the first respondent in issuing the impugned Notification in Memo
No.73/Cabinet/A1/2019, dated 24.07.2021 and consequential Notification issued in Memo No.1356/SU.I/A1/2021, dated 24.07.2021 especially para 5.2 as arbitrary and illegal.
3. It is the case of the petitioners that they belong to Scheduled Caste/Scheduled Tribe community and they were selected as Typist-cum-Assistants in the competitive examinations (limited recruitment conducted by the then Andhra Pradesh Public Service Commission (APPSC) and were selected in the category of SC/ST and appointed in the year 2002. Subsequently on the basis of the Constitutional Amendment in the 77th Amendment Act, 1995 inserting Article 16(4) with effect from 17.06.1995 and thereafter 85th Amendment Act, 2001 giving retrospective effect from 17.06.1995 reservations were made in the matters of promotion in favour of Scheduled Caste and Scheduled Tribe communities which were not adequately represented in such services with consequential seniority.
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4. Based upon the same, the then Government of Andhra Pradesh has issued G.O.Ms.No.5, dated 14.02.2003 providing reservations for promotion to Schedule Caste and Scheduled Tribe communities employees to the extent of 15% & 6% respectively in all categories of the posts. Thereafter, an amendment was issued in G.O.Ms.No.26, dated 20.02.2009 stating that reservations shall be implemented with consequential seniority.
5. The constitutional amendment fell for consideration before the Supreme Court in M.Nagaraj Vs. Union of India (2006 (8) SCC
212) and the Hon'ble Supreme Court vide its order dated 19.10.2006 held that the States if they wish to give such promotions, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation in public employment.
6. The G.O.Ms.No.26, dated 20.02.2009 was challenged before the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.6563 of 2011, which held vide its order dated 12.08.2015 that the order was illegal on the ground that it was issued by the Social Welfare Department of the State and could not be extended to other departments.
7. The said order was challenged in W.P.No.4415 of 2016 and batch and a Division Bench of this Court by an order dated 11.12.2018 allowed the writ petitions and set aside the common 3 order of the Andhra Pradesh Administrative Tribunal, Hyderabad dated 12.08.2015 and held that G.O.Ms.No.5 dated 14.02.2003 and G.O.Ms.No.26, dated 20.02.2009 reading down merely to enable the State to implement the policy of reservation in promotions if necessary conditions are made out and in pursuance thereof every department of the State which seeks to implement the policy of reservation with consequential seniority in favour of SCs and STs in any particular cadre by undertaking in exercise as per the mandate of Hon'ble Supreme Court in judgments stated supra. The above judgment is holding the feet as on today.
8. However, the said judgment is not implemented and finally when a Contempt Case was filed before this Court, the respondents have issued the impugned notification No.1356/SU.I/A1/2021, dated 24.07.2021 calling for objections in respect of the promotions in Secretariat Services.
9. In Para 5.2 of the said notification dated 24.07.2021, it is stated as follows:-
"5.2 The 77th Amendment inserted Article 16(4) in the Constitution provides as under:-
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts to the service 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."
4The above Para is contrary to the judgment of Hon'ble Supreme Court and this Court and also the Government orders issued in G.O.Ms.No.5, dated 14.02.2003 and G.O.Ms.No.26, dated 20.02.2009.
10. It is further stated that the petitioners submitted objections to the impugned notification No1356/SU.I/A1/2021 dated 24.07.2021, but unless this Court holds that Para 5.2 of the Notification is illegal, their objections will not considered. Hence the writ petitions.
11. The other persons who will be affected by the promotion of the petitioners, filed petitions to implead them as respondents, stating that many of the higher posts are occupied by the reserved categories more than the percentages earmarked for them. In support of their contention, they relied on a decision reported in MUKESH KUMAR Vs. STATE OF UTTARAKHAND1, wherein the Apex Court held as follows:-
"Article 16 (4) and 16 (4-A) do not confer fundamental right to claim reservations in promotion. By relying upon earlier judgments of this Court, it was held in Ajit Singh that Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant. It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservation 1 (2020) 3 SCC 5 for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing inadequacy of representation of that class in public services. If the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution."
It is further stated that the writ petitions are premature and therefore prayed to dismiss the same.
12. The writ petitioners filed a counter to the implead petitions and contended that since the order impugned in the writ petitions is not a show cause notice where the first respondent has fixed parameters for reversing the promotions of the petitioners and others under review, which is not correct and contrary to the judgments. In support of their contention, the petitioners relied on a decision reported in R.K.Sabharwal and others Vs. State of Punjab and others2, wherein, the Apex Court held:
"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general 2 1995 AIR 1371 6 category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class.
No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointment/promotees belonging to the 7 backward classes against the general category posts the given percentage has to be provided in addition."
13. Sri S.Satyam Reddy learned senior counsel appearing on behalf of Smt.K.V.Rajasree, learned counsel for the petitioners in W.P.No.18931 of 2021, argued that conspiracy is being made by virtue of impugned proceedings against the Schedule Caste and Schedule Tribe classes and it is directly hitting the promotions of the deprived classes and when the constitution is protected their interest, the action of the respondents is against the constitution and therefore prayed to set aside the impugned notification and allow the writ petition.
14. Ms.M.Vidyavathi and Sri J.Sudheer, learned counsel for the petitioners in W.P.Nos.19117 and 19007 of 2021 contended that the impugned order affect the scope of the petitioners in going ahead with the promotions and their seniority and their position would be reduced by 2 to 3 levels down and it is nothing else but demotion under the garb of fixing the promotion. They further argued that the said decision is in gross violation of the judgments of the Supreme Court in M.Nagaraj & others Vs. Union of India & others3 and also against the recommendation report of Bojja Rahul committee. They further contended that though the impugned proceedings is a show cause notice, the petitioners submitted their explanations and the said show cause notice is 3 2006 (8) SCC 212.
8predetermined and it is only a pre-obligated and colourable exercise made by the respondents and therefore prayed to set aside the said notification.
15. Sri P.V.Ramana, learned counsel appearing for the implead petitioners submits that he filed implead applications on behalf of the co-employees and prayed to dismiss the writ petitions on the pretext that the implead petitioners are aggrieved party and he made submissions on merits, stating that the notification is only a show cause notice and that the writ petitions are premature and the same needs to be dismissed.
16. The Government Pleader submits that the writ petitions are premature and since it is a show cause notice under challenge and the petitioners have also filed their explanations and even before the decision is taken, they filed the writ petitions, hence prayed to dismiss the writ petitions since there is no violation by the Government and they followed the due procedure and sufficient protection is given to the Scheduled Caste and Schedule Tribe classes.
17. Admittedly, the impugned proceedings is only a show cause notice and it is a preliminary proceedings and the respondents have called for the objections to the promotion list which is to be prepared. Most of the petitioners have filed their objections to the impugned proceedings and a final decision is yet to be taken. 9
18. This court is of the view that if any opinion is expressed on merits that might influence the respondents in deciding upon the final promotion list and also in deciding the objections which are pending before the respondents.
19. It is needless to observe that the respondents while considering the objections would deal with the judgment in Nagaraj's case (supra) and also consider the committee reports. A fair reading of the impugned proceedings do not indicate that it is in violation of any constitutional rights conferred upon the petitioners, since it is only a case of promotion and not a case of employment under Scheduled Caste and Scheduled Tribe categories.
20. In view of the above discussion and since the writ petitions filed are premature as they have been filed against the impugned proceedings, which have not attained finality. This Court is not inclined to grant relief to the petitioners. It is not open for the petitioners to challenge the impugned notice having accepted it and filed their objections and the matter is pending before the authorities for final decision. It is not proper for this Court to interfere with the administration of the respondents and not allowing them to take a final decision in preparing seniority list. It cannot be presumed that the official respondents would ignore the judgments of Apex Court, committee reports and objections of the petitioners and would pass a biased order. A fair opportunity has to 10 be given to the respondents to perform their administrative functions. Having submitted their objections, petitioners should have waited for final list.
21. The implead applicants are not aggrieved for the present and hence the implead applications are dismissed.
22. Accordingly, the writ petitions are dismissed. No order as to costs. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
_______________________ T.AMARNATH GOUD,J Date: 01.09.2021.
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