21 Yrs Later, Jharkhand HC Stays Further Effect Of 2003 Resolution On SC/ST Reservations In Service Promotions Citing Variance With SC Order

After a lengthy legal battle spanning 21 years, the Jharkhand High Court has stayed further effect of a 2003 Resolution passed by the State government for providing reservations to Scheduled Castes and Scheduled Tribes in service promotions.

The division bench of Acting Chief Justice Shree Chandrashekhar and Justice Navneet Kumar allowed 12 writ petitions on finding the Resolution to be in non-compliance with Supreme Court guidelines. It observed,

“The Resolution dated 31st March 2003 simply reproduces the provisions under Article 16(4-A) of the Constitution with a little elaboration. The validity of this Resolution has to be seen with reference to the object and purpose behind Article 16(4-A) of the Constitution. This is well-settled that even a subordinate legislation can be challenged on the grounds of (i) violation of the fundamental rights (ii) violation of any provision of the Constitution of India (iii) failure to confirm to the Parent Act (iv) exceeding the limits of authority under the Parent Act (v) manifest arbitrariness and (vi) unreasonableness. This is also a well-settled principle that the conferment of authority by the Parent Act for subordinate legislation does not enable the authority to make a provision which travels beyond the scope of the Enabling Act or which is inconsistent therewith or repugnant thereto.”

“Tested on the aforementioned principles, this Court comes to a conclusion that the Resolution dated 31st March 2003 does confer a blanket power to provide reservation in promotions with protection to the consequential seniority to the Scheduled Castes and Scheduled Tribes in government employment. However, having regard to a possible cascading effect in any cadre in the government service about two decades after the first writ petition was filed questioning the validity of the Resolution dated 31st March 2003, this Court is not inclined to interfere with the benefits already conferred pursuant to the seniority/civil list prepared by different departments of the Government,” the bench added.

After the completion of the hearing on March 6, the court had reserved its decision in the case which was going on since 2003. Notably, the government had issued a resolution on 31 March 2003 and decided to give reservation to SC-ST in promotion, after which, many other petitions including that of Raghuvansh Prasad Singh were filed.

Notably, the Resolution dated 31st March 2003 refers to the judgment in Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and the amendment in Article 16(4-A) of the Constitution by the Constitution Eighty-Fifth Amendment Act, 2001 and provides that (i) the resultant seniority of the government servant belonging to the Scheduled Castes and Scheduled Tribes upon their promotion following the rules of reservation/roster shall remain intact and (ii) this decision shall be effective from 17th June 1995 that is the date of the enforcement of Eighty-Fifth Amendment.

This Resolution further provides that the government servants belonging to SC/ST category shall be promoted from the date of promotion of their immediate junior belonging to General category/Other Backward Classes and for the intervening period they shall be given notional promotion.

In this batch of 12 writ petitions, the constitutional validity of 85th Amendment Act, 2001 was challenged primarily on the ground that the amended Article 16(4-A) violates the right to equality under Article 14 and the right to equal opportunity in service under Article 16 of the Constitution.

The petitioners were aggrieved by refixation of their seniority in the cadre pursuant to the Resolution No.1862 dated 31st March 2003 which was issued by the State of Jharkhand to give effect to Article 16(4-A) of the Constitution. Therefore, the petitioners also challenged their respective seniority/civil list on a similar ground of violation of Article 14 and Article 16 of the Constitution.

The petitioners also questioned the Resolution dated 31st March 2003 issued by the State of Jharkhand adopting the office memorandum issued by the Union of India.

The Court in its verdict, pointed that there is unanimity at the Bar that the constitutional validity of Eighty-Fifth Amendment Act, 2001 after having been affirmed by the Supreme Court in M. Nagaraj v. Union of India (2006) 8 SCC 212 cannot be debated before this Court.

However, the petitioners challenged the Resolution dated 31st March 2003 on the ground that the instructions/directions contained thereunder are unguided, arbitrary and do not conform to the law laid down by the Supreme Court in M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta” (2018) 10 SCC 396 and other cases.

Advocate Rahul Kumar, the counsel who appeared for the petitioners (in WP(S) Nos.3963 of 2006 and 109 of 2017) took the Court through the history of reservation in service. The counsel referred to General Manager, S. Rly. v. Rangachari (1962) 2 SCR 586 wherein the majority decision was that reservation in promotions is permissible. He also referred to the subsequent case of State of Kerala v. N.M. Thomas (1976) 2 SCC 310 which held that Article 16(4) is not an exception to Article 16(1). He further referred to Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 where the majority opinion held that the view expressed in “Rangachari” was erroneous and that reservation in promotions is impermissible under Article 16. Thereafter, he submitted that Article 16 has undergone amendments to provide for reservation in the promotions and preserving the consequential seniority of the Scheduled Castes and Scheduled Tribes.

Advocate Manoj Tandon along with Advocate Rahul Kumar, the counsels for the petitioners submitted that notwithstanding the constitutional validity of Article 16 (4-A) of the Constitution having been upheld by the Supreme Court the individual writ petitions are required to be dealt with on their own merits.

Moving ahead, both the advocates referring to the Resolution dated 31st March 2003, indicated that even the stipulation under clause (c) of paragraph no. 3(iii) in the Resolution to the effect that any procedure approved by the competent authority has not been laid down and blanket reservation in promotions and accelerated promotions with preservation of consequential seniority to the Scheduled Castes and Scheduled Tribes have been provided in the State of Jharkhand.

The Court noted that the State of Jharkhand seeks to provide reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment under Article 16(4-A) of the Constitution. The Court further noted that the State has however not made any legislation for providing reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment.

The Court pointed out that in the counter- affidavit, the State did not address any of the issues raised by the petitioners, and the stand of the State as projected in the counter- affidavit is confined to mere reiteration of the provisions under Article 16(4-A) of the Constitution.

The Court observed, “This is not even pleaded in the counter-affidavit that promotions to the Scheduled Castes and Scheduled Tribes are provided in the government service after conducting a survey as regards their inadequate representation in the cadre. Naturally, there is no reference of any procedure being followed by the State of Jharkhand for providing reservation in promotions to the Scheduled Castes and Scheduled Tribes in government service.”

Taking note of the Resolution, the Court underscored, “The Resolution dated 31st March 2003 has been issued by the Governor of Jharkhand which is thus an executive instruction. However, while providing reservation in promotions to the Scheduled Castes and Scheduled Tribes the State of Jharkhand did not provide any guideline in the Resolution dated 31st March 2003. There is no whisper about the mode, manner and method of providing promotion to the Scheduled Castes and Scheduled Tribes.”

The Court pointed that this is not even pleaded that the inadequacy of representation in any cadre/service has been taken into account for providing reservation in promotions and the consequential benefit of promotion to the Scheduled Castes and Scheduled Tribes.

The Court further pointed, “As the pleadings and the data furnished by the petitioners in W.P(S) No.5882 of 2003 reveal, wholesale reservation in promotions to the Scheduled Castes and Scheduled Tribes are being given and their consequential promotions have been protected. The Resolution dated 31st March 2003 apparently does not provide any guidance or lay down any procedure for (i) assessing inadequate representation of the Scheduled Castes and Scheduled Tribes in any cadre/service and (ii) the extent of reservation in promotions that is required to be extended to the Scheduled Castes and Scheduled Tribes.”

“Henceforth, the Resolution dated 31st March 2003 shall not be given effect to till rules/guidelines/executive instructions are issued based on the requirements as mandated by the Hon'ble Supreme Court in “M. Nagaraj”, “Jarnail Singh-I” “Jarnail Singh-II” and other decisions of the Hon'ble Supreme Court,” the Court held while disposing of the writ petitions.

Case No.: W.P(S) No.5882 of 2003

Case Title: Raghubansh Prasad Singh and Ors vs. The State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 50

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