Decided To Give Reservation In Promotion To SC/ST Employees Cadre-Wise : Bihar Govt Tells Supreme Court

The submissions were made before the bench of Justices LN Rao and BR Gavai in an application seeking withdrawal of the civil appeals against the judgment of Patna High Court of declaring the resolution dated August 21, 2012 passed by the State which provided for reservation in promotion with consequential seniority as legally unsustainable.

The State had sought to withdraw the civil appeal on the ground that pursuant to the Top Court's ruling that cadre would be considered as a unit for collecting quantifiable data on adequacy of representation, the State had decided to now promote the employees belonging to Scheduled Castes and Scheduled Tribes on the basis of "cadre".

Thus for the said purpose and to complete the exercise, the State wanted to withdraw the same.

Background

Before the High Court, the employees who were working in various departments of the State had challenged the resolution dated August 21, 2012 passed by the State of Bihar. The impugned resolution provided for reservation in promotion, with consequential seniority in favor of the employees belonging to Scheduled Castes and Scheduled Tribes working in various services of the State.

The same was challenged on the ground that it was contrary to the letter and spirit of Article-16(4A) and violative of the principles laid down by the Supreme Court in its judgment in M. Nagraj Vs. Union of India.

Opposing the petition, the State had pleaded that the entire category of SC/STs. were deemed to be backward and there is no necessity to undertake any study about their backwardness. It was also contended by the State that the representation of SC/STs. in various cadres or classes in several departments was totally inadequate and the fact that there was considerable representation in some of the cadres or classes in certain services, was purely fortuitous. State had further argued that once a person belonging to SC/ST had been employed in service, which, invariably was in recognition of his backwardness, there was no necessity for undertaking any fresh survey or study, about the back- wardness of such candidates.

The Single Bench of Justice V Nath while concluding that the impugned resolution could not be sustained had said that,

"The respondent-State before coming to the conclusion to grant benefit of reservation in promotional posts with consequential seniority to Scheduled Castes/Scheduled Tribes employees was required to consider the adequacy of representation of such government servants in each class or classes of posts in government services and thereafter to take appropriate decision in terms of Article 16 (4-A) with respect to that class or classes of services. By issuing the impugned resolution in general and sweeping terms the State Government has clearly abdicated its function as required by Art. 16 (4-A) of the Constitution and the law laid down by the Constitution Bench in M. Nagaraj.

For the aforesaid reasons and discussions this Court comes to the conclusion that the impugned resolution dated 21.08.2012 (Annexure-13) cannot be legally sustained. The interlocutory applications also accordingly stand disposed of. It is, however, observed that in case the State Government proposes to invoke the power to grant benefit of reservation in promotion with consequential seniority to Scheduled Castes/Scheduled Tribes government servants, it will have to act strictly in accordance with the requirements of Article 16(4-A) of the Constitution as well as the parameters and conditions laid down by the Constitution Bench in M. Nagaraj case as discussed in this judgment."

Aggrieved with the decision of the Single Bench, the State had preferred a letter patent appeal which got dismissed by the Division Bench on July 30, 2015.

What Transpired In The Supreme Court Today?

Appearing for the State of Bihar, Senior Advocate PS Patwalia submitted that the State sought to withdraw the civil appeal which was preferred against the impugned order.

Referring to the Top Court's judgment wherein the bench had held "cadre" as unit for collecting quantifiable data on adequacy of representation, he submitted that the State had decided to now promote the employees belonging to Scheduled Castes and Scheduled Tribes on the basis of "cadre".

"We have been running from pillar to post from 2012 onwards to make promotions on a regular basis and after the last order, it became clear that we had to do cadre wise. We are now doing it cadre wise and there is no interim order anywhere. This matter just remains pending. To complete our exercise, we want to withdraw this," he further submitted.

He further submitted that the High Court had observed that in case the State wanted to make further promotion, it had to seek clarification either from the High Court or the Top Court.

To further substantiate his contention, Senior Counsel said, "The state is up to neck and we have to get out of it now. The High Court had said that if any further promotion has to be made, you will have to either seek a clarification from us or from the Supreme Court and earlier promotions made will abide by whatever will be decided in the writ petition. We are not going to make any further promotions."

Objecting to withdrawal of the civil appeal, Senior Advocate Indira Jaising appearing for State General Secretary, All India Confederation Of SC/ST Organization submitted:.

"State of Bihar is not compliant with Jarnail 2(judgment) but the State of Bihar has data cadre wise. They have the data cadre wise and I'll produce the data from their sources. It's on their website. That gives me data cadre wise and it shows horrible representation. That there is a huge under representation of SC/ST. They say that we want to collect data. No court has stopped them to collect data. If they don't feel that they don't have adequate data, they can go and collect data. If the State of Bihar feels that they are not compliant with Jarnail 2, they can go and collect the data," she further submitted.

On the bench asking as to how would the respondent be prejudiced with the State withdrawing the appeal, Jaising said, "Question will arise of retrospectivity. I will be prejudiced because he has made a concession that he was not Jarnail complaint. Promotions already made will have to go, they were Jarnail complaint. The burden of proving inadequate representation is on the state and not on me because they are in exclusive possession of the data. The ones who have been promoted in "interregnum" will be demoted for their seniority."

"All the orders are listed before May 11, 2022. What is the tearing hurry to withdraw the matter today? Whole purpose if this is to make concession before the court that he is not "Nagraj Complaint"," Jaising further submitted.

It was also her contention that withdrawal of the appeal by the State was a malafide attempt to defeat the rights of reserved categories.

Opposing the submissions made by Senior Advocate Indira Jaising, Senior Advocate PS Patwalia said, "There have been no promotions since 2018. This argument statement is wrong and misleading. She is appearing for the confederation which has no members. Who are the people who were promoted after 2018 and who would be demoted?"

Acceeding to the submissions made by Senior Advocate PS Patwalia, the bench adjourned the matter for May 11, 2022 but asked Senior Advocate Indira Jaising to file an affidavit as to how many members of Schedule Caste have been promoted.

"We'll hear from all of you later. We see a point in what you say but we'll hear it on May 11.You file an affidavit as to how many members of SC have been promoted," the bench said.

Case Title: Jarnail Singh And Ors. V. Lachhmi Narain Gupta . And Ors.| C.A. No. 629/2022

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