Madhya Pradesh High Court
Dr Avdhesh Shukla vs The State Of Madhya Pradesh on 11 February, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Writ Petition No.9085 of 2023
DR. AVDHESH SHUKLA
Vs.
THE STATE OF MADHYA PRADESH AND OTHERS
APPERANCE
Shri Harish Kumar Dixit - Senior Advocate alongwith Ms. Ritika
Choubey - Advocate for the petitioner.
Shri Vivek Khedkar - Additional Advocate General for the State.
None for respondents No.2 and 3.
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Reserved on : 30/01/2025
Delivered on : 11/2/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition, under Article 226/227 of the Constitution of
India, has been directed against Notification
No.12325/Estt./Notification/2023, dated 06.04.2023 whereby the
Respondents have notified in house vacancies to be filled up by
promotion reserving one post for candidate of Scheduled Caste. The
said Notification has been assailed on the ground that it has been issued
in the manner provided in the Madhya Pradesh Civil Services
(Promotion) Rules, 2002, which has already been held unconstitutional
by this Court in Writ Petition No.1942 of 2011 vide order dated
30.04.2016 and further, the roster has also not been applied while
notifying the vacancies.
[2] By way of present petition, the petitioner is seeking following
reliefs:
"7.1 Quashing the notification dated 06.04.2023
(annexure P-9) to the extent of reservation of one post of
Professor in Neurosurgery for ST candidate.
7.2. Directing respondent to give promotion on the
for TWO posts of Professor in Neurosurgery treating them
UNRESERVED.
7.3. To submit before this Hon'ble Court the
quantifiable data justifying the necessity of reservation on
account of inadequacy of representation specially in view
that keeping such post vacant for long for unavailable
reserved candidate will not affect the efficiency of service.
7.3. Any other relief which this Hon'ble Court finds
appropriate in the matter may also be granted with Costs."
FACTS
[3] Brief facts of the case are that the petitioner was appointed on the
post of Assistant Professor in Neurosurgery Department after due
selection in Respondent No.2 - Autonomous Institution. Thereafter, he
was designated as Associate Professor vide order dated 25.03.2021
(Annexure P-3).
[4] The State Government has formulated Madhya Pradesh
Swashasi Chikitsa Avam Dant Chikitsa Mahavidhalayin Shaikshnik
Adarsh Sewa Niyam, 2018 (for short ''Rules of 2018'') for governing
recruitment/promotion and other service conditions of the Medical
Teachers in the Autonomous Medical Colleges in the Madhya Pradesh.
[5] Rule 5 of Rules of 2018 provides for absorption on the scheduled
posts, whereas Rule 6 lays down that appointments are through Direct
Entry or promotion in accordance with Rule 7 and 8 respectively.
[6] Rule 9 of Rule of 2018 prescribes that the posts for which the
grant is being provided by the State Government, appointments on those
posts will be in accordance with the reservation as made by the Sate
Government.
[7] In Respondent No.3/Autonomous Institution, presently three
Associate Professors had been promoted/appointed. Dr. Avinash Sharma
has been appointed under UR category on 25.06.2010, Dr. Awadhesh
Shukla had been appointed under unreserved category on 12.02.2016
and Dr. Aditya Shrivastava has been appointed under unreserved
category. Similarly on the post of Assistant Professors, Dr. Anand
Sharma has been appointed under the unreserved category and Dr.
Vivek Kankane has been appointed under the unreserved category.
[8] Since inception of the Institution as Autonomous there has been
no appointments on the posts of Professors. The persons, who were
selected through Madhya Pradesh Public Service Commission in
accordance with Madhya Pradesh Chikitsa Shiksha (Gazetted) Rules
1987 and were treated as on deputation in the institution in accordance
with Rule 5 of the Rule of 2018 i.e. Dr. S.N. Iyenger and Dr. RLS
Sengar, had retired after attaining the age of superannuation.
[9] Respondent No.1 had issued a pro-rata dated 27.12.2022 for
adopting uniform recruitment process in all the Autonomous Colleges in
the State stating it to be in accordance with Rules of 2018. Respondent
No.3 had issued in-house Notification dated 31.12.2022 inviting
applications for promotion at institution level including for the post of
Professor. Simultaneously, Respondent No.3 had invited applications
from open market for direct entry appointment on several posts.
[10] Against the provisions of reservation in the said notification, the
petitioner preferred a writ petition being number as 1771 of 2023 before
this Court. On the statement of the counsel of respondent No.2 and 3,
that impugned Notification dated 31.12.2023 has been cancelled, this
Court had dismissed the said petition being infructuous with liberty to
the petitioner to challenge the same and as when occasion arises. Now,
again vide Notification dated 06.04.2023, the Respondent No.3 had
invited applications for promotion at institution level including for the
post of Professor. In the aforesaid Notification, Respondent No.3 had
notified two vacancies for the post of Professor in Neurosurgery. One of
the posts has been shown as reserved for Schedule Tribe Category,
which according to the petitioner, is contrary to law, as the Respondents
appears to have applied the reservation roster provided in the Madhya
Pradesh Public Services (Promotion) Rules, 2002 (for short ''Rules of
2002'') which itself has been declared unconstitutional by this Court;
secondly, the roster has been wrongly applied and thirdly, such
reservation is still against the constitutional scheme of reservation,
therefore, alleging the aforesaid Notification to be unconstitutional,
present petition has been filed.
[11] Reply has been filed in the matter on behalf of respondents No.2
and 3 wherein it has been stated that there is no infirmity or illegality in
the advertisement which is under challenge and the petitioner has
misstated facts before this Court, which prima facie makes the petition
untenable and therefore, is liable to be dismissed without any
indulgence.
[12] It was further stated therein that the State Government had issued
Circular dated 31.01.2022 to implement 100% reservation roster and
revise scheduled list dated 11.04.2022 have been published by the State
Government by superseding previously issued all the amendments but
time to time in which vacancy position, as per reservation roster, has
been reflected; thus, in compliance of instructions issued and on the
basis of revised schedule list dated 11.04.2022, the advertisement has
been issued which is absolutely in consonance with the guidelines;
accordingly, prima facie the petition being bereft of merits and
substance is liable to be dismissed.
[13] It was further stated therein that vide letter dated 12.04.2022
issued by the Commissioner, Medical Education whereby it was
directed that all previously issued amended schedule lists were
superseded and new schedule list dated 11.04.2022 was directed to be
implemented and followed as per the applicable roster wherein on the
basis of vacancy, advertisement has been issued; hence, there is no
infirmity in the advertisement which is under challenge herein. It was
further stated therein that these are the direct recruitment posts and can
be filled up in accordance with Rules of Madhya Pradesh Chikitsa
Shiksha (Rajpatrit) Sewa Bharti Niyam, 2023.
[14] It was further stated that in pursuance to the recruitment process,
one Dr. Avinash Sharma as Professor, Department of Neurosurgery
under unreserved category and one Dr. Arvind Gupta as Associate
Professor under unreserved category have been appointed vide order
dated 19.05.2023; thus, nothing remains to be adjudicated in the present
case and the petition is liable to be dismissed.
ARGUMENTS
[15] Learned counsel for the petitioner has vehemently argued that the
respondents have applied the reservation policy provided under the
Rules of 2002 which itself is declared unconstitutional by this Court and
because the respondents had not applied the reservation roster properly,
as per roster, the first two vacancies are to be filled with unreserved
candidates, whereas the respondents have notified this vacancy as
reserved.
[16] It was further argued that the vacancies notified by the
respondents are initial vacancies being filled up for the very first time
and Respondents have proceeded illegally in treating these vacancies as
rendered vacant for substitution and accordingly, applied the roster
wrongly.
[17] It was further argued that from the present status of the
appointment, there is no candidate of Scheduled Tribe category
available in the feeder cadre and therefore, the respondents have acted
illegally in reserving the promotional post without any analysis of
quantifiable data justifying reservation in terms of parameters of
efficiency, backwardness and inadequacy of representation in particular
class or classes of posts.
[18] It was further argued that respondents' contention that this is not
promotion but is Direct Entry post is incorrect and contrary to record, as
Rule 6(1) of Rules of 2018 provides for distinct provision for Promotion
Posts and Direct Entry Posts and as per Schedule-II two posts for
promotion and 'Zero' post for direct entry for Professor Neurosurgery
has been provided.
[19] It was further argued that impugned notification stipulates that the
posts for the professors are to be filled up by promotion and the posts
for Assistant Professors and Associate Professors are to be filled up by
direct recruitment and the said notification has been issued in
consonance with the Rules of 2018 and placing reliance on the Rules of
2023 which are not applicable to the Autonomous institution and were
promulgated on 20.04.2023 after publication of the impugned
notification dated 06.04.2023 could not be applied retrospectively.
[20] It was further argued that the appointment of Dr. Avinash Sharma
being direct is wrong as from the DPC proceedings conducted on
19.05.2023, the ACRs of the candidates have been considered by duly
awarding marks for the same which can only be in promotion and not in
Direct Entry.
[21] It was also argued that respondents have wrongly applied GAD
Circular dated 31.01.2022 in reserving one post for scheduled Tribe as
the said GAD circular is for direct entry and is not applicable for
promotion, this aspect also finds support from the GAD Circular, where
EWS reservation is provided which cannot be applied, in the case of
promotion because all the candidates who are to be promoted to the
posts of Professors are well paid Associate Professors and no one can be
said to be economically weaker than other and also the GAD Circular
which has been relied by the respondents doesn't find any mention in
the impugned Notification dated 06.04.2023 and the respondents had
even taken these posts as Direct Entry else the second roster point goes
to OBC and not to ST.
[22] It was further argued that wrong assertion has been made by the
respondents that due to legal impediment or non-availability of eligible
candidates, these posts are controverted into direct entry posts as firstly,
there is no notification inviting application for Direct Entry from open
market and secondly, there is no resolution or decision of the Executive
Committee or any such pleading that promotion posts have been
converted into Direct Entry posts.
[23] It was further argued that there is no enabling provision of the
State Government regarding reservation in promotion which is in
existence and can be followed by the Autonomous Colleges as per Rule
9 of the Rules of 2018 and as per Rule 9 of the Rules of 2018, the
reservation as prescribed by the State Government shall be applicable
and the State Government had only provided through Rules of 2002
regarding reservation in promotion which has already been quashed by
this Court, therefore, in absence of any enabling provision, the
respondents cannot reserve any post for a particular category and they
must proceed it treating unreserved.
[24] In alternate, it was argued that even following the Rules of 2002,
roster has wrongly been applied. Roster points 1 and 2 are for
unreserved categories and as per undisputed facts from the inception of
the institution as autonomous, there has been no appointment on the
post of professor and Dr. S.N. Iyenagar and Dr. RLS Sengar, who were
appointee of State Cadre under the Rules of 1987, were not in the cadre
of the autonomous institution and were being treated as on deputation
under Rule 5, they were never absorbed and appointed in service of
autonomous institution, therefore, the very categorization of one of the
seats as reserved is per se illegal.
[25] It was further argued that even if the respondents just wants to
exercise reservation of post for SC/ST/OBC etc, according to criteria
laid down by the Apex Court, the post will go to unreserved category.
The proportion of the SCs and STs to the population of the India
cannot be the test for determining inadequacy of the representation in
promotional posts and the entire service cannot be considered to be a
cadre for the purpose of promotion.
[26] In support of his contentions, reliance was placed in the matters
of Puneet Singh Bhadoriya & Other vs. State of Madhay Pradesh
& Another passed in Writ Petition No.4881 of 2019 decided on
09.06.2022; R.B. Rai vs. State of M.P. passed in Writ Petition
No.1942 of 2011 decided on 30.04.2016; Md. Zakir Hossain & Ors.
vs. State of W.B. & Ors. passed in WPST No.99 of 2018; Dr (Major)
Meeta Sahai vs. State of Bihar & Others reported in (2019) 17 Scale
718 and Jarnail Singh & Others vs. Lachhmi Narain Gupta &
Others reported in (2022) 10 SCC 595.
[27] It was further argued that the contention of the respondents in
the return that the present writ petition in the hands of the petitioner is
not maintainable, is perverse, as even though the petitioner might have
knowledge of flaw in the notification inviting the applications right
from the day one, the same was not brought into public domain and
had participated in the process without raising any demur, but it would
not curtail the right of the petitioner to challenge the said notification
and it cannot be a ground that since he had waived raising such
objection, now he is precluded from raising it, as it would amount to
waiver of fundamental right which is not permissible.
[28] Per contra, Shri Vivek Khedkar - Additional Advocate General
for the State has raised a preliminary objection that the present petition
is required to be thrown out at the very threshold as the same is not
maintainable in the hands of the petitioner as he had participated in the
process and after being declared unsuccessful, he has challenged the
advertisement by way of the present petition and therefore, after having
taken part in the selection process and being declared unsuccessful, he
cannot at later stage be permitted to turn around and claim that the post
could not have been filled by direct recruitment. In that regard, reliance
was placed in the matters of D. Sarojakumari vs. R. Helen Thilakom
& Others reported in (2017) 9 SCC 478; Mohd. Rashid vs. Director,
Local Bodies, New Secretariat & Another reported in (2020) 2 SCC
582 and Tajvir Singh Sodhi & Others vs. State of Jammu and
Kashmir & Others reported in 2023 SCC Online SC 344.
[29] It was further submitted that the State Government had issued
Circular dated 31.01.2022 to implement 100% reservation roster and
revised scheduled list dated 11.04.2022 was published by the State
Government by superseding, previously issued all the amendments,
time to time in which vacancy position as per reservation roster has
been reflected; thus in compliance of instructions issued and on the
basis of revised schedule list dated 11.04.2022, the advertisement was
issued which is absolutely in consonance with the guidelines, hence
prima facie the present petition being bereft of merits and substance is
liable to be dismissed.
[30] It was further submitted that vide letter dated 12.04.2022 issued
from the office of Commissioner, Medical Education, it was directed
that all previously issued amended schedule lists were superseded and
new schedule list dated 11.04.2022 was directed to be implemented and
followed as per the applicable roster wherein on the basis of vacancy,
advertisement was issued, hence, there is no infirmity in the
advertisement under challenge and therefore, the petition is liable to be
dismissed.
[31] It was further submitted that in pursuance to the recruitment
process, one Dr. Avinash Sharma has already been appointed vide order
dated 19.05.2023 as Professor, Department of Neurosurgery (UR) and
one Dr. Arvind Gupta as Associate Professor (UR) by the same
appointment order; thus, nothing remains to be adjudicated in the
present case and therefore, the petition is liable to be dismissed.
[32] Heard counsel for the parties and perused the record.
DISCUSSION
[33] From the record, it is revealed that advertisement dated
06.04.2023 was issued for appointments of the Professor/Associate
Professor/Assistant Professor on the vacant posts on the basis of
promotion/direct recruitment in the Autonomous Gajraraja Medical
College. In pursuance of Circular dated 12.01.2018 issued by
Department of Medical Education, Government of Madhya Pradesh;
letter dated 02.05.2019 issued by Directorate, Medical Education,
Madhya Pradesh, Bhopal and Schedule No.374/Estt./Adm./2022, dated
12.04.2022 issued by the Department of Medical Education,
Government of Madhya Pradesh and its letter dated 10.10.2022 and in
the light of Rules of 2018.
[34] As per Circular dated 27.12.2022 issued by Department of
Medical Education, State of Madhya Pradesh, in the Colleges where
appointments are to be made by way of promotion/direct recruitment, as
per Schedule-II of the Rules of 2018 from the candidates working in the
institution or on deputation and are eligible for the said post\s then
firstly, an in-house advertisement be issued and therefore, at the
institution level (in-house), the advertisement was issued for the eligible
candidates working at Gajraraja Medical College, who possessed the
requisite qualifications as required.
[35] Further, vide order dated 27.12.2022, pro-rata was formulated for
the posts of Professor/Associate Professor/Assistant Professor and as
per the pro-rata, the candidates were to be awarded marks giving
weightage to their degrees (graduation/PG, their research experience,
senior residency/ACRs and interview), thus in all marking was to be
done out of 100 marks; to this extent, there is no dispute by the either of
the parties.
[36] The only grievance persists and appears to have been raised by
the petitioner and remains to be answered is that the
Respondent/College had not adhered to the reservation policy in its
right perspective and one seat has wrongly been reserved for ST
category, whereas in the light of judgments passed by the Hon'ble Apex
Court in the matters of M. Nagaraj & Others vs. Union of India &
Others reported in (2006) 8 SCC 212; Jarnail Singh vs. Lachhmi
Narain Gupta & Others reported in (2022) 10 SCC 595, and Jarnail
Singh vs. Lachhmi Narain Gupta & Others reported in (2022) 10
SCC 637, the State was required 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 or not.
[37] Since the very Rules known as "Madhya Pradesh Public
Services (Promotion) Rules, 2002" which in general would have been
followed for reservation in the promotion, but since were already
declared ultra-vires by the Division Bench of this Court in the matter of
M.P. Electricity Production vs. State of M.P. passed in Writ Petition
No.1942 of 2011 vide order dated 30.04.2016, which had been
challenged before the Hon'ble Apex Court in the matter of State of
Madhya Pradesh & Others vs. R.B. Rai & Others vide Special
Leave to Appeal (Civil) No.13954 of 2016, wherein as an interim
relief, the parties are directed to maintain status quo and as such, there
is a legal impediment so far as reservation in promotion relating to STs
and SCs is concerned and Rule 9 of Schedule III appended to the Rules
of 2002, since could not be followed for keeping the first two seats as
per 100 point roster reserved and in that regard, quantifiable data as
held by the Hon'ble Apex Court in the above matters is required to be
collected and thereafter, the State has to justify reservation in promotion
in respect of the Cadre in which the promotion has to be made.
[38] In reply to the petition, respondents No.2 and 3 while relying
upon Circular dated 31.01.2022 had averred that General Administrative
Department (GAD) vide Circular dated 04.01.2020 had issued a State
Level Roster System and since 31.12.2020, the District Level Roster
System has been implemented which is to be followed. Admittedly, the
said Circular dealt with the vacancies to be filled up by direct
recruitment at State/District Level and for that, new 100 point roster
was introduced w.e.f. 24.10.2019.
[39] From the reply, it appears that for the promotional post of
Professors of Neurosurgery, with which this Court is concerned, roster
system applicable for direct recruitment posts have been followed
which in the light of judgment passed by the Hon'ble Apex Court in the
matter of Indra Sawhney v. Union of India reported in AIR 1993 SC
477, was not proper, as the Hon'ble Apex Court in the said judgment
had held that roster system applicable for direct recruitment regarding
reservation of appointments or posts under Article 16(4) of the
Constitution is confined to initial appointments and cannot extend to the
reservation in the matter of promotions, though prior to judgment of
Indra Sawhney v. Union of India (supra), the said roster systmet for
reservation for promotion existed.
[40] The Government felt that since the judgment of the Hon'ble Apex
Court in the matter of Indra Sawhney v. Union of India (supra)
adversely affected the interests of SCs and STs in services, as they have
not reached the required level, therefore, felt that it was necessary to
continue the existing policy of providing reservation in promotion
confined to SCs and STs alone and in that context, the Constitution
(Seventy-Seventh Amendment) Act, 1995 was introduced.
[41] The Statement of Objects and Reasons with the text of the
Constitution (Seventy-Seventh Amendment) Act, 1995 introducing
Clause (4A) in Article 16 of the Constitution reads as under:
"THE CONSTITUTION (SEVENTY-SEVENTH
AMENDMENT) ACT, 1995
Statement of Objects and Reasons - The Scheduled
Castes and the Scheduled Tribes have been enjoying the
facility of reservation in promotion since 1955. The
Supreme Court in its judgment dated 16th November, 1992
in the case of Indra Sawhney v. Union of India5, however,
observed that reservation of appointments or posts under
Article 16(4) of the Constitution is confined to initial
appointment and cannot extent to reservation in the matter
of promotion. This ruling of the Supreme Court will
adversely affect the interests of the Scheduled Castes and
the Scheduled Tribes. Since the representation of the
Scheduled Castes and the Scheduled Tribes in services in
the States have not reached the required level, it is
necessary to continue the existing dispensation of providing
reservation in promotion in the case of the Scheduled
Castes and the Scheduled Tribes. In view of the
commitment of the Government to protect the interests of
the Scheduled Castes and the Scheduled Tribes, the
Government have decided to continue the existing policy of
reservation in promotion for the Scheduled Castes and the
Scheduled Tribes. To carry out this, it is necessary to
amend Article 16 of the Constitution by inserting a new
clause (4A) in the said Article to provide for reservation in
promotion for the Scheduled Castes and the Scheduled
Tribes.
2. The Bill seeks to achieve the aforesaid object.
An Act further to amend the Constitution of
India BE it enacted by Parliament in the Forty- sixth
Year of the Republic of India as follows:-
1. Short title.- This Act may be called the
Constitution (Seventy-seventh Amendment) Act,
1995.
2. Amendment of Article 16.- In Article 16 of the
Constitution, after clause (4), the following clause
shall be inserted, namely:-
"(4A) Nothing in this Article shall prevent the State
from making any provision for reservation in matters
of promotion to any class or classes of posts in the
services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented
in the services under the State."
The said clause (4A) was inserted after clause (4) of
Article 16 to say that nothing in the said Article shall
prevent the State from making any provision for
reservation in matters of promotion to any class(s) of
posts in the services under the State in favour of SCs
and STs which, in the opinion of the States, are not
adequately represented in the services under the
State.
86. Clause (4A) follows the pattern specified in
clauses (3) and (4) of Article 16. Clause (4A) of
Article 16 emphasizes the opinion of the States in the
matter of adequacy of representation. It gives
freedom to the State in an appropriate case
depending upon the ground reality to provide for
reservation in matters of promotion to any class or
classes of posts in the services. The State has to form
its opinion on the quantifiable data regarding
adequacy of representation. Clause (4A) of Article 16
is an enabling provision. It gives freedom to the State
to provide for reservation in matters of promotion.
Clause (4A) of Article 16 applies only to SCs and
STs. The said clause is carved out of Article 16(4).
Therefore, clause (4A) 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 come into force.
The State can make provision for reservation only if
the above two circumstances exist. Further in Ajit
Singh (II)3 , this court has held that apart from
'backwardness' and 'inadequacy of representation'
the State shall also keep in mind 'overall efficiency'
(Article 335). Therefore, all the three factors have to
be kept in mind by the appropriate Government by
providing for reservation in promotion for SCs and
STs.
[42] The said amendment was challenged before the Hon'ble Apex
Court in the matter of M. Nagraj vs. Union of India (supra) alleging
that since the Parliament has appropriated the judicial power to itself
and has acted as an appellate authority by reversing the judicial
pronouncements of the Hon'ble Apex Court by the use of power of
amendment as done by the impugned amendment is, therefore, violative
of the basic structure of the Constitution, it needs to be quashed.
[43] The constitutional Bench while concluding upheld the impugned
constitutional amendments by which Article 16(4-A) & 16(4-B) were
inserted holding that they don't alter the structure of Article 16(4). For
reference, Paras 121 to 124 of the said judgment are quoted herein-
below:
"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 (supra), the
concept of post-based Roster with in-built concept of
replacement as held in R.K. Sabharwal vs. State of
Punjab reported in (1995) 2 SCC 745.
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 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 above, we uphold the constitutional
validity of the Constitution (Seventy-Seventh
Amendment) Act, 1995, the Constitution (Eighty-
First Amendment) Act, 2000, the Constitution
(Eighty-Second Amendment) Act, 2000 and the
Constitution (Eighty-Fifth Amendment) Act, 2001."
[44] The Constitutional Bench had left it to the State Government
concerned 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 while
observing that the State is not bound to make reservation for SC/ST in
the matters of promotions. However, if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable
data showing backwardness and inadequacy of representation of that
class in public employment in addition to compliance of Article 335 of
the Constitution, though further held that the State while doing so 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.
[45] The Hon'ble Apex Court in the matter of State of State of
Tripura v. Jayanta Chakraborty reported in (2018) 1 SCC 146
referred M. Nagaraj (supra) to a larger Bench for reconsideration.
Further, in State of Maharasthra vs. Vijay Ghogre reported in (2018)
17 SCC 261, this Court thought it appropriate that the request for
reconsideration of the judgment in M. Nagaraj (supra) should be heard
by a constitution bench. The request made for referring M. Nagaraj
(supra) to a Seven-judge bench however, was not entertained by the
Apex Court in the matter of Jarnail Singh & Others vs. Lachhmi
Narain Gupta & Others reported in (2018) 10 SCC 396. However, the
conclusion arrived at in M. Nagaraj (supra) relating to collection of
quantifiable data showing backwardness of the SCs and the STs was
held to be invalid, as the same was contrary to a Larger Bench judgment
of the Hon'ble Apex Court in Indra Sawhney (supra), wherein it had
been held that conditions of social and educational backwardness are
presumed to be satisfied in case of SCs and STs, as they are identified
and grouped as such because of prior discrimination and its continuing
ill-effects. The Hon'ble Apex Court rejected the remaining grounds of
challenge to the decision in M. Nagaraj (supra) and reiterated that the
State has to collect quantifiable data regarding inadequate
representation of SCs and STs in the services of the State, if reservation
is sought to be provided in promotions.
[46] In the meanwhile, some High Courts since had dealt with matters
where reservation in promotions provided by the Central Government
and the State Governments to SCs and STs have been assailed as being
violative of the law laid down by this Court in M. Nagaraj (supra), the
judgments of the High Courts were challenged before the Hon'ble Apex
Court.
[47] While hearing bunch of petitions, the Hon'ble Apex Court in the
matter of Jarnail Singh & Others vs. Lachhmi Narain Gupta &
Others reported in (2022) 10 SCC 637 made it clear that it would not
entertain any arguments for reconsideration of the law laid down by it in
M. Nagaraj (supra) as a Constitutional Bench in Jarnail Singh (supra)
had already rejected such request and after considering the issues
identified, the following six points are formulated for determination:
"11.1 (1) What is the yardstick by which, according
to M. Nagaraj (supra), one would arrive at
quantifiable data showing inadequacy of
representation of SCs and STs in public employment?
11.2 (2) What is the unit with respect to which
quantifiable data showing inadequacy of
representation is required to be collected?
11.3 (3) Whether proportion of the population of SCs
and STs to the population of India should be taken to
be the test for determining adequacy of
representation in promotional posts for the purposes
of Article 16(4-A)?
11.4 (4) Should there be a time period for reviewing
inadequacy of representation?
11.5 (5) Whether the judgment in M. Nagaraj (supra)
can be said to operate prospectively?
11.6 (6) Whether quantifiable data showing
inadequacy of representation can be collected on the
basis of sampling methods, as held by this Court in
B.K. Pavitra & Ors. v. Union of India & Ors.
reported in (2019) 16 SCC 129 ("B.K. Pavitra vs.
Union of India reported in (2019) 16 SCC 129?"
[48] While concluding the Hon'ble Apex Court in paras 67 to 69 has
held as under:
"67. Collection of quantifiable data for
determining the inadequacy of representation of SCs
and STs is a basic requirement for providing
reservation in promotions, as laid down by this court
in M. Nagaraj (supra). The unit for the purpose of
collection of data is a cadre, according to Nagaraj
(supra) and Jarnail Singh (supra). For the purpose
of collection of quantifiable data for providing
reservation in promotions, the entire service cannot
be taken to be a unit and treated as a cadre, as
already stated. The structure of services in the State
of Karnataka is along the same lines as that of
services in the Central Government. Services are
divided into 'groups', which are further bifurcated
into cadres. There is no confusion that a cadre is not
synonymous with a 'group'.
68. The first term of reference for the Ratna Prabha
Committee was to collect data cadre-wise. The
conclusion of this Court in B.K. Pavitra II (supra)
that the expression 'cadre' has no fixed meaning in
service jurisprudence is contrary to the judgments of
this Court, which have been referred to above while
answering point 2. In clear terms, M. Nagaraj
(supra) held that the unit for collection of
quantifiable data is cadre, and not services as has
been held in B.K. Pavitra II (supra). Article 16(4-A)
of the Constitution enables the State to make
reservation in promotions for SCs and STs, which are
not adequately represented in the services of the
State. However, the provision for reservation in
matters of promotion is with reference to class or
classes of posts in the services under the State. That
'groups' consist of cadres is a fact which was taken
into consideration by this Court in B.K. Pavitra II
(supra). The conclusion that the collection of data on
the basis of 'groups' is valid, is contrary to the
decisions of this court in M. Nagaraj (supra) and
Jarnail Singh (supra).
69. The State should justify reservation in
promotions with respect to the cadre to which
promotion is made. Taking into account the data
pertaining to a 'group', which would be an
amalgamation of certain cadres in a service, would
not give the correct picture of the inadequacy of
representation of SCs and STs in the cadre in relation
to which reservation in promotions is sought to be
made. Rosters are prepared cadre-wise and not
group-wise. Sampling method which was adopted by
the Ratna Prabha Committee might be a statistical
formula appropriate for collection of data. However,
for the purpose of collection of quantifiable data to
assess representation of SCs and STs for the purpose
of providing reservation in promotions, cadre, which
is a part of a 'group', is the unit and the data has to
be collected with respect to each cadre. Therefore,
we hold that the conclusion of this Court in B.K.
Pavitra II (supra) approving the collection of data on
the basis of 'groups' and not cadres is contrary to the
law laid down by this Court in M. Nagaraj (supra)
and Jarnail Singh (supra).
[49] According to the aforesaid judgment, the collection of
quantifiable data for determining the inadequacy of representation of
SCs and STs is a basic requirement for providing reservation in
promotions, as laid down by the Apex Court in the matter of M.
Nagaraj (supra) and the unit for the purpose of collection of data is a
cadre, according to M. Nagaraj (supra) and Jarnail Singh & Others
vs. Lachhmi Narain Gupta & Others reported in (2018) 10 SCC 396
and for the same, the entire service cannot be taken to be a unit and
treated as a cadre. Further, the State has to justify reservation in
promotions with respect to the cadre to which promotion has to be
made.
[50] Thus, when the reservation could not be made as per the Schedule
appended to the Rules of 2002/according to the 100 point roster
contained therein, then the State/Respondent-College had to adhered to
to the guidelines as provided in the matter of M. Nagaraj (supra) and
the 100 point roster system adopted with regard to direct recruitment
being de-hors the judgment of the Hon'ble Apex Court in the matter of
Indra Sawhney (supra) is held to be wrongly applied.
[51] Since one Dr. Avinash Sharma has already been appointed in
pursuance to the aforesaid advertisement, who belonged to Unreserved
Category, which in the light of the aforesaid discussion, could not be
held to be bad, without going into the merits/demerits of the said
appointment, the second seat reserved for the ST category in wake of
adoption of the process of direct recruitment is hereby quashed.
[52] The matter is remitted back to the State/Respondent-College to
make reservations in the light of M. Nagraj (supra) if available and in
case, no reservation is possible then according to the merits of the
available candidates, the second post be filled.
[53] Needless to observe that any further advertisement issued by the
respondent/College for the promotional posts shall be governed by the
observations made by this Court in the present matter.
[54] Interlocutory applications pending, if any, shall also stand
disposed of accordingly.
[55] With the aforesaid observations, the present petition is partly
allowed and disposed of.
(Milind Ramesh Phadke)
PAWA
Judge
N pwn*
GWALIOR,
2.5.4.20=b864d1ab4ace2215bfcf3ab
301c34d631287f1b1cdd90b4a49f26
5f02d9d593f, postalCode=474001,
st=Madhya Pradesh,
KUMAR
serialNumber=61B9D129971D2EA4F
D4455ED49EA436EA65E26164BEEED
89153191C56E98CE21, cn=PAWAN
KUMAR
Date: 2025.02.11 19:09:24 +05'30'
