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

Rajasthan High Court: The Bench of Arun Bhansali, J. allowed a petition filed to claim seniority on the basis of the merit of the petitioners in the merit list based on common selection.

The facts of the case were that the petitioners had participated in the recruitment process in response to an advertisement issued by Zila Parishad in the year 2012, inviting the applications from the eligible candidates for appointment on the post of Teacher Grade III. The petitioners had earlier instituted writ applications and as a consequence of directions issued by the Court, the result was revised in the month of November 2016; resulting into the appointment of the petitioners on the post of Teacher Grade III (Level I/Level-II). Thus the petitioners had already been accorded appointment. However, State-respondent had declined seniority and other benefits to the petitioners from the date the petitioners became entitled on account of revision of the result while candidates lower in merit to the petitioners have been accorded those benefits. Thus, the petitioners claimed benefit of pay fixation and seniority on a notional basis from the date juniors to the petitioners had been accorded in the same recruitment process of the year 2012.

The Court, while placing reliance on the case of Surja Ram v. State of Rajasthan, SBCW No. 3082/2018, directed the State-respondent to extend the benefit of pay fixation and seniority on notional basis to the petitioners from the date juniors to the petitioners had been accorded with reference to the same recruitment process of the year of 2012. It held that seniority to be assigned as per the inter-se merit of the candidates in the merit list based on common selection. [Prakash Chandra Ahari Bhil v. State Of Rajasthan, 2019 SCC OnLine Raj 254, Order dated 15-03-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a petition seeking to quash the orders and further make the petitioner entitled to the post of the Principal.

In the present matter, the petitioner was appointed as an ad-hoc lecturer along with the respondent. Although both were appointed on the same day but the petitioner joined a day prior to the respondent. Also, both were regularized as lecturers on the same day after seven years. The petitioner hence claimed that, since the respondent joined late, therefore that would make him junior and the petitioner senior to him.

The same was rejected by the learned Single Judge placing due weightage on Rule 33-C (3) (b) of the Uttar Pradesh Secondary Education Service Commission (Amendment Act), 1998, and further held that the respondent being older in age, was entitled to seniority.

The Court rejected the petition on two grounds; the fact that the employee could not join on the date when he is required to, cannot act as a detriment. And secondly, the usage of the word “appointment” and not “joining” in clause (a) of Section 33-C (3), which provides for seniority in terms of age, made the respondent entitled to his seniority, thus granted by the learned Single Judge.[Deen Bandhu Singh Rawat v. State of Uttarakhand, 2019 SCC OnLine Utt 131, Order dated 27-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): A Bench comprising of Divya Prakash Sinha, Information Commissioner allowed an appeal and directed the CPIO to adequately liaise with the officers to carry out his duties in the present matter.

In the pertinent case, the appellant has sought details of the sanctioned strength of SAS Grade, JAG, Senior-Scale Grade, Junior Scale Grade and Group-B in legal cadre of Indian Railways from the year 2000 to 2016. Details of the incumbents, names and details of the working place and revised list of the details against each grade issued in the light of orders of CAT were also sought for. The respondent submitted in return that since the seniority list of gazetted employees is made by Zonal Railways while list of non-gazetted employees is made by Railway Board, therefore consolidated information was not available.

The Court directed the CPIO to seek the assistance of the concerned holder of information and provide it directly to the appellant free of cost within 30 days from the date of receipt of this order. [Kasi Vishwanathan v. CPIO, 2019 SCC OnLine CIC 27, Order dated 06-02-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of V.K. Tahilramani, Acting CJ, and M.S. Sonak, J. dismissed a writ petition filed challenging the order of Maharashtra Administrative Tribunal (MAT) whereby the claim of the petitioner to be appointed as a peon in the office of Deputy Conservator of Forests was dismissed.

The petitioner had applied for the said post in pursuance of the advertisement issued by the respondents. The post was for the reserved category and the petitioner belonged to the Other Backward Classes. He obtained 90 marks in the written test equal to the marks secured by Respondent 4, who was finally appointed to the said post on the basis of higher qualifications. The petitioner challenged the appointment before the MAT, which was dismissed. Feeling aggrieved, the petitioner was before the High Court.

The High Court perused Rule 4(3) of Maharashtra Civil Services (Regulation of Seniority) Rules 1982, on which reliance was placed by the petitioner. The said Rule provides that if two persons were appointed on the same date, the person with the earlier date of birth would be placed at a higher position in the seniority list. On the same analogy it was contended that in case of candidates securing equal marks, the candidate with the earlier date of birth should be appointed. The Court held the contention of the petitioner to be misconceived as much as the said Rule pertains to the matter of seniority in service and could not be applied in the matter of appointment. Holding thus, the Court found no fault in the order impugned. Accordingly, the petition was dismissed. [Yogehsh H. Mhaskar v.  State of Maharashtra, 2018 SCC OnLine Bom 1157, dated 03-05-2018]

Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]

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]