Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. dismissed a writ petition which claimed promotion and challenged the government order which was made on the basis of serious allegations regarding the disproportionate acquisition of property.

Respondent 2 herein, on a complaint, conducted a secret verification and found that the petitioner had acquired huge assets both movable and immovable, which were disproportionate to his known sources of income. He registered an FIR against the petitioner for the commission of offence under Section 5(1)(e) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006. He also wrote a communication to respondent 1 (Administrative Secretary) for initiating departmental action under Jammu and Kashmir Civil Services Rules, 1956 against the petitioner. Respondent 1 by passing an order attaching petitioner with the Chief Engineer, PHE Kashmir. Petitioner was Superintending Engineer in a hydraulic circle, Kargil. He claimed that due to his seniority he was likely to be promoted to the post of Chief Engineer. Aggrieved by the said order, the petitioner challenged both the aforesaid communication as well as government order by way of this petition.

Petitioner claimed that the impugned communication issued by respondent 2 and the impugned government order by Administrative Secretary was illegal, arbitrary, mala fide and without any authority of law; and the same could not be sustained in law as they were not traceable to any provisions of Jammu and Kashmir Civil Services Rules, 1956. He also contended that no employee can be penalized only on the ground that an FIR for his misconduct was registered with the police or Anti-Corruption Bureau and pleaded that the impugned communication and order were only aimed to denude him from his right to seek promotion to the post of Chief Engineer. Respondent 1 denied the allegations of arbitrariness and mala fide and objected the writ petition on the ground that the impugned government order was fully justified as the allegation against the petitioner was serious and disproportionate to his known sources of income. He also claimed that the petitioner had been attached with the Chief Engineer not only because an FIR regarding his misconduct was pending investigation before respondent 2 but also because a full-fledged departmental enquiry against him was contemplated.

Court held that the department was competent to hold a departmental enquiry solely on the basis of the allegations made against an employee and this power of the employer was independent of the power of the police and the Anti Corruption Bureau to register FIR and investigate the allegations. The delinquent employee may be acquitted by the Court of law on finding that the prosecution could not prove his guilt, but he can be penalized in the disciplinary proceedings, which were decided on the basis of preponderance of probabilities. The Court also observed that as per Section 31 of Jammu and Kashmir Civil Services Rules, 1956 he could also be suspended, if the complaint against him of any criminal offence was under investigation or trial. Hence, respondent 1 had shown leniency and instead of suspending him had only attached him with the Chief Engineer. Therefore, it could not be said that the order by respondent 1 was without jurisdiction or without any sanction of law. Thus, the petition was dismissed for being devoid of merit.[Sarwan Singh v. State of J&K, 2019 SCC OnLine J&K 518, decided on 07-06-2019]

Case BriefsHigh Courts

Rajasthan High Court: Ashok Kumar Gaur, J. allowed the writ petition for the benefit of the Non-Practicing Allowance (NPA) as no reference was made of such circular to show that the person can be deprived of such benefits.

A petition was made by the petitioner praying for the grant of Non-Practicing Allowances (NPA) and also challenged the order by which the earlier order of granting NPA was withdrawn.

The facts of the case were that petitioner was sent on deputation as Deputy Director (AIDS) in Rajasthan State AIDS Control Society. The petitioner pleaded that he must be granted NPA and thus requested the authorities and submitted a representation to the Project Director to grant him NPA. The petitioner further submitted that the Society held its meeting in which a conscious decision was taken to grant NPA to those working in other National programmes but the same was not paid to him. Thus, this application.

 Abhay Bhandari, Senior Counsel for the petitioner submitted that he had to seek voluntary retirement which was accepted. It was further submitted that instead of granting him the actual benefit on the promoted post, the respondents had denied the actual benefit of the promotion to the petitioner only on account of the fact that the petitioner was promoted after he had sought voluntary retirement. The petitioner was also entitled to his fixation in the pay scale of Rs 10000-325-15200 on his promotion and only because the petitioner had sought voluntary retirement, the actual benefit could not have been denied to him.

Prakhar Gupta, Counsel for the respondent submits that the petitioner was not entitled to grant of NPA. It was submitted that since the petitioner was not getting any NPA prior to his posting in the Rajasthan State AIDS Control Society and as such he could not be given such benefit. Counsel further submitted that the NPA could only be given to the persons who were entitled as per the order issued by the Finance Department from time to time. Counsel submitted that the claim of the petitioner for grant of pay scale of Rs 10000-325-15200 on the promoted post was also not justified as the petitioner had sought voluntary retirement and while considering his case for promotion, he was not working and as such notional benefit is only to be given to the petitioner.

High Court opined the petitioner has been promoted as Senior Medical Officer and a particular pay scale was required to be given to the person who was promoted on the regular basis, the same cannot be denied to him only on account of the fact that he had sought voluntary retirement. The court further held that as there was no clause which prescribed that a person who has been promoted on regular line of promotions, can be deprived from the pay scale of the higher post. Thus, the order was made to the respondent to pay the NPA along with the actual benefit of pay revision of promotion within five weeks.[Avdhesh Gupta v. State of Rajasthan, 2019 SCC OnLine Raj 686, decided on 20-05-2019]

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]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of V. Chitambaresh and A.M. Babu, JJ. allowed the appeal filed by a company against the order of learned Single Judge granting promotion to its retired employee on the ground that he had the requisite appraisal rating for the same.

Respondent herein had retired from the services of the appellant as an Executive in the year 2003. His plea was that he was entitled for promotion as Assistant Manager in the year 1997. Case of the appellant company was that there were no vacancies to the post of Assistant Manager at that time for the respondent to be promoted; and at best, he was entitled to stagnation promotion as per Clause 14(c) of Promotion Policy.

The Court noted that as per the aforesaid Promotion Policy, respondent (an engineering diploma holder) should have had a consistent record of performance (i.e., score of 150 and above) for a period of seven years in order to be considered by the Departmental Promotion Committee. However, he had a consistent record of performance only for three years during the period from 1994-95, 1995-96 and 1996-97. His performance dipped to a score below 150 in the year 1998-99. Thus, evidently, he was not eligible for stagnation promotion in the post of Executive as per Clause 14(c) of Promotion Policy.

It was observed that in view of a clear mandate in Clause 14 (pertaining to stagnation promotion) of Promotion Policy, the learned Single Judge had erred in granting promotion by relying on Clause 9 of the said policy which was applicable to regular promotion.

In view of the above, the impugned Judgment was set aside holding that respondent did not have a consistent record of good performance for seven years in order to be eligible for promotion.[Hindustan Newsprint Ltd. v T.C. Mani, 2019 SCC OnLine Ker 1031, Order dated 21-03-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Bench of Manoj K. Tiwari, J. while allowing the petition quashed the order of the Chief Education Officer.

In the present matter, the petitioner was a Class-IV employee, serving in a Government aided minority institution. He was appointed in the year 2002 on the post of Night Chowkidar and having been completed 17 years of continuous satisfactory service, and being the seniormost Class-IV employee, he was eligible for promotion to Class-III post of Clerk. Therefore, the petitioner through learned counsel Mr Alok Mehra, approached the Court being aggrieved by the communication of the Chief Education Officer, Almora where the petitioner was declared ineligible for promotion only on the ground that he was appointed on the post of Night Chowkidar.

The Court while quashing the said order of the respondents held that, “Promotion is governed by Statutory Rules and every candidate, who is eligible in terms of the Rules, has a Fundamental Right to be considered for promotion against available vacancies. Therefore, imposition of new condition regarding eligibility by the Chief Education Officer, which has the effect of taking away right to be considered for promotion to the petitioner, cannot be sustained”.

Respondents were further directed to consider petitioner’s claim for promotion along with other eligible persons.[Lal Singh Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 229, Order dated 07-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The bench of Sunita Gupta, Member (J), Lt Gen Philip Campose, Member (A), allowed an application praying for revision of pension in accordance with the last rank held before retirement.

In the pertinent matter, the applicant in pursuance of the circular by the Government of India (GoI) approached the Tribunal, wherein the circular clarified that, 10 months continuous service in the last rank held is not required for grant of pension in such rank. They relied on Thiagrajan v. Union of India, O.A. No. 93 of 2014, where the ten months were waived-off and the Tribunal opined that “pension cannot be deprived to an individual to a rank for which he has already rendered his service and that the applicant has earned his pension in the rank of JWO already, and therefore, is entitled to be paid pension in the rank of JWO. Even if, for some reason, such a pension is found to be less, the applicant is entitled to receive the highest pension he earned already...

The respondent conceded that the requirement of holding the last rank of 10 months before retirement has been dispensed with in keeping with the circular and further contended that they are correct in giving pension to the applicants on the lower rank as it is financially more beneficial.

The Tribunal held that the argument of the respondents, where a junior promoted to a senior rank should be pegged at a pension of his last but one rank, is fallacious, while placing reliance on D.S. Nakara v. Union of India, 1983 (1) SCC 305. Further on the method of calculating the exact pension, relied on the explanation in P. Gopalakrishnan v. Union of India, the complete import and implication of Circular 430 dated 02-02-2009 Regulations for the Air Force Part 1, Ministry of Defence (MoD) letter dated 07-06-1999 and came to the conclusion that “the basis of calculation being pursued in the instant case was detrimental for the pension of petitioner..”. And it further directed the respondents to calculate the pension based on the last held rank by him before retirement and arrears to be paid accordingly.[Dhanushkodi Rajarajan v. Union of India, 2019 SCC OnLine AFT 4, Order dated 20-02-2019]

Case BriefsSupreme Court

Supreme Court: In a huge relief to Central Armed Police Forces (CAPF), the bench of RF Nariman and MR Shah, JJ has upheld the Delhi High Court verdict which had directed the Central Government to grant Non-Functional Financial Upgradation (NFFU) to CAPFs who are a part of Organized Group “A” Services.

On the object behind granting NFFU

In order to overcome the stagnation problems, the 6th Pay Commission recommended NFFU to all Group “A” Officers in various Organized Group “A” Services. The purpose of granting NFFU was to give relief to Group “A” Officers facing the problem of stagnation as fall­back option when regular promotions do not come into various factors.

On non-compliance of two attributes out of six attributes listed in the Monograph of 1993

According to the Monograph itself, there may be certain “minor deviations” from the attributes listed therein and also to the extent wherein it states that even if the listed criteria are fulfilled, the same would not automatically   confer the status of an Organized Group “A” Service. Thus, fulfilling/compliance of the attributes shall not be given too much weightage while deciding on the status of CAPFs.

On the Appropriate authority to define “Organised services”

The Central Pay Commission, as such, is not authorised to define “Organized Services” or to grant such status to any service but only relies on the information submitted to it by the various Departments. It appears from the material on record that right from 1986 onwards, in various Monographs CAPFs were included in the list of Group “A” Central Civil Services.”

The Court, however, noticed that the Government took ‘U’ turn and a stand was taken that CAPFs are not Organized Group “A” Central Services and, therefore, on the basis of such a stand, the 6th Pay Commission did not recommend NFFU to CAPFs. It was, hence, held tha:

“merely because the 6th Pay Commission did not recommend to grant NFFU to CAPFs – Group “A” Officers in PB­III and PB­IV, the Group “A” Officers in PB­III and PB­IV cannot be denied the NFFU, which otherwise is granted to all the Officers of Group “A” Central Civil Services.”

[Union of India v. Sri Harananda, 2019 SCC OnLine SC 126, decided on 05.02.2019]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Pramath Patnaik, J., dismissed a writ petition filed by the petitioner, whereby he sought directions upon the respondent to grant him promotions and benefits of Assured Career Progression as had been granted to one of his colleagues Akhouri Shrawan Prasad. 

The main issue that arose before the Court was whether the respondent authorities were liable for discriminating the petitioner with his colleagues.

The Court observed that the petitioner and the employee with whom the petitioner is claiming discrimination had joined the services in the same year. The petitioner was concerned with the fact that Mr Shrawan had been granted more promotions, however from the record it was crystal clear that the petitioner was granted promotion to Selection Grade Assistant and given the post of Head Assistant before the said Mr Akhouri Shrawan Prasad and even on the date of retirement, the basic salary of the petitioner was higher than that of Mr Akhouri Shrawan Prasad. Further, it was observed that promotion cannot be claimed as a matter of right, rather only consideration for promotion to a particular post can be asserted as a right. 

The Court held that the petitioner was duly considered for promotions time and again during the course of his service and he had failed to establish that the respondent authorities had ever deprived him of his right to be considered for promotion to a particular post. Resultantly, the petition was dismissed being devoid of merits.[Hira Lal Ram v. State of Jharkhand,2018 SCC OnLine Jhar 1550, order dated 05-11-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A 2-Judge Bench comprising of Mahesh Grover and Rajbir Sehrawat, JJ., addressed a petition filed against an order passed by Central Administrative Tribunal, Chandigarh where an Original Application filed by petitioner was dismissed and his prayer for re-consideration of his suitability for the Select List for promotion to the post of IAS was rejected.

Facts of the case were such that the petitioner had joined State Civil Service in 1994. According to the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, a select list for promotion of IAS had to be prepared every year but for 2011 the select list was not created. When in 2015 the select list was created, petitioner’s name was 10th in the list but he was not considered for promotion. It is to be noted that a candidate who had expired was also considered for promotion and for the same petitioner had filed a representation before the respondents which was rejected.

Petitioner while contending brought before the Court the fact that his grade was ‘outstanding’ but the same was downgraded to be ‘very good’ and this downgrading of petitioner was arbitrary. Whereas respondent negated the jurisdiction of this Court by stating the decisions of Select Committee as sacrosanct which the court or tribunal has no authority to question and would not come under judicial review. It is upon the Select Committee as to how to make a selection and they can give their own grades not necessarily the grades given by ACRs.

The High Court after perusing provisions of the rules, regulations and the guidelines governing the appointment and the assessment for appointment was of the view that guidelines stated that reasons are mandatory to be recorded when the candidate is considered in a subsequent year with the difference in assessment from the previous year. Court had rejected the contentions of respondents and observed the assessment was devoid of rationality and was arbitrary. Therefore, this petition was allowed and the Tribunal’s order was set aside. [Satya Pal Arora v. CAT,2018 SCC OnLine P&H 1731, decided on 15-02-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ashwani Kumar Mishra, J., disposed of a petition filed with a claim of promotion under U.P. Sub-Inspector and Inspector (Civil Police) Service (Second Amendment) Rule, 2016.

This dispute was related to promotion which went before Supreme Court from where the same was remanded to Division Bench of the High Court. It is the order passed by Division Bench which is in question in this petition where U.P. Police Recruitment and Promotion Board was directed to consider the claim of the petitioner. The Petitioner was appointed as a constable in furtherance of which he was discharging his duties on the said post. Petitioner submitted that his conduct was satisfactory and till date, no complaint was made against him. Petitioner prayed for promotion to a position of Sub-Inspector as per amended Rules of 2013 and 2015. Whereas Additional Chief Standing Counsel submitted that the U.P. Sub-Inspector and Inspector (Civil Police) Service (Second Amendment) Rule, 2016 was amended for the matter of promotion and thus claim of petitioner does not come under the above-mentioned rules and is liable to be dismissed.

In light of the above discussion, High Court disposed of this writ petition with a direction to the respondent for considering the claim of the petitioner for promotion to the post of Sub-Inspector. [Dilip Kumar v. State of U.P.,2018 SCC OnLine All 1551, Order dated 26-09-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench comprising of Sanjay Dwivedi, J., allowed a petition filed by an employee against the decision of the employer whereby the order of his pay upgradation was withdrawn.

The petitioner was aggrieved by the decision of his employer to withdraw the benefits of pay upgradation. The decision was taken by the employer under Clause 13 of the concerned circular, whereby if an employee refuses to accept the promotion along with pay upgradation, then in such a case, the benefits of his pay upgradation are also to be withdrawn. The petitioner challenged the said decision wherein his pay scale was revised, reduced and refixed at a lower grade.

The High Court considered the submissions made on behalf of the parties, and referring to earlier decisions of division bench on the same issue, held that such decision was unsustainable. It was observed, merely because an employee has refused to accept the promotion, that does not deprive him to enjoy the benefit of upgradation of pay granted to him for completing certain period in service. The analogy as contained in Clause 13, mentioned above, was disapproved of by the Court. Thus, holding the decision to be unsustainable, it was set aside. The Court ordered to quash any recovery, if made, from the employee in furtherance of the said decision. The petition was accordingly disposed of. [Raspal Singh Dangi v. State of M.P.,2018 SCC OnLine MP 401, dated 25-06-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh, the bench of AK Goel and RF Nariman, JJ held that the promotees could not be given promotion without suitability test nor could they claim seniority without the same.

The question for determination before the Court was whether the promotees recruited in the year 2008/2009 are entitled to seniority prior to their selection on the ground that no suitability test was required prior to 9th January, 2007 and retrospective effect to such requirement was illegal. Upholding the decision of the High Court, the Court held that the suitability test was required in terms of judgment of this Court in All India Judges Association v.  Union of India, (2002) 4 SCC 247 and under the amended Uttar Pradesh Higher Judicial Service Rules, 1975 applicable retrospectively which was duly upheld by this Court in V.K. Srivastava v. Govt. of U.P., (2008) 9 SCC 77.

With regard to the Quota-Rota rule, the Court said:

“there is no doubt that this is a mandatory requirement of the Rules. The said requirement has however to be seen in the peculiar fact situation. The issue of determination of vacancies was embroiled in continuous litigation. The Quota-Rota rule could not be applied in the absence of determination of vacancies. The suitability test though validly laid down could not be held till 2008 for reasons already noted. No promotion could be given in absence of suitability test. The rule provided for seniority of the promotes to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees. Thus, the Rules will have to be given pragmatic interpretation.”

Background of the Amendment:

The Rules as originally framed envisaged three sources of recruitment – direct recruitment from the bar, promotion from members of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of cadre of judicial magistrates. There was also a provision for quota for the different sources. However, the said Rules were amended as per the All India Judges Association verdict. The U.P. Higher Judicial Service (Sixth Amendment) Rules, 2006 were notified on January 09, 2007and by the said amendment, the criteria for recruitment by promotion was changed. Requirement of passing a suitability test was incorporated. There was also modification about the percentage of quota. The suitability test in pursuance of the said amended rules was held for the first time in the year 2008. [High Court of Judicature at Allahabad v. State of Uttar Pradesh, CIVIL APPEAL NO. 3356 OF 2018, decided on 28.03.2018]

Case BriefsSupreme Court

Supreme Court: Deciding the validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 which provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy, the bench of A.K. Goel and U.U. Lalit, JJ declared the provisions of the impugned Act to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution.

In the present case where the Assistant Engineers of SC/ST category recruited in the year 1987 were promoted to the cadre of Assistant Executive Engineers while in general merit,Assistant Engineers recruited in 1976 were considered for promotion to the said cadre, the appellants argued that the SC/ST candidates got promotion early and on account of consequential seniority, percentage of SC/ST candidates was much higher than the permitted percentage and all top positions were likely to be filled up by SC/ST candidates without general merit candidates getting to higher positions. The appellant had also argued that as a consequence of accelerated seniority to the roster point promotee, the roster point promotee would reach the third level by the age of 45 and fourth, fifth and sixth level in next three, two and two years, however, the general merit promotee would reach the third level only at the age of 56 and retire before reaching the fourth level. This would result in reverse discrimination and representation of reserved category would range between 36% to 100%.

The exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A) of the Constitution. Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. If the State wishes to exercise its discretion under Article 16(4A), it is to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. Even if the State has compelling reasons, 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. The Court said that the plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion.

The Court, however, clarified that the judgment will not affect those who have already retired and will not affect financial benefits already taken. Consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed. Seniority list may be now revised in the light of this judgment within three months. [B.K. Pavitra v. Union of India, 2017 SCC OnLine SC 109, decided on 09.02.2017]

 

Case BriefsSupreme Court

Supreme Court: Answering the question as to whether the Annual Confidential Report (ACR) of an officer could be ignored for the purposes of his promotion merely on the ground that it was written after some delay, in negative, the Court said that the ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it.

In the present case, A Select Committee constituted under the Indian Police Service (Appointment by Promotion) Regulations, 1955 considered the appellant, amongst others, for promotion in the Indian Police Service.  Referring to the decision of the Court in G. Mohanasundaram v. R. Nanthagopal, (2014) 13 SCC 172, where it was held that in terms of the IAS Regulations, the UPSC is obliged to consider the service record, which includes ACR, of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded, the Court said that in the said case the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration and that the relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.

The bench of Madan B. Lokur and P.C. Pant, JJ said that the writing and review of the ACR is beyond the officer’s control and hence, there is no rational basis on which the officer could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities. [P. Sivanandi v. Rajeev Kumar, 2017 SCC OnLine SC 85, decided on 02.02.2017]

Case BriefsHigh Courts

Madhya Pradesh High Court: While deciding a public interest litigation (PIL) questioning reservation in promotions, the Court quashed all provisions granting promotions in the MP Public Service Promotion Rules, 2002, which introduced to reservation for SCs and STs in all posts at government departments. The state government in exercise of the powers conferred by the proviso to Article 309 read with Article 16 and 335 of the Constitution of India, relating to determination of the basis for promotion in public services and posts and also, the reservation in promotion in favour of Scheduled Castes and Scheduled Tribes, had made provisions of 20 per cent reservation for SC employees and 16 per cent for ST employees in the service.

The Court decided on the public interest litigation (PIL) filed by R B Rai, Santosh Kumar, SC Pandey and others, who had challenged the 2002 service rules on the ground that they were not in conformity with the law (guidelines) laid down by the Supreme Court in M. Nagaraj v. Union of India, the Supreme Court had laid down certain guidelines while interpreting Articles 16, 16 (4), 16 (4A), 16 (4B) and 335, before making provisions of reservations in promotion with benefit of consequential seniority, filing up of backlog vacancies, lowering of standards of evaluation etc.

The bench comprising A M Khanwilkar C.J. and Sanjay Yadav J.observed that all promotions granted as per 2002 rules would be invalid and stated that “The existing provision relating to reservation, backlog vacancies, carry forward of backlog vacancies contained in the Rules of 2002 runs contrary to the constitutional provisions contained in clause (4A) and (4B) of Article 16 and Article 335 and law predicated in M Nagraj,” observed the High Court. It further stated that “Consequently, various promotions of SCs and STs category made on the basis of these rules of 2002 are held to be non-est in the eyes of law and the persons be placed in the position as if the said Rules never existed and all actions taken in furtherance thereof must be reverted to status quo ante (the situation existing earlier).” The Court had further required the government to satisfy itself after collection of ‘quantifiable’ data in each case to ensure that there is no reverse discrimination vis-a-vis the general category candidates. It was further submitted that the rules are ultra vires also because the other directions as mandated by the apex court have also not been followed. [R.B. Rai v. State of Madhya Pradesh, Writ Petition No.1942/2011, Decided on 30.4.2016]

Case BriefsSupreme Court

Supreme Court: Reviewing its judgment dated 9-1-2015, the Division Bench of Chelameswar and Dr. A.K. Sikri, JJ has held that there is no provision for reservation in public sector banks for  SC/ST categories in promotion of  officers  from one grade/scale to the next, when such promotions are to be made on selection basis i.e. on merits.

The Court however, observed that it is open to the State and the banks to consider whether it is feasible to provide such reservation in the officers’ category and if so up to what level.

 The Court had to decide upon the validity of the Madras High Court’s judgment in the batch of appeals, which had decided that in the matter of promotions in the officer grades, a reservation in favour of SC/ST officers was provided for in the Office Memorandum dated August 13, 1997. The Banks contended that there was no rule of reservation for promotion in Class A (Class I) to the post/scales having a basic salary of more than Rs 5700 per month and the OM at best only provided a concession. The Supreme Court had upheld the Banks’ contention observing that  there was no reservation in respect of promotion by selection within only those Group A  posts carrying ultimate salary of  Rs 5700. However, based on other memoranda, it observed  that reservation existed only in respect of those posts carrying basic pay of up to Rs 5700 per month and with the implementation of the Fifth Pay Commission  Report, It would follow that such reservation was applicable to the post carrying pay scale of Rs 18,300. On that basis, it was held that since pay scale of the posts up to Scale VI was Rs 18,300 reservation is to be provided.  This aspect of the judgment was under review.

The Attorney General Mr Mukul Rohatgi submitted that a fundamental error, apparent on the face of the record had crept in para 34 of the judgment wherein the Court had observed that “reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than Rs 5700 (pre-revised)” while observing in the earlier portion of the same paragraph that “there is no reservation in promotion by selection in Group A posts which carry an ultimate salary of Rs 5700 per month. In such cases it is only the concession that applies”. In spite of deciding the main issue against the respondents, because of the aforesaid error in the judgment, the said benefit was still bestowed by giving reservations to officers belonging to SC/ST category from Scale I to Scale VI. The Court agreed that it was in conflict not only with the earlier portion of para 34 but the  entire conclusion discussed in the judgment. It is clearly an error on the face of record as no such consequence follows. Consequently, the Court allowed the review petitions  by deleting paras 33 to 36 of the judgment, the directions contained therein as well as the directions contained in para 37 . It was to be replaced with

“33. Result of the aforesaid discussion would be to allow these appeals and set aside the judgment of the High Court. While doing so, we reiterate that it is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make a provision for reservation in promotions from Scale I to Scale II and upward, and if so, up to which post. The contempt petition also stands disposed of.”

Guided by the principle of ex debito justitae as discussed in A.R. Antulay v. R.S. Nayak,(1988) 2 SCC 602 and S.Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, the Court observed “when an error is pointed out and the Court also finds that there is an error apparent on the face of the record, it would not shy away from correcting that error”. [Chairman  & Managing Director, Central  Bank of India v. Central  Bank of  India SC/ST Employees Welfare Association2016 SCC OnLine SC 19 , decided on  8-1-2016]

Supreme Court

Supreme Court: The Bench comprising of T.S. Thakur, and R. Bhanumathi, JJ., held that in absence of provision for consequential seniority in the rules, the catch up rule will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority.

The common issues involved in bunch of appeals were that: Firstly, in the absence of policy decision taken by the State/rules framed pursuant to the enabling provision of Article 16-4A of the Constitution of India whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post; Secondly, in the absence of policy decision taken by the State with regard to Tamil Nadu Highways Engineering Service Rules, whether Division Bench was right in holding that Article 16-4A of the Constitution of India by itself would give consequential seniority in addition to accelerated promotion to the roster-point promotees.

The bench after referring to the catena of cases from Indra Sawhney to M. Nagaraj, to clear out the present stand over matter stated that, the true legislative intent under Article 16-4A of the Constitution is to enable the State to make provision or frame rules giving consequential seniority for the accelerated promotion gained based on the rule of reservation. Rule 12 of impugned rules in question, evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. In the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category accelerated promotees, there is no question of automatic application of Article 16-4A of the Constitution. The State is duty bound to collect data so as to assess the adequacy of representation of the Scheduled Caste candidates in the service and based on the same the State should frame a policy/rules for consequential seniority. S. Panneer Selvam v. Government of Tamil Nadu, 2015 SCC OnLine SC 764 Decided on 27.08.2015