Suresh Chandra vs State Of U.P. And 4 Others
2014 Latest Caselaw 1642 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No.3
 

 
Civil Misc. Writ Petition No. 26322 of 2014
 
Suresh Chandra Vs. The State of U.P. and others
 

 
**** 

Hon'ble A.P. Sahi, J

Hon'ble Rajan Roy, J

( Oral - Rajan Roy, J.)

By means of this writ petition, the petitioner is claiming consideration for promotion from the post of Assistant Development Officer (S.K.) to the post of District Social Welfare Officer on the basis of reservation meant for Scheduled Castes.

The relief clause of the writ petition is being quoted herein below:-

"i. issue a writ, order or direction in the nature of mandamus commanding the respondents to promote the petitioner from Assistant Development Officer (S.K.) to the District Social Welfare Officer considering the service of long period of 31 years at the same post at which he was initially appointed, his outstanding administrative efficiency, 9 posts remained as vacant in concerned department for same post for S.C. And S.T. and exact data of inadequate representation at the post for which he is seeking promotion.

ii. Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

The petitioner was appointed as Assistant Development Officer (Social Welfare) in the year 1983. His services were regularised vide order dated 19.3.1996. In 2006, he was temporarily given the charge of the promotional post of District Social Welfare Officer and according to the petitioner, he discharged the duties of the said post diligently and satisfactorily. Under the relevant Service Rules, there is a channel of promotion from the post of Assistant Development Officer to the post of District Social Welfare Officer and a certain promotional quota is also prescribed therein. It has been contended that vide Notification dated 19.2.2014, 36 Assistant Development Officers (Social Welfare) have been promoted to the post of District Social Welfare Officer/District Social Welfare Officer (Development). An eligibility condition of 12 years service in the feeder cadre is prescribed under the Rules for promotion on the post in question. The petitioner has put in 31 years of service but has not been promoted as yet.

According to the petitioner, out of 154 posts of District Social Welfare Officer/District Social Welfare Officer (Development), 50% posts are to be filled by promotion. According to his calculation, 13 posts are to be treated as reserved for Scheduled Castes and Scheduled Tribes as per quota of 22.5% but only 4 reserved category persons are working, therefore, 9 posts are still left for promotion of SC/ST category persons.

Learned Counsel for the petitioner relied heavily upon the Constitution Bench judgment in the case of M. Nagraj in support of his contention that as there was inadequacy of representation, State Government should provide reservation in promotion as all the conditions mentioned in M. Nagraj's case are present in the petitioner's case. It was contended that if the State Government is avoiding to collect quantifiable data as required by the Constitution Bench decision in M. Nagraj's case, then the petitioner cannot be made to suffer.

The petitioner claims to have a right of promotion to the post in question based on reservation as he belongs to the Scheduled Caste. The learned Counsel also referred to the provisions of Article 335 and the 82nd amendment of the Constitution, as also to Articles 16 (4-A) and 46. The petitioner is said to have submitted a representation dated 30.7.2013 before the Respondent No.1 claiming promotion on the post in question wherein he has claimed that all the backlog reserved vacancies from 2004 to 8.5.2012 should be filled up.

A specific question was put to the learned Counsel as to whether the consideration, to which the petitioner is claiming his right, is based on any rule without the benefit of reservation or only on the basis of reservation. Learned counsel submitted that the petitioner was seeking promotion against the reservation quota for Scheduled Castes.

We have heard learned Counsel for the petitioner as well as the learned Standing Counsel for the opposite party.

The contention of the learned Counsel for the petitioner is not acceptable, firstly, for the reason that the provisions for reservation in promotion in the service under the State of U.P. as contained in Section 3 (7) of the Uttar Pradesh Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, was challenged before this Court in Writ Petition No.1389 (S/B) of 2007 (Prem Kumar Singh and others Vs. State of U.P. and others) and connected matters and the same was declared ultra vires the Constitution vide judgment dated 4.1.2011 passed therein. The relevant extract of the said judgment is being quoted herein below:-

"For the reasons given above and the discussions made, we declare the provisions of Section 3(7) of the Act, 1994 and that of Rule 8-A of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007 as invalid, ultra vires and unconstitutional. Consequently, the Government Order dated 17.10.2007 is also hereby quashed.

We further clarify that in case the State Government decides to provide reservation in promotion to any class or classes of posts in the services under the State, it is free to do so after undertaking the exercise as required under the constitutional provisions, keeping in mind the law laid down by the Apex Court in the case of M. Nagraj. But till such an exercise is done and enactment/Rule is consequently made, no reservation in promotion on any post or classes of posts under the services of the State including the corporations, etc. shall be made henceforth. However, all promotions already made as per the provision/rule of reservation, where the benefit of Rule 8-A has not been given, while making the promotions, shall not be disturbed by the declaration aforesaid and shall stand protected.

All the writ petitions are, therefore, allowed. Costs easy."

The provision contained in Section 3 (7) referred above, which was declared ultra vires reads as under:-

"(7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked."

The above judgement dated 4.1.2011 was challenged before the Supreme Court vide Civil Appeal No.2608 of 2011 (U.P. Power Corporation Ltd. Vs. Rajesh Kumar and others), and connected matters. The Supreme Court affirmed the judgment of this Court dated 4.1.2011 with some modification. Relevant extract of judgment of the Supreme Court dated 27.4.2012 is being quoted herein below:-

"87. In the ultimate analysis, we conclude and hold that Section 3 (7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3 (7) and Rule 8-A shall remain undisturbed.

88. The appeals arising out of the final judgment of Division Bench at Allahabad are allowed and the impugned order is set aside. The appeals arising out of the judgment from the Division Bench at Lucknow are affirmed subject to the modification as stated hereinabove. In view of the aforesaid, all other appeals are disposed of. The parties shall bear their respective costs."

Nothing has been brought on record by the petitioner to indicate that any provision for reservation in promotion for Scheduled Castes and Scheduled Tribes has been made by the Government of Uttar Pradesh in its services after passing of the aforesaid judgments. Infact, it is the admitted case that no such provision has been made.

In view of the above, as, on date, there is no provision for reservation in promotion for SC/ST in the services in the State of Uttar Pradesh, no direction can be issued by this Court for considering the petitioner for promotion to the post of District Social Welfare Officer based on any benefit of reservation. Therefore, the calculation of reserved posts by the petitioner being without any factual and legal basis, is misconceived.

At this stage, learned counsel for the petitioner submitted that a writ of mandamus be issued to the State Government to make a provision for reservation in promotion keeping in mind the dictum of the Supreme in M. Nagraj's case (supra). We are afraid, we are unable to issue any such writ for the reason that in view of the judicial pronouncement already referred to above, reservation including reservation in promotion is not a matter of right for Scheduled Castes and Scheduled Tribes. Articles 16 (4) and 16 (4-A) are merely enabling provisions which confer discretion upon the State Government to make such provision if it chooses to do so and even then it has to ensure that the pre-requisite and constitutional limitations as mentioned in the case of M. Nagraj's case are fulfilled. A writ of mandamus can only be issued for enforcement of a constitutional and legal right. No such right exists in favour of the petitioner. Moreover, we find that there is no such relief specifically claimed in the writ petition though in relief clause No. (i), the petitioner has claimed promotion to the post of District Social Welfare Officer against 9 posts remaining vacant for SC/ST vaguely referring therein to some data of inadequate representation of SC/ST on the said post.

The Constitution Bench decision in M. Nagraj's case, reported in (2006) VIII SCC 212, has considered the nature and scope of Article 16 (4-A) of the Constitution, by which an enabling provision for reservation for Scheduled Castes and Scheduled Tribes in matters of promotion was inserted in the Constitution and it has been held that it is only an enabling provision which does not confer any automatic right of reservation nor does it impose any constitutional obligation upon the State Government to make such a provision for reservation in promotion. It only confers a discretion upon the State Government to make reservation for SC/ST in promotion subject to the circumstances and the constitutional limits indicated in the said Constitution Bench. The relevant extracts of the said judgment are being quoted herein below:-

"123. ..................As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."

Thus, reservation, including reservation in promotion, is not a fundamental right of Scheduled Castes and Scheduled Tribes. In this regard, reference may be made to the judgment of another Constitution Bench of the Supreme Court in the case of C.A. Rajendran Vs. Union of India and others, AIR 1968 SC 507. The extract of the said judgment are being quoted herein below:-

"(6) ............On behalf of the petitioner Mr. N.C. Chatterjee submitted the argument that the provision contained in Article 16 (4) of the Constitution was in itself a fundamental right of Scheduled Castes and Scheduled Tribes and it was not open to the Government to withdraw the benefits conferred on Scheduled Castes and Scheduled Tribes by the Government Orders dated May 7, 1955 and January 4, 1957. ............ In any case, even the minority judgment of Subba Rao, J, does not support the contention of Mr. N.C. Chatterjee that Article 16 (4) confers a right on the backward classes and not merely a power to be exercised at the discretion of the Government for making a provision for reservation of appointments for backward classes which, in its opinion, are not adequately represented in the Services of the State. Our conclusion therefore is that Article 16 (4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words, Article 16 (4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case."

In a recent judgment in the case of Andhra Pradesh Public Service Commission Vs. Baloji Badhavath and others, (2009) 5 SCC 1, also the Supreme Court has held that no citizen of India can claim reservation as a matter of right. Provisions contained in Articles 15 and 16 are merely enabling provisions. The relevant extract of the said judgment are being quoted herein below:-

"18. The Constitution of India lays down provisions both for protective discrimination as also affirmative action. Reservation of posts for the disadvantaged class of people as also seats in educational institutions are provided for by reason of Articles 15 and 16 of the Constitution of India. Reservation made for the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes would, however, is subject to Article 335 of the Constitution of India. Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued."

In this regard, reference may be made to the judgment of the Supreme Court in the case of R. Rajeshwaran, reported in (2003) 9 SCC 294, paragraph No.9 of which is being quoted herein below:-

"9. In Ajit Singh (II) v. State of Punjab this Court held that Article 16 (4) of the Constitution confers a discretion and does not create any constitutional duty and obligation. Language of Article 15 (4) is identical and the view in Comptroller and Auditor General of India, Gian Prakash v. K.S. Jagannathan and Superintending Engineer, Public Health v. Kuldeep Singh that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two judgments cannot be held to be laying down the correct law. In these circumstances, neither the respondent in the present case could have sought for a direction nor the High Court could have granted the same."

In view of the above, as reservation in promotion is not a fundamental right and as making of a provision for reservation in promotion is a legislative function, no writ or direction can be issued by this Court for making a provision of reservation in promotion.

Before parting, we would also like to observe that in paragraph No.12 of the writ petition, it has been stated that as recently as on 19.2.2014, 36 Assistant Development Officers (Social Welfare) have been promoted as District Social Welfare Officer but it has not been disclosed that any person junior to the petitioner has been so promoted nor the placement of the petitioner in the requisite seniority list of the feeder cadre has been mentioned. It is also not clear as to up to what serial number in the said seniority list promotion has already been made, therefore, it is not clear as to under what circumstances the petitioner has not been promoted. In the absence of requisite details, it is not possible for this Court to issue any direction/writ for consideration of the petitioner for promotion in the normal course as per the existing service Rules. It is, however, made clear that if the petitioner is otherwise eligible and within the zone of consideration for promotion in the normal course as per the existing Rules, then the observations made herein above will not affect his right to be considered for such promotion as per law.

Subject to the above, the writ petition is misconceived and is, accordingly, dismissed.

Dt. 12.5.2014

Irshad