Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Dr. DY Chandrachud, JJ has refused to review it’s verdict in B K Pavitra v Union of India, (2019) 16 SCC 129 wherein it had upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservations (to the Posts in the Civil Services of the State) Act 2018.

The Review Petition was filed on the ground that did not consider the binding principles laid down by a Constitution Bench of this Court in M. Nagaraj v Union of India, (2006) 8 SCC 212 and Jarnail Singh v Lachhmi Narain Gupta, 2018 (10) SCC 396 were not considered by the Court  in it’s May 10, 2019 judgment and that, in any case, the matter should have been referred to a Bench of a higher strength. It has also been urged, inter alia, that there is an error apparent in the findings of this Court on the retrospective application of the Reservation Act 2018 and the inapplicability of the ‘creamy layer’ concept to consequential seniority.

The Court, however, said that every ground urged in the review petitions has been addressed on merits in the judgment under review and that it did not find any error apparent on the record to justify interference

The Court had, in it’s May 10, 2019 verdict held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

On the issue of creamy layer, the Court had held,

“The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A).”

The bench had, earlier this year, refused to entertain the applications challenging the validity of Karnataka’s 2018 reservation law, which granted reservation in promotion to employees belonging to SC and ST categories. The Court held that applications filed by a group of general category employees for applying ‘post-based quota’ and the principle of the creamy layer at entry-level in public employment were not maintainable. The maintainability of the MAs was challenged on the ground that though styled as an application for directions, they seek to lay a substantive challenge to the subsequent directions and clarifications issued by the State government in implementing the Reservation Act 2018.

[BK Pavitra v. Union of India, Review Petition (C) No. 1632 of 2019, order dated 30.07.2020]

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the inter se placement of the candidates selected to the Cadre of District Judge through Limited Competitive Examination (LCE) must be based on merit and not on the basis of the seniority in the erstwhile cadre.

The Court arrived at the aforementioned finding while dealing with the challenge to the Report of the Committee of five Judges of the Rajastha High Court under the Chairmanship of the Chief Justice of the High Court.

The report dated 15.03.2019 stated,

“merit of those promoted through LCE should by virtue of Rule 32(2) be considered as the benchmark for promotion, inter-se seniority amongst them in the feeder cadre being maintained by prescription of Rule 47(4), subject to the exception that if an officer by regular method of promotion is able to otherwise secure promotion in the same year in the regular line on his turn and on that basis he gets a higher placement in the seniority, regardless of his selection in the LCE, he should not be put to a disadvantageous position and allowed to retain his position in the seniority based on his regular promotion. In other words, such officer would be entitled to retain seniority, either on the basis of LCE or on the basis of regular promotion, whichever is more beneficial to him.”

Placing reliance on Rule 47(4), the Committee in its Report dated 15.03.2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotion.

Rule 47 (4) of 2010 Rules reads as,

“Inter-se seniority of persons promoted to the District Judge cadre in the same year shall be the same as it was in the post held by them at the time of promotion.”

Whereas Rule 31(2) of the 2010 Rules states,

“Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted by the Court.”

Rule 31(2) of Rajasthan Judicial Service Rules, 2010 uses the expression “strictly on the basis of merit” while dealing with posts to be filled in through LCE. The merit is to be assessed in terms of the scheme laid down in the relevant Schedule. After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, medical fitness etc.

Holding that the High Court, in its Report dated 15.03.2019, completely failed to appreciate the true character of LCE and reservation of certain quota for that category, the Supreme Court said that the general principle appearing in Rule 47(4) must give way to the special dispensation in Rule 31(2) of 2010 Rules.

The Court explained that if the list is to be drawn up according to merit, it is possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotes through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background.

“Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to passing the LCE.”

The Court, hence, directed:

“the seniority list issued in terms of Report dated 15.03.2019 shall stand modified only to the extent that appropriate placement to the candidates selected through LCE be given on the basis of their merit in the examination and not on the basis of their seniority in the erstwhile cadre. Let the appropriate changes be made within four weeks of this Judgment.”

[Dinesh Kumar Gupta v. High Court of Judicature of Rajasthan, 2020 SCC OnLine SC 420 ,decided on 29.04.2020]

Case BriefsSupreme Court

Supreme Court: Upholding the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, the bench of UU Lalit and Dr. DY Chandrachud, JJ held,

“The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.”

Backdrop

The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 . The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v Union of India, (2017) 4 SCC 620 wherein it was held that Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on the ground that an exercise for determining inadequacy of representation, backwardness and the impact on overall efficiency had not preceded the enactment of the law. Such an exercise was held to be mandated by the decision of a Constitution Bench of this Court in M Nagaraj v Union of India, (2006) 8 SCC 212. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The grievance of the petitioners is that the state legislature has virtually re-enacted the earlier legislation without curing its defects.

On whether the basis of the decision in B K Pavitra I has been cured

Holding that in adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily, the Court said that the methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies.

It was hence, held,

“once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact.”

On selection based on “merit”

On the assumption that awarding opportunities in government services based on “merit” results in an increase in administrative efficiency, the Court said,

“administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.”

The Court also said that the arguments that attack reservations on the grounds of efficiency equate “merit” with candidates who perform better than other candidates on seemingly “neutral” criteria, e.g. standardised examinations. Candidates who score beyond a particular “cut-off point” are considered “meritorious” and others are “non-meritorious”. However, this is a distorted understanding of the function “merit” plays in society. It, hence, said,

“the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. “Merit” must not be limited to narrow and inflexible criteria such as one‘s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.”

On the issue of creamy layer

Accepting the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status, the Court held that the concept of creamy layer has no relevance to the grant of consequential seniority. It said,

“The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A).”

On retrospectivity of the Act

Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected.

The Court, hence, held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

Therefore, the benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded.

[BK Pavitra v. Union of India, 2019 SCC OnLine SC 694, decided on 10.05.2019]