Bombay High Court
Dr.Vyankatesh T Anchinmane And 2 ... vs State Of Maharashtra And 12 Ors on 26 July, 2016
Bench: Anoop V. Mohta
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WP/2797/2015 RESERVATION MATTERS
INDEX
Sr.No. Subject/heading/title Para Nos.
1 Introduction of controversy 2 to 7
2 Prospect in Public employment to all the 8 to 9
social group
3 The basic constitutional amendments for SC 10 to 11
and STs
4 The other interlinked constitutional 12 to 16
Reservation provisions
5 Maharashtra Scheduled List of SC & ST, OBC, 17
SBC, DT and NT
6 The State Historical reports and 18 to 24
recommendations
7 The Reservation Act reflects the intention of 25
the State Legislation
8 Basic provisions of the Reservation Act 26
9 Impugned promotion circular 27
10 Historical background of the promotion 28
circular
11 The Other promotion rules 29
12 Respondent's (Claimant) short submissions 30 to 31
13 Citations referred in the impugned judgment 32 to 33
of MAT
14 Basic principles relied by all - judgments cited 34 to 36
15 The State submissions and the cited 37
judgments.
16 Set of circumstances of the State. 38 to 47
17 The relevant circumstances of Other 48 to 49
Backward Classes (OBC)
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18 OBC Historical background 50 to 51
19 The specific case of OBC 52 to 57
20 The averments against the Reservation Act 58
21 The case proceedings in High Court 59 to 61
22 Specific issues before the Tribunal (MAT) 62
23 Essential reasons for the conclusions of the 63
matters
24 Reservations on the base of 1931 Census and 64 to 70
the natural growth of populations.
25 The scope and power of Court in setting up 71 to 74
and fixing the percentage of respective
caste/tribe
26
The affirmation of the State to have 75 to 76
quantifiable adequate data of SC, ST and
OBC
27 State Committees, Commissions reports about 77 to 79
"quantifiable data" and its Merit and Demerit.
28 Reference is made to the Cabinet Note dated 80
30/11/1994 about the caste
29 Specific Treatment to OBC - VJ/NT 81
30 The State Quantifiable Data and updated 82 to 84
contemporary data, though not precise but
sufficient, is available
31 The MAT misread historical value of the 85 to 90
reservation and the base for such reservation
32 Enthusiasm of increase and/or decrease of 91 to 92
respective reservation percentage
33 No special challenge to the inclusion and 93 to 94
exclusion in State Caste/Tribe Lists
34 The State empowered to make reservation in 95 to 96
State employment recruitment and/or
promotion
Mandamus to order Reservation or De-
reservation.
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35 Provisions for Promotion 97
36 Wisdom of State Legislation - to continue the 98
existing reservation policy - for both stages
for all.
37 Existing recognised Constitutional 99
Reservation for SC/ST at the recruitment
level and or at promotional level is settled.
38 Last Caste Census 1931 and natural growth 100
binds all until new similar Caste Census is
published and made effective for all the
communities.
39 No prescribed method to identify Backward 101 to 109
Class - Other Backward Class
40
"Proper Representation" as contemplated 110
under Article 16(1)(4) for OBC permissible
41 Judicial Review of the Listing & the 111
"Quantifiable & Qualitative Data of specific
Class/Group".
42 The Court cannot direct or restrict the 112
collection of upgrowing data.
43 The excess 2% (above 50%) reservation for 113 to 116
recruitment stage is permissible if the data is
available.
44 No data of effecting efficiency in 117 to 118
administration
45 The State's bonafide action. 119 to 120
46 A preliminary objectiion by the State 121 to 125
47 The power and jurisdiction of the tribunal - 126
MAT
48 Locus Standi of the contesting Respondents 127 to 128
49 The tribunal jurisdiction to declare 129 to 131
Reservation Act ultra vires.
50 The impugned Judgment of MAT 132 to 133
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51 Abrupt discontinuation of Earlier Circular's 134 to 136
and existing reservation policy incorporated
in the Reservation Act and the Circulars.
52 Nagraj's principle discussed by the Tribunal 137
53 The State under continuous obligation to 138 to 139
collect data for modification of Reservation
policy
54 The State Promotion policy as per the law 140 to 142
and service rules only.
55 The Reservation in promotion through 143
Circular since long.
56 The Statute need not be declared ultra-vires 144 to 145
for the Academic purposes.
57 "Catch Up Rules" vis-a-vis "interse seniority" 146
& "Roster Point"
58 "creamy layer" applies to OBC & others 147 to 148
59 MAT's finding about the Creamy Layer 149 to 152
60 Wrong use of the Doctrine of Severability 153
61 The wrong shifting of Burden 154 to 155
62 The Tribunal's wrong findings 156 to 157
63 Subject to the data, any such reservation is 158 to 166
permissible for all the classes - No total bar.
64 Appointments and promotions pending the 167
issues need protection
65 Conclusions 168 to 182
66 Order 183
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 2797 OF 2015
1 The State Of Maharashtra
Through The Chief Secretary
Government of Maharashtra,
Mantralaya, Mumbai - 32
2 The Principal Secretary to Government,
General Administration Department,
Mantralaya, Mumbai - 32 .. Petitioner(s)
(Org. Respondents)
Versus
1 Shri Vijay Ghogre, Age: Adult
Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, Bhosale Nagar Corner,
Pune - 411 007
2 Bapusaheb Rangnath Pawar,
Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, Chaskaman Project,
Division, A2/2 Bhosari Paradise
Raje Hills Road, Shivaji Nagar,
Pune -20.
3 Rajendra Ramchandra Pawar,
Superintending Engineer, Konkan
Irrigation Development Corporation,
Dist. Thane
4 Shivaji Maruti Upase,
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Superintending Engineer,
Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, R/at: A/5, Swapnashilpa
Housing Society, Near Gandhidam,
Erandavan, pune -411004
5 The Executive Director,
Maharashtra Krishna Valley Development
Corporation, Sinchan Bhavan, Pune
6 The Executive Engineer,
Konkan Irrigation Development
Corporation, Dist : Thane
7
Dr. Babasaheb Ambedkar National
Association, Flat No.103,
Building No.4, MHADA Colony,
Pratiksha Nagar, Sion, Mumbai-400 022
8 Maharashtra Officers Forum,
Through its Secretary, Shri S.V. Sute,
4, Kotawalnagar, Nagpur
9 Maharashtra Samanta Parishad,
Through its President,
Shri R.N. Kondhare,
74, Mahatma Phule Peth, Pune-411 042
10 All India Confederation of SC/ST
Organisation, through the President,
Anita Chambers, Near GPO, Trimbak
Road, Nashik.
11 Hemant Salvi,
Employed as Awal Karkoon, Tahasildar,
Ratnagiri.
12 Anant Shamrao Bundale,
Employed as Awal Karkoon,Collector's Office,
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Ratnagiri,Supply Branch.
13 Milind Shashikant Sawant
Employed as Clerk, Tahasildar Office,
Ratnagiri.
14 Nandkumar Gajanan Mahakal,
Employed as Clerk, with the Office of Ratnagiri,
Maharashtra
15 Bhaidas Dongardas Nikumbh
[Sub Divisional Engineer]
Residing at Harklal Nagar, Taloda,
Dist. Nandurbar
16
Vimukta Jati Nomadic Tribes and
Special Backward Classes Karmachari
45, Sahyog, Opp. GPO, Fort,
Mumbai 400 001
17 Karansingh Premsingh Patil,
Residing at Diary Quarters,
No. B-15, A.G. Khan Road,
Worli, Mumbai 400 018
18 Shri Bramha Laman Pawar,
R/at : B-273, Government Colony,
Bandra (E), Mumbai-51
19 Shri Madhav Kundlik Avhad,
Mangesh Dham No.2,
Beturkarpada, Kalyan (West),
Dist. Thane.
20 Shri Surendra Arjun Pachpol,
A/A-2, A-410, Parijat, Lokvatika
Co-op. Housing Society Ltd. Netivali,
New Panvel, Dist. Raigad.
21 Shri Vinayak Vishwanath Lavate,
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Keda Co-op. Housing Society Ltd.,
Sec.-5, Plot No.11, Room No. 101,
New Panvel, Dist : Raigad
22 Rakesh Yeldap Vitkar,
A-6, Kunal Icon, Pimple Sandagaon,
Pimpri, Pune - 27.
23 Panjabrao Narayanrao Naik,
Hon. Secretary, Maharani Abhilyadevi
Pratisthan, 301, Sangli Bhavan,
Sector - 4, Charkhop, Kandivli(W),
Mumbai 400 087
24 Akhil Bharatiya Maratha Mahasangh,
Shree Madhav Maharaj Shinde Hall,
5, Navalkar Lane, Mumbai 400 087
25 All India Confederation of SC/ST
Organiation, 5, Pusa Road,
Karoad Baug, New Delhi.
26 Yuvraj Mahalu Bhave,
Yeshwa Mandir, Kaushalya Nagar,
Namvadi, Panchavati, Nashik-3.
27 Hanmant V. Gunale,
Age 49, Occ. Govt. Service
Add: Yash Sankul,
Vidya Nagar, Karad,
Dist. Satara
28 Rajan R. Shah,
Age 39 years, Executive Engineer,
Maharashtra Krishna Valley Development
Corporation, Dhom Colony, Wai,
Dist. Satara ... ...Respondent(s)
(Nos. 1 to 4-org.Petnrs.
Nos. 5 to 26-orig.Respondt.
Nos. 3 to 24.
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WITH
Writ Petition NO. 3009 OF 2015
1 Vimukta Jatis, Nomadic Tribes
And Special Backward Class
Employees And Officers Association,
Mumbai, Mumbai, 49, Sahyog,
Vth Floor, Opp. G.P.O., Fort,
Mumbai - 1, Through its President
Shri Rajaram G. Jadhav, age 50 years,
Joint Secretary, Higher Tech. Dept.,
Mantralaya, Mumbai-25,
R/at : Y-6/86, Government Colony,
Bandra (E), Mumbai-51
2 Shri Karansingh Premsingh Patil,
Section Officer, GAD Department,
Mantralaya, Mumbai-25
R/at : Dairy Quarters No. B-15,
A. G. Khan Road, Worli, Mumbai-18
3 Shri Madhav Kundlik Avhad,
Section Officer, Finance Department,
Mantralaya, Mumbai-25,
R/at : Mangesh Dham No.2,
Beturkarpada, Kalyan (West),
Dist. Thane. ...Petitioners
(Org. Respondents 14, 15, 17)
Versus
1 Vijay Ghogre, Age: Adult
Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, Bhosalenagar Corner,
Pune - 411 007
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2 Bapusaheb Rangnath Pawar,
Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, Chaskamuti Project,
Division, A2/2 Bhosari Paradise
Raje Hills Road, Shivaji Nagar,
Pune -20.
3 Rajendra Ramchandra Pawar,
Superintending Engineer, Konkan
Irrigation Development Corporation,
Dist. Thane
4 Shivaji Maruti Upase,
Superintending Engineer,
Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, R/at: A/5, Swapnashilpa
Housing Society, Near Gandhidam,
Erandavan, Pune -411004 ...(Org. Petitioners)
5 The State of Maharashtra,
Through Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai 32.
6 The Principal Secretary,
General Administration Department,
Mantralaya, Mumbai-32
7 The Executive Director,
Maharashtra Krishna Valley Development
Corporation, Sinchan Bhavan, Pune
8 The Executive Engineer, Maharashtra
Krishna Valley Development
Corporation, Dist : Thane
9 Dr. Babasaheb Ambedkar National
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Association, Flat No.103,
Building No.4, MHADA Colony,
Pratiksha Nagar, Sion, Mumbai-22
10 Maharashtra Officers Forum,
Through its Secretary, Shri S.V. Sute,
4, Kotawalnagar, Nagpur
11 Maharashtra Samanta Parishad,
Through its President,
Shri R.N. Kondhare,
74, Mahatma Phule Peth, Pune-42
12 All India Confederation of SC/ST
Organisation, through the President,
Anita Chambers, Near GPO, Trimbak
Road, Nashik.
13 Hemant Salvi,
AwalKarkoon, Tahasildar Office,
Ratnagiri.
14 Anant Shamrao Bundale,
AwalKarkoon,Collector's Office,
Supply Branch, Ratnagiri.
15 Milind Shashikant Sawant
Clerk, Tahasildar Office,
Ratnagiri.
16 Nandkumar Gajanan Mahakal,
Clerk, Office of Ratnagiri,
Maharashtra
17 Bhaidas Dongardas Nikumbh
Sub Divisional Engineer,
Harklal Nagar, Taloda,
Dist. Nandurbar ... Org. Resp 1-13
18 Shri Bramha Laman Pawar,
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Assistant, Rural Development &
Water Conservation Department,
Mantralaya, Mumbai-25.
R/at : B-273, Government Colony,
Bandra (E), Mumbai-51 .... Org. Resp 16
19 Shri Surendra Arjun Pachpol,
Stenographer, Tourism & Cultural
Department, Mantralaya, Mumbai-25
R/at: A/A-2, A-410, Parijat, Lokvatika
Co-op. Housing Society Ltd. Netivali,
Kalyan (E), Dist: Thane
20 Shri Vinayak Vishwanath Lavate,
Assistant, School Education & Sports
Department, Mantralaya, Mumbai-25
R/at : Keda Co-op. Housing Society Ltd.,
Sec.-5, Plot No.11, Room No. 101,
New Panvel, Dist : Raigad ... Orig.Resp 18, 19
21 Rakesh Yeldap Vitkar,
A-6, Kunal Icon, Pimple Saudagar,
Pimpri, Pune - 27.
22 Panjabrao Narayanrao Naik,
Hon. Secretary, Maharani Abhilyadevi
Pratisthan, 301, Sangli Bhavan,
Sector - 4, Charkhop, Kandivli(W),
Mumbai 400 087
23 Akhil Bharatiya Maratha Mahasangh,
Shree Madhav Maharaj Shinde Hall,
5, Navalkar Lane, Mumbai 400 087
24 All India Confederation of SC/ST
Organiation, 5, Pusa Road,
Karol Baug, New Delhi.
25 Yuvraj Mahalu Bhave,
Yeshwa Mandir, Kaushalya Nagar,
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Namvadi, Panchavati, Nashik-3. ... (Or Resp 20-24)
.... Respondents
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1590 OF 2015
1 Dr. Vyankatesh T. Anchinmane
Age - Adult, Occ: Medical Teacher,
Residing at, Government Colony,
Building No.2, Flat No.29,
K. K. Marg, Haji Ali,
Mumbai 400 034
2 Dr. Satin Kalidas Meshram,
Age - Adult, Occ: Medical Teacher,
Residing at Plot No.75,
V. K. Bhawan, Jagrut Nagar,
Nagpur 440 014
3 Shri Pramod Hirman More,
Age : 38 Years,
Occ : X ray Technician,
G. T. Hospital, Mumbai,
Residing at : 902, 9th Floor,
High Rise Building,
G. T. Hospital Compound,
Mumbai 400 001 ... Petitioners
vs.
1 State of Maharashtra
(Summons to be served on the
Learned Government Pleader appearing
for State of Maharashtra under
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Order XXVII, Rule 4, of the Code of Civil
Procedure, 1908)
2 The Secretary,
Law and Judiciary Department,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.
(Summons to be served on the
Learned Government Pleader appearing
for State of Maharashtra under
Order XXVII, Rule 4, of the Code of Civil
Procedure, 1908)
3 Mumbai Municipal Corporation
Mumbai, Mahapalika Bhavan,
(Summons to be served on the
Municipal Commissioner,
Mumbai).
4 Shri Vijay Ghogare,
Executive Engineer,
Maharashtra Krishna Valley
Development Corporation,
Bhosale Nagar Corner,
Pune 411 007
5 Shri Bapusaheb Rangnath Pawar,
Executive Engineer,
Maharashtra Krishna Valley
Development Corporation,
Chaskaman Project Division, A2/2,
Bhosari Paradise, Raj Hills Road,
Shivaji Nagar, Pune 411 020
6 Shri Rajendra Ramchandra Pawar,
Superintendent Engineer,
Kokan Irrigation Development Corporation,
Thane.
7 Shri Shivaji Maruti Upase,
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Superintendent Engineer,
Maharashtra Krishna Valley
Development Corporation,
Residing at A/5,
Swapna Shilpa Housing Society,
Near Gandhidham, Erandavan,
Pune 411 004.
8 Shri Hanumant V. Gunale,
Executive Engineer,
Maharashtra Krishna Valley
Development Corporation,
Yashsankul, Vidyanagar,
Karad, District - Satara
9 Shri Rajan R. Shah,
Executive Engineer,
Maharashtra Krishna Valley
Development Corporation,
Dhoom Colony,
Wai, District - Satara
10 Principal Secretary,
General Administration Department,
Mantralaya, Mumbai
11 Executive Director,
Maharashtra Krishna Valley
Development Corporation,
Sinchan Bhavan, Pune
12 Executive Engineer,
Konkan Irrigation,
Development Corporation,
Thane.
13 Principal Secretary,
Water Resources Department,
Government of Maharashtra,
Mantralaya, Mumbai ... Respondents
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(Ori. Applicants No. 1 to 4
Respondent Nos. 4 to 7 before
Hon'ble MAT)
WITH
WRIT PETITION NO. 3287 OF 2004
Best Officers Association,
Through its Chairman,
Shri Atul G. Patil, having its
office at BEST House, P.O. Box No.192,
Mumbai 400 001 ...Petitioner(s)
Versus
1 The State Of Maharashtra,
through : Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai
2 The Principal Secretary,
General Administration Department,
Mantralaya, Mumbai.
3 The Municipal Corporation of
Greater Mumbai, through its
Commissioner, having its address
at Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001
4 The Brihanmumbai Electric
Supply & Transport Undertaking,
through its General Manager,
having its address at BEST
Bhavan, Electric House,
Mumbai 400 001 ...Respondent(s)
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Mr.Rafiq Dada, Senior Advocate/Spl. Counsel, a/w Mr. Abhinandan B.
Vagyani, Govt. Pleader, a/w Mr. C.P. Yadav, AGP, a/w Mr. Vishal B.
Thadani, AGP and Ms. Tintina Hazarika, for the Petitioners/State
Government in WP/2797/2015.
Mr. A.Y. Sakhare, Senior Advocate, a/w Mr. Amit A. Karande, for the
Petitioners in WP 3009/15 and for Respondents No. 16, 17, 19 and 21
in WP 2797/15.
Mr. Rajeev Dhawan, Senior Advocate with Mr. Atul Chitale, Senior
Advocate, a/w Mr. C.T. Chandratre, for Respondents No. 1 to 4 in WP
2797/15.
Mr. C.T. Chandratre, for Applicant in CAW 2531/15 in WP 2797/15.
Mr. Nitin Deshpande, for the Applicant in CAW 161/16 in WP
2797/15.
Mr. Ashok N. Katangale, with Mr. Arun D. Nagarjun i/b Mr. A.K.
Saxena, for Respondent No. 7 in WP 2797/15.
Mr. S.C. Naidu, with Mr. Rahul Tanwani and a/w Mr. Aniketh Poojari
i/b Mr. C.T. Chandratre, for Respondents No. 27 and 28 in WP
2797/15.
Mr. P.V. Suryawanshi, a/w Ms. Savitri I. Gajakosh, for the Applicant in
CAW 2301/15 in WP 2797/15.
Mr. A.V. Anturkar, Senior Advocate, i/b Mr. S.B. Deshmukh for the
Petitioner in OS WP 1590/15.
Mr. G.K. Masand i/by Mr. Ajeet Manwani, for the Petitioner in OS WP
3287/04.
None for other respondents.
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CORAM: ANOOP V. MOHTA AND
A. A. SAYED, JJ.
CLOSED FOR JUDGMENT ON: May 04, 2016
PRONOUNCED ON : July 26, 2016
JUDGMENT (Per Anoop V. Mohta, J.)
1 All the writ petitions are heard by consent as assigned
expressly. The issues are common and, therefore, this concluding
common decision.
Introduction of the controversy
2 The constitutional reservation policy always put the
respective State Government in imbroglio. It is going to last long, as
no one in the present scenario or otherwise is in frame of mind to
compromise. Having once granted the constitutionally recognized
reservation in diverse areas including in the state employment, it's
total abolition is unwarrantable and without a solution. The
legitimate rights once created and settled, since so many years, just
cannot be taken away by a stroke of pen. It is not the case of grant of
the reservation in service for the first time but question is of its
continuance or discontinuance in part or full. Therefore, the crux of
the matter is whether existing reservation policy, in the State
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employment, can be taken away by declaring such Reservation
Statute and the Promotion Circulars, ultra vires or illegal. To
understand such situation and the dilemma of all the concerned, we
have to see the constitutional provisions and the existing Reservation
Policy.
3 The constitutional validity of Maharashtra State Public
Services (Reservations for Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes) Act, 2001 (the Reservation
Act) and Government circular ,( GR No. BCC 2001/1887/PR. KR.
640/01/16B dated 25.05.2004) (The Promotion Circular) issued by
the State of Maharashtra (The State) has been the focus of the writ
petitions.
4 The Maharashtra Administrative Tribunal (MAT) by
judgment and order dated 28 November 2014 in Transfer Application
Nos. 1 & 2 of 2014, (transferred Writ Petition No. 8452/2004 on 18
June 2013), has declared the Reservation Act and the Promotion
Circular violative of Article 16(4) and 16(4-A) of the Constitution of
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India and of the judgment of Supreme Court in M. Nagaraj and others
v. Union of India and others1.
5 The operative part of the impugned judgment is :
"OPERATIVE ORDER
134 Thus, for the reasons separately set out, we
concur in the conclusion that the impugned Act being
Maharashtra State Public Services (Reservations for
Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes) Act, 2001, is
ultravires the Constitution and the law laid down by
Hon'ble Supreme Court in the matter of M. Nagaraj
and others Vs. Union of India and others (2006) 8
SCC 212. It will have to be and is hereby struck down.
The impugned G.R. No. BCC-2001 /
1887/pr.kr.640/01/16-B, dated 25th May, 2004 is also
struck down. But we do realize that this judgment will
be applicable only to the Maharashtra State
1 (2006) 8 SCC 212
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Government employees and as mentioned at the
outset, the Writ Petitions filed by the employees of
other employers outside the jurisdiction of this Tribunal
are still pending before the Hon'ble Bombay High
Court. It is almost certain that this judgment will be
challenged before the Hon'ble High Court or may be
Hon'ble Supreme Court. Therefore, in order to save all
concerned from rushing in to the next step, we think
the effectuation hereof should be put on hold. In other
words, the operation hereof, should be stayed. We are
so disposed in the set of the facts and circumstances to
stay this order for a period of one year. The parties will
be free in the meanwhile to move the Hon'ble Court
before whom this order will be challenged for any
direction about this period also. However, as already
noted there are interim orders made by the Hon'ble
High Court. The said orders are in force. They will
continue to govern all concerned notwithstanding this
judgment and the stay granted by us to our own
judgment. We cannot and do not interfere therewith.
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135 The impugned Act being Maharashtra State
Public Services (Reservations for Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Backward Category and Other
Backward Classes) Act, 2001 and impugned G.R. No.
BCC-2001 / 1887/pr.kr.640/01/16-B, dated 25 th May,
2004 stand hereby struck down as ultravires the
Constitution and ultravires the law laid down by the
Hon'ble Supreme Court inter-alia in M. Nagaraj and
others Vs. Union of India and others (2006) 8 SCC
212. The operation hereof is stayed for a period of one
year from today during which period the interim stay
granted by the Hon'ble High Court shall continue to
govern all concerned. Both these Transfer Applications
are allowed in the above terms with no order as to
costs."
6 The State, being aggrieved and affected by the judgment
and order has filed Writ Petition No. 2797/2015. Another Writ
Petition No.3009/2015 is filed by Vimukta Jatis, Nomadic Tribes And
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Special Backward Class Employees And Officers Association being the
party to the impugned judgment. Writ Petition No.3287/2004 is filed
by Best Officers Association, opposing the reservation policy, will be
considered on it's fact based merits separately. In W.P/1590/2015, the
Petitioners support the reservation policy.
7 The parties have filed their affidavits, reply, rejoinder, sur-
rejoinder, in support of their respective submissions. The State
affidavits are supported by the data, charts and the documents. The
earlier statutes and the circulars are noted to deal with the center of
attention.
Prospect in Public employment to all the social group.
8 The historical provisions of law of reservation policy of Central
and the State Government are important. The relevant clauses of Article
16 of the Constitution of India read and referred by the counsel appearing
for the parties from their respective points of view.
"16. Equality of opportunity in matters of public
employment.--(1) There shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the
State.
(2) No citizen shall, on grounds only of religion,
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race, caste, sex, descent, place of birth, residence
or any of them, be ineligible for, or discriminated
against in respect of, any employment or office
under the State.
(3) Nothing in this article shall prevent Parliament
from making any law prescribing, in regard to a
class or classes of employment or appointment to
an office under the Government of, or any local or
other authority within, a State or Union territory,
any requirement as to residence within that State
or Union territory prior to such employment or
appointment.
(4) Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favor of any backward
class of citizens which, in the opinion of the State,
is not adequately represented in the services under
the State.
(4A) 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 favor 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.
(4B) 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.
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reservation on total number of vacancies of that
year.
(5) Nothing in this article shall affect the operation
of any law which provides that the incumbent of
an office in connection with the affairs of any
religious or denominational institution or any
member of the governing body thereof shall be a
person professing a particular religion or
belonging to a particular denomination."
9 The conclusion in M. Nagaraj (supra) is :-
"121 The impugned constitutional
amendments by which Articles 16(4A) and 16(4B)
have been inserted flow from Article 16(4). They
do not alter the structure of Article 16(4). They
retain the controlling factors or the compelling
reasons, namely, backwardness and inadequacy of
representation which enables the States to provide
for reservation keeping in mind the overall
efficiency of the State administration under Article
335. These impugned amendments are confined
only to SCs and STs. They do not obliterate any of
the constitutional requirements, namely, ceiling-
limit of 50% (quantitative limitation), the concept
of creamy layer (qualitative exclusion), the sub-
classification between OBC on one hand and SCs
and STs on the other hand as held in Indra
Sawhney, the concept of post-based Roster with
in-built concept of replacement as held in R.K.
Sabharwal.
122 We reiterate that the ceiling-limit of
50%, the concept of creamy layer and the
compelling reasons, namely, backwardness,
inadequacy of representation and overall
administrative efficiency are all constitutional
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requirements without which the structure of
equality of opportunity in Article 16 would
collapse.
123 However, in this case, as stated, the
main issue concerns the "extent of reservation". In
this regard the concerned State will have to show
in each case the existence of the compelling
reasons, namely, backwardness, inadequacy of
representation and overall administrative
efficiency before making provision for reservation.
As stated above, the impugned provision is an
enabling provision. The State is not bound to
make reservation for SC/ST in matter 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 of 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.
124 Subject to the above, we uphold the
constitutional validity of the Constitution
(Seventy-seventh Amendment) Act, 1995; the
Constitution (Eight-first Amendment) Act, 2000;
the Constitution (Eighty-second Amendment) Act,
2000 and the Constitution (Eighty-fifth
Amendment) Act, 2001.
125 We have not examined the validity of
individual enactments of appropriate States and
that question will be gone into in individual writ
petition by the appropriate bench in accordance
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with law laid down by us in the present case."
The basic Constitutional Amendments for Scheduled Castes (SC) and
Scheduled Tribes (STs) :
10 In the Constitution of India, on 17 June 1995, a new
clause (4A) in Article 16, has been introduced to provide for
reservation in promotion for the SC and ST. The Constitution
(Eighty First Amendment) Act, 2000 enabled the State to restore the
position as was prevalent before 29 August 1997, thereby recognition
was given to the concept "Backlog vacancies" by treating it as a class
of vacancies. The Constitution (Eighty Second Amendment) Act,
2000 dated 8 September 2000, thus a proviso to Article 335 of the
Constitution has been inserted and restored the relaxations in matters
of reservation in promotion.
11 The Constitution (Eighty-Fifth Amendment) Act, 2001
(dated 4.1.2002) in the interest of the Government Servant belonging
to the SC and ST categories in matters of seniority on promotion to
the next higher grade, an amendment is made to Article 16(4A)
thereby "in matter of promotion with consequential seniority to any
class" has been substituted in place of words "in matters of
dgm 28 wp-2797-15 judgment-25-7-16.sxw
promotion to any class". This amendment has been given
retrospective effect i.e. 17 June 1995, the date on which Article 16
(4A) itself was brought into force.
The other interlinked constitutional Reservation Provisions.
12 We have to read following Articles of the Constitution of
India, "subject to " other connected provisions.
Art.14 Equality before law
Art.15 Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth
Art.40 Organisation of village panchayats
Art.330 Reservation of seats for Scheduled Castes and Scheduled
Tribes in the House of the People
Art.332 Reservation of seats for Scheduled Castes and Scheduled
Tribes in the Legislative Assemblies of the States
Art.334 Reservation of seats and special representation to cease
after seventy years
Art.335 Claims of Scheduled Castes and Scheduled Tribes to
services and posts
Art.338 National Commission for Scheduled Castes
Art.338A National Commission for Scheduled Tribes
Art.339 Control of the Union over the administration of
Scheduled Areas and the welfare of Scheduled Tribes
Art.340 Appointment of a Commission to investigate the
conditions of backward classes
Art.341 Scheduled Castes
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Art.342 Scheduled Tribes
Art.366 Definitions
13 All these Articles reflect the purpose of reservation for
Scheduled Tribe, Scheduled Caste and for Other Backward Class and
provisions for collecting the information and the material/data for
various constitutional provisions. Articles 330, 332 and 334
apportion the seats for Scheduled Caste and Scheduled Tribes in the
House of the People and Legislative Assembly, on the population
basis. The expression "population" means "the population as
ascertained at the last preceding census of which the relevant figures
have been published". The report of 2001 is has been used for such
purposes by all concerned.
14 It is stated through Article 334 that the reservations of
seats and special representation ceases to effect on an expiration of a
period of 70 years from the commencement of the Constitution. This
is in view of Constitution 95th Amendment Act 2009 with effect from
25/01/2010, whereby the words "sixty years" are substituted by
"seventy years". This will retain the position up to year 2020.
dgm 30 wp-2797-15 judgment-25-7-16.sxw
15 Article 335 empowers the respective State or Union by
keeping in mind the "efficiency of administration" to consider the
claims of members of Scheduled Castes and Scheduled Tribes before
an appointment to Union/State services and posts. This includes the
power of relaxing qualifying marks in any examination and/or
lowering the standards of evaluation, even for the reservation in the
matter of promotion to any class or classes of services or posts in
connection with the affairs of the Union and State. These provisions
bind the State while enacting the Reservation Act.
16 Admittedly, National Commission for Scheduled Castes
and Scheduled Tribes has been constituted in view of Articles 338 and
338A. All the concerned are working on every aspect of the castes to
evaluate the progress of it's development. They annually report the
recommendations in the interest of all. The Reservation Act and so
also the promotion circulars cannot be in contravention of any of
these reports or recommendations submitted by the commissions.
Article 340 provides for appointment of commission to investigate the
condition of socially and educationally backward classes within the
territory of India and to make recommendations to improve their
dgm 31 wp-2797-15 judgment-25-7-16.sxw
condition, to provide the grants etc. Articles 341 and 342 specifically
deal with Scheduled Castes and Scheduled Tribes in compliance of
constitutional provisions. This includes the power of Parliament
and/or the State, with the consultation of Governor, to include and to
exclude from the specified list the particular caste/group/community,
through the notification by the President, from time to time.
Maharashtra Scheduled List of SC & ST, OBC, SBC, DT AND NT
17 The lists of Scheduled Castes and Scheduled Tribes, Other
Backward Classes, Special Backward Category, De-notified Tribes and
Nomadic Tribes in Maharashtra, published and have been modified
from time to time. Similar are the lists under the Constitution
(Scheduled Castes) Order 1950 and the Constitution (Scheduled
Tribes) Order 1950 (as amended from time to time). This includes
even the Central List of Other Backward Classes referring to the
Judgments of the Supreme Court relating to the reservation of 27%
vacancies in civil posts and services, under the Government of India.
The constitution of Expert Committee on "Creamy Layer" headed by Justice
R.M.Prasad has prepared the common list covering the list of OBC for the
purpose of reservation in State services, which includes apart from other 14
dgm 32 wp-2797-15 judgment-25-7-16.sxw
States, the State of Maharashtra as well. The Central list for the State
has been amended and modified regularly covering the castes and
communities belonged to even of OBC, apart from SC and ST so
recorded above. Rarely, the castes and communities once added are
deleted. There is a State list of Other Backward Classes published,
modified and amended from time to time, The entries are also
transferred to other list because of interpretation by the Courts. The
crux is, the Central and the State Government, based upon the
material available with them add and/or delete and/or bring in or
out, the caste or community in the list for extending the various
constitutional concession and the benefits. The process has been
going on since long. It is ultimately the Central/State Government
would decide, in view of enabling provision and power, to include the
caste and community in the beneficiary list to provide further benefits
in accordance with law. The State, therefore, required to consider the
data, material collected by them to amend the list under the
recognized mechanism. All the interested are entitled to claim
benefits, concession in every province of the society. This definitely
includes the reservation so declared in advance, before treating them
in service, at the time of appointment/post and/or in promotion if so
dgm 33 wp-2797-15 judgment-25-7-16.sxw
required. The reservation process does not commence only at the
time of appointment and/or granting concession to the class or
categories and/or for promotion, but even prior to the same.
The State Historical reports and recommendations.
A) THADE COMMITTEE REPORT 1961
18 The Thade Committee constituted by the State in the year
1960. The report was given referring to the data of population of
Vimukta Jati, Nomadic Tribes and Semi-Nomadic Tribes within the
State. However, there was no specific recommendation, regarding
these communities, made at that time, is the opponent's argument.
B) B. D. DESHMUKH REPORT, 1964
19 The report has dealt with the Government decision and
statistical data so provided and recorded in recruitment of VJ NT
community and it's low percentage in reservation. The basis of
backwardness is also recorded including the genesis and origin of
reservation. Ultimately, the recommendations have been provided to
grant reservation as VJ/NT need special consideration and, therefore,
recorded that the reservation in promotion is also necessary for VJ/NT.
dgm 34 wp-2797-15 judgment-25-7-16.sxw
C) EDATE COMMITTEE REPORT, 1999 :
20 The recommendation so provided based upon the
population of VJNT as per 1931 Census. It is recognised mode for
assessing the percentage of population and percentage of reservation
in proportion. After due survey, it is observed that there was
inadequacy of representation. The percentage of population of VJ-A,
NT-B, NT-C, NT-D are also provided for giving proper representation
and the percentage of reservation.
21 The National Commission for Backward Classes Act, 1993
(for short, NCBC Act) was promulgated on 2 April 1993. The
National Commission for Backward Classes has been constituted
accordingly. The relevant definition of "backward classes" and "Lists"
are reproduced as under:
"2(a) "backward classes" means such backward classes
of citizens other than the Scheduled Castes and the
Scheduled Tribes as may be specified by the Central
Government in the lists;
2(c) "lists" means lists prepared by the Government
of India from time to time for purposes of making
provision for the reservation of appointments or posts
in favour of backward classes of citizens which, in the
opinion of that Government, are not adequately
dgm 35 wp-2797-15 judgment-25-7-16.sxw
represented in the services under the Government of
India and any local or other authority within the
territory of India or under the control of the
Government of India."
22 The function and power that the Commission is required
to consider the representation/request for inclusion of any classes of
citizen as backward class in the list. It also includes to consider the
complaints of over-inclusion or under-inclusion of any backward
classes. It is stated that the advice of the Commission shall normally
be binding upon the Central Government. It is also provided to have a
periodic revision of list after every succeeding period of ten years to
add or delete the list of those who have seized to be backward classes.
D) State Backward Class Commission Reports -
23 As directed by the Supreme Court to constitute Backward
Class Commission, the Standing Committee was appointed. Later on
converted into State Backward Class Commission under the
Chairmanship of Shri Justice Khatri. As decided, adopted the process
for preparing the report. The criterion prepared by The Mandal
Commission was also noted. The material and information so collected,
after holding detailed inquiry by submitting even the separate Reports.
dgm 36 wp-2797-15 judgment-25-7-16.sxw
The detailed report/data, survey, material are also part of record. The
Commission has dealt with about 147 representations of various
communities. The proposals of 59 communities have been studied so
also 95 representations were considered. Ultimately,
recommendations have been made referring to inclusion and
rejection. All the related issues have been considered accordingly.
24 The State has separate Backward Class Cell (General
Administration Department) which has the data of inadequacy of
recommendation of the backward class. It collects and updates
annual data regarding representation of backward class in service.
The Reservation Act reflects the intention of the State Legislation.
25 Any Legislation reflects the intention of the Legislators -
Parliamentarians. The Reservation Act, as enacted, in view of the
judgments/directions/observations of the Supreme Court. An
interpretation of any such statues needs to be, by keeping in mind, the
constitutional provisions and related laws and mainly including
Articles 14, 15, 16, 330, 335, 341, 342 to 354 - and also 1950 Orders
- and scheduled list and related State Scheduled List as amended. All
these constitutional provisions are interlinked and inter-dependent to
dgm 37 wp-2797-15 judgment-25-7-16.sxw
decide the reservation policy in India.
Basic Provisions of the Reservation Act
26 The clauses of the Reservation Act read and referred by the
learned counsel appearing for the parties :
Section 2. In this Act, unless the context otherwise requires,-
(a) "appointing authority" in relation to public services and
posts means the authority empowered to make appointment
to such services or posts;
(b) "De-notified Tribes (Vimukta Jatis)" means the Tribes
declared as such by the Government from time to time;
(c) "establishment" means any office of the Government or of
a local authority or statutory authority constituted under
any Act of the State Legislature for the time being in force, or
a University or a Company, a Corporation or a Co-operative
Society in which share capital is held by the Government or
any Government aided Institutions.
Explanation.-For the purposes of this clause the expression
"Government aided institutions" shall also include
institutions or industries which have been given either prior
to coming into force of this Act or thereafter, aid in the form
of Government land at concessional rates or any other
monetary concessions by Government, or is recognised,
licenced, supervised or controlled by Government;
(d) "Government" means the Government of Maharashtra;
(e) "Group 'A', 'B', 'C' or 'D' means the posts falling within the
dgm 38 wp-2797-15 judgment-25-7-16.sxw
Group 'A', 'B', 'C' or 'D', as the case may be, as classified by
Government by issuing general or special orders issued in
this behalf, from time to time;
(f) "Nomadic Tribes" means the Tribes wandering from place
to place in search of their livelihood as declared by
Government from time to time;
(g) "Other Backward Classes" means any socially and
educationally backward classes of citizens as declared by the
Government and includes Other Backward Classes declared
by the Government of India in relation to the State of
Maharashtra;
(h) "prescribed" means prescribed by rules framed by the
Government under this Act;
(i) "public services and posts" means the services and posts in
connection with the affairs of the State and includes services
and posts in-
(i) a local authority;
(ii) a co-operative society established under the
Maharashtra Co-operative Societies Act, 1960, in which
Government is a shareholder;
(iii) a Board or a Corporation or a statutory body
established by or under a Central or a State Act which is
owned and controlled by the Government, or a Government
Company as defined in section 617 of the Companies Act,
1956;
(iv) an educational institution owned and controlled
by the Government, which receives grant-in-aid from the
dgm 39 wp-2797-15 judgment-25-7-16.sxw
Government including a university established by or under a
Maharashtra Act;
(v) any establishment; and
(vi) respect of which reservation was applicable by
government orders on the date of commencement of this Act
and which are not covered under sub-clauses (i) to (v);
(j) "recruitment year" means the English calendar year
during which the recruitment is actually made;
(k) "reservation" means the reservation of post in the services
for the members of Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Special
Backward Category and Other Backward Classes;
(l) "Scheduled Castes" and "Scheduled Tribes" shall have the
meanings, respectively assigned to them in the clauses (24)
and (25) of Article 366 of the Constitution of India;
(m) "Special Backward Category" means socially and
educationally backward classes of citizens declared as a
Special Backward Category by the Government."
Section 4. (1) Unless otherwise provided by or under this Act, the
posts reserved for the Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category
and Other Backward Classes shall not be filled in by the candidates
not belonging to that caste, tribe, category or class for which the posts
are reserved.
(2) Subject to other provisions of this Act, there shall be
posts reserved for the persons belonging to the Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
dgm 40 wp-2797-15 judgment-25-7-16.sxw
Special Backward Category and Other Backward Classes, at the stage
of direct recruitment in public services and posts specified under
clause (j) of section 2, as provided below :-
Description of Percentage of vacancies
Caste/Tribe/Category/Class or seats to be reserved
(1) Scheduled Castes 13 per cent
(2) Scheduled Tribes 7 per cent
(3) De-notified Tribes (A) 3 per cent
(4) Nomadic Tribes (B) 2.5 per cent
(5) Nomadic Tribes (C ) 3.5 per cent
(6) Nomadic Tribes (D) 2 per cent
(7) Special Backward Category ig 2 per cent
(8) Other Backward Classes 19 per cent
Total: 52 per cent :
Provided that, Government may, by an order in the Official
Gazette, provide that the percentage of reservation for Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Special Backward Categories and Other Backward Classes, in
all posts, shall be on the basis of latest census record of population of
the , -
(i) State, in the case of State cadre posts, and
(ii) concerned district, in the case of district cadre posts:
Provided further that, the principle of "Creamy Layer" shall
be applicable to all categories mentioned above except Scheduled
Castes and Scheduled Tribes.
Provided also that, if on the date of coming into force of this Act,
if any additional reservation is in force for the Scheduled Tribes in
Thane, Nashik, Dhule, Nandurbar, Raigad, Yavatmal, Chandrapur and
Gadchiroli districts for direct recruitment in Groups C and D posts,
dgm 41 wp-2797-15 judgment-25-7-16.sxw
under any Government orders, such reservation shall continue to be in
force till such orders are modified or revoked.
(3) The reservation specified for the categories mentioned at
serial numbers (3) to (6) (both inclusive) in the table under sub-
section (2) shall be inter transferable. If suitable candidates for the
posts reserved for any of the said categories are not available in the
same recruitment year, the posts shall be filled by appointing suitable
candidates from any of the other said categories.
(4) In all posts at the divisional level or district level the
percentage of reservation occurring in a recruitment year in such
categories of Group-C and Group-D posts as may be notified by the
Government in this behalf, shall be maintained at such divisional or
district level only.
Section 5 : (1) The reservation in promotion shall be at all stages of
promotions.
(2) On the date of coming into force of this Act, if any
Government orders providing for reservation for any posts to be filled
by promotion, are in force, the same shall continue to be in force
unless modified or revoked, by Government.
Section 6 : (1) If in respect of any recruitment year, any vacancy
reserved for any category of persons under sub-section (2) of section 4
remains unfilled, such vacancy shall be carried forward upto five years
in case of direct recruitment and three years in case of promotion:
Provided that, on the date of commencement of this Act, if any
Government order regarding filling up the posts, in case of non
availability of Backward Class candidates are in force, such
Government orders shall continue to be in force unless modified or
revoked, by Government.
Section 10 : (1) The Government may, by order, provide for
nomination of officers belonging to Scheduled Castes, Scheduled
Tribes and Other Backward Classes in the selections, screening and
departmental promotion committee for the purpose of selecting
persons for appointment or promotions, as the case may be, to public
dgm 42 wp-2797-15 judgment-25-7-16.sxw
services and posts.
(2) The Government may, by order, grant such concession in
respect of fees for any competitive examination or such other similar
examinations or interviews, and relaxation in upper age limit as it
may be considered necessary in favour of the categories of persons
specified in sub-section (2) of section 4.
(3) The Government orders, in force on the date of the
commencement of this Act, in respect of concessions and relaxation
including concession in fees for any competitive examinations or such
other similar examinations or interview and relaxation in the upper
age limit shall continue to be applicable, unless modified or revoked,
by Government."
Impugned Promotion Circular
27 The relevant clauses of Government Notification for
promotion dated 25 May 2004 (The Circular) are :-
"2 At present, Government, vide column No. 5 of
the Reservation Act No. 8 published in the Govt. of
Maharashtra Gazette, dated 29th January, 2004, made the
following provisions:
(A) Section 5, sub section (1) :- The reservation in
promotion shall be at all stages of promotions.
(B) According to Sub Section (2), on the date of coming
into force of this Act, if any Government orders providing
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for reservation for any posts to be filled by promotion are,
are in force, the same shall continue to be in force unless
modified or revoked, by Government.
3 In supersession of the orders dated 23rd May,
1974, 20th January 1975 and 23rd January 1991, the
following revised orders are being issued in view of
provision under Sub-Section (1) and (2) of Section 5 of the
Act which has been brought into force newly.
Government Resolution for promotion:-
(A) As per the Sub Section (1) of Section 5 of the
Maharashtra Act No. 8 (Reservation Act), the principle of
reservation shall be applicable to those posts which are
filled up by promotions. In view of this, principle of
reservation in promotion shall be applicable in respect of all
posts, including those posts also for which proportion of
direct recruitment is more than 75%. The provisions under
the Govt. Resolution dated 23.1.1991 stand cancelled.
(B) The reservation in promotions will be as follows:
(1) Scheduled Castes - 13%
dgm 44 wp-2797-15 judgment-25-7-16.sxw
(2) Scheduled Tribes - 07%
(3) De-Notified Tribes (A) - 3%
(4) Nomadic Tribes (B) - 2.5%
(5) Nomadic Tribes (C ) - 3.5%
(6) Nomadic Tribes (D) - 2%
(7) Special Backward Classes 2%
-----------
Total: 33%
(C ) The principle of reservation shall be applicable
from 29/1/2004 onwards at all stages of promotions on
posts for which there is provision of giving promotion in the
Recruitment Rules and the principle of reservation was not
applicable earlier.
(D) Those Backward Class of employees who have
been promoted, prior to 29/1/2004, on the post above the
first stage of class I posts shall be considered as having been
promoted as per the seniority and merit.
(E) Posts to be filled up as per above provisions of
the Act shall be filled up step by step in accordance with the
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availability of vacant posts.
(F) The orders issued under G.R. No. BCC-1097/C.R.
63/97/16-B, dated 18.10.1997 shall be applicable for such
cadres / posts to which principle of reservation in
promotions is being made applicable newly. However, for
calculating number of reserved posts, total number of
sanctioned posts should not be taken into consideration.
The number of vacant posts in that cadre which become
available after 29/1/2004 should be taken into
consideration to decide number of reserved posts as per the
percentage of reservation prescribed for various backward
class categories.
(G) The provisions of reservation of the Act will not
be applicable in respect of the process of selection started
prior to 29.1.2004 for giving promotions on posts above the
first stage of class I posts and on such posts for which
reservation in promotion was not previously applicable.
However, for the process of selection for giving promotion
to be started after 29/1/2004 the principle of reservation as
per the provisions of the Act shall be applicable."
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Historical background of the Promotion Circular
28 The Reservation Act came into force from 25 May 2004.
The State Reservation Policy even before the Reservation Act, based
upon the last Caste Census of 1931 and the natural growth of the
population including the Population Census of 2001. There were
various State Notifications/circulars published and implemented from
time to time in this regard. ig
• 7 January 1961 : Resolution expressing sympathy for the
predicament of the BSC and requiring returns to be filed on
their representation in various departments. Pre 1974 :
Reservations introduced at entry point in various services of the
State. 23 May 1974 : Reservations in promotional posts made
for (13% SC, 7% ST and 4% Denotified Tribes and Nomadic
Tribes) to all posts. 28 January 1975 : Reservation in matters of
promotion up to Class I (level 1 : entry point) posts recruited on
the basis of positive merit. 31 July 1976 : No reservations in
promotional posts where direct recruit reservations 66.6% or
more. 23 January 1991 : No reservations in promotional posts
dgm 47 wp-2797-15 judgment-25-7-16.sxw
where direct recruitment reservation is 75% or more. 16
November 1992 : Mandal judgment of Supreme Court (Indra
Sawhney (1992) Supp. 3 SCC 217 at prs. 827-8 p. 745-7 that
reservations in matters of promotion are contrary to equality.
17 June 1995 : Constitution (77th Amendment) Act permitting
promotions reservation in or SC and ST are inadequately
represented. No change was made in favour of the OBCs. 18
October 1997: Resolution implementing R.K. Sabharwal's case
(1997) 2 SCC 945 to ensure that percentages do not cross over
the prescribed limits. 13 December 1999: Indira Sawhney II
(2000) 1 SCC 168 at pr. 65 that equality is part of the basic
structure of the Constitution. Note also the decision in M. G.
Badappanavar (2001) 2 SCC 666 at pr. 13 reiterating that
equality is part of the basic structure. 9 June 2000 :
Constitution (81st Amendment) Act 2000 permitting carryover of
vacancies to subsequent years. 2001 : Constitution (85 th
Amendment) Act 2001 seeking to grant consequential seniority
for reservation promotees. 22 January 2004 : Maharashtra
State Public Service (Reservation for Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
dgm 48 wp-2797-15 judgment-25-7-16.sxw
Tribes, Special Backward Category and Other Backward Classes
Act 2004 (Act of 2004). 25 May 2004 : Resolution purporting to
implement the Act of 2004.
The other Promotion Rules
29 Some earlier service rules relating to seniority and
promotion are :-
• 28th Jan. 1975 : Promotions upto Class I (Level I) on seniority
subject to fitness and in Class I on basis of "positive merit".
Where seniority and fitness rule was applied, sympathetic
consideration to be given to BCs.
• 7 April 1983 : Rules under Article 309 for Engineering cadres
fixing cadre wise seniority.
• 16 September 1990 : Ajit Singh (II) (1999) 7 SCC 209 stating
that to be consistent with equality, seniority would be cadre
based to recognize entry point seniority.
• 25 May 2004 : Clause (D) of the Notification of 25 May 2004
suggests that all persons promoted up to 29 January 2004 have
presumed merit.
• 4 February 2005 : Separate Notifications for (i) Chief Engineers
(ii) Secretary, Executive Director/ Director General that
appointment shall be strictly on the basis of "merit and strict
selection."
All these circulars and the rules have been acted upon by all at least
till the State statutes.
Respondent's (Claimant) short submissions
(i) An examination of the rules in respect of reservations, seniority
dgm 49 wp-2797-15 judgment-25-7-16.sxw
and promotions show a haphazard reversal of earlier policies by the
Promotion Circular to a manner and extent inconsistent with the
requirements of the Mandal decision: Indira Sawhney (supra) and M.
Nagaraj (supra).
(ii) The Reservation Act fails to disaggregate permissible
reservations in promotions (for SC and ST) under Article 16 (4A) and
(B) and impermissible reservations for others (OBC and other
beneficiaries). This runs through the entire Act in ways that defy
severability.
(iii) In any event, the Reservation Act is also invalid on other
grounds on the basis of the definition of the institutions and posts the
fixing of percentage and quota without examining the need for
`adequate representation', the over-barred carry over provisions, the
inter-transferability of beneficiaries and ambiguous provisions on the
creamy layer and other provisions.
(iv) The Promotion Circular is arbitrary, shows non-application of
mind and is inconsistent with the Mandal Judgment (1992) and
Article 16 (4A) and (4B) even if the constitutional amendments
enacting article 16(4A) and 16(4B) are treated as valid.
(v) The Apex Court has in M. Nagaraj, (supra); Suraj Bhan Meena
dgm 50 wp-2797-15 judgment-25-7-16.sxw
v. State of Rajasthan; Uttar Pradesh Power Corporation Ltd v. Rajesh
Kumar; S. Panneer Selvam v. Government of Tamil Nadu (2015) 9
SCALE 350 reiterate that the impugned Constitutional Amendments
are valid because they are enabling. But any legislation or action
under them must, satisfy the following requirements: compelling
necessity, 50% reservation limit, inadequacy of representation,
creamy layer restriction and lack of excessiveness on the basis of
relevant quantifiable data.
(vi) No relevant quantified data exists to support the Reservation Act
and the Promotion Circular.
31 The Respondents' gist of challenge to the respective
Sections of the Reservation Act and the Promotion Circular are :
i) Preamble to the Reservation Act does not provide for special
justification for reservation of Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category and Other Backward Classes.
ii) Section 5 of the Reservation Act and the Promotion Circular to
the extent it is contrary to Article 16 (4A), has been correctly
struck down by the MAT.
dgm 51 wp-2797-15 judgment-25-7-16.sxw
iii)Sections 4 and 5 of the Reservation Act are not compliant with
the requirements provided in Nagaraj (supra) and in breach of
the 50% rule as laid down in Indra Sawhney, R.K. Sabharwal
and M. Nagaraj.
iv)The State failed to exclude the "creamy layer" both at the stage
of direct recruitment and promotions for Scheduled Castes and
Scheduled Tribes and therefore reservation for Scheduled Caste
and Scheduled Tribes, both at the stage of direct recruitment
and promotions are required to be quashed and set aside on this
ground alone.
v) The Reservation Act also fails to satisfy the criterion of Nagaraj
as regards inadequacy of representation on basis of quantifiable
data and overall administrative efficiency has been correctly
struck down by the MAT.
vi)The Reservation Act is also invalid on the ground that the
definition of "institutions and posts" is too wide. The over-broad
carry over provisions, the inter-transferability of beneficiaries
and ambiguous provisions on the creamy layer and other
provisions makes the provisions of the statute unworkable.
vii) The unworkable provisions of the Reservation Act are not
dgm 52 wp-2797-15 judgment-25-7-16.sxw
severable and therefore the entire Reservation Act was rightly
struck down by the MAT.
viii) This Court has considered the law laid down by the
Supreme Court as well as the Division Bench of this High Court
and held that MAT had the jurisdiction to decide the
constitutional challenge to the Reservation Act and that the
Respondents - as Original Petitioners had the locus to maintain
the said challenge.
(ix)The judicial review of impugned order passed by a statutory
Tribunal under Article 226 of the Constitution of India is
limited;
(x) The Tribunal has power to decide the constitutional validity
of the Act and/or the Circular. The State's preliminary
objection, is unsustainable about the Locus standi of original
Petitioner.
32 Citations referred in the impugned judgment of MAT
M. Nagraj and ors (supra), RK Sabharwal (supra), Ajit Singh Januja
& ors v. State of Punjab2, Kalyan Darhah's, Gopal Krishnaji Ketkar v.
2 (1996) 7 SCC 209
dgm 53 wp-2797-15 judgment-25-7-16.sxw
Mohammed Haji Latif & ors3, General Manager, Southern Railway v.
Rangachari Gurbus Das4,Indira Sawhney (supra), Union of India
(supra), State of Kerala (supra), Akhil Bhartiya Sushikshit Karamchari
Sangh (Railway) (supra), Barium Chemicals Ltd vs. Company Law
Board5,Uttar Pradesh State Power Corporation vs. Rajesh Kumar6,
Reservation M. R. Balaji (supra), Shri Sanjeet Shukla v. State of
Maharashtra [ Petition(L) No.2053 of 2014); PH Advani vs. Harpal
Singh7,Keshavananda Bharti Case8, Virpal Singh Chauhan, (supra),
Minerva Mills Ltd (supra), Suraj Bhan Meena (supra) and also relied
upon judgment of Madhra Pradesh High Court in Writ Petition
No.1942/2011-R. B. Rai v. State of Madhya Pradesh along with
connected matters dated 30.04.2016.
33 The following Judgments have been read/referred and
distinguished in addition.
a) Surajbhan Meena Vs. State of Rajasthan (supra)
3 AIR 1962 SC 1416
4 AIR 1962 SC 36
5 1966 Supp. SCR 311
6 (2012) 7 SCC 1
7 AIR 1975 Bom 120
8 (1973) 4 SCC 225
dgm 54 wp-2797-15 judgment-25-7-16.sxw
b) U.P. Power Corporation Vs. Rajesh Kumar & Ors.
c) Salauddin Ahmed Vs. Samata Andolan
d) S.V. Joshi Vs. State of Karnataka
e) Himachal Pradesh Schedule Tribes Employees Federation
Vs. Himachal Pradesh S.V.K.K. & Ors.
f) S. Panneer Selvam Vs. The General Manager
g) Sushil Kumar Singh & Ors. Vs. State of Bihar & Ors. (CAJ
Case No. 19114 of 2012) (HC Patna)
h) Jayanta Chakraborty & Ors. Vs. State of Tripura & Ors.
(WP(C) 189 of 2011)-HC (Tripura)
i) Sanjit Shukla Vs. State of Maharashtra, 2015(2) BCR
267-
Basic principles have been relied by all.
34 For their respective submissions, the learned senior
counsel appearing for the parties have read and referred the Supreme
Court judgments in the matter of such reservation and all related
specific doctrines/principles from their respective points of views:
(i) Reservation Quota limits (e.g. 50% )(Quantifiable data)
"Quantitative limits" M. R. Balaji9 M. Nagraj (supra)
(ii) Treating reservation as an instance of equality and not an
exception to it. N. M. Thomas,10
9 (1963) Supp. 1 SCR 439
10 (1976) 2 SCC 310
dgm 55 wp-2797-15 judgment-25-7-16.sxw
(iii) The `carry over' principle. Devadassan,11Indra Sawhney12
(iv) "Lowering standards", N. M. Thomas, 13 Akhil Bharatiya,14 Vinod
Kumar15
(v) "Non-division of SC/ST on basis of further backwardness"
E. V. Chinnaiah16
(vi) "Denial of reservation in promotions", Indra Sawhney,
(vii) "Stopping roster" , R. K. Sabharwal17
(viii) "Accelerated seniority" and "catch-up rule", Virpal Singh
Chauhan,18 Ajit Singh (I),19 M. Nagaraj (supra)
(ix) "Creamy layer", Indra Sawhney, Indra Sawhney (II),20
Thakur,21 M. Nagaraj (supra)
Ashok
(x) "Aspects of Efficiency", (Article 335) Indra Sawhney(supra)
Vinod Kumar22
35 All these Supreme Court judgments on law, need no
discussion. It binds all. We have to apply the law on facts and
11 (1964) 4SCR 680
12 (1992) Supp. (3) SCC 217
13 (1976) 2 SCC 310
14 (1981) 1 SCC 246
15 (1996) 6 SCC 580
16 (2005) 1 SCC 394
17 (1995) 6 SCC 684 : (1995) 2 SCC 745
18 (1995) 6 SCC 684
19 (1996) 2 SCC 715
20 (2000) (1) SCC 168
21 (2008) 6 SCC 1
22 (1996) 6 SCC 580
dgm 56 wp-2797-15 judgment-25-7-16.sxw
circumstances of the case in hand. Most of above principles have
been taken note of while deciding the points so discussed.
36 The counsel for the State and the other Petitioners in
support of Reservation Act and the Promotion Circulars have referred :
a) Census Data on caste as available in 1931, but its natural
grown data
b) The B. D. Deshmukh report is 1964,
c) The Thade Committee 1961,
d) The Edate Committee 1999 and
e) Population Census reports and the judgments
f) Various data/material/stated to be quantifiable data.
37 The State submissions & the cited judgments
(1) General Manager, S. Rly. v. Rangachari, (1962) 2 SCR
586, (paras 23, 26).
(2) State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 (Paras
21, 24, 29, 75, 184, 186, 191 ).
(3) Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
Union of India, (1981) 1 SCC 246 (Paras 34, 36 )
(4) Indra Sawhney (supra) (paras 796, 797, 798, 809, 810,
dgm 57 wp-2797-15 judgment-25-7-16.sxw
860) - verify
(5) M. Nagaraj (supra)
(6) Commissioner of Commercial Taxes, A.P. Hyderabad vs. G.
Sethumadhava Rao, 1996 (7) SCC 512 (para 10)
(7) Union of India v. Rakesh Kumar, (2010) 4 SCC 50 (paras
41, 42, 43)
(8) K. Krishna Murthy v. Union of India, (2010) 7 SCC 202
(paras 65, 66, 67)
(9) Suraj Bhan Meena and ors v. State of Rajasthan, 2011 (1)
SCC 467. (paras 65, 66 )
(10) Uttar Pradesh Power Corporation Limited v. Rajesh Kumar,
2012 (7) SCC 1 (para 36)
(11) S.V. Joshi v. State of Karnataka, (2012) 7 SCC 41 (paras 9
to 13)
Set of circumstances of the State
38 The Reservation Act came into force on 29 January 2004.
It was implemented by Government Resolution dated 25 May 2004.
By writ petition No. 8452 of 2004 filed on 11 October 2004, in the
Bombay High Court, the constitutional validity of it and the legality of
the Promotional was challenged.
dgm 58 wp-2797-15 judgment-25-7-16.sxw
39 On behalf of the State, Mr. Dinkar Dhondu Tiwrekar,
Under Secretary, GAD, filed an affidavit and contended that, (i) There
is a presumption of validity in favour of the Act, unless proven
otherwise; (ii) the challenge to the Constitutional validity of
Amendment to Article 16(4A) was pending before the Supreme Court
and therefore, the Supreme Court was seized off the matter; (iii) by
way of 77 constitutional Amendment 16(4A) was added to Article
16(4) providing for reservation in promotion and therefore the law
laid down in R.K. Sabharwal's case was not applicable; (iv) Creamy
Layer concept was not applicable to SC and ST; (v) 85 th Amendment
of the Constitution to Article 335 empowers the State to make
provision in favour of members of SC and ST; (vi) the High Court
passed an order directing the parties to maintain status quo. Same
was the position of other Petitions.
40 On 30 March 2005, a detailed affidavit-in-reply was filed
by Mr. R.G. Pawar, Depurty Secretary, GAD pointing out the law laid
down by the Supreme Court in Indra Sawhney's case. Development
after Indra Sawhney's case and subsequent amendment to Article
dgm 59 wp-2797-15 judgment-25-7-16.sxw
16(4A) providing for Reservation in promotion. Brief history as to
why VJ/NT are treated as Backward Class. Detailed discussions have
been made on the backwardness of some classes who have been
termed as depressed classes and also regarding some nomadic tribes
who indulged in criminal activities and were called criminal tribes.
The findings of Thade Committee Report, B.D. Deshmukh Committee
Report were discussed and findings therein have been given.
Government Resolution gave classification of backward classes. The
state Resolution dated 9 April 1965 gave the percentages of
reservation against each caste as classified. GAD Resolution dated 23
May 1974 provided for reservation for promotions till first stage of
class. GAD resolution of 4 August 1992 included Dhangar Community
along with its sub caste in the list of VJ/NT. Order in Writ Petition No.
1142 of 1986 as well as order in Appeal No. 924 of 1986 dated 24
July 1992 were pointed out. Order dated 24 July 1992, held that
until such time as the representation were made and decided Banjara
and Vanjari community should be treated as synonyms of each other
and confidential circular 5 March 1986 not to be acted upon. SLP
against order dated 24 July 1994 dismissed by the Supreme Court.
Order dated 9 June 1992 passed by MAT in O.A. No. 77/91 in Writ
dgm 60 wp-2797-15 judgment-25-7-16.sxw
Petition No. 855 of 1990 directed the State Government to appoint a
Committee to decide whether Banjara and Vanjari are synonyms.
Committee Appointed under chairmanship of Dr. D.G. Wadhwa on 31
July 1992. On 9 August 1993, Wadhwa Committee submitted its
report that Banjara and Vanjari were not synonyms of the same group.
Banjari Community came to be included in the list of VJ/NT.
Constitution of Khatri Committee and its report have been discussed.
Action taken by the Government on the basis of the Khatri Committee
modifying the list of VJ/NT and OBC and also gave details of the
extent of Backlog of each category. Detailed discussion on why VJ/NT
have been provided with reservation in promotion and why creamy
layer has been excluded.
41 On 20 April 2005, High Court granted Rule in Writ Petition
and refused to modify the interim order of stay dated 22 February
2005 of the Promotion Circular. On 5 August 2005, the Supreme
Court refused to interfere with the said order of stay.
42 On 17 August 2006, the High Court allowed Civil
Application No. 1783 of 2006 filed on 6 July 2006 in Writ Petition No.
dgm 61 wp-2797-15 judgment-25-7-16.sxw
8452 of 2004 pointing out the difficulties being faced in the matter of
promotions in view of the order dated 22 February 2005 as huge
number of posts were vacant. The High Court by its order dated 17
August 2006, permitted the State Government to grant promotion to
SC/ST only subject to outcome of the Petition. The State by
Resolution dated 24 August 2006, implemented the provisions of GR
dated 25 May 2004 as per order dated 17 August 2006. In the month
of September 2006, Civil Application No. 2283 of 2006 was filed by
the Respondent for modification of interim order dated 17 August
2006 and to stay to Government Resolution dated 24 August 2006.
On 19 September 2006, the High Court passed an order whereby held
that promotion given after 18 August 2006 shall be subject to final
decision in Civil Application No. 2283 of 2006. On 25 September
2006, SLP No. 16485 of 2006 was filed by the Respondent in Supreme
Court to challenge orders dated 17 August 2006 and 19 September
2006 passed by the High Court. On 27 September 2006, Supreme
Court stayed the above orders passed by Bombay High Court.
43 An additional Affidavit-in-reply was filed challenging the
maintainability of Civil Application No. 2283/2006 on various
dgm 62 wp-2797-15 judgment-25-7-16.sxw
grounds including the ground that by the Civil Application the
Respondent (original Petitioner No.1) for seeking a Review of order
dated 17 August 2006 passed by the High Court in Civil Application
No. 1783 of 2006.
44 On 19 October 2006, the Constitutional Bench of the
Supreme Court decided the matter of M. Nagaraj Vs. Union of India
(Supra). On 10 November 2006, the State filed an affidavit in SLP
No.16485 of 2006. On 6 November 2006, the Supreme Court by
order directed the Bombay High Court to consider Civil Application
Nos. 1783 of 2006 and 2283 of 2006 de novo in the light of M.
Nagaraj case. On 15 December 2006, the State filed Civil Application
No. 3130 of 2006 in Writ Petition No. 8452 of 2004 in this Court and
prayed to permit to fill in the promotional posts. On 26 December
2006, Respondent (Original Petitioner) filed Civil Application No. 134
of 2007 in Writ Petition No. 8452 of 2004 and prayed to stay the
operation of the Promotion Circular and the policy of reservation in
promotions. On 9 March 2007, this Court considered Civil
Application Nos. 3130 of 2006, 1783 of 2006, 2283 of 2006 and by
dismissing Civil Application No. 134 of 2006 passed the order
dgm 63 wp-2797-15 judgment-25-7-16.sxw
allowing the State to fill promotional posts to the extent of 67% from
open category, 13% from SC, 7% from ST and remaining 13% from
VJNT/SBC to remain vacant till final disposal of Writ Petition No.
8452 of 2004. On 13 March 2007, the Respondent (Original
Petitioner) has challenged the order of this Court in the Supreme
Court by filing SLP No. 4984 of 2007. On 9 April 2007, the State has
filed an affidavit in the SLP. On 4 May 2007, the State filed Review
Application (Stamp) No. 11463 of 2007 in Writ Petition No. 8452 of
2004 to vacate above order dated 9 March 2007. On 13 July 2007,
this Court rejected the Review Petition. On 16 July 2007, the State
pursuant to order dated 9 March 2007 passed by this Court gave
promotion excluding persons belonging to VJNT/SBC. On 5
September 2007, order dated 9 March 2007 of this Court was
challenged by the State in the Supreme Court vide SLP No. 18534-
18537 of 2007. On 28 March 2008, the Supreme Court i modified
order dated 9 March 2007 and permitted the State to fill 13% posts of
VJNT and SBC subject to final decision in Writ Petition.
45 On 27 December 2010, an additional Affidavit was filed by
S.N. Rankhambe, Deputy Secretary, GAD in reply to the amendment
dgm 64 wp-2797-15 judgment-25-7-16.sxw
carried out by the Respondent (Original Petition ) in Writ Petition No.
8452 of 2004. The main contention raised in the said affidavit was
that conjoint reading of Articles 14, 15(4), 46 of the Constitution of
India gives ample power to the State to take steps and measures for
the advancement of socially and economically weaker sections of the
Society. Reliance was placed on Thade Committee Report, Deshmukh
Committee Report, Khatri Committee Report, Indra Sawhney decision.
It was pointed out that the decision to provide for Reservation was
taken in the basis of data collected from various departments of the
State and reading backlog pertaining to different categories of
backward classes. It was pointed out that save and except making
allegations the Respondent (Original Petitioner) has not been able to
show any cogent evidence that there was no satisfaction on the part of
the State in respect of Backwardness of the categories covered,
inadequacy of the representation, maintenance of the administrative
efficiency and concept of creamy layer. On 19 July 2010, the
Supreme Court disposed off the SLP No. 4984 of 2007 in terms of its
order dated 28 March 2008. The State had made the promotions
accordingly.
dgm 65 wp-2797-15 judgment-25-7-16.sxw
46 On 17 February 2011, an additional Affidavit-in-reply was
filed by S.N. Rankhambe, Deputy Secretary, GAD in Writ Petition No.
8452 of 2004. It was pointed out that history of reservation dates
back to early 1880s till date and that the concept of Reservation was
not new. Reliance was placed on Justice Khatri Committee Report in
the light of Indra Sawhney case. Reliance was placed on Deshmukh
Committee Report, pursuant to which policy decision was taken to
provide reservation in promotion up to class I category. It was pointed
out that an analysis of data from census of India from the year 1951 to
2001 regarding literacy and dropouts for SC and ST, it was pointed
that there was a wide group in literacy between SC and ST as
compared to the general category.
47 On 21 February 2012, Respondent (Original Petitioner)
filed Additional Affidavit-in-reply in Writ Petition No. 8452 of 2004. It
was contended that the State has violated provisions of Article 16(4A)
as the mandatory three tests have not been complied with. The
mandatory three tests i.e. backwardness, inadequacy of representation
and reservation in promotion shall not disturb the efficiency of
administration. That section 5 of the impugned Act is contrary to the
dgm 66 wp-2797-15 judgment-25-7-16.sxw
mandate laid down by the Supreme Court in the case of M. Nagaraj
and other subsequent judgments. That according to the directions
given in Indra Sawhney case the reservation in promotion was 33%
upto first stage of Class I in service group A. Accordingly to the ratio
laid down in the Judgment the reservation was to be only for a period
of five years for SC and ST. However, the impugned Reservation Act
was enacted providing for reservation in promotion in all stages
thereby violating the mandatory requirements of Article 16 and
16(4A).
The relevant circumstances of Other Backward Classes (OBC)
48 There are various Circulars which are placed on record,
whereby the community belongs to OBC have been provided with the
various concession and reservation. Government Resolution dated 23
May 1974 whereby the reservation to all classes in promotion upto
Class I was challenged [ 1988 (Supp.) Bom. C.R. 923 (Full Bench) -
Gopalirishna Ramchandra Chavan & ors v. State of Maharashtra, but
was dismissed. The Apex Court , by order dated 6.1.1998 [ 1998 (9)
SCC 48 after Indira Sawhney's judgment (supra) dismissed the Appeal
thereby maintained the G.R. By observing that if implemented the
policy of reservation the quota is exceeded, it would be open to the
dgm 67 wp-2797-15 judgment-25-7-16.sxw
Petitioner to approach the Court. However, by Eighty-First
Constitutional amendment, Article 16(4)(B) with effect from 9.6.2000
by which unfilled vacancies were considered as a separate class of
vacancies, to be filled and not to consider together with the vacancies
of which succeeding year for determining the ceiling of 50% as
observed.
49 Certain historical background and the related proceedings
which we have noted, and as submitted by the learned senior
counsel appearing for the Petitioner, for OBC/VJ/NT are reproduced:
OBC Historical background
50 The demand for reservation of government jobs was made
as early as 1891 with an agitation in the princely State of Travancore
against the recruitment of non-natives into public service overlooking
qualified native people. In 1901, Reservations were introduced in
Maharashtra in the Princely State of Kolhapur by Chhatrapati Shahu
Maharaj. Reservations in the princely states of Baroda and Mysore
were already in force. In 1908, reservations were introduced in
favour of a number of castes and communities that had little share in
the administration by the British. A delegation of Muslim nawabs,
dgm 68 wp-2797-15 judgment-25-7-16.sxw
landlords, and prominent persons led by Agha Khan, leader of the
Ismaili Sect, presented a memorandum demanding a share in the
administration in proportion to their population. The viceroy gave it
sympathetic consideration and provisions were made in the
government of India Acts of 1909 and 1919 granting the Muslims due
share and other facilities.
51 On 30/11/1948, The present Art 16(4) was discussed in
the constituent assembly. Members like Shri. M. Ananthasayanam
Ayyangar, Shri. P. Kakkan have stated that the protection of
reservations for backward classes is needed even at the stage of
promotions as well and the members intended that Art 16 (4) shall
include reservations in promotions as well. On 26/01/1950, The
Constitution of India came in force. On 1/5/1960, State of
Maharashtra was formed. Prior to1961, Nomadic Tribes i.e.
wandering tribes were included in depressed classes. The Nomadic
tribes identified by different names in different part of India are
included in schedule caste and scheduled tribes. On 21/11/1961,
As per the Thade Report the Govt under Government Resolution,
Education and Social Welfare Department No. CBC - 1361/4, dated
dgm 69 wp-2797-15 judgment-25-7-16.sxw
21st November 1961 declared the communities indicated in schedule
to the resolution as belonging to the Vimukta Jatis and Nomadic tribes
in the state of Maharashtra. On 11/01/1964, B G Deshmukh
committee submitted its report to the state government and proposed
that the backward classes should be grouped into Schedules Castes,
Scheduled Tribes, Denotified & Nomadic Tribes and Other Backward
Classes. He stated that the DTNT are similarly situated with SC and ST
and are most backward. On 09/04/1965, based on the
recommendations of Shri B. D. Deshmukh Committee percentage of
reservation for VJ/NT was fixed at 4%. On 23/05/1974, under GAD
resolution No. BCC - 1072-J reservations for promotions were
introduced for VJ/NT as they were similarly situated with SC & ST
and did not have adequate representation in the State Services. The
Nomadic or wandering Shepherd Class i.e. Dhangar Community came
to be included in the list of VJ/NT under Govt in Social Welfare Dept
Resolution No. CBC - 1089/ (203)/MVK5 dated 25 th May 1990. On
4/8/1992, the percentage of VJNT was increased to 6% for
appointments i.e. including recruitment and promotions. On
16/11/1992, the Constitution Bench of the Hon'ble Supreme Court
In Indira Sawhney Vs. Union Of India held that Art 16(4) does not
dgm 70 wp-2797-15 judgment-25-7-16.sxw
include reservations in promotions. However, the bench held that the
state might provide reservation by direct recruitment at all stages to
give adequate representation at all stages. On 23/3/1994. Vanjara
Community included in the list of VJNT. VJNT increased to 11%. On
19/5/1995, The State Backward Class Commission (Khatri
Commission) was formed. On 17/06/1995, Parliament by 77 th
Constitutional amendment inserted Art 16(4) (A) permitting
reservation in promotions to the Schedule Castes and Schedule Tribes.
The object of the amendment was to overcome the Judgment in Indira
Sahwney Case which held that reservation of appointments or posts
under Art 16(4) of the Constitution is confined to initial appointment
and cannot extent to reservation in the matter of promotion. It aimed
to protect the interests of Scheduled Castes and Scheduled Tribes as
their representation in services in the States have not reached the
required level. Later it was further amended to include consequential
seniority by 85th amendment. On 01/03/1996, in the case of Ajit
Singh Januja held that the SC and though backward class candidates
entitled to reservation in promotion - but open category senior
candidates, though promoted later than reserved category candidate,
become senior to earlier promoted backward class candidate, for
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further promotion. On 12/11/1998, as per the recommendations of
Mutatkar Commission and Khatri Commission list of VJNT and OBC's
was modified. In 1999, Dr. Edate committee on the study of VJNT
submitted its report after making a detailed and in depth study of
every aspect and also taking into consideration the research made by
Dr. Babasaheb Ambedkar Research institute Pune. The final list of
VJNT was published by the Government of Maharashtra in 1999. On
9/6/2000, the Constitution 81st Amendment Act, 2000 inserted Art
16(4)(B) to create a distinct group of Backlog vacancies to exclude
them from the ceiling limit of 50% reservations. The amendment gave
legislative assent to the Judgment of R. K. Sabharwal.. In 2000, The
Constitution 82nd Amendment Act, 2000 inserted a proviso at the end
of Art 335 of the Constitution for relaxing qualifying marks and
standards of evaluation in matters of reservations in promotions. This
was to surmount the Judgment of S. Vinod Kumar (1996 (6) SCC
580). In 2001, Constitution 85 th amendment act, 2001 [with
retrospective effect from 17.6.1995] was issued amending Art. 16(4)
(A) granting a consequential seniority to reserved category employees
in their accelerated promoted posts - roaster point promotes to get
accelerated seniority. This amendment negated the effect of Virpal
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Singh Chauhans Case (1995 AIR SCW 4309) and Ajit Singh Januja (I)
Case (1996 AIR SCW 1196). On 31/03/2002, The National
Commission to review the working of the Constitution submitted its
report. The report states that the continued plight of the Denotified
tribes, semi-nomadic and nomadic tribes who are distributed in the
list of Scheduled Castes, Scheduled Tribes and Backward class is an
eloquent illustration of the failure of the machinery of planning,
financial resources allocating budgeting and administration in the
country to seriously follow the mandate of Art. 46. The report further
states that Art 16(4) and 16(4)(A) respectively permit reservation of
appointments or posts and in matters of promotions in favour of
backward classes not adequately represented in the services under the
State. The report further states that the adequate representation of
backward classes is, however, still a far cry and special efforts need to
be made for effectively enforcing reservation of backward classes to
achieve their adequate representation. On 12/10/2002, Writ Petition
Nos. 319/2002, 255/2002 and 234/2002 under Art 32 were filed in
the Supreme Court challenging the Constitutional validity of the said
amendment Act of 2001. The Supreme court did not grant stay to the
Amendment Act.
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The specific case of OBC
52 On 11/10/2004, The Constitutional Validity of The
Reservation Act and the Promotion Circular are challenged in WP no
8542 of 2004 and prayed also that in the alternative it may be made
applicable only to SC & ST subject to compliance with guidelines laid
down in M. Nagaraj Case. On 7/2/2005, the Division Bench of the
Bombay High Court directed the parties to maintain status quo. On
20/2/2005, Respondent no 7 filed reply stating that the corporation is
not at all concerned as they don't recruit/promote and the
government department alone is concerned with the same. On
21/2/2005, Respondent no 8 filed reply stating that it is a matter of
public knowledge as to what all posts are super specialized posts. That
the corporation has no role to play in regulating the service conditions
of the employees. The state replied as to how and why the VJNT are
treated as Backward Classes. That a committee was set up in 1928 to
inquire into the educational, economic and social conditions of the
depressed classes and the term depressed classes included the
Untouchables, Tribes, Criminal Tribes and wandering and other
backward classes. The Criminal Tribes Act of 1924 identified large
sections of the Nomadic Tribes as criminals. Although the act was
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repealed the stigma attached to these groups still continues and are
looked at with suspicion by the administration and subject to
harassment at the hand of the police and the State machinery. That
Thade Commission was appointed for unification of the lists of
Vimukta Jaties and Nomadic Tribes and Semi Nomadic Tribes of the
entire state. Shri. Thade after an intensive survey throughout the state
and studying their living conditions, health needs etc and on the basis
of survey recommended for adopting uniform list. His report was
accepted and on 21.11.1961 the State declared the Schedule of VJNT.
Later B. D. Deshmukh committee was appointed for the reservation of
backward classes in the services. The committee after discussions
with various departments and officers and after obtaining statistical
data of the actual position from 1950 submitted its report on
11/1/1964has recommended that the percentage of reservation
should be linked to population statistics and the backward classes
grouped into SC, ST, VJNT and OBC.
53 The reservation in promotions was provided from 1974 by
GR dated 23/5/1974. In 1990, Dhangar and Vanjari communities
were added to the list of VJNT. On 7/12/1994certain communities
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such as Govari, Mana, Koshti, Koli and Munnarwar were declared as
Special Backward Class. The reservation of SBC is challenged in WP
(OS) 2027 of 1997 (Anil R. Joshi Vs. State of Maharashtra) and is still
pending before the High Court. As per the Judgment of Supreme
Court in Indira Sawhney a committee of experts was converted into
the State Backward Class Commission on 19.05.1995 under the
Chairmanship of Shri. S. N. Khatri, retired judge of the Bombay High
Court. The committee after considering various claims and the
judgment applied its mind to the situation prevailing and formulated a
practical test to determine backwardness of a class. The surveyors
were trained .The committee carried exhaustive enquiry. The
recommendations were placed before the Cabinet on 12/11/1998 and
the lists of VJNT and OBCs was modified on the basis of these
recommendations. That on the basis of these recommendations, the
state has noted that the classes recommended by the committee are
not adequately represented on the basis of a comparative statement
prepared about the vacancies in direct recruitments as well as
promotions of each category. Thus the satisfaction of the state was
established.
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54 On the basis of this data not to provide the benefits of the
Act to VJNT and SBC would be harsh and violative of Art. 14. That
given the extent of backwardness of VJNT groups and the Social
exclusion that they have historically faced their situation is similar to
that of the erstwhile untouchables.
55 On 28/3/2008, SLP (C) No 18534-18537/2007, SLP
(C)No. 18538/2007, SLP (C)No. 18539-42/2007 were heard. The
Supreme Court was pleased modify the impugned order dated
9/3/2007 to the extent that the state government may also fill the
posts in respect of the 13% from VJNT & SBC candidates subject to
the final decision of the pending writ petition before the High Court.
On 27/12/2010, The State filed additional reply stating that Art 14 is
a generic Article. Art 15 and 16 are some facets of the said Art. That
2% marginal increase in the maximum percent does not affect
efficiency of administration and such marginal excess is permitted in
terms by the judgment in Indira Sawhney's case. That when the state
is satisfied that certain tribes in the state, though not listed as STs in
the Presidential order are comparable in all respects to the listed
Scheduled Tribes of the State and in the adjoining States, the State
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cannot forsake its Constitutional duty to promote the economic
interest and advancement of the weaker sections mandated by Art 46.
It is now well settled that the fundamental right have to be interpreted
in the light of the Directive Principles of State Policy. That Art 14
permits the State to make classification even beyond the scope of the
classification visualized in Art 15 and Art 16. The law declared in
State of Kerala V N M Thomas (1976) 2 SCC 310 (7 Judges) and
approved by a larger bench of 9 Judges in Indira Sawhney makes this
position very clear. That Castes and Tribes listed in the Presidential
order and unlisted castes and tribes which suffer from the same
degree of social, economic and educational backwardness cannot be
treated differently only on the irrational ground that they were not
listed in the Presidential order. Such technical view would defeat the
object of the Constitution. That after analysis of available data and
reports of various committees and after subjectively satisfying that
there is inadequacy of representation of SC, ST, VJNT and SBC classes
it is just legal and necessary to provide the reservation in Promotion at
all stages. That if there would be no reservation there would be
almost no representation of backward classes. That it is one of the
ways of achieving economic advancement. That the opinion is
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formed on the basis of data. That the Supreme Court has permitted
to fill the 13% seats reserved for VJNT in promotions. That the
Supreme Court has upheld the Constitutional amendments giving
reservation in Promotions. That in light of M. Nagaraj Judgment
State had already filed detailed reply dated 30.3.2005 pointing out
that the backwardness has been identified. That various committees
have identified backward classes and recommended sub classification.
That the State has Special Backward Class Cell in General
Administration Department which looks after the collection of
Statistical data that this cell had collected the data from all
departments and then the State Government has reached conclusion
and decided to provide reservation at all stages of promotion. That
the State has been treating VJNTs on Par with Sc and ST in State.
That the State Government is of the opinion that SC, ST and VJNT &
SBC continue to be backward and they are inadequately represented
and it was necessary to reserve post at all stages of Reservation. The
State has annexed the Chart Showing inadequacy of representation.
56 On 1/2/2011, The State filed their reply contending that
the demand of reservations was made way back in the year 1891 and
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provision of reservations were made in Maharashtra by Shahu
Maharaj in 1901. That in 1942 communities was classified into
advanced, intermediate and backward classes. That during the
debates of the constituent assembly some members have stated that
protection of reservations for backward classes is needed even at the
stage of promotions. That Nomadic Tribes were included in depressed
classes. That the VJNT communities are similar to that of Scheduled
Tribes and they are included in the list of Scheduled Tribes in
surrounding states. That some communities like Dhangar claim to be
scheduled tribes but the State has deprived them of the status of
Scheduled Tribes. That the classification and Sub-Classification of
VJNT communities is done as per the recommendations of various
committee like Thade Committee, B. G. Deshmukh Committee,
Wadhwa Committee, Khatri Committee, Edate Committee after
ascertaining the backwardness, occupational disadvantages and
stigma of criminality. That as per the report of National Commission
to review the working of Constitution the continued plight of these
communities is an eloquent illustration of failure of state machinery
and that special efforts need to be made for effectively enforcing
reservation to achieve adequate representation. That there is still
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backlog of VJNT communities. That the VJNT & SBC are equally
placed with SC & ST and have also suffered similar deprivation and
disadvantages and hence the action taken by the state is in pursuance
of the rights conferred under Art 14, 16, 46 and 335 of the
Constitution of India. That their backwardness and inadequacy of
representation is based on the various reports of the commissions
including the state backward class commission and on the exercise
conducted by the State to ascertain adequacy of representation
considering all the cadres of the State. That on the basis of proper
research and investigations and after collection of data with material
in support thereof, the backwardness, and inadequacy of
representation of VJNT & SBC is established beyond doubt. That they
are not less efficient that the general category of the SC and ST. That
adequate representation to backward class in the service under the
state includes adequate representation in all cadres and considering
the cadre strength. That the adequate representation to backward
class cannot be ensured without reservations if the entire cadre is
filled only by promotions and not by direct recruitment. That the
reservation in promotions is permissible if the ratio of direct recruits is
not more that 50%. That there is nothing to presume that direct
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recruits are more efficient and also the state too has not provided
direct recruitment at all stages.
57 It is the case that all these communities namely SC, ST,
VJNT, SBC are socially, educationally and economically backward and
there was inadequacy of representation at all level and cadres. It was
also evident from the past record that administrative efficiency has not
suffered as after each promotion the criteria for every person in that
cadre for measuring his competency and efficiency was the same and
the administrative efficiency has not affected adversely in any manner
since 1974. The state as also relied in the Census Data. That VJNT
communities are as backward as SC and St and are treated on par
with SC and ST since 1965 in all schemes. That it is not denied that
these communities are equally backward like that of SC and ST. Hence
this was not challenged in any court earlier. Now this history cannot
be changed hurriedly to stop such the reservation benefits including
to VJNTs. On 12/12/12,the State has filed the Sur- Rejoinder stating
that the burden is on the original Petitioner. The original petitioner
has failed to discharge his burden. There is no specific denial, with
contra material to those affidavits and data placed on record by the
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State and the affidavit of Other Backward Class/VJ/NT/SBC.
The averments against the Reservation Act
58 On 21.06.2012, Respondent nos 1 to 4 has filed an
affidavit in rejoinder to the affidavit in reply of the state dated
27.12.2010: the action of the State is ultra vires Art 16(4)(A) of the
Constitution, the separate quota for VJNT was unconstitutional and
sub classification was not based on backwardness, the representation
of reserve category candidates was much more than required, the
date provided by respondent no 1 was misleading and incomplete.
That the petitioner has no objection for providing reservation to VJNT
in direct recruitment but extending the scope of reservation for
promotion by ignoring criterion laid down by the Supreme Court and
ignoring the legitimate claim of open category candidates is not
correct. (para 26), the confidential report and gradation should not
be the only criteria for maintaining efficiency in administration, the
respondent has not places any report to satisfy the above test, Art
16(4)(A) provides reservation in Promotion only for SC and ST and
not for other categories, Khatri Committee was appointed to identify
various castes to be included in OBC and the committee has solely
done the job of identification of castes to be included in the OBC. The
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committee has not ascertained the backwardness, inadequacy and
overall efficiency. There was no objection from any group so far as
implementation of Art 16 (4) is concerned but when the same is
extended to promotions it leads to reverse discrimination and affects
administrative efficiency. It is stated that the words equally backward
has no relevance, had the VJNT been equally backward they would
have been included in SC/ST.
The case proceedings in High Court
59 On 28 November 2014,the MAT has struck down the
Reservation Act and the Promotion Circular. The Judgment has been
stayed by MAT itself for a period of 1 year. On 13 March 2015, Writ
Petition No. 2797 of 2015 filed by the State in this Court challenging
the impugned Judgment and Order. On 20 March 2015, this Court
has granted interim stay to the execution and implementation of the
Judgment and order of MAT. On 13 August 2015, Civil Application
No. 2531 of 2015 filed by the Respondent to modify or vacate the
interim order.
60 The parties have filed their respective Additional Affidavits
and written submissions . On 29 April 2016, additional documents
dgm 84 wp-2797-15 judgment-25-7-16.sxw
have been tendered by the State stating it to be the part of the original
Writ Petition and the record before MAT except Compilation part No.
III, Districtwise caste census 1931. Part-I and Part-II consist of various
Commission/Expert Committee Reports/Recommendations of all the
caste in question. All these documents and materials have been
placed on record by the State as to justify their reasons for enactment
of the Reservation Act and the implementation of the
reservation/promotion circulars. Both the learned counsel read and
referred and made the additional submissions revolving around the
same. Various orders have been passed, from time to time, which
are part of court proceedings in record of these Writ Petitions,
including of issuance of notices to all.
13 August 2015-
"Stand over to 3.09.2015 FOB for final hearing.
2 The Registry is directed to keep all connected
matters along with these matters, whether ready or
unready.
3 The Registrar (Judicial-I) is directed to call for
record and proceedings of Transfer Application Nos. 1
and 2 of 2014, in W.P. No.8452/2004 and
WP/470/2005, from Maharashtra Administrative
Tribunal if not already called for. He shall ensure that the
record and proceedings reaches this Court on
26.08.2015.
dgm 85 wp-2797-15 judgment-25-7-16.sxw
4 Stand over to 3.9.2015 First on Board in the
caption of Final hearing."
3 September 2015-
"By consent, stand over to 30 September 2015 at
1.00 p. m. for final hearing along with all other
connected matters. List of connected matters be re-
submitted by the respective advocates, and specifically by
the learned AGP for the State, as all other matters are
not listed by the office, inspite of earlier orders.
2 It is made clear that the notices be given
accordingly and circulated to the Principal Bench, as well
as, other Benches of this Court at Nagpur, Aurangabad
and Goa, about these matters, which are relating to the
Constitutional validity of the Maharashtra State Public
Services (Reservation for Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis) and Nomadic
Tribes, Special Backward Classes and Other Backward
Classes) Act 2001 (Maharashtra Act No. VIII of 2004),
(for short, "the Act") and connected Government
Resolutions. The Registry is directed to take steps and
circulate the notices accordingly.
3 In the meantime, the parties to file their respective
synopsis and circulate a common compilation of
Judgments, if any."
61 The Court heard the counsel for the parties only these
matters by consent of the parties to avoid further delay in dealing
with the validity of the act, from 30 September 2015 to 4 May 2016.
The other matters to be heard, once the decision of the impugned
dgm 86 wp-2797-15 judgment-25-7-16.sxw
MAT is concluded. Other individual/association challenge of the Act
would be considered on fact based writ petition, separately, after the
conclusion of these matters in view of the urgency expressed.
16 April 2016-
"1] The learned counsel appearing for the parties have
concluded their respective arguments/rejoinder in Writ
Petition Nos.2797 of 2015, 3009 of 2015, 1590 of 2015
and 3287 of 2004.
2] The learned counsel appearing for the parties seek
time to file revised written submissions and connected
chart.
3] At the request of the learned counsel, stand over to
29 April 2016. To be listed under the caption "for
directions"."
29 APRIL 2016-
"Mr. Yadav, the learned AGP has tendered on record
(i) the compilation of contents (ii) notes on methodology
adopted for deciding the backwardness and (iii) District-
wise Caste Census-1931. The copies of the same are
provided to the concerned parties.
2 So far as the District-wise Caste Census-1931 is
concerned, it is stated that though reference to the same
is made before the Maharashtra Administrative Tribunal
(MAT), the State Government is filing the relevant pages
of Districtwise Caste Census 1931, for first time in this
Court.
3 The Respondents are also permitted to file
affidavits/counter affidavits to these documents, if so
advised. The parties to file revised written submissions, if
dgm 87 wp-2797-15 judgment-25-7-16.sxw
not already filed, by the next date.
4 Matters be kept on 4 May 2016 (HOB)."
4 May 2016-
"1. Arguments heard today and concluded.
2. Matters are closed for Judgment.
3. Parties to file revised submission, if not already
filed and also to give it on pen drive."
All the interim orders and the promotions so made are in force till this
date, as being subject to final order of these Petitions.
Specific Issues before the Tribunal.(MAT)
62 The learned Tribunal considering the rival
contentions so raised, in Paragraph 19 recorded the issues in the
following terms
(i) Reservation in promotion has been challenged on two
grounds.
(a) Under Article 16(4-A), no reservation in
promotion can be provided to any backward class
except S.C. and S.T. The Reservation Act provides for
reservation in promotion to DT/NT and SBC also,
which is in contravention of express provision of this
Article.
(b) Even for S.C./S.T., there is no quantifiable data
dgm 88 wp-2797-15 judgment-25-7-16.sxw
available with the State to indicate that they are
inadequately represented in the services under the
Government.
(ii) The Reservation Act has been challenged on the
following grounds :
(a) The State does not have quantifiable data on the
backwardness and adequacy of representation in respect
of any of the backward classes. The Act does not
disclose the basis on which percentage of reservation for
different backward classes have been provided. The
decision of the Government is arbitrary.
(b) Though the State is empowered to provide
reservation in Government service, the law is so made as
to include practically every service provided in the
Private sector, thus violating Articles 13 and 16 of the
Constitution.
(c) The State does not have any data regarding impact
of reservation on overall administrative efficiency.
(d) The law should provide for Creamy Layer, even in
promotion.
(e) Even though some part of the Reservation Act may
not be ultra virus, but if some other part is so found, the
whole law will have to be struck down.
(iii) The Applicants have also challenged the validity
of G.R. dated 25.5.2004, which is termed arbitrary and also
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challenged the concept of 'presumed merit' introduced in this
G.R., which goes much beyond the provision of Article 16(4-
A) regarding consequential seniority.
Essential reasons for the conclusions of the matters
63 Keeping in mind the issues and the provisions of law, we
are proceeding, point by point, referring to the respective titles, which
are interlinked and interconnected for our final conclusion and order.
Reservations on the base of 1931 census and the natural growth of
populations
64 Both the parties have read and referred B.D. Deshmukh
Committee Report 1964, Thade Committee Report 1961 Edate
Committee Report 1999, the State Backward Class Commission
Reports, Census Reports and SBC Documents. The State has
submitted and referred quantifiable data regarding inadequacy of
representation and overall administrative efficiency. The reservation
in promotion as provided is only 33% hence there is no violation of
ceiling limit of 50%. The concept of creamy layer has been elaborated
and discussed. Based upon R.K. Sabarwal and other Judgments, 100
point Roster and its adoption from 18 October 1997, the procedure of
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post-based roster to avoid excess reservation is also elaborated. The
basis of percentage for reservation of every caste in question referring
to the Committee/Commission Reports, so referred above, has been
elaborated, with the supporting material placed on record.
65 It is relevant to note that on the basis of 1931 Census and,
after taking into consideration the normal rate of natural growth and
increase in the population of all sorts, the Government of India and
most of the States have been adopting the "population" as the source
for to give adequate, proper and fair representation in seats or
services. Therefore, apart from the constitutional provisions, by
Resolution dated 13 September 1950, the Government of India has
decided to accept the population, as the basis for fixing the percentage
of the reservation in public services. In the year 1961, the
population Census had taken place.
66 In the year 1971, considering the general rise in the
population during the Census for the period from 1961 to 1971, the
percentage of population of each backward class category was made
available by the Social Welfare Department. As per 1971 Census, only
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the population of SC and ST was available and not of other categories,
VJNT and OBC. The figures in respect of VJNT and OBC categories
have been also collected only in 1931. There was no such Census
took place. Therefore, the State has been following the method of
normal rate of increase of total population. The basic percentage of
SC and ST converts to Buddhism was fixed 13%. ST, living outside the
specified areas 7%, DTNT 4%, OBC 10%, therefore, total 33% has
been recorded.
67 The percentage of reservation in VJNT was increased to
6% in the year 1992, as per the report of Wadhawa Commission. It
was decided to increase 2% only thereby, the total reservation was
increased from 33% to 36%. This percentage was again reviewed in
view of decision of Indra Sawhney (Supra) (Mandal Commission).
The State, in view of the Judgment has accepted 27% reservation for
OBC on the basis of 1931 Census. This basis of Census was
considered and permitted even by the Supreme Court in Indra
Sawhney (Supra). It seems that the last such Caste Census has been
the basis for fixing the reservation and/or providing reservation to the
Sections of the backward classes as recorded above, throughout the
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India and followed by the respective States also. After 1991 general
Census, the review of percentage of reservation, without crossing
50% ceiling limit, has been followed and accordingly the percentage
of reservation was fixed at 49.5% (SC 13, ST 7, VJ 3, NTB 3 NTC and
NTD 4 and OBC 19.5=49.5%). The percentage of VJNT was
revised to 11% from 6% in the year 1994 and accordingly fixed 50%
as follows. SC 13%, ST 7%, DTVJ 3%, NTB 2.5%, NTC 3.5%, NTD
2%, OBC 19% Total 50%. ig The category of Special Backward
Class/SBC was prepared in the year 1995 and based upon their
estimated population added 2%, thereby, total percentage of
reservation increased from 50 to 52%.
68 This assessment is ongoing procedure, as all the concerned
Commissions and the departments have been proceeding to regularize
and fix the percentage of reservation to struck a balance between the
reserve categories and open categories in every areas. On the basis of
representation and the information so collected by the State, many
communities have been added to the list of VJNT and OBC. This was
also on the recommendations of the State Backward Classes
Commission. However, the percentage of reservation of these
dgm 93 wp-2797-15 judgment-25-7-16.sxw
categories has not been increased or decreased substantially.
69 In the year 2011, the Government of India has undertaken
Caste Census while doing the Socio-economic Census. However ,as
stated ,it was decided not to make the public and would be used only
by the Registrar General of India for statistical purposes. The State,
requested to provide the details of the caste census for the Socio-
economic data and for fixing the backwardness and the percentage of
the reservation. There are data and material on record whereby, the
basis of fixing 6% of VJNT was provided and also the data and the
percentage so fixed after 1994 covering the 19% so fixed. These
includes 14 Vimukta Jati 3%, Bhatkya Jamati (Earlier 28 Castes prior
to 1990) 2.5%, Bhatkya Jamati (Dhangar etc.) 3.5% and Bhatkya
Jamati (Vanjari) 2%,
70 The Reservation Act, was based upon the Population
Census of 2001. The statement is made that last general Census took
place in the year 2011 after the Act. In a given case, the Government
of India and/or the respective States required to take note of the new
Census report for deciding the revised percentage, considering the
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normal rate of increase of the population. There is no case that there
is decrease of general population of any community and caste,
including of the backward classes .These naturally grown data is the
only contemporary data available for all such purposes.
The scope and power of Court in the setting up and fixing the
percentage of respective caste/tribe
71 To fix or alter the percentage for giving adequate and
proper representation to the backward and/or reserved class
categories/communities, is within the realm of the respective States,
even when it comes to the reservation of the other classes, than ST
and SC. No decisive factor and plan are fixed or provided or available
to meddle with the fraction of reservation, so fixed by the States. It
is not the scope of the Writ Court under Article 226 of the Constitution
of India to have a Judicial Review of percentage so fixed and or
providing or withdrawing the reservation to the particular class or
category. The learned counsel appearing for the parties unable to
point out any Judgments whereby, any Court has fixed and/or re-
fixed the percentage so decided by the respective States, based upon
the material/information/data they have. to give representation to a
dgm 95 wp-2797-15 judgment-25-7-16.sxw
particular community/ caste and/or class.
72 We have noted and as the statement is made that the
reservation policy prior to this Act has been implemented on the
foundation of various circulars issued by the State. Those circulars
were remained intact till the Statute in question. All the parties and
the respective Departments and the States and the other State
Authorities, had been implementing the same. This is in no way read
and referred to mean that the respective challenges to the promotion
and/or related aspects and/or even appointments are not pending in
other High Courts and/or the Courts. All such facts based matters will
be treated separately.
73 Those relevant circulars are already reproduced and
referred. Normally, the scope of Judicial Review under Article 226 is
quite limited to test and verify the data, material so placed on record
in support of the reservation policy. The reason behind the percentage
of the particular community or caste, considering the other principles
of "backwardness", "adequate representation" as per the Constitution
itself, is the State's domain. It is impermissible to direct any one to
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collect the data to restructure the reservation policy. The learned
Senior Counsel appearing for the State reiterated their submission,
by placing the additional documents on record which are stated to be
the part of the record of the MAT. Those records were seen and noted
as offered for the learned Members to check and/or verify. We have
permitted the State to bring their supporting data on record available
with the State at the time of passing of the Reservation Act or
otherwise. We have gone through the same in detail.
74 The District-wise Caste Census of 1931 submitted on
behalf of the State for in the High Court. District-wise Caste Census
of 1931 was referred by the Supreme Court in Indra Sawhney's and
M. Nagaraj (supra) and all other Judgments. Whenever there was a
question of reservation figures and data, the last caste Census of 1931
was also noted. The submission and reference is always made to 1931
Census, followed by the of every decade population Census; 1961,
1971, 1991, and 2001. The point is no latest census available for any
State Government to follow or proceed afresh. All have to wait for
new census and it's reports. Thus the natural growing data is the
available" contemporary and quantifiable data" for the purpose of such
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Reservation Act/Circulars.
The affirmation of the State to have quantifiable adequate data of
S.C., S.T and OBC.
75 The learned Tribunal noted the principles of Nagraj that
State is required to collect the quantifiable data showing
backwardness and inadequacy of representation read with compliance
of Article 335 which requires the maintenance of efficiency of
administration. The Tribunal has proceeded to consider the
requirement of inadequacy of representation in service even of S.C.
and S.T.in the state. The affidavits and material so placed on record,
wrongly interpreted to say that there is no "contemporary and
quantifiable data". The Constitution itself provides and gives
enabling power to State to deal with the promotion even for other
backward classes apart from S.C. and S.T. in various posts, subject to
Nagraj elements. The validity and/or vires, therefore, cannot be and
ought not to have been decided on presumption and assumption.
76 In view of proviso to Article 335, Section 10(3) of the
Reservation Act regarding concession and relaxation in fee and/or
upper age could be considered at appropriate stage as is provide
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various concession for promotion also. This is because the basis
provisions are applicable only for S.C. and S.T. class. These
"concessions and/or relaxations" are applicable to S.C. and S.T. and
not to other classes also required to be considered keeping in mind the
Constitutional provision which empowers the State to grant
reservation at recruitment and/or at promotional stage on the
foundation of their backwardness and/or inadequate representation.
State Committees, Commissions reports about "quantifiable data " and
Its Merit and Demerit
77 In paragraph 29, the learned Tribunal though recorded the
gist of Committee Reports (B.D.Deshmukh, Thade, Wadhwa, B.R.
Committee and State Backward Class Commission - Khatri
Commisssion,Bapat Commission),wrongly held that the reports
nowhere shows figures about the representation of the communities
for inclusion in the list of V.G., N.T. O.B.C. in State Service. This is by
observing further that there is total absence of any quantifiable data in
these reports. It is concluded wrongly that except the B.D.Deshmukh
Committee Report, there is hardly any quantifiable data about
representation in Government Service of various backward
communities. The Tribunal has also observed that S.C. are given more
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reservations, while S.T. are given less reservations based upon the
percentage of the population. The learned Tribunal noted that there
was no explanation for this anomaly. It is wrongly observed that the
figures are based on extrapolation and are not actual figures. It is
observed further that the reservation for S.C. and S.T. more or less is
in proportion to their population. However, figures in D.T. and N.T.
are only guesstimates. The learned Tribunal not noted the Deshmukh
Committee Report of the year 1961. The learned Tribunal refused to
accept the submission based upon 50 years old D.B. Deshmukh
Committee Report. These observations of learned Tribunal are wrong
by misreading the Constitutional provisions and the Judgments. The
Reservation Act itself provides that "Government may by an order in
the Official Gazette provides that percentage of reservation for S.C.
and S.T., D.T., N.T., S.B.C. category and other backward classes, in all
posts, shall be on the basis of the latest census record of population of
the State, in the case of State cadre posts, and concerned District, in
case of District cadre posts." Apart from this enabling constitutional
provision empowers the State to provide reservation of posts for
various categories in proportion to their population as per the latest
census report. The material has been placed on record even of
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subsequent years as recorded in paragraph 29. The excessive
reservation in employment, therefore, needs to be decided on the facts
of the case of individual or association and/or respective department's
submission .
78 The Judgment of Balaji (supra) cannot be read in
isolation. The principle so laid down is also stated even about the
marginal 2% excess of reservation in the present case. There are
various States where reservation is more than 50 per cent. The only
requirement is, as per even Nagraj (supra), State has to form its
opinion on the foundation of "quantifiable data" and "adequacy of
representation of Backward class". In the same Judgment it is
observed that any excessiveness needs to be decided on the facts of
each case.
79 The learned Tribunal, however, wrong in concluding that
the State has no quantifiable and contemporary data about backward
classes in the State. It was more than 50 years old. Further
observation that the State has provided reservation for S.C. and S.T.,
D.T. and N.T. categories in proportion to their population. However,
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for the creditable data of population of D.T./N.T. i.e. VJ(A), N.T.(B),
N.T.(C) and N.T.(D) categories are recorded that the reservation to
them was in the population proportion as per the declared Section 4
of the Reservation Act.
Reference is made to the Cabinet Note dated 30/11/1994 about the
caste
80 The reference is made to the Cabinet Note dated
30/11/1994, whereby provision is made to provide employment for
five communities Gowari, Manna, Halba Koshti, Machhimar Koli, Soan
Koli and Munnarwar. The State, therefore, decided in the Cabinet to
create a separate category and provide 2% reservation for them. No
challenge was raised at any point of time so far as circular and the
order dated 30/11/1994. All have been acted upon the same since
then. Having so noted and decided to give representation to said
communities to say that there is no material to support the claim of
S.B.C. to entitle them reservation in public employment is wrong
approach. The data so reflected earlier, cannot be tested at this
stage, at the instance of petitioner on vague averments or pleading.
The data is recorded and provided for this category also and
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strikingly, the learned Tribunal not even dealt with the circular so
issued from time to time by the State announcing the criteria for
backward class or category from time to time by following the due
procedure of law and through the State scheduled provisions and the
Circulars. All State provisions are intact till today. All the concerned
have been acting upon the same. No challenge raised at any time
earlier. Therefore, merely because the State has decided to utilise
those earlier provisions and the circulars, through the Reservation Act,
pursuant to the Supreme Court decision, the challenge even after
Nagraj (supra), cannot be the basis to declare the Reservation Act
ultra vires, on such assumption and presumption.
Specific Treatment to Other Backward Class - VJ/NT
81 It has been noted that the Petitioners challenge to the
validity of Article 16(4A) and (4B) of the Constitution is decided in
Nagraj (supra). The challenge was raised at the same time to the
Reservation Act and Circular regarding promotion in question. Once
the constitutional challenge goes, that itself dilutes the Petitioners'
challenge to the vires of the Reservation Act. Every important aspect
of reservation to SC, ST from the stage of recruitment and/or
promotion have been concluded against the Petitioners and in support
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of all other categories also. No specific challenge was able to
sustain about the reservation provided at the recruitment stage and/or
the promotional stage in view of the amended constitutional provision
so referred above. This itself endorsed the earlier practice and
procedure of collecting the data and the material available with the
Central/State in this regard. All the reasons given by the learned
Tribunal, with regard to the material, data, adequate representation,
backwardness, based upon 50 years old data, are nothing but
infringing upon the basic constitutional provision and the judgments
of Supreme Court including Indra Sawhney, Nagraj and others.
There was no question of declaring the Reservation Act ultra vires on
the wrong ground of no data, no material, and/or 50 years old data
inspite of fulfillment of the principles in Nagraj and other subsequent
judgments by the state. All the original Petitions should have been
dismissed on these grounds itself. The wrong understanding of law
and/or interpretation of Supreme Court judgments resulted into
unjust and contrary declaration in question. This would definitely
result into miscarriage of justice and takes away the constitutional
rights of the persons, who belong to scheduled categories and/or
groups The promotional circular providing 33% reservation, as
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stated to be the provision to modify and/or a clarificatory in nature,
based upon the existing promotional policy for Scheduled Caste and
Scheduled Tribe and for OBC, therefore could not have been declared
bad in law in such fashion for the same reasons itself.
The State Quantifiable Data and updated contemporary data, though
not precise but sufficient is available
82 The State has placed a comparative data of Social,
educational and economic backwardness of Maharashtra State, SC/ST,
VJNT and SBC as per the Census Report of 2001 and the Maharashtra
State VJNT Study and Research Committee and/or Edate Committee
Report of 1999. The chart of that data has submitted by the State.
We are reproducing it :
COMPARATIVE DATA OF SOCIAL, EDUCATIONAL AND
ECONOMIC BACKWARDNESS OF MAHARASHTRA
STATE Supreme Court, ST, VJNT AND SBC AS PER
THE CENSUS REPORT OF 2001 AND MAHARASHTRA
STATE VJNT STUDY AND RESEARCH COMMITTEE
OR THE EDATE COMMITTEE REPORT 1999
Social Econ InaEdu
cati
omic deq
on
uac
Hou Wat Electri No TV Liter Avg Popu
se er city Latri set acy inco latio
per Tap ne me/A n %
dgm 105 wp-2797-15 judgment-25-7-16.sxw
mit n
al 82 02 2 .1
Stat Urb 81. 89. 94.28 41.9 70 85.5 57.5
Rur 40. 45. 65.17 81.7 24 70.4 42.4
Tot 51. 62. 70.44 71.6 37 71.9 10.2
al 35 65 5 .7
SC Urb 71. 85. 89.56 56.1 63 78.3 61.6
Rur 36. 46. 56.93 82.6 19 67.9 38.3
Tot 34. 45. 52.15 79.7 22 55.2 8.85
al 89 24 6 .5
ST Urb 70. 84. 87.76 53.5 59 74.2 12.7
Rur 23. 32. 40.60 88.2 10 52.3 87.2
Tot 13. 18. 48.6 61.9 13 1824 101 ~2.
al 2 8 .4 0 3 66
VJA Urb 16. 22. 62.5 36.2 22 2140 45.2
Rur 10. 15. 37.1 83.1 6. 1562 54.7
Tot 13. 19. 51.7 59.8 13 1777 131 ~1.7
al 0 1 .8 7 0 5
NTB Urb 13. 20. 60.3 46.1 16 1992 56.7
dgm 106 wp-2797-15 judgment-25-7-16.sxw
Rur 12. 17. 40.4 77.8 10 1495 43.2
Tot 11. 13. 45.5 79.2 8. 23.7 1407 169 ~3.0
al 4 7 6 6 22 0
NTC Urb 17. 15. 60.0 60.0 17 41.5 1058 15.6
Rur 10. 13. 42.8 82.8 7. 20.4 1472 84.3
Tot 15. 9.1 51.2 86.8 14 41.9 1899 647 ~1.0
al 7 .0 8 9 0
NTD Urb 100 100 100 1 10 91.7 7542 3.30
an ig 0 5
Rur 12. 6.0 49.6 89.7 11 40.0 1706 96.6
Tot
al
NTC Urb
an
Rur
al
As on 30.6.2005 the Backlog/inadequacy of VJNT in direct
recruitment and promotion at various stages was as follows :-
Category Direct + Promotion =
Inadequacy
VJA 840 + 173 = 1,013
NTB 993 + 317 = 1,310
NTC 13580 + 3342 =
16,922
NTD 5800 + 679 = 6,479
Total 25,724
dgm 107 wp-2797-15 judgment-25-7-16.sxw
Total Backlog/inadequacy of Backward class in direct recruitment and
promotions at various stages was as follows:
Group Backlog
A 4,713
B 4,250
C 51,781
D 18,975
Total 79,719
Scheduled Caste statutes upto date till 31 March 2006,
VJNT status upto date till 31 March 2006, including addition of new
caste in June 2008 are part of the record of Writ Petitions. A Central
list of OBC (the State of Maharashtra), is also placed on record, as
extracted from the concerned website. Government Resolution dated
25 May 2006 is also part of the record (the State compilations) as
submitted even before the MAT whereby, certain new De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category
and other Backward Classes have been added (SC/ST order amended
1976, Appendix I part 10 (13%)).
84 The process of collection of data by the State and/or by
the Central, normally is for all the castes/groups/categories, in
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question. Every Census so read and referred, covers all these
categories, apart from Central, the Committees/Commission Reports
as recorded. It is difficult to dissect any of these categories as in
existence since long - neither intended nor submitted by the opponent
to do so. Having noted even the respective data of concerned
castes/tribes, as recorded, referring to all the committee reports,
cover the SC/ST and OBC also. The data, so used and utilized for all
these categories, covers the issues for the purpose of these challenges.
The percentage for reservation for appointment at the stage of
recruitment, or even for promotions are intact for all these purposes.
The MAT misread historical value of the reservation and the base for
such reservation.
85 It is necessary to note that Article 16 (4A) and (4B) have
been introduced keeping in mind the directions given by the Apex
Court in Indira Sawhnay's case (supra). Articles 341 and 342 of the
Constitution of India permit the Authority to declare a community as
Scheduled Caste or Scheduled Tribe. This is in the background of the
Constitutional (Scheduled Castes) Order, 1950 and Constitutional
(Scheduled Tribes) Order, 1950. The learned Members of the
Tribunal failed to take note of the background and the declared policy
dgm 109 wp-2797-15 judgment-25-7-16.sxw
of the Bombay State which was in existence prior to above orders.
One of such example is Government Resolution, Political and Services
Department dated 23.04.1942. After the constitution of the Bombay
State, backward classes were divided into three categories, Scheduled
Caste, Scheduled Tribe and Other Backward Classes which were castes
deemed to be as backward as the Scheduled Caste or the Scheduled
Tribe. The reservation in Government posts were provided to such
classes also by Resolution dated 1.11.1950 as per the prescribed
percentage. The learned Tribunal, even not noted the earlier existing
Bombay Primary Education Rules, 1924, whereby the classification of
communities as backward and depressed classes/Tribes had been
recognised. In the year 1928 a Committee was set up for such inquiry
into the educational, economic and social conditions of the depressed
classes. The recommendations were accepted and the list of backward
class communities were prescribed even under Government Resolution
of 29.05.1933 - which was subsequently revised in 1942. The
reservation in Government posts was prescribed in Government
Resolution of 1.11.1950 which was revised again on 24.01.1953. The
modified Scheduled Castes and Scheduled Tribes List (Modification)
Order, 1956 throws further light on the issue. Ultimately by
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Resolution dated 18.05.1959 major concessions were made available
to the OBC category. There was Criminal Tribes Act, 1871 which was
replaced by Criminal Tribes Act, 1924 covering large sections of
Nomadic Tribes. Though the Criminal Tribes Act was repealed in
1952, this group remained unattended. (See State affidavits).
86 The learned Tribunal failed to consider the background of
formation of these Commissions/Committees and the earlier
Government Resolutions, Reservation Policy and the law/Statute.
The learned Tribunal, however, completely overlooked the main
foundation and by misreading the Nagraj has even disturbed and
interfered the percentage at the recruitment as well as promotion
stage so accepted and recognised for the SC, ST classes by the
Supreme Court. The learned Tribunal wrongly interpreted the
reservation provided for OBCs by the State being empowered to do
so, on the foundation of lack of data and the material. They have
fixed the percentage also. The same has remained intact. All have
been acting accordingly.
87 We have to observed that after Indira Sawhney (supra),
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based upon the report of the Mandal Commission, the issue of
reservation quotas for the backward classes in direct recruitment was
reconsidered even by the State and decided to increase total
reservation from 33% which was fixed in the year 1965 to 50% by
Government Resolution dated 23.03.1994. We have noted that the
State had, as per the requirement, need, representation, survey
reports and/or commission reports and/or based upon the information
collected and available with them, not only added but even withdrew
the reservation from promotion of VJ, NT., however, protected their
promotion in view of Supreme Court directives for 5 years from
16.11.1992.
88 For the present purpose, we are inclined to observe at this
stage itself that in view of Indira Sawhney (supra), the State had
constituted a Standing Committee consists of Experts under the
Chairmanship of Dr. Mutkar on 15.03.1993 and later-on converted
into State Backward Class Commission on 19.05.1995 under the
Chairmanship of Justice S. N. Khatri. About 156 caste claims
including OBCS/VJ/NT had been dealt with. The Committee, noting
the provisions of Article 16(4) and the judgments and the observation
dgm 112 wp-2797-15 judgment-25-7-16.sxw
in Indira Sawhney (supra) proceeded to inquire and decide the caste
claims. The recommendations accordingly submitted as noted. We
are inclined to observe here that there is no prescribed procedure or
method provided under the Constitution and/or under the law for
identification of backward classes. Therefore, ultimately it is the State
and/or the concerned Authority, in view of enabling constitutional
provisions, but subject to other provisions of Constitution and the law
required to take steps to determine backwardness and for providing
due representation, as contemplated under Article 16(4). This
includes available group, section and classes in society. This is also by
keeping in mind the social, educational, economy and other essential
conditions as laid down in Mandal Commission. The details so
provided in this committee reports/commission reports, the then
existing Acts, Statutes, Circulars, Reservation Policies and the
percentage so fixed which now incorporated in the Act ought not to
have been disturbed in such fashion at the instance of Petitioners,
based upon the vague pleadings on merit, but general submissions on
presumption and assumption.
89 We are of the view that the subjective satisfaction of the
dgm 113 wp-2797-15 judgment-25-7-16.sxw
Government is also a prime consideration for implementing such
reservation policy, but in accordance with the law. Therefore, the
State, having once treated and noted that these communities, groups,
other than SC/ST, are also required representation and/or benefits
being similarly placed, may not be on strict senses, but within
elements of Article 16(4) are satisfied, is empowered to grant the
particular percentage and the benefits of reservation to all such
categories. We see there is no illegality in such extension. Therefore,
in view of provision of Articles 14, 15 and 16, such express legislation
is permissible. There is nothing wrong if the said benefit is continued
by the State based upon the earlier statutes and the Circulars. The
reservations already made based upon the earlier Circulars and the
reservation policy even protected in Indira Sawhney's case, at least for
further five years from the date of judgment. The State has to take
decision to grant extension in such reservation. The earlier
reservation policy, therefore, ought not to have been disturbed. All
the parties were aware of it. The promotion is always based upon
the service conditions and the State policy , if governed by the same.
The reservation policy is always subject to correction. Therefore, the
impugned judgment on this ground itself of declaring the whole Act
dgm 114 wp-2797-15 judgment-25-7-16.sxw
ultravires on such vague pleading and on the basis of assumption and
presumption is unsustainable.
90 The decision, based upon the vague pleading of the
complainant who are not governed by the Administrative Tribunal Act,
is also impermissible. Any case which is not within the ambit of the
MAT jurisdiction though challenge has been raised to the vires of the
Reservation Act and the Circular, that itself should not have been the
reason to declare the Reservation Act and the Promotion Circular ultra
vires. The learned Tribunal could have passed the appropriate order
if the case was not governed by the Administrative Tribunal Act
and/or not within the jurisdiction of the learned Tribunal. (Transfer
Application No.2/2014 = Writ petition No.470/2005 - M. V. Gunale).
Enthusiasm of increase and /or decrease of respective reservation
percentage
91 The fixed percentage of granting benefits/concession
needs to be respected by all the concerned. Therefore, unless those
percentage are increased and/or lowered by the Central and/or State
Government, in accordance with law, all are bound to grant
constitutional benefits to the scheduled community and castes, for all
dgm 115 wp-2797-15 judgment-25-7-16.sxw
the purposes and also in public employment. And if it is in excess, it is
required to be tested individual caste or community wise . Any
increase or decrease in percentage in any class or category would
affect the command of within or beyond 50% reservation, though
certain degree of excess, in a given case, is permissible. The State,
therefore, if quantifiable material available, want to add and/or grant
such concession/benefit to certain other new categories, the State
required to reassess the percentage aspects within the umbrella of
"quantitative limit" so referred above. There is no issue that the State
required to keep in mind the constitutional provision including the
merits of the general citizen/categories.
92 This is also in the background that once the class or tribe
and community is included in Presidential List (Central and/or State),
even any further division of any classes would be a matter of confront,
as it amounts to playing with the Presidential List published - so
would be the case, if the fixed percentage is tinkered with. Any
addition in the class of community and/or increase or decrease and/or
addition and/or deletion of it in the list, required due process to be
followed by the State. The Reservation Act and the Circular,
dgm 116 wp-2797-15 judgment-25-7-16.sxw
therefore, in our view, is well within the umbrella of law and the
record. Any contra decision of the State would have cause great
injustice and hardship to all the concerned. The constitutional
protection and umbrella to the persons being in the list, therefore,
ought not to have been disturbed, as done in the present case in spite
of there being no competing material on record.
No special challenge to the inclusion and exclusion in State
Caste/Tribe Lists.
93 So far as State of Maharashtra is concerned, there is a list
of Special Backward Category (SBC), which is amended and modified
from time to time. There is a list of De-notified Tribes (Vimukta Jati)
amended and modified from time to time. There is list of Nomadic
Tribes also. Above observations are applicable to these lists of S.B.C,
DT/VJ/NT.
94 The caste and community list, Central or State, covering
all the categories in question for which reservation under the Act and
Circular as provided, have never been challenged and or tested by
the original petitioners even on the stated formula of Nagraj. There is
dgm 117 wp-2797-15 judgment-25-7-16.sxw
no specific challenge raised even in this petition to the inclusion of
those entries in the respective constitutionally recognized lists. The
central and respective States, keeping in mind the Supreme Court
Judgments, have been collecting the data, information even prior to
inclusion and/or exclusion of the entries in the list, before granting
the constitutional benefits/protection. Having once recognized
particular community and included their names into the castes in the
list, based upon the data and material available, and for want of any
contra material from the other side or otherwise, the respective State
is empowered to grant the benefits in accordance with law. The
State has, therefore, taken the impugned decision. The detailed
individual challenges on merits, if any, would be considered and/or
required to be considered if the affected petitioners are able to place
the sustaining material to affect their actual promotion, departmental
and/or otherwise. There was no such case apart from no pleading or
material to sustain the same.
The State is empowered to make reservation in State employment-
recruitment and/or promotion.
Mandamus to order Reservation OR De reservation ?
95 The Apex Court in various judgments has reinforced that
dgm 118 wp-2797-15 judgment-25-7-16.sxw
no mandamus would lie to order reservation and/or de reservation
and/or to collect data/material for the same. The extract of those
paragraphs of respective judgments are as under :
1) Chairman and Managing Director,Central Bank of India vs.
Central Bank of India SC/ST Employees Welfare Association
(2015) 1 SCALE 169 :
"24. In the first instance, we make it clear that
there is no dispute about the constitutional
position envisaged in Articles
and
, insofar as
these provisions empower the State to take
affirmative action in favour of SC/ST category
persons by making reservations for them in the
employment in the Union or the State (or for that
matter, public sector/authorities which are treated
as State Under Article 12
of the Constitution) .
Insofar as making of provisions for reservation in
matters of promotion to any class or classes of post
is concerned, such a provision can be made in
favour of SC/ST category employees if, in the
opinion of the State, they are not adequately
represented in services under the State. Thus, no
doubt, power lies with the State to make a
provision, but, at the same time, courts cannot
issue any mandamus to the State to necessarily
make such a provision. It is for the State to act, in
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a given situation, and to take such an affirmative
action. of course, whenever there exists such a
provision for reservation in the matters of
recruitment or the promotion, it would bestow an
enforceable right in favour of persons belonging to
SC/ST category and on failure on the part of any
authority to reserve the posts, while making
selections/promotions, the beneficiaries of these
provisions can approach the Court to get their
rights enforced. What is to be highlighted is that
existence of provision for reservation in the matter
of selection or promotion, as the case may be, is
the sine qua non for seeking mandamus as it is
only when such a provision is made by the State, a
right shall accrue in favour of SC/ST candidates
and not otherwise." (emphasis added)
The judgments cited by the parties in present case have been noted in
this judgment.
96 It is relevant to note here that Supreme Court in Suresh
Chand Gautam v. State of Uttar Pradesh and ors.,23, after dealing with
Articles 16(4A) and (4B) and 226 and all other judgments including
the basic elements of Nagraj has observed as follows :
23 AIR 2016 (Supreme Court) 1321
dgm 120 wp-2797-15 judgment-25-7-16.sxw
"43 They are in different sphere than what is
envisaged in Article 16(4-A) and 16(4-B) whose
constitutional validity have been upheld by the
Constitution Bench with certain qualifiers. They have
been regarded as enabling constitutional provisions.
Additionally it has been postulated that the State is not
bound to make reservation for Scheduled Castes and
Scheduled Tribes in matter of promotions. Therefore,
there is no duty. In such a situation, to issue a
mandamus to collect the data would tantamount to
asking the authorities whether there is ample data to
frame a rule or Regulation. This will be in a way,
entering into the domain of legislation, for it is a step
towards commanding to frame a legislation or a
delegated legislation for reservation.
44 Recently in Census Commissioner and Ors. v.
R. Krishnamurthy, (2015) 2 SCC 796 a three-Judge
Bench while dealing with the correctness of the
judgment of the high court wherein the High court had
directed that the Census Department of Government of
India shall take such measures towards conducting the
caste-wise census in the country at the earliest and in a
time-bound manner, so as to achieve the goal of social
justice in its true sense, which is the need of the hour,
the court analyzing the context opined thus:
".....It is not within the domain of the court to
legislate. The courts do interpret the law and in
such interpretation certain creative process is
involved. The courts have the jurisdiction to
declare the law as unconstitutional. That too,
where it is called for. The court may also fill up the
gaps in certain spheres applying the doctrine of
constitutional silence or abeyance. But, the courts
are not to plunge into policymaking by adding
something to the policy by ways of issuing a writ of
mandamus."
We have referred to the said authority as the court has
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clearly held that it neither legislates nor does it issue a
mandamus to legislate. The relief in the present case,
when appositely appreciated, tantamounts to a prayer
for issue of a mandamus to take a step towards framing
of a rule or a Regulation for the purpose of reservation
for Scheduled Castes and Scheduled Tribes in matter of
promotions. In our considered opinion a writ of
mandamus of such a nature cannot be issued."
The basis of State's collecting information and data and the
reservation policy decision, in question, based upon the available data,
ought to have been respected. No Court, in view of above
judgments, including Suresh Chand (supra), could not have issued
directions to collect the data. The State, on the contrary, to provide
the promotion, to SC and ST and other backward classes, based upon
the last caste census and the "population census" read with
caste/categories, included in the Central, as well as, the State List to
achieve the constitutional goal and has proceeded to use and utilise
the quantifiable data available with them, in our view, is well within
the law and the record. The beneficiaries are entitled to claim it. The
declaration of the tribunal affects the rights of these beneficiaries.
Provisions for Promotion
97 Furthermore, it is relevant to note the observations of the
Apex Court in Suresh Chand in paragraph 42 as under :
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"42 ............ Insofar as making of provisions for
reservation in matters of promotion to any class or
classes of post is concerned, such a provision can be
made in favour of SC/ST Civil Appeal No. of 2015 and
Ors. (arising out of SLP (C) No. 4385 of 2010 and Ors.)
category employees if, in the opinion of the State, they
are not adequately represented in services under the
State. Thus, no doubt, power lies with the State to
make a provision, but, at the same time, courts cannot
issue any mandamus to the State to necessarily make
such a provision............What is to be highlighted is
that existence of provision for reservation in the matter
of selection or promotion, as the case may be, is the
sine qua non for seeking mandamus as it is only when
such a provision is made by the State, a right shall
accrue in favour of SC/ST candidates and not
otherwise."
(emphasis added)
It is also noted in Suresh Chand (supra) as under :
"In Rajesh Kumar's (AIR 2012 SC 2728) case, after
culling out the principles stated in M. Nagaraj (supra)
the Court has graphically stated that a fresh exercise in
accord with the law laid down in M. Nagaraj (supra) is
a categorical imperative. It has been held that the State
can make provisions for reservation in promotion with
consequential seniority on certain basis or foundation
and conditions precedents have to be satisfied. ......"
The State has made the reservation considering the scheme of the
constitutional provisions and the law and so also the promotion
circulars.
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Wisdom of State Legislation = to continue the existing reservation
policy - for both stages for all.
98 Any legislation, includes statutes and the circulars is
nothing but an intention of the State. The earlier Circulars were in
force for similar benefits for all the categories. Those circulars and the
reservation policy had been incorporated under the Reservation Act.
The concerned/person belonging to these categories, therefore, are
entitled for the reservation benefits including the promotion as
already provided since long The subsequent Nagraj elements, even if
any, pending the census direction in time bound programme, as
recorded in Census Commission and others (supra) or even otherwise,
the State's decision to achieve the constitutional goal, the social
justice, ought not to have been disturbed and/or interfered with.
Once the fresh census, caste-wise data, available with the State as
noted are available, the State is bound to take steps to revise the
reservation policy, at all levels. The reasonable and sufficient time
should have been granted.
Existing recognised Constitutional Reservation for SC/ST at the
recruitment level and or at promotional level is settled.
99 Even during the course of arguments, there was no much
argument made so far as of these reservations of SC and ST of both
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the levels, recruitment, as well as, promotion. There was, even no
issue discussed and/or decided and the percentage so fixed and
prescribed by the Central and the State for so many years. We have
noted that since the inception and/or grant of such percentage,
irrespective increase of population, no such percentage is lowered
and/or increased. There is no challenge and/or issue raised with
regard to the extension from time to time as per Article 335. In view
of this clear provisions of constitutional rights and protection granted
to SC and ST class or group and/or related group, cannot be thrown
away by declaring the Reservation Act unconstitutional. The effect is,
the Reservation Act as declared ultra virus the reservation circulars
which were in existence prior to the Reservation Act, are also not in
the field now. There is no provisions pointed out whereby, those
earlier circulars can be stated to be revived. The percentage so fixed,
even in the circulars for the classes of SC and ST, were never
challenged and/or were in the field since long. The Supreme Court
Judgment in M. Nagaraj (supra), basically revolved around the issue
and/or providing reservation and promotion for other backward
classes. It is settled that if the case of "perversity", "non-application
of mind" and "illegal reasons" are made out, Article 226 of the
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Constitution of India, needs to be invoked in the interest of justice.
Last Caste Census 1931 and natural growth binds all until new similar
Caste Census is published and made effective for all the communities.
100 Admittedly, no Census has been undertaken after 1931 to
determine the population of Denotified Tribes (A) (DNT), Nomadic
Tribes (B) (NT-B), Nomadic Tribes (C) (NT-C), Nomadic Tribes (D)
(NT-D), Special Backward Category (SBC) and Other Backward
Classes (OBC) in the State. The State came to be constituted in the
year 1960, by including parts of Bombay Presidency, Central Province
and Berar and the State of Hyderabad, which existed during the
British time. In the year 1931, the State was not in existence. The
Supreme Court, has, in no case, declared that all the laws of
reservation policy and/or circulars based upon 1931 Census, are bad
and/or ultra virus to the Constitution. It is to be noted that even, in
Indra Sawhney and M. Nagaraj (supra), though the Constitutional
Bench declare the provisions ultra virus, in the year 1992, but still
granted the continuation of those protections for further 5 years.
There was no direction issued, even in those matters to collect the
data and/or information to determine the population of respective
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group or class to provide the reservation. The directions to update and
to collect the information and to proceed to make the concerned
reservation and/or determine the population based reservation and/or
to provide adequate representation to other backward classes, are
different facets altogether.
No prescribed method to identify Backward Class - Other Backward
Class.
101 Even in Indra Sawhney (supra) (Mandal's Case), the
Supreme Court has summarized answers to the questions in paragraph
860. Some of the answers are-
"(2) The expression 'backward class' in Article 16(4) takes
in 'Other Backward Classes', SCs, STs and may be some other
backward classes as well. The accent in Article 16(4) is upon
social backwardness. Social backwardness leads to educational
backwardness and economic backwardness. They are mutually
contributory to each other and are intertwined with low
occupations in the Indian society. A caste can be and quite often
is a social class in India. Economic criterion cannot be the sole
basis for determining the backward class of citizens contemplated
by Article 16(4). The weaker sections referred to Article 46 do
include SBCs referred to in Article 340 and covered by Article
16(4)."
"(4) ......
For applying this rule, the reservations should not
exceed 50% of the appointments in a grade, cadre or service in
any given year. Reservation can be made in a service or category
only when the State is satisfied that representation of backward
class of citizens therein is not adequate."
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(5) There is no constitutional bar to classification of
backward classes into more backward and backward classes for
the purposes of Article 16(4). The distinction should be on the
basis of degrees of social backwardness. In case of such
classification, however, it would be advisable - nay, necessary - to
ensure equitable distribution amongst the various backward
classes to avoid lumping so that one or two such classes do not
eat away the entire quota leaving the other backward classes
high and dry.
For excluding 'creamy layer', an economic criterion can be
adopted as an indicium or measure of social advancement."
(6) A 'provision' under Article 16(4) can be made by an
executive order. It is not necessary that it should be made by
Parliament/Legislature.
(7) No special standard of judicial scrutiny can be
predicated in matters arising under Article 16 (4). It is not
possible or necessary to say more than this under this question.
(8) Reservation of appointments or posts under Article
16(4) is confined to initial appointment only and cannot extend
to providing reservation in the matter of promotion. We direct
that our decision on this question shall operate only prospectively
and shall not affect promotions already made, whether on
temporary, officiating or regular/permanent basis. It is further
directed that wherever reservations are already provided in the
matter of promotion - be it Central Services or State Services, or
for that matter services under any Corporation, authority or body
falling under the definition of 'State' in Article 12 - such
reservations may continue in operation for a period of five years
from this day. Within this period, it would be open to the
appropriate authorities to revise, modify or re-issue the relevant
rules to ensure the achievement of the objective of Article 16(4).
If any authority thinks that for ensuring adequate representation
of 'backward class of citizens' in any service, class or category, it
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is necessary to provide for direct recruitment therein, it shall be
open to it to do so." (emphasis added)
102 It is specifically observed in paragraph Nos. 796 and
797, to answer No.3 (a) is as under:-
"796-797. We may now summarise our discussion under
Question No. 3. (a) A caste can be and quite often is a
social class in India. If it is backward socially, it would be a
backward class for the purposes of Article 16(4). Among
non-Hindus, there are several occupational groups, sects
and denominations, which for historical reasons are
socially backward. They too represent backward social
collectivities for the purposes of Article 16(4). (b) Neither
the constitution nor the law prescribe the procedure or
method of identification of backward classes. Nor is it
possible or advisable for the court to lay down any such
procedure or method. It must be left to the authority
appointed to identify. It can adopt such method/procedure
as it thinks convenient and so long as its survey covers the
entire populace, no objection can be taken to it. If it does --
what emerges is a "backward class of citizens" within the
meaning of and for the purposes of Article 16(4). Similar
process can be adopted in the case of other occupational
groups, communities and classes, so as to cover the entire
populace. The central idea and overall objective should be
to consider all available groups, sections and classes in
society. Since caste represents an existing, identifiable social
group/class encompassing an overwhelming majority of the
country's population, one can well begin with it and then
go to other groups, sections and classes. (c) It is not
necessary for a class to be designated as a backward class
that it is situated similarly to the Scheduled
Castes/Scheduled Tribes. (d) 'Creamy layer' can be, and
must be, excluded. (e) It is not correct to say that the
backward class contemplated by Article 16(4) is limited to
the socially and educationally backward classes referred to
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in Article 15(4) and Article 340. It is much wider. The test
or requirement of social and educational backwardness
cannot be applied to Scheduled Castes and Scheduled
Tribes, who indubitably fall within the expression
"backward class of citizens". The accent in Article 16(4)
appears to be on social backwardness. Of course, social,
educational and economic backwardness are closely
intertwined in the Indian context. The classes contemplated
by Article 16(4) may be wider than those contemplated by
Article 15(4). (emphasis added)
(f) Adequacy of Representation in the Services under
the State (emphasis added)
798. ---. This opinion can be formed by the State on its
own, i.e., on the basis of the material it has in its
possession already or it may gather such material through
a Commission/Committee, person or authority. All that is
required is, there must be some material upon which the
opinion is formed. Indeed, in this matter the court should
show due deference to the opinion of the State, which in the
present context means the executive. The executive is
supposed to know the existing conditions in the society,
drawn as it is from among the representatives of the people
in Parliament/Legislature. It does not, however, mean that
the opinion formed is beyond judicial scrutiny altogether.
The scope and reach of judicial scrutiny in matters within
subjective satisfaction of the executive are well and
extensively stated in Barium Chemicals v. Company Law
Board which need not be repeated here. Suffice it to
mention that the said principles apply equally in the case of
a constitutional provision like Article 16(4) which expressly
places the particular fact (inadequate representation)
within the subjective judgment of the State/executive."
There is no bar to provide reservation to Other Backward Class
even as per above observation. It is permissible subject to data.
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Quantitative limit 50%
"810. While 50% shall be the rule, it is necessary not
to put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the
people. It might happen that in far flung and remote areas
the population inhabiting those areas might, on account of
their being out of the mainstream of national life and in
view of conditions peculiar to and characteristically to
them, need to be treated in a different way, some relaxation
in this strict rule may become imperative. In doing so,
extreme caution is to be exercised and a special case made
out."
"860(4).
The reservations contemplated in clause (4) of
Article 16 should not exceed 50%. While 50% shall be the
rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of
this country and the people. It might happen that in far-
flung and remote areas the population inhabiting those
areas might, on account of their being out of the
mainstream of national life and in view of the conditions
peculiar to and characteristic of them need to be treated in
a different way, some relaxation in this strict rule may
become imperative. In doing so, extreme caution is to be
exercised and a special case made out.
For applying this rule, the reservations should not
exceed 50% of the appointments in a grade, cadre or
service in any given year. Reservation can be made in a
service or category only when the State is satisfied that
representation of backward class of citizens therein is not
adequate."
(emphasis added)
103 In K. Krishna Murthy (Supra), the Supreme Court while
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dealing with the aspect of excess reservation, observed in the
following words:-
"66 Admittedly, reservations in excess of 50% do
exist in some exceptional cases, when it comes to the
domain of political representation. For instance, the
Legislative Assemblies of the States of Arunachal Pradesh,
Nagaland, Meghalaya, Mizoram and Sikkim have
reservations that are far in excess of the 50% limit.
However, such a position is the outcome of exceptional
considerations in relation to these areas. Similarly, vertical
reservations in excess of 50% are permissible in the
composition of local self-government institutions located in
the Fifth Schedule Areas.
67 In the recent decision reported as Union of
India v. Rakesh Kumar this Court has explained why it may
be necessary to provide reservations in favour of the
Scheduled Tribes that exceed 50% of the seats in
panchayats located in the Scheduled Areas. However, such
exceptional considerations cannot be invoked when we are
examining the quantum of reservations in favour of
backward classes for the purpose of local bodies located in
general areas. In such circumstances, the vertical
reservations in favour of SCs/STs/OBCs cannot exceed the
upper limit of 50% when taken together. It is obvious that
in order to adhere to this upper ceiling, some of the States
may have to modify their legislations so as to reduce the
quantum of the existing quotas in favour of OBCs."
(emphasis added)
The Backward Class Commission was established on 29.01.1953
(Kelkar Commission). The caste-wise population was reported in
1961. The Mandal Commission has also dealt with it further. The
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1931 Census is the base factor for determining the population for
reservation including of other classes, but is not final as updated the
natural growth or estimation as available utilised to determine the
reservation policy from time to time.
104 In Union of India Vs. Rakesh Kumar (Supra), in paragraph
No.43, it is further observed that:-
"43 For the sake of argument, even if an analogy between
Article 243-D and Article 16(4) was viable, a close reading
of Indra Sawhney decision will reveal that even though an
upper limit of 50% was prescribed for reservations in
public employment, the said decision did recognise the need
for exceptional treatment in some circumstances."
(emphasis added)
105 The Apex Court in S.V. Joshi (Supra), has recorded that the
"State Government" shall be at liberty to make reservations in terms of
the law laid down by this Court in Indra Sawhney's case (supra). The
reservation upto 50% is inclusive of SC/ST and other backward
classes.
106 The Apex Court in State of Kerala supra a It is stated that
Article 16(4) needs to be read as a part and parcel of Article 16(1)(2).
This is also keeping in mind the doctrine of equality of opportunity to
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all the citizens and not only to some and inequality to others. The
State power to make a relaxation regarding the age in case of
backward classes of citizens is also reiterated. It is also clarified by
giving illustration that any reservation, exceeding 50% required to
consider from the point of view of the State depending upon the large
number of backward classes of citizens and therefore, in order to give
them proper representation, percentage of reservation beyond
permissible limits, may not be stated to be bad in law. It is made clear
that the dominant object of this provision is to take steps to make
inadequate representation, adequate.
107 In Akhil Bharatiya Soshit Karmachari Sangh (Railway)
(Supra), the Apex Court observed that:-
"335. The claims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments
to services and posts in connection with the affairs of the
Union or of a State."
108 In Suraj Bhan Meena (Supra), while dealing with the
concepts of "Catch-up" rule and "consequential seniority" and and
after considering the decision in M.Nagaraj (Supra), it is observed
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that:-
"65. In effect, what has been decided in M. Nagaraj case
is part recognition of the views expressed in Virpal Singh
Chauhan case, but at the same time upholding the validity of
the Seventy-seventh, Eighty-first, Eighty-second and Eighty-fifth
Amendments on the ground that the concepts of "catch-up" rule
and "consequential seniority" are judicially evolved concepts and
could not be elevated to the status of a constitutional principle
so as to place them beyond the amending power of Parliament.
Accordingly, while upholding the validity of the said
amendments, the Constitution Bench added that, in any event,
the requirement of Articles 16(4-A) and 16(4-B) would have to
be maintained and that in order to provide for reservation, if at
all, the tests indicated in Articles 16(4-A) and 16(4-B) would
have to be satisfied, which could only be achieved after an
inquiry as to identity .
109 The strong reliance was placed upon the U.P. Power
Corporation Limited (supra), by the learned counsel against the
Reservation Act. It was a case based upon the facts and the then law
under challenge. The Supreme Court Judgment in Suraj Bhan, M.
Nagaraj and others has been duly noted. This covers and includes the
point of ceiling limit of 50%. This also should be based upon the
identity and measure quantifiable data. This Judgment has also
recognized, depends upon the numerous factors and the compelling
reservation claims, to be achieved by the State. In Suraj Bhan
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(Supra) case, the State had not undertaken any exercise. It is
reiterated that, the State is required to take steps as directed in M.
Nagaraj (Supra), before providing for reservation for promotion with
consequential seniority.
"Proper Representation" as contemplated under Article 16(1)(4) for
Other Backward class permissible :
110 The term "proper representation" as contemplated under
these Articles need to be read in the context of the State Government
enabling power to provide reservation to the backward class/group.
Having once noted and found, based upon the data, that particular
group and/or class is backward and/or socially backward and are not
duly represented as not belonging to Scheduled Caste/Scheduled
Tribe class/group though they are equally situated, the State is
empowered to extent and/or grant and/or provide such reservation
permitting their representation in the State Government service
and/or to grant equal benefits concession to such other
community/class. The importance of granting such representation
and reservation with intent to uplift the people belonging to
disadvantageous group or class and all related provisions are in the
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Constitution since its inception and prior to the same. The Parliament,
considering the requirement, from time to time, has been extending
and/or granting the span as noted under Article 325 of the
Constitution. The said protection/reservation has been continuing for
any one of the purposes, then the State is also under obligation to
read and refer and consider the same till the situation is restricted by
appropriate constitutional provisions. The representation and/or
reservation conceptually means and includes the extended benefits to
similarly situated backward class/group once data is collected and
sufficient to act accordingly. The Court needs to consider the object
and the purpose of the reservation policy. In Ram Kumar Gijroya v.
Delhi Subordinate Services Selection Board and anr.24, the Supreme
Court held that the object of providing reservation to the STs/STs and
educationally and socially backward classes of the society is to remove
inequality in public employment, as candidates belonging to these
categories are unable to compete with the candidates belonging to the
general category as a result of facing centuries of oppression and
deprivation of opportunity.
24 (2016) 4 SCC 754
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Judicial Review of the Listing & the quantum of "Quantifiable &
Qualitative Data of specific Class/Group".
111 It is impossible for the Court to "list or de-list and/or
specify backward class/community/group caste" even for the purpose
of Article 16(4) for State or Region, or otherwise. It is the specified
work of an expert body/commission or authority of the Central and/or
the respective States, specifically for want of designed "straight jacket
formula" for the same, except the court decisions. Such
Authorities/experts need to follow the Constitutional provisions and
the guidelines, issues, through the law and the Judgments announced,
from time to time, to achieve the constitutional aims and objects. We
have noted that the practice and procedure and the mechanism and
the source so adopted by the Authorities/Commission are fair,
adequate, by applying its mind, the data/information for identifying
and deciding the backward class/group. There is no contra material
placed on record. We have noted that no case is made out to interfere
with the decision/opinion/action taken of the State in this regard.
The State and the Authorities have applied it's mind to the
material/data/information, submitted by the expert body personnel,
through the Commission, Reports with recommendations. They have
been acting fairly within the frame of law, and listed the
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"caste"/"group"/'classes", including OBC, in the respective Scheduled
Lists for the constitutional benefits/concession. There is no challenge
to the criterion so fixed and acted upon by the State/Authority to
collect and gather information, since so many years. There is no
averment/submission that the benefits were wrongly or illegally given
to the concerned caste/groups. There is no such counter challenge
even by other such groups/caste. There is no perversity, illegality or
malafide of any kind and even allegation of non-application of mind
and breach of any constitutional provisions. The whole challenge is
unsustainable. The State's Reservation Act/Circulars are valid and
well within the frame work of law and the record.
The Court cannot direct or restrict the collection of upgrowing data.
112 It is correct that the Census of 1961 was restricted for SC
and ST only. There is nothing on record to point out any fixed
procedure or mode of identification of backward classes to determine
the population based representation and/or reservation or fixed
percentage. There is no declared guidelines or formulae issued, how
to identify and/or collect the data and to give representation to such
class and/or group and/or fix the percentage for reservation. The
process of collecting material/data is on, based upon the Supreme
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Court judgments . Definitely, those data and/or information are of 50
years old, but it has dealt with and is a quantifiable data about the
reservation in Government service of various backward communities.
This is in addition to the fact that the State has also separate
backward class cell, which has data for deciding the issue of adequacy
of representation of backward classes. Those material and
information were also part of the record, and read and referred by the
respective Committees. The chart is placed on record as ordered by
the Court, through the separate four volumes, in High Court also, with
clear submission that except Volume I, all other data reports,
comparative chart in respect of OBC and VJNT classes were part of
record of the MAT. The backlog can also be of open category and it
cannot be only of backward class candidates. The constitutional rights
of others are also required to be protected.
The excess 2% (above 50%) reservation for recruitment stage is
permissible if the data is available
113 The excess of 2%, at the stage of appointment/post and/or
initial recruitment permissible, if the quantifiable data is available
with the State.OBC covers SBC. The State's power is based upon the
irrefutable data to justify the reservation upto 52%. The reservation
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beyond 50%, if any, as noted, even from the Supreme Court
Judgments so cited is not totally prohibited. Additional 2%, even if
any, in the present case and in view of Reservation Act and the
circulars, the scope is very limited, as it is data based decision.
114 The learned Tribunal without referring to same reasons,
accepted the case of original petitioners though admittedly the
Circular of promotion of 2004 in question had provided reservation
only 33 per cent and certainly not exceeded 50% as contended. The
learned Tribunal has wrongly accepted the case that allowing
reservation and carry over a promotional process for classes other
than S.C. & S.T. is in direct contravention of provisions of Article 16(4-
A) and 16(4-B). It is wrongly accepted that it permits
disproportionate carry over and re-fixing of quota without any basis-
no such factual based case is made out. These affidavits and data
having placed on record to show the recommendations made by the
respective Commissions and the Committee and the various position
of backlog and details which provide information and material for the
State to extend reservation to these category or the groups/classes
including O.B.C., V.G./N.T.
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115 The recommendations of these Committees/Reports
including Kaka Kalekar Commission of the year 1955, B.D.Deshmukh
Report (1961) have recommended sub-classification of Backward
Classes into S.C. & S.T., V.G., N.T. and O.B.C. The learned Tribunal
erred by holding that these reports of Committees, before 1978,
before Mandal Commission Report, and therefore, are not relevant.
The learned Tribunal is wrong in holding against the State
by observing that "the State Government has not been able to
convince the Central Government to include D.T., N.T. and O.B.C. in
Maharashtra in the Schedule of S.Cs. and S.Ts". The Tribunal's
approach was wrong. There was no question of specific inclusion of
these castes in the Scheduled List of SC/ST. The point is that they are
equal in "backwardness" and their "adequate representation" is
required in the State. The State enactments and earlier Circulars support
their decisions. The issue is about treating all equals equally . The Tribunal,
in this background wrongly held that Section 5(I) of the Reservation Act
violates Article 16(4-A) for reservation in promotion, at all stages of
promotion. This is also in the background on admitted position on
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record that the State has exercised its power to provide reservation for
O.B.C. as defined in the Reservation Act . Section 5(2) empowers the
State to do so. The Constitutional validity of any Act or provision
cannot be decided on presumption and assumption. The
Circular/Resolution Clause 3A provides for reservation in promotion
for backward classes other than S.C. and S.T. and so also reservation
for members in VJ(A), NT and SBC .It is well within the law and the
record.
No data of effecting efficiency in administration
117 Prior to the insertion of Clause (4A) to Article 16, i.e. prior
to the constitution (Seventy Seventh Amendment) Act, 1995 w.e.f.
June 17 1995, as per Indra Sawhney (supra), the reservation of
appointment of posts under Article 16(4) was confined to initial
appointments only. It is observed that such reservation cannot be
provided further in the matter of promotion and/or further
promotion. This was also on the foundation, that the reservation in
promotion "might impair efficiency". In M. Nagaraj (supra), the
constitutional validity of amended clauses (4A) and (4B)
have been upheld. It has been declared that the State has to
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identify and collect quantifiable data showing backwardness of the
particular class and group and inadequacy of representation of that
class/group in public employment. It is further declare that this is
also by keeping in mind the maintenance of efficiency in
administration. This is again a subject to dealing with the facts and
circumstances of the case in question. The constitutional provisions
and these judgments itself empower and recognize the enabling power
of the State Government to take effective steps to collect data,
information after identifying the backwardness of the class with a
view to provide them proper representation.
118 The Supreme Court in M. Nagaraj (supra), has even
otherwise, never directed to initiate and/or mandate that all the
pending matters, reservation policy based upon the existing data be
rechecked, re-opened and re-identified and declared first bad in law
and then framed the fresh reservation policy, by creating blankness
and commotion in the society. Timely action is required but after
giving reasonable time to all the concerned based upon contemporary
data/material . The recent judgements support the same. Apex Court in
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Ashok Kumar Gupta and Anr. vs. State of U.P. and Ors 25 has reinforced
the concept of administrative efficiency in this background.
The State's bonafide action
119 This is also in the background that the basic reservation
policy is in existence in the State since 1901. The State had been
acted accordingly, in view of the various earlier judgments, initially in
view of General Manager, Southern Railway Vs. Rangachari Gurbux
Das .
The subsequent reservation was restricted to 50% in Indra
Sawhney (supra), until as recorded, the reservation in promotion was
not accepted. However, by the subsequent constitutional amendment,
such reservation in promotion, in fact, has been accepted and
maintained in M. Nagaraj (supra), except on a condition as recorded
above. Therefore, the important requirements, which the Court need
to see are; (a) Whether there is a material in support of the backward
classes of population? (b) and/or adequate representation in various
posts? (c) Whether such reservation had affected adversely to the
administrative efficiency? We have noted that all these elements are
in favour of the State and the Reservation Act/Circular.
25 (1997) 5 SCC 201
26AIR 1962 SC 36
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120 The State, cannot be stated to have no data whatsoever to
grant such reservation, as already granted and implemented since
long. The reservation in promotion was provided in the year 1974,
though upto Class-I level - had been intended to be implemented by
the Reservation Act. Under Section 5, the reservation extended to all
the employees at all the stage of promotions also. Section 4 of the
Reservation Act, itself further added that the percentage of reservation
should be on the basis of latest Census record of population. The State
has established the Backward Class Commission for the same. The
State had relied upon various reports, commissions and their
recommendations, as recorded above: Thade Committee Report of
1961; B.D. Deshmukh Committee Report 1964; Edate Committee
Report 1988; the State Backward Class Commission Report; Census
Report and SBC Files. We have already dealt with same in earlier
paragraphs. These reports are relevant for all concerned, unless
specifically challenged.
A preliminary objecti on by the State
121 The learned Members of the MAT have decided the issues
in pursuance to the remand order/order passed by the High Court, as
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recorded in earlier backgrounds, history/notes. The facts need to be
tested after considering the provisions of the Administrative Tribunals
Act, and specifically Section 15. Initially, there were objections
raised before the High Court, that the related issues were required to
be adjudicated by the MAT, being the Court of first instance. but by
keeping the objection open.
122 The submission, therefore, by the learned Senior Counsel
appearing for the State is that the MAT has exceeded its jurisdiction in
deciding the constitutional virus of the Reservation Act.
123 It is submitted by the other side that there is no bar and/or
any Section of provisions pointed out, which debar and/or prohibit
and/or restrict the MAT in dealing with virus and/or validity of any
Act and/or related circulars. Therefore, "the doctrine of appropriate
and reprobate" is cited, in view of the conduct of the State and R.L.
Gosin Vs. Yashpal Dhir , and Rajasthan State Industrial Development
and Investment Corporation and Anr. Vs. Diamond and Gem
Development Corporation Ltd. & Anr. .
27AIR 1993 SC 352
28AIR 2013 SC 1241
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124 So far as the jurisdiction and power of the MAT, the
. Sampathkumar Vs. Union of India
Supreme Court in S.P has
elaborated that the Tribunal is the substitute of the High Court and is
entitled to exercise the power thereof, (para 31, 19, 93 and 99). In
J.B. Chopra Vs. Union of India ,
the Apex Court clarified that the MAT,
being a substitute of High Court, has power and authority to
adjudicate upon all the disputes relating to the service matters,
including the power to deal with questions, pursuance to the
constitutional validity or otherwise of such laws which violates Articles
14 and 16 of the Constitution.
125 However, the Tribunal need to act within the scope and
jurisdiction as provided under the tribunal Act. There are Writ
Petitions whereby, the constitutional validity of the Reservation Act
itself are challenged directly in the High Court by other similarly
affected persons. Those will be heard separately.
The Power a nd Jurisdiction of the tribunal-- MAT
29AIR 1987 SC 386
301987 SC 357
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126 The Supreme Court in L. Chandra Kumar vs. Union of
India31 has specifically dealt with the power and jurisdiction of MAT.
In paragraph 91, the Supreme Court has emphasized that the power
of judicial review is with High Court under Articles 226 and 227
where vires of the legislation is questioned. It is observed that the
Tribunal should restrict themselves to deal with the matters where
constitutional issues are raised. This is no way to read and mean that
in service matters, the MAT cannot deal with Articles 14, 15 and 16 of
the Constitution. What is contemplated is, therefore, the power of
Tribunal to decide and adjudicate the issue on merits. In the present
case, merely because the High Court has directed the matters to the
Tribunal that itself ought not to have the reason for the Tribunal to
decide the constitutional validity of the Reservation Act, based upon
no pleading and/or material with regard to the merits of the
promotional issues. The Tribunal ought to have acted upon as the
Court of first instance in respect of the areas of the law for which they
have been constituted, to decide the merits of the service matter
based on facts if any, keeping in mind Article 14 to 16.
31 AIR 1997 SC 1125
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Locus standi of the contesting Respondents
127 The issue of locus-standee of the original complainant, in
view of above background, even if raised, but having ordered by the
Division Bench after transferring the group of Writ Petitions , and as
both the parties have participated before the MAT, and as the validity
of the Reservation Act itself has been declared ultra virus, we are
inclined to deal with the matters on validity of The Reservation act, as
the confusion and non- plus situation has been created in all state
reservation issues .This required to be adjudicated and decided at the
earliest. Therefore heard finally these restricted matters .
128 The Apex Court in State of Maharashtra Vs. Jalgaon
Municipal Council & Anr. rejected the case and submission that the
citizen and/or voter has no locus standee to challenge the
constitutional virus of the Act or the ordinance. In S.P. Gupta Vs
President of India & Ors. , and ,
Dr. D.C. Wadhwa Vs. State of Bihar
Chairman Railway Board Vs. Chandrima Das and Mohd. Aslam Vs.
32 AIR 2003 SC 1659
33 AIR 1982 SC 149
34 AIR 1987 SC 579
35 (2002) 2 SCC 465
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Union of India . These judgments need no further discussion, as we
have proceeded to decide the issues so decided by the Tribunal
Judgement/order.
The tribunal jurisdiction to declare Reservation Act ultra vires
129 The learned Members of the MAT have cautiously
proceeded with the matter while dealing with the validity of the
provisions in view of the submissions so raised and made by the
parties, including noting the basic principle of presumption in favour
of the constitutionality of such statute and noting that the forum has
to proceed within the limitation of judicial review while examining the
virus of the statute.
130 It is settled that the presumption is always in favour of
validity of enactment brought by the legislatures. The scope of
Judicial Review against the presumption is very limited. In view of
power and scope of Article 226 of the Constitution of India and its
principle to interfere, is also restricted and limited. The scope and
power of MAT of "judicial review" to interfere with validly enacted
36 (2003) 4 SCC 1
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the Reservation Act, and circular, is further limited and restricted,
than High Court. The Judgment and order passed by the MAT is
always subject to the writ jurisdiction of the High Court. The purpose
and object of the Tribunal in the Central, and the State service
matters, is limited. The MAT may pass order and/or deal with the
subject, which falls within the purview of the State Tribunal. Most of
the service matters are on facts and respective service conditions and
rules made therein. The jurisdiction of MAT therefore, required to be
within the ambit of facts and respective service conditions, rules and
regulations or circulars or its interpretation.
131 The prayers and reliefs were contested by the respective
Departments. The MAT, being a first instance court, that itself mean
and/or empower firstly to look the basic principles of law of pleading
and law of burden of proof, specifically in view of settled position of
law in favour of validity to any enactment. The scope of MAT to go
into the factual details and data in question in case the disputed facts
are involved is limited. Any enactment always has the foundation of
prior and pre-collected information/data/material by the State
agencies, before the cabinet, and before the legislation.
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The Impugned Judgment of MAT
132 The learned Tribunal Members have, on the Transfer
Applications Nos. 1 and 2 of 2004 (Writ Petition No.8452 of 2002 and
Writ Petition No.470 of 2005) without dealing with the facts and the
merits of the respective applications/writ petitions, dealt with the
Reservation Act and the promotion Circular. No pleadings, affidavits
and facts have been specifically dealt with to hold the foundation on
merit to decide the validity. The learned Members have also, though
noted the issue of incomplete and inadequate pleadings, proceeded to
decide the vires and the validity of the Reservation Act merely because
the original applicants/petitioners are State Servants. The learned
Members have proceeded on the foundation that an adverse inference
should be drawn if important documents were withhold. The learned
Members thereby accepted the case of original petitioners/applicants
that inadequate pleading or averments should not be the reason to
dismiss the challenges so raised about the validity of the Reservation
Act. This is on the unsupportive foundation that even if the burden of
proof did lie on the original Petitioner, but as the State had withhold
the important documents, the adverse inference should be drawn.
(Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413)
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The Tribunal, therefore, ultimately proceeded wrongly by observing
that it is for the State to produce material to support their claim,
though quantifiable data is available with them to support the same,
that the various backward classes are not adequately represented in
the Government service. This is in the background of no specific order
to produce any particular data or material. The requisite
data/material in fact were part of the record as noted earlier.
Furthermore, there was no specific sustainable
challenge raised for want of specific pleading with regard to the vires
of the Reservation Act at the stage of recruitment on the aspect of
reservations of posts for all the specified categories up to 50%. We
have noted that a challenge is raised also about reservation beyond
50% - excess 2% in the present case.
Abrupt discontinuation of Earlier Circular's and existing reser vation
policy incorporated in the Reservation Act and the Circulars.
134 By Maharashtra Government Resolution dated 9 April
1965, a provision was made for reservation in Government Service for
members of backward classes SC-including converted to Buddhism,
ST-living out side the specified area, De-notified Tribes and Nomadic
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Tribes and other backward communities. In modifying the existing
reservation, percentage was fixed for SC 13%, ST 7% DTNT 4%, and
other backward communities 10%= Total 34%. These Government
circulars applicable through out the State to the Department and
accordingly all requisite benefits have been provided to them. The
directions were issued to comply with the same also.
135 Government Resolution of 23 May 1974, even the stage of
promotion was considered. Noting 50% limitation, for SC 13%, ST
7% and De notified Tribes 4%, total 24% was fixed for reservation of
these classes, at the stage of promotion. That was on the basis of
seniority, subject to fitness and increase to all classes,- Class-I, Class-
III and Class-IV posts/ grade in service. The model roster was
accordingly prepared and the concerned department and parties have
acted upon the same.
136 As per the State, the reservation policy has been extended
to the local bodies in the year 1995 and 1996 . The same has been
implemented without specific challenge by such organizations with
regard to the reservation to SC/ST and OBC. In totality, we have also
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noted that the Reservation Act has not made any new changes and/or
brought any new provisions for the first time, based upon the data
and the material so placed on record and the then existing reservation
policy through the circulars so recorded above, brought into force the
Reservation Act 2001 w.e.f. 2004. There is no material placed on
record to show that such circulars have been declared bad and/or
illegal for want of quantifiable data. The State in its wisdom and in
view of enabling power, decides to extent the same benefits to such
class/group through these Statues. This is in addition to the earlier
state data.
Nagraj's Principle discussed by the Tribunal
137 The learned Tribunal members, though recorded and
noted the synopsis of reports of various Committees so recorded above
and its recommendations as reproduced in paragraph 27 and so also
note on behalf of State, providing information about various reports
with page numbers, yet by sitting as Appellate Court and/or Forum,
have expressed their opinion contrary to and/or against the opinion
and the reasoned decision given by the State and it's expert bodies.
The Apex Court in Indira Swahney in paragraph 842 itself recorded
and restricted the scope of Court's scrutiny in such matters. This is
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not the case of no material whatsoever on the contrary as per the
Constitutional requirement. The State being empowered to take care
of the problems and difficulties of respective communities, tribes and
groups. It is under obligation to provide them representation in
service and/or adequate representation in service, if case is made out.
What should be the level and degree of sufficiency and/or adequacy
and as there is no strict jacket formula for assessing and for arriving
at a conclusion to fix and grant reservation at recruitment and/or at
promotion stage, therefore, it is in State's domain. The findings and
the submissions that no attempt was made by the State to conduct and
exercise as done in State of Bihar in August 2012, is wrong and
should not have been the basis in the facts of the case.
The State under continuous obligation to collect data for modification
of Reservation Policy.
138 This, nowhere led to mean that the State is restricted
and/or prohibited from continuing to collect timely data for timely
correction and/or amendments to the reservation policy, as per the
requirement of the society in the State. This may include addition
and/or lowering of percentage and/or category at appropriate stage
but in accordance with law. Mere allegation that the reservation has
dgm 157 wp-2797-15 judgment-25-7-16.sxw
adversely impacted on over all administrative efficiency is not
sufficient. There ought to have on record the material to justify the
same. The burden cannot be put upon the State to prove negative.
139 This also means, all these clauses independently or
otherwise are required to be read and referred while dealing with the
subjects of providing reservation even in promotion to SC/ST and
other backward classes, but subject to the other constitutional
provisions, including Articles 14, 15, 16 and 335. The State
Government and/or appropriate Government is also required to
restrict the duration, based upon the facts situation in so far as the
ceiling limit on to carry over all the unfilled vacancies. This also
means that there is no bar and/or restriction or any restriction is
imposed upon the State and/or appropriate Government to enact the
law providing for reservation for all. The 50% ceiling itself means
and it covers not only SC and ST class and/or group but other
backward class also as constitutionally fixed and as recognized and
have been in existence since inception. This constitutional
percentages covering all class and protection so granted in the year
1931, 1961, 1965, 1971 etc. have been followed by the most of the
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States. The decision therefore, so taken by the State, initially through
the circulars and subsequently through the Reservation Act in the
matter of employment, was well within the frame work of law and the
record.
The state Promotion policy as per the law and service rules only.
140 If the contesting Respondents or any employee not eligible
for promotion unless promotions are actually given effect to and/or
there is no actual threat of any kind in any particular cadre or
department, there is no question to decide the case on merits. The
promotion, on merit, will be tested based upon the factual data and
the relevant principles of law. The promotion policy is also subject to
change. The promotion policy is also not a matter of judicial review
as it is the prerogative of Executive including fixation of quota and
ratio. However, it is required to be within the frame work of law and
the record so declared. [Rohtas Bhankhar v. Union of India(supra) ].
141 Promotion is a part of recruitment if service rules provide
but subject to eligibility criteria; seniority cum merit or vise versa,
ACR and other conditions. It is stated to be a mechanism of further
appointment to the higher grade or category of post. The promotion
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is not a right, but it's entitlement if otherwise fit within the
promotion policy. The State is empowered to provide for promotions
but subject to criterion and need or it may not provide promotion.
The Court cannot direct the State/Authority to provide for promotion,
if there are no such rules. The various restrictions, eligibility criteria
are normally fixed by the State at the time of recruitment itself. The
employees are aware of such policy of promotion at the time of
"appointment" to the "post" itself. The recruitment once made on
reserved category basis, at entry level that itself may not improve their
overall development even for promotion. Every employee needs to
work hard and to get promotion as per the conditions, apart from
regular CR/ACR (Confidential Record/Annual Confidential Record).
The law of appointment/promotion is settled, so also the doctrine of
"creamy layer" even at the stage of promotion. [ In Ashok Kumar
Gupta v. State of U. P., (1997) 5 SCC 201 "efficiency of administration"
is also reinforced. ] Ajit Singh v. State of Punjab (1997) 7 SCC 209 -
"Roster point" is also a point for discussion in such circumstances.
The State, therefore, is entitled to make promotion rules or modify the
promotion rules, for any of the category or the group. The
appointment at initial stage on reservation itself may not make them
dgm 160 wp-2797-15 judgment-25-7-16.sxw
equal with general category. The selection rules or eligibility criteria,
even for promotions are made by the State. The new generation,
disadvantage class, even if belongs to reserved category, having
exposed to new technology, in school, college or higher education,
themselves surprise the State or the employer by their performances,
even in public employment, because of their merits. The State,
therefore, definitely need to change it 's approach and so also to such
reservation policy. The social, economic, education improvement
itself, in a given case, entitled them to participate, at all level, with
the general category. The aspects of "creamy layer", improved
economic condition and education condition, itself grant and/or filter
their entitlement in future promotion even for other backward
class/category. The political dynamic spectrum itself cannot be the
reason to give guidelines or to do list even by the Court. Let
respective wings act within their declared sphere. The disadvantaged
person/class cannot be treated as general category merely because
they are appointed to the post because ofthe concession given at the
time of recruitment itself. For further promotion or up-gradation,
subject to filtration, the State is empowered to provide reservation
policy if facts and circumstances permits.
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142 The Tribunal's one member has not decided issue raised in
para 19(ii)(b) about the definition of "Public Service and Posts" and
"establishment". The Court will consider the same in appropriate
case. We have to deal with the "Public Employment" and not the
"Private Employment". Even otherwise, it is the State, in view of the
constitutional provisions, to decide and/or extend the reservation
policy within framework of law . Therefore, if there is specific
challenge the Court would decide the same The issue raised in para
19(ii)(c) is covered in para 19(ii)(a) so also for the above reasons.
The State has always power to extend the reservation policy if
required. The Court cannot restrict or direct the State to bring in or
out extension of reservation policy to any "State institution" or
"establishment".
The Reservation in Promotion through Circular since long
143 The whole argument as recorded and agitated even before
the MAT and/or otherwise by the Respondents was on the State's
power of providing even 33% reservation in promotion. There was no
serious dispute in the matter of basic recruitment which can be seen
from the issues so raised by the Tribunal. There was no specific
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challenge or issue raised about and on recruitment process. The
challenge and the percentage so prescribed, based upon the circulars
since long which has remained intact till this date and now converted
into the Reservation Act.
The Statute need not be declared ultra-vires for the Academic
purposes.
144 On going through even the affidavits, including Para 26 to
41 and the counter-affidavit filed by the parties, read with the
documents, charts, statements and the various reports, so recorded
above, and as those are sufficient to consider the case of the State
about the existence of data, vacancy and the representation
requirement for the particular community. This is also in view of the
fact that there is no specific contra material, except simple denial. We
have noted, apart from the backlog and the vacancies and the
requirement for providing the promotions to all the categories, further
material for the years 2004 to 2011 are updated upto 31 March 2013,
are also placed on record through the exhibits and charts. It is
necessary to know that the reservation in promotion are made subject
to various orders passed by the Supreme Court and the High Courts. .
No actual affected list and/or special seniority list and/or action are
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placed on record by the contesting party. The Constitutional validity,
therefore, in our view, ought not to have been decided only for the
academic purposes.
i) Naresh Shridhar Mirajkar & Ors. Vs. State of Maharashtra &
Ors.37 (Para 16).
ii) State of Karnataka Vs. Registrar General, High Court of
Karnataka38
iii) The State of Bihar Vs. Rai Bahadur Hurdut Roy Moti Lall Jute
Mills & Anr.39
Furthermore, the promotion rules itself required to complete many
steps and stages, including availability of vacancies/posts before
implementing the reservation in promotion. The promotion circular
itself provides only fluctuating reservation. Even otherwise, such
reservation policy is also subject to change and/or modification from
time to time. Cadre-wise and/or class-wise and/or sub-distribution,
even if any, of vacancies/posts would be decided on factual basis and
as and when the particular department crosses the limitation of all
kinds.
37AIR 1967 SC 1
38(2000) 7 SCC 333
39AIR 1960 SC 378
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145 There is no issue that the reservation in promotion is
second stage/concession to the person/caste or community who have
been provided concession and/or benefits at the time of
recruitment/appointment to the posts. In the present case, Act
provides 52% reservation, for the basic entry points are concerned,
favoring all the categories subject to the set percentage. The
promotional circular grants the similar benefit only to certain
categories up to 33%. Therefore, apparently in promotion, there is no
case of doctrine of Reservation beyond 50%. The tribunal, therefore,
ought not to have intermixed the same reasons of quantifiable data
and/or material as there is no specific pleading or contra material
before declaring the Reservation Act and the circular bad in law. The
excess promotion and/or no case of benefits to be given to the
concerned caste or community in promotion, for want of quantifiable
data, required to be considered only if actual and factual data and or
material are placed on record. The concerned Tribunal/Authority
would consider the same by assessing the merits if case is made out.
This is in the background that there is no bar and/or any prohibition
and on the contrary, the Supreme Court Judgments , itself provide and
permit the State to extend benefit to ST and SC, even in promotion
dgm 165 wp-2797-15 judgment-25-7-16.sxw
subject to the data, which in the present case, is available. So far as
other communities are concerned, the same doctrine/principles are
applicable, if they are equally situated and/or placed in their
backwardness and for providing reservation based upon the material
and the representation so made, including the grant of similar benefit,
even for the promotion. The actual uncertainty and/or
complications, if any, including excess of reservation and/or
representation, would be considered at the relevant stage in
appropriate fact based case.
"Catch UP Rules" vis-a-vis "interse seniority" & "Roster Point"
146 The concept of "catch up rule" is well recognised while
dealing with the reservation in promotion. The Supreme Court, in
many judgments, has elaborated the principle referring to Article
16(4-A) read with 335 of the Constitution. "Catch Up Rule vis-a-vis
Interse seniority"; "inadequacy of representation of ST and SC";
"consequential seniority"; "State's obligation to collect data"; "Roster
point" - all these principles are required to be noted by the State
and/or the Authority while considering the reservation in promotion.
[S. Panner Selvam (supra). It is always necessary for the State to keep
in mind "no reverse discrimination against the general category".
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"Creamy layer" applies to OBC & others
147 The concept of "creamy layer" has been elaborated from
the point of view of OBCs and not referring to the SC and ST
categories in Ashok Kumar Thakur v. Union of India 40 (Five Judges-
Constitution Bench). The said principle has been followed and
referred in subsequent judgments also including Rajesh Kumar
(supra). The Constitution Bench of Supreme Court in Rohtas
Bhankhar v. Union of India41 has also dealt with the aspect of "creamy
layer" along with the excessiveness of ceiling of 50% and the
extension of reservation indefinitely, thereby maintained the Supreme
Court judgement of Superintending Engineer, Public Health, U. T.
Chandigarh vs. Kuldeep Singh & ors, 1997(9) SCC 199. This decision
of Supreme Court, therefore, need to be followed by all while applying
the reservation in promotion for OBCs. That squarely is the case of
the State in the case in hand.
148 The concept of doctrine of "creamy layer" create a class
among the reserved category itself. Though belongs to reserved
category yet, if reached to level and/or fall within the ambit of
40(2008)6 SCC 1
41 (2014) 8 SCC 872
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umbrella of "creamy layer",all the future benefits are restricted. But
still their caste/class remains the same. The alike reserved category
batch or group or class or individual if are not under the umbrella of
creamy layer are entitle for "equal opportunity"" protection" even in
promotion. Time will take care if all are within the umbrella of
"creamy layer". The constitutional extension for further 10 years
reflects the whole intention of the people at large. In Democracy set
up, there should be constitutional decision on these reservation
policy first. The scope and power of judiciary are restricted. The
judicial review or decision follows later. The interpretation of law is
the judicial power and not the making of law.
MAT's finding about the Creamy Layer
149 One of the learned Tribunal, so far as the creamy layer for
promotion to the O.B.C. is concerned ,has refused to decide the issue
as it is held that the reservation for promotion in category other than
S.C. and S.T. is invalid. However the rule of Creamy Layer would not
be applicable at the time of entry and/or at the time of granting of
promotion to S.C. and S.T. The other tribunal member has dealt with
it.
dgm 168 wp-2797-15 judgment-25-7-16.sxw
150 The observations are made that the concept of Creamy
Layer should not be applied to S.C. and S.T. both for initial
appointment and for promotion in the referred Supreme Court
judgments.
151 In view of above, the one learned Tribunal has not dealt
with the aspect of applicability of Creamy Layer to the O.B.C. category.
Lastly, we came to the conclusion that a reservation in promotion for
the categories other than S.C. and S.T. is valid. The aspect of Creamy
Layer to promotion of O.B.C. does survive. However, it would be
subject to the existing law and the State Circulars.
152 It has been noted that Section 4(2)of the reservation act
itself provides that the concept of "Creamy Layer" shall be applicable
to all the categories mentioned in Section, except SC and ST. The
said concept has been elaborated in the Government Resolution and is
amended from time to time. The State Resolution, therefore, would
be applicable to all the concerned, at the respective stages.
Wrong use of the Doctrine of Severability
153 The stage of appointment/recruitment by the
State/Authority always governed by the constitutional reservation of
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particular caste and community and the percentage so fixed from time
to time. In view of constitutional provision even for promotion, so far
as Scheduled Tribes and Scheduled Castes are concerned, and in view
of Supreme Court Judgments so referred above, the State is
empowered to extend the benefit and concession. Therefore, if case
is made out with the quantifiable data, the parallel benefits to the
similarly situated person being backward and not adequately
represented, the State is empowered, in view of the enabling
constitutional provision, to widen the similar benefits at the time of
recruitment and also at the time of promotion. Aspects of Article
14,15 and 16 and other provisions need to be read together when it
comes to granting such benefits to the equally placed castes and
communities. The learned Tribunal, therefore, wrongly approached
the matters. The reservation act has foundation of earlier enactments
and the circulars. All historical facts and those necessities are
interlinked and unjust to break down. All the reservation provisions
are legitimate so also the Circulars. The severability tenet was invoke
imperfectly.
The wrong shifting of Burden
154 The law is settled so far as the constitutional validity of
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any Act/Statute are concerned. The presumption is always in favour
of constitutionality of statute. In the present case various material
have been placed on record including the existing data, which were
noted and placed even before the Cabinet and further before the State
Legislature, which ultimately had passed the Reservation Act, in the
2004 based upon 2001 census and the material so collected. The
original petitioners have not placed on record any contra material to
challenge the provisions, The Tribunal, though noted the measurable
material placed on record in support of the said action but overlooked
the same and declared the Act ultra vires, on presumption and
assumption. There are persons other than the petitioners, who would
be benefited by this Act and the policy, are not before the Court.
Though in Transfer Petition No.2the Tribunal has no jurisdiction to
deal with certain matters of such corporation and the order of transfer,
even if any, passed by the High Court, that itself is not sufficient to
accept the case that the Tribunal has jurisdiction to decide the
constitutional validity of the act which is beyond their jurisdiction in
view of specific provisions of Administrative Tribunal Act and the
Judgments of Supreme Court in relation to it. This was also by
putting whole burden upon the State, in spite of quantifiable data
dgm 171 wp-2797-15 judgment-25-7-16.sxw
placed on record.
155 This is again in the background where the State if case is
made out, is entitled to provide representation to such community in
every field including the State service. There is nothing pointed out
that once the reservation is declared to the particular community
including the percentage so fixed and prescribed, the same are not
extended and/or cannot be extended for the said community/group
for any other purposes. We have noted even from the judgements so
cited by the parties that once the reservation/representation is granted
and/or extended by the State, those are applicable to the group
and/or category for all the purposes. Such reservation based upon
Statutes/Circulars, cannot be taken away in such fashion even in
promotion matters. [ Chairman and Managing Director, Central Bank
of India and ors v. Central Bank of India SC/ST Employees Welfare
Association and ors.42, on the contrary enforceable constitutional
rights has been created by such statutes.
The Tribunal's wrong findings
156 The learned Tribunal failed to consider the Apex Court
42 (2015) 12 SCC 308
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judgment in Commissioner of Commercial Taxes, A.P. Hyderabad and
anr vs. G. Sethumadhava Rao and ors.,43 whereby Rangachari's
principles have been upheld so also Thomas (supra) and Akhil
Bharatiya Soshit Karmachari Sangh (Railway) v. Union of India and
ors. (1981) 1 SCC 246, whereby even the rule of reservation in
promotion was considered even for backward class. The learned
Tribunal also failed to consider the UP Corporation and Suraj Bhan
Meena Case (supra) wherein following M. Nagraj (supra), the
reservation based in promotion, as stated to be permissible, subject to
Nagraj's principles. Even various Committee reports with regard to
the inadequacy of representation and population percentage was not
duly considered. There was no challenge to the source of information
and the backwardness of the backward classes and even of S.B.C.
The learned Tribunal failed to note that the Supreme Court has
permitted the reservation in promotion for VJ/NT category but subject
to final decision. This is in the background also that the challenge was
restricted to reservation in promotion and not about the reservation
in direct recruitment. The other cases cited by the State were also
not discussed. The learned Tribunal was wrong in relying on the
43 (1996) 7 SCC 512
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principle of "best evidence rule" by overlooking the basic principle of
burden of proof in the matter of constitutional validity. The reliance
on the Maratha Reservation Case was wrong, being issue after the
Reservation Act and the Promotion Circular. The difference and the
different percentage of all the categories itself speaks for the State's
decision to grant reservation, based upon the data and the material
with them.
The concept "any backward class of citizens" covers and
includes the OBC/NT and those are socially and educationally
backward classes. The learned Tribunal has misread and
misinterpreted Articles 15(4), 16(4), 340 and other constitutional
provisions. The learned Tribunal, though recorded that the validity of
impugned Reservation Act in relation to SC and ST need to be upheld,
but declared the whole Reservation Act and the Circular bad in law.
The principle and protection so available to SC and ST, therefore,
required to be extended to other backward classes, and/or categories,
if they are similarly and equally situated and requisite data is
available. The Tribunal further failed to appreciate that Barium
Chemical's case (supra) required to be followed in the matter of
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subjective satisfaction of the State. The issue of deemed State is fact
based. The principles of Industrial Disputes Act ought not to have
been extended in the matter of reservation. The observation
regarding the cooperative society was also without any data and
material including the finding revolving the definition of
"establishment". There was nothing to show that the reservation in
promotion was as announced in excess of prescribed limit. The
provisions of direct recruitment and that of promotion was wrongly
interlinked and intermixed. The SBC is a part of OBC, but the
Tribunal has overlooked the same. No discussion, even made about
the purpose and object of Articles 338, 338-A and 340 of the
Constitution including Backward Class Commission's role. The
Tribunal, as noted, except declaring the Reservation Act bad in law,
not even discussed the State's action of giving promotion to the
reserved candidates pursuant to the order passed by the High Court
and the Supreme Court. The learned Tribunal, even failed to note that
the State action was based on record of 34 reports of various
Commissions ,ranging from the period 1964 to 2008. The reservation
in promotion, though upto class I, was recognised by the Full Bench of
High Court in G. R. Chavan's case 44 which was confirmed by the
44 1988 (Supp) BCR 923 (FB)
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Supreme Court in G.R. Chavan v. State of Maharashtra 45. There are
cases even after Nagraj, specifically U. P. Power Corporation and Suraj
Bhan Meena (supra), where reservation in promotion to the VJ/NT
and/or others, has been recognised. The learned Tribunal wrongly
interpreted the term "backward class of citizens" by overlooking the
Indira Sawhney's specific findings on other backward classes. [ Ram
Krishna Dalmiya v. Justice Tendolkar, AIR 1958 SC 538, M.
Rathinaswami v. State of Tamil Nadu 2009(5) SCC 628 and Heena
Kausar v. Competent Authority 2008(14) SCC 724.
Subject to the data, any such reservation i s permissible for all the
classes - No total bar.
158 In R.B. Rai Vs. State of Madhya Pradesh (Writ Petition No.
1942 of 2011) and other matters , a Division Bench Judgment of
Madhya Pradesh, at Jabalpur, for the reasons and the background,
apart from the constitutional Provisions dealt with the Rules around
the Madhya Pradesh Public Services (Promotion) Rules, 2002 based
upon the Nagaraj (supra) is distinguishable on facts itself.The
reservation act based upon update available data distinguishes the
case.
45 AIR 1999 SC 1530
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46 47
The Judgment of Sushil Kumar Singh & Ors are of no
assistance to the clamant to pursue us to differ from the view which
we have taken. Additionally, impugned resolution dated 21 August
2012, was after the Nagaraj (supra) essentials, with no extra material.
The Reservation Act and the Promotion circular in question, are based
upon the earlier statutes, circulars and historical background so
reflected and the on hand proven records, This case is totally
distinguishable on facts, as well as, on law. No such data was
available is the findings. The chronological background of State
including the earlier statute and circulars were not discussed including
the essentials of Nagaraj (supra). We have noted in the case in hand
the factual data revolving around the Nagaraj (supra) elements.
160 In Full Bench Judgment of Tripura, Agartala High Court, in
Shri Jayanta Chakraborty & Ors. Vs. The State of Tripura & Ors. (WP(c)
189 of 2011), there was no such data placed on record to justify the
reservation. Even otherwise, considering the reasons so recorded in
46(2015) 2 PLJR 844
47(2015) 3 PLJR 593
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this Judgment, Tripura Judgment based upon the facts of the Tripura
State, cannot be made applicable to the State of Maharashtra.
In Ram Singh & Ors. Vs. Union of India 48 , the claim of Jat
Community was involved, to be included in the Central Scheduled
List. The role of National Commission for Backward Classes, (NCBC)
is reiterated in Ram Singh & Ors.(supra), including its guideline,
criteria for inclusion in the list of Other Backward Class (OBC). The
challenge was to the Jat Community inclusion in the Central list of
Backward Class for various States, inspite of rejection of such claim by
the NCBC. In the Apex Court, the challenge was to the notification of
the inclusion. This was a different and distinguishable case of no
material, no data, no earlier Act/Circular but new inclusion therefore
the challenge. In case in hand, the central/ State caste list entries
were never challenged. We are concerned with the additional State
action of providing them reservation in the State employment. The
Nagaraj (supra) issue was not for discussion in this case.
162 The Apex Court in U. P. Power Corporation Ltd v. Rajesh
48(2015) 4 SCC 697
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Kumar49 referring to the earlier judgments has crystallized the points
which are further noted by the Supreme Court in other judgments. In
Rajesh Kumar, Section 3(7) of the concerned Act and the Third
Amendment to the Rules of 2007, as brought into force in 2007, were
declared invalid, ultra vires and unconstitutional for want of data.
This judgment/decision on facts, therefore, is distinguishable, but so
far as the law and the points as culled out definitely govern the field.
It binds all. The State is also bound to follow it. Therefore, in the
case in hand, there is enough data available which is appropriate as
per the requirement of the Nagraj elements, though may not be
arithmetically accurate, but enough to continue the reservation policy.
The promotion circular providing only 33% reservation itself
distinguishes the present case . The factual clear-cut grievances are
not on record.
163 In S. Panner Selvam and ors. v. State of Tamil Nadu 50, the
Apex Court has observed as under :
20 While considering the validity of Section of
Uttar Pradesh Public Services (Reservation for Scheduled
49 (2012) 7 SCC 1
50(2015) 10 SCC 292
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Castes, Scheduled Tribes and Other Backward Classes) Act,
1994, and Rule 8A of U.P. Government Servants Seniority
Rules, 1991 which provided for consequential seniority in
promotions given to SCs/STs by virtue of rule of
reservation/roster and holding that Section of the 1994 Act
and Rule 8A of 1991 Rules are ultra vires as they run
counter to the dictum in M. Nagaraj's case in Uttar Pradesh
Power Corporation Limited v. Rajesh Kumar and Ors. (2012)
7 SCC 1, in paragraph (81), this Court summarized the
principles as under:
(i) 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.
(ii) 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 harmonized because they are
restatements of the principle of equality Under Article 14.
(iii) 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.
(iv) 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.
(v) The State has to form its opinion on the quantifiable
data regarding adequacy of representation. 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. The
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said 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.
(vi) 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.
(vii) 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.
(viii) The constitutional limitation Under Article 335 is
relaxed and not obliterated. As stated above, 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.
(ix) 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 optimize these
conflicting claims can only be done by the administration in
the context of local prevailing conditions in public
employment.
(x) 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
dgm 181 wp-2797-15 judgment-25-7-16.sxw
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.
21 In the light of the above, we shall consider the
factual matrix and the rival contentions urged and the
purport of Rule 12 of Tamil Nadu Highways Engineering
Service Rules.
37 In the result, the impugned judgment is set aside and
these appeals are allowed. State Government-Respondent
Nos. 1 and 2 are directed to revise the seniority list of
Assistant Divisional Engineers applying the 'catch up rule'
within four months. Pursuant to the impugned judgment of
the Division Bench of Madras High Court, if any further
promotion had been granted to the Assistant Divisional
Engineers promoted from the rank of Junior Engineers
following rule of reservation with consequential seniority,
the same shall be reversed. Further promotion of Assistant
Divisional Engineers shall be as per the revised seniority list.
The parties shall bear their own costs.
164 The Supreme Court judgments have also recognised the
importance of reservation to Other Backward Class but subject to the
data. There is no total bar for the State to use and utilise it's enabling
power to provide Reservation to all the similarly placed class/group.
165 Most of the judgments cited by the contesting Respondents
have been taken note of in this decision. The point required to be
noted is that the conclusion and the reason so given in all Supreme
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Court judgments are based upon the peculiar factual matrix and the
service rules. It is necessary for the Court to consider the factual
matrix which in the case in hand is missing. The Apex Court in S.
Panner Selvam(supra), directed to revise the seniority list and to apply
'catch up rule'. The principles/points which are reproduced in
paragraph 20 are also reflected in Rajesh Kumar (supra).
The Tribunal has no jurisdiction to direct to frame
rule/circular to change the service condition or any policy and also
bound by law of precedent ought not to have declared the Reservation
Act/Circular, bad in law. The Judicial decision to be taken when point
for consideration on merit arises before the Tribunal in service
matters. In above cases, there was no order passed by the State
Tribunal under the Reservation Act. The Special Leave Petition
against all above recent High Court's Judgments are pending in
Supreme Court .All above reasons culminated into following sequitur.
The appointments and promotions pending the issues need protection:
167 The learned Tribunal though declared the Reservation Act
and the Circular bad in law, its operation, however, postponed for one
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year. This Court granted the stay of the judgment on 20/03/2015. It
has been continuing till this date. Pending the issues/writ petitions,
the Supreme Court and this Court have granted interim reliefs,
thereby permitted the State/Department to proceed with the
respective promotions even to the objected classes. However, those
are made subject to the final decision of these Petitions. The
appointments and promotions prior to the Tribunal's judgment and
even thereafter in view of above order passed by this Court as well as
Supreme Court have been acted upon by all concerned. As I am
upholding the Reservation Act and the Promotion Circular, the
appointments and promotions made prior to the impugned Act and in
view of interim protection, based upon the interim reliefs, need to be
regularised in accordance with law. The promotions cannot be
disturbed, it need to be protected. This is also on the foundation of
"Doctrine of Prospective Overruling" as the same is also applicable to
"service jurisprudence". [ B. A. Linga Reddy v. Karnataka State
Transport Authority, (2015) 4 SCC 514 and P. V. George v. State of
Kerala, (2007) 3 SCC 557 ].
dgm 184 wp-2797-15 judgment-25-7-16.sxw
CONCLUSIONS :
168 The learned Tribunal has exceeded its jurisdiction by
holding that no reservation in promotion can be provided to any
backward class except SC and ST. It is wrong to hold that the
reservation in DT/NT and SBC is in contravention of express
constitutional provisions. The reasoning by the learned Tribunal that
even for SC, ST, there is no quantifiable data available with the State
to indicate that they are inadequately represented in the services
reflects the non-application of mind to the law as well as the facts on
record. There is ample material on record to justify action of State.
169 The Tribunal is wrong in holding that the Reservation Act
is bad for want of quantifiable data on the backwardness and
adequacy of representation in respect of any of the backward classes.
The Tribunal erred in law in holding that the Reservation Act does not
disclose the basis on which the percentage of reservation for different
backward classes have been provided and further that the decision of
the State is arbitrary. These reasons and findings further disclose the
wrong approach of the Tribunal in view of the specific constitutional
provisions and the percentage of reservation so fixed and declared
dgm 185 wp-2797-15 judgment-25-7-16.sxw
from time to time even through the then existing Circulars and
Statutes, apart from the judgments of the Supreme Court. This is in
the background that earlier Circulars and Statues were never
challenged including the percentage so fixed and announced by the
State since many years. The Tribunal has recognised the State's
power to provide reservation in Government service, but erred in law
by holding that the law so made includes every service provided even
in the private sector and thereby violating Articles 13 and 16 of the
Constitution of India. This was again based upon the wrong reading
of the law and no data or material and/or specific challenge from such
private service provider. In this process, the learned Tribunal, wrong
in holding that the State does not have any data regarding impact of
reservation on overall administrative efficiency. The burden was
wrongly put upon the State on every points, though the data and
material have been placed on record, by misreading the provision of
Evidence Act and the law, . The learned Tribunal further overlooked
the principle of creamy layer and the specific protection so made
including the circular of the State in this regard.
170 Importantly, the Tribunal has exceeded its jurisdiction and
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erred in law, though by recording that the part of the Reservation Act
may not be bad but declared the whole Reservation Act and the
Circular ultra vires. The Tribunal, in this process and for the same
reasons, declared the promotion circular bad in law, by misreading
the same and by stating that it is beyond the provision of Article 16(4-
A). The Tribunal ought to have considered that every caste
percentage so fixed since so many years, based upon the material
available with the State. The constitutional provisions, if permit,
apart from the recruitment, reservation in promotion to SC and ST
category at least those clauses ought not to have been declared bad in
law. Similarly placed OBC category and/or other backward category
and its percentage so fixed again based upon the data and the
material ought not to have been declared bad in law for the same
reason.
171 All the persons equally situated and as permissible,
entitled the reservation in promotion also based upon the data
available. There was no reason to declare the Reservation Act and the
Circular bad in law. The excess reservation and/or percentage of
particular category out of those already declared could have been
dgm 187 wp-2797-15 judgment-25-7-16.sxw
tested on the fact based matter. The Tribunal's approach and the
reasons to decide the validity of the Reservation Act and the Circular
without contra material and data, in our view, was contrary to the
Constitutional provisions, illegal and unsustainable in law. It is
contrary to various Supreme Court Judgments so referred earlier.
172 All the elements as discussed under the respective
heading in this judgment left with no option but to maintain the
validity of the Reservation Act and Promotion Circular. All these State
actions are well within the constitutional frame work based upon the
record and law. It's foundation is based upon the unchallenged
Statutes and Circular, at this stage, cannot be disturbed, unless and
until new reservation policy is announced and implemented. There is
no total bar not to provide such reservation at initial
appointment/post or promotion stage, however, it is subject to the
riders and conditions as announced. No reservation policy in State
itself is against the Constitution and the law. The individual challenge
may be tested on facts and circumstances. But there cannot be total
ban or bar to the State to provide such reservation. The Constitution
itself empowers the State to do so on the foundation of declared law.
dgm 188 wp-2797-15 judgment-25-7-16.sxw
For one constitutional reservation policy, the political spectrum may
have different shades to follow. The importance of such facets need
to be taken care by the respective States, being the part of it's
constitutional obligations, but within the constitutional shades and
sphere.
173 The Reservation policy and related issues have been
seething since long. All the concerned need to work wholeheartedly
to settle it. The "Backwardness" and "the adequate representations"
are required to be taken into consideration first. Then comes the
actual and physical distribution of posts/seats cadre-wise or caste-
wise, or the department-wise of the concerned organisation and its
requirement, based upon the actual figures. The source of information
and/or data is not in challenge. There is even no special challenge to
the "backwardness" and "independent representation" so declared to
the categories in question. The statute need not be declared ultra virus
for the Academic purposes. In the Democratic system any reservation
policy should have an egalitarian future.
174 The Reservation Act is valid and so also the Promotion
dgm 189 wp-2797-15 judgment-25-7-16.sxw
Circular. However, it is always subject to timely revision as and when
required, based upon the quantifiable data so collected.
175 The data with the State as available is determinable,
surveyable, significant, quantitative and measurable. It is
unacceptable that it is non-quantifiable and non-contemporary. In
Indra Sawhney (supra) the issues were about reservation promotion
and not about the reservation at recruitment stage. The data so
available of population as per the reservation policy includes the
fixed percentage since so many years. No-one has challenged the said
reservation policy and/or percentage for want of data at recruitment
stage. In Nagraj (supra), the issue was of promotion in view of
Articles 16(4A) and (4B) read with other constitutional provisions. In
the present case, the reservation in promotion is only 33%. Therefore,
on such self-destructive submission also no Reservation Act to be
declared bad in law.
176 Once the various doctrines of service jurisprudence are
made applicable to the reservation in promotion for "Other Backward
Class", the equally placed person, being backward with no due
dgm 190 wp-2797-15 judgment-25-7-16.sxw
representation cannot be denied the reservation promotion in service.
Once the creamy layer principle is extended to "OBC" or such related
classes then only deserving employee will get reservation promotion
and not all, though they were initially appointed on reservation basis.
177 The reservation for ST and SC even in promotion is
permissible subject to rider of availability of "contemporary and
quantifiable data". The "contemporary and quantifiable data", in the
present case, as available, therefore, the Reservation Act and the
Promotion Circular are valid.
178 The reservation for "Other Backward Classes" in
recruitment and/or appointment stage is also permissible. There is no
specific challenge raised in this regard. The "contemporary and
quantifiable data" so placed on record are sufficient to maintain the
State action, as such promotion was with rider of "creamy layer" only
for OBC classes.
179 To grant two percent more reservation at recruitment
stage is the decision based on the "contemporary and quantifiable
dgm 191 wp-2797-15 judgment-25-7-16.sxw
data" to provide representation to the "declared backward classes"
with the rider of "creamy layer" is within the State's permissible
power. The already declared fifty percentage (50%) restriction,
unless reduced, the State has no option, but to increase such two
percent without disturbing the existing reservation percentage. In
the present case, there is no excess percentage in promotion Circular
as total percentage is thirty three percent (33%). Therefore also,
such reservation in the promotion, in the present case, is within the
legal frame work.
180 The cadre and/or department-wise promotion challenge
may be considered separately, based upon the actual facts and
information placed by the aggrieved person, because of such
reservation policy. In these cases basic facts are missing.
181 Once the reservation is provided under the
Statute/Circular, it cannot be taken away, including the reservation in
promotion. All the actions based upon the orders of the Supreme
Court & the High Court's are liable to be protected. The promotions
so made are liable to be continued.
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182 The State to act in accordance with the law to collect fresh
data and revise the state reservation policy regularly.
183 In the result, the following order :
ORDER
(1) Impugned judgment and order dated 28 November
2014 in Transfer Application Nos. 1 & 2 of 2014,
(transferred Writ Petition Nos. 8452/2004 &
470/2005 on 18 June 2013) by The Maharashtra
Administrative Tribunal (MAT) is quashed and set
aside.
(2) The Reservation Act is valid. However, subject to
timely revision.
(3) The Promotion Circulars are valid. However, subject
to timely revision.
(4) The appointments and promotions so made prior to
the Reservation Act and the Promotion Circular and
pending the Writ Petitions, based upon the interim
orders passed by the Supreme Court as well as this
Court be finalised/regularised in accordance with
law.
(5) Appellate Side Writ Petition Nos. 2797/2015,
3009/2015 and Original Side Writ Petition
No.1590/2015 are allowed accordingly.
(6) In view of above, Writ Petition No. 3287/2004 is
disposed of as the validity of the Reservation Act and
the Promotion Circulars is upheld and all so actions
dgm 193 wp-2797-15 judgment-25-7-16.sxw
arising out of it. However, the fact based challenge
to the Promotion/seniority List would be considered
along with other Corporation/Undertaking matters
independently on and updated averments, if such
fact based fresh challenge is made.
(7) In view of disposal of Writ Petitions, Civil
Application Nos. 161/2016, CAW/2301/15 and
CAW/2531/2015 in Writ Petition No.2797/2015
stand disposed accordingly.
(8) There shall be no order as to costs.
(A. A. SAYED, J.) (ANOOP V. MOHTA, J.)
Inasmuch as A. A. Sayed, J. is unable to agree with some
of the views and the findings in the aforesaid judgment, he will be
writing a separate judgment.
(A. A. SAYED, J.) (ANOOP V. MOHTA, J.)
