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B.K. Pavitra v. Union of India - (Supreme Court) (09 Feb 2017)

Mere fact of no proportionate representation in promotional posts for population of SCs and STs is not enough to grant consequential seniority to promotees

MANU/SC/0143/2017

Service

Instant appeals involve the question of validity of Karnataka Determination of Seniority of Government Servants Promoted on Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002. The Act inter alia provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy. It also protects consequential seniority already accorded from 27th April, 1978 onwards.

Impugned judgment has been challenged on behalf of Appellants mainly relying upon judgment of this Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar. It was submitted that, High Court erroneously held that there was an inbuilt mechanism under Section 3 of impugned Act or that seniority rule maintaining lower cadre seniority in respect of persons promoted on a particular occasion was a safeguard against excessive reservation. Similarly, finding that reservation was only upto a particular level and not beyond or that accelerated promotion upto that level did not affect further promotions was erroneous.

Conferment of enabling power on State under Article 16(4A) of Constitution of India, 1950 did not by itself violate basic feature of equality. If the affirmative action stipulated under Article 16(4A) of Constitution could be balanced with the need for adequate representation for justice to the backwards while upholding equity for forwards and efficiency for the entire system with the further observation that the content of a right is defined by the Courts and even while the amendment as such could be upheld, validity of an individual enactment was required to be gone into. If State wished to exercise its discretion under Article 16(4A) of Constitution, it was 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 of Constitution. It was made clear that even if State has compelling reasons, State will have to see that its reservation provision does not lead to excessiveness so as to breach ceiling limit of 50% or obliterate creamy layer or extend reservation indefinitely.

Exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A) of Constitution. Mere fact that there is no proportionate representation in promotional posts for 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. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In present case, no such exercise has been undertaken. High Court erroneously observed that it was for petitioners to plead and prove that overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in 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. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the ‘catch up’ rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority.

Supreme Court set aside the impugned judgment and declared that provisions of impugned Act to the extent of doing away with ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 of Act to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of Constitution. 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.

Tags : SENIORITY   PROMOTION   PROVISIONS   VALIDITY  

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