HC strikes down GR prescribing quota in promotions

Source: The Hitavada      Date: 30 Jul 2017 08:56:43


Staff Reporter,

In a significant development which has potential to affect career graph of thousands of state government staffers and officers, Bombay High Court has struck down two Government Resolutions as ultra vires to Article 16 (4A) of the Constitution of India. The impugned GRs dated May 25, 2004, grant reservation at the promotion stage to government employees belonging to Scheduled Castes, Scheduled Tribes and Denotified Tribes, Nomadic Tribes, Special Backward Category and Other Backward Classes.

The High Court noted that since Article 16(4A) is carved out of Article 16(4), its interpretation as well as exercise of power thereunder will be governed by the three factors- Backwardness; Inadequacy of representation and Overall effciency of administration as prescribed under Article 335.
Article 16(4) provides that nothing in Article 16 shall prevent the state from making any provision for the ‘reservation of appointments or posts in favour of any backward class of citizens’ which, in the opinion of the state, is not adequately represented in the services under the state.

In a reference arising out of a difference in opinion of two judges of a division bench, Justice MS Sonak upheld the opinion taken by Justice A A Sayed on December 21, 2016, which held the said GRs as ultra vires to the Constitution.
The main petitioner, Vijay Ghogre, challenged the legality of having reservations at the stage of promotions. The High Court had directed Maharashtra Administrative Tribunal to decide the issue as per the law.

The MAT in its judgement dated November 28, 2014, held
that the Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act 2001 (Reservation Act) and the subsequent GR dated May 25, 2004 as ultra vires to the Constitution of India. In an opinion dated July 26, 2016, Justice Anoop Mohta reversed the MAT judgment and upheld the vires of both the Act and
the GR.

However, his colleague judge on the bench- Justice AA Sayed, in an opinion dated December 21, 2016, held the said GR as ultra vires to the Constitution. But, on the issue of the validity of the said Act, Justice Sayed said the MAT was not justified in examining its constitutional validity as the same was not up for challenge.

Justice Sonak noted that, in his opinion recorded on July 26, Justice Mohta had accepted that MAT need not have gone into the issue of validity of the said Act purely for academic purposes.
Justice Sonak concurred with finding of Justice A A Sayed that the issue of constitutional validity of the Reservation Act was not required to be gone into and decided by the MAT and therefore, the MAT, was not justified in striking down the Reservation Act.

State Government strongly justified the decision and cited that from 1960 various committees have quantified the backlog of backward classes in public employment, the High Court discussed each of the report and rejected the submission. Relying upon decision of the Apex Court in M Nagraj and others Vs Union of India the High Court observed “Even if the total strength of the cadre is taken into account, the figures, far exceed the prescribed reservation percentage at least for SC category. It is therefore, apparent that the State has not carried out the exercise of collection of quantifiable data as contemplated by M. Nagaraj and other decisions, which follow it.”

“GR dated 25th May 2004, even proceeds to prescribe the percentage of reservation in favour of such categories of persons. Taking into consideration the provisions of Article 16(4A) as interpreted by the Constitution Bench in M. Nagaraj, the State was not empowered to issue such a GR, without undertaking the exercise of collection of quantifiable data and forming its opinion on basis of such quantifiable data that, SC/STs have not been adequately represented in the services under the State,” the High Court noted.

Justice Sonak also disagreed with opinion of Justice Sayed directing state to collect such data and take necessary steps in 12 weeks. “This in effect, amounts to issue of writ of mandamus to the State and its functionaries to collect quantifiable data regards backwardness, adequacy of representation and overall efficiency of administration in the services and on basis of the same to take decision in the matter of reservations at the stage of promotions in favour of SC/STs in a time bound manner;” the High Court noted while holding that no such writ of mandamus can be issued and the available data has to be respected and accepted and on the basis of the same, the validity of the Reservation Act and the GR dated May 25, 2004, has to be sustained, which court find is not the case. Since the question of constitutional validity of the Reservation Act has already been kept open for determination in an appropriate case and on an appropriate occasion, issuance of such a direction was quite redundant and unnecessary, the High Court noted.