ORDER
Heard the learned counsel for the parties.
2. The background, in which the above writ petition is filed, is as follows:
The petitioners, as on the date of the petition, were working as Superintending Engineers and are stated to be from the General Merit Category. They were originally recruited to the cadre of Assistant Engineers, (then designated as Junior Engineers) by direct recruitment. The petitioners are before the court seeking directions to respondents 1 to 3, as regards revision of the seniority list of the Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers in respondent no. 2 organisation, which is a Government of Karnataka Undertaking.
3. It is contended that the concept of reservation for persons belonging to Scheduled Castes and Scheduled Tribes in the promotional cadres was not a constitutional mandate, but it was only by virtue of the 77th Amendment to the Constitution of India, that Article 16(4A) was introduced with effect from 17.6.1995, which provided that Article 16 of the Constitution of India would not be a bar for making any provisions for reservation in the promotional cadre. Thereafter, the 85 amendment to the Constitution of India came into effect in the year 2000, under which, Article 16(4A) was amended by introducing the concept of consequential seniority and Article 16(4B) was also introduced. Therefore, till the year 1995, the concept of reservation for the Scheduled Castes and Scheduled Tribes was restricted to initial appointment and the same was not extended to the promotional cadres.
4. However, it is contended that respondent no. 1 had issued an order on 27.4.1978 providing for reservation in the promotional cadres of the Government employees, which was adopted by the second respondent by a resolution dated 16.5.1978, pursuant to which, reservation in the promotional cadre of Assistant Executive Engineer for persons belonging to the Scheduled Castes and Scheduled Tribes was provided by the second respondent, though there was no constitutional mandate. This was followed by several further orders issued by respondent no. 1 as regards reservation in promotional cadres, which were partially adopted by the second respondent.
5. By virtue of the above, promotions were made on the basis of reservation, only in order to fill up vacancies which were available for the promotional cadre and this was done without reference to the cadre strength of a particular post and by fixing the percentage of reservation in the promotional posts of a particular cadre. It is the claim of the petitioners that as and when the vacancies arose, promotions on the basis of reservation were given to people belonging to the Scheduled Caste and Scheduled Tribe group and they were also provided with consequential seniority. As a result of which, several persons, who were juniors to the petitioners in the cadre of Assistant Engineers were promoted to the higher cadres and they have been promoted to higher posts and are now holding the posts of Executive Engineers and Chief Engineers, whereas the petitioners languish as Superintendent Engineers.
6. It is the complaint of the petitioners that by virtue of the above, persons belonging to the Scheduled Castes and Scheduled Tribes are occupying a majority of the posts in the higher cadres and the petitioners have filed a statement in tabular form to substantiate this assertion at Annexure-C to the writ petition. It is pointed out that the cadre of Superintending Engineers consists of 87 and of them, 49 persons belonged to the General Merit Category and 38 persons belonged to the Scheduled Castes and Scheduled Tribes and therefore, the percentage of Scheduled Castes and Scheduled Tribes is 38% as against reservation of 18% which could have been provided to persons belonging to Scheduled Castes and Scheduled Tribes. So also is the case in the cadre of Chief Engineers, which consists of 31 positions and only six persons belonged to the General Merit Category whereas 25 persons belonged to the Scheduled Caste and Scheduled Tribe group, which constitutes 85% of the total number of posts. This, the petitioner would assert, is the consequence of providing reservation in the promotional cadres and also providing for consequential seniority.
7. The petitioners state that the constitutional validity of the 77 Amendment and the 85 Amendment to the Constitution of India was challenged before the apex Court and the same was decided by a Constitutional Bench in the case of M. Nagaraj v. Union of India, 2006 AIR SCW 5482. The apex court upheld the constitutional validity of the said amendments subject to certain observations and had issued directions to the respondents. The apex Court has held that Article 16(4A) is only an enabling provision and the same does not confer any right on persons belonging to Scheduled Castes and Scheduled Tribes to seek reservation in the promotional cadre. It was observed that the State was not bound to make reservation for Scheduled Castes and Scheduled Tribes in the matter of promotions. However, if the State wished to exercise its discretion to make such provision, it would have 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 the Constitution of India and even if the State had compelling reasons for doing so, the State would have to ensure that the reservation provision does not lead to expressiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation, indefinitely.
8. It is stated that the petitioners had joined as Assistant Engineers in the year 1974. They were promoted to the cadre of Assistant Executive Engineers on 11.11.1994 Subsequently, they had been further promoted to the cadre of Executive Engineers on 10.12.2002 and thereafter were promoted as Superintending Engineers on 7.8.2006 and were working in that capacity as on the date of the petition.
9. It is contended that in view of the fact that respondents having provided reservation in the promotional cadres as well as the consequential seniority to persons belonging to the Scheduled Castes and Scheduled Tribes, who are much junior to the petitioners in the feeder cadre, are occupying higher positions and this is only on account of such provision of reservation and consequential seniority given to them. It is stated that respondent no. 2 had published a Final Seniority List of Statewide Technical Cadres as on 1.1.2009 and the same was issued without prejudice to the outcome of the writ petition in WP 135/2002 and other matters, which were pending before the apex Court. The petitioners seek to challenge the said Final Notification and the Seniority List enclosed to that Notification insofar as it relates to the cadres of Executive Director, Chief Engineer (Electrical), Superintending Engineer (Electrical), Executive Engineer (Electrical) and Assistant Executive Engineer (Graduate).
10. It is contended that as per the Seniority List, there are several persons belonging to the Scheduled Caste and Scheduled tribe category, who have joined the service of Respondent no. 2 much later than the petitioners, but have been promoted to higher cadres. Even in the cadre of Superintending Engineers, respondent nos. 4 to 10, who are said to be juniors to the petitioners in the feeder cadre are shown above the petitioners, only on account of the fact that they belonged to the Scheduled Caste and Scheduled Tribe category on account of the reservation provided in the promotional cadre of Assistant Executive Engineers and on account of the consequential seniority in the higher cadre and on account of ranking given to the said respondents in the seniority list. It was also the apprehension of the petitioners that they are likely to be promoted to the higher cadre of Chief Engineers. It is stated that even during the pendency of the present writ petition, respondent no. 3 has promoted respondents 4 to 8 as Chief Engineers (Electrical) as apprehended by the petitioners, which is clearly illegal and contrary to the law laid down by the apex Court in M. Nagaraj's case, supra.
11. It is further stated that even curing the pendency of this writ petition, yet another Seniority List dated 1.4.2011 has been published, wherein illegalities that have been committed in the preparation of the Seniority List of 1.1.2009 have been repeated and respondents 4 to 7 have been shown in the seniority list of Chief Engineers (Electrical), on the basis of promotions effected during the pendency of this writ petition. By virtue of these illegal promotions, according to the petitioners, number of persons belonging to the Scheduled Caste and Scheduled Tribe category in the Chief Engineers cadre has further increased and the ratio of Scheduled Caste and Schedule Tribe Engineers vis-à-vis General Merit Candidates has far exceeded the statutory limit of 15% and 3%.
12. It is further stated that insofar as the writ petition in WP 135/2002, which was pending before the apex court and which was filed by the General Merit direct recruit Engineers, was transferred to this Court and the same was renumbered as WP 14658/2010 and this Court has dismissed the writ petition with certain observations. Some of the petitioners in the said writ petition had challenged the order before the apex Court and the matter is said to be pending before the apex Court. A Division Bench of this Court while dismissing the above writ petition had observed that if the extent of reservation provided to persons belonging to Scheduled Caste and Scheduled Tribe in view of the accelerated promotion and consequential seniority provided to them exceeds 15% and 3%, respectively, it was open to the petitioner to challenge the same in accordance with law. It is in view of this observation, that the petitioners seek to question the illegality committed by the respondents in filling up the promotional cadre of Chief Engineers and higher cadres, wherein admittedly, the percentage of persons belonging to Scheduled Castes and Scheduled Tribes is far in excess of the aforesaid stipulated quota.
13. In the above backdrop, the learned counsel for the petitioners would contend that by virtue of the order by the Karnataka Electricity Board dated 16.5.1978 adopting the Government Order dated 27.4.1978, providing for reservation for persons belonging to Scheduled Castes and Scheduled Tribes to promotional cadres and also providing them consequential seniority to persons belonging to the General Merit category have been discriminated against and therefore, the said resolution was highly illegal and unconstitutional.
14. As already stated, the apex Court has laid down guidelines insofar as the State choosing to provide for such reservation and those guidelines have been transgressed since the second respondent had not undertaken any exercise to collect quantifiable data to show the backwardness of the class and inadequacy of representation of that class in order to comply with Article 35 of the Constitution of India, before finalising the seniority list that is impugned.
15. It is further pointed out that the consequential seniority has been provided mechanically without addressing whether the same was required to be given in the light of the law laid down on this question. In Ajit Singh Januja v. State of Punjab, 1996 AIR SCW 1109, the apex court addressing this question has held that the “catch up rule” had to be applied and that persons belonging to Scheduled Castes and Scheduled Tribes, who were promoted to the higher cadre on the basis of reservation, cannot claim seniority in the promotional cadre over persons belonging to the general merit, who were seniors in the feeder cadre and it was held that the equality principle requires exclusion of extra weightage to a reserved category candidate. That has been followed in the case of Union of India v. Virpal Singh Chauhan, AIR SCW 4309 and Ajit Singh v. State of Punjab, 1997 AIR SCW 1196. The apex court while referring to these decisions in Nagaraj's, case, has held that the question as to whether weightage of accelerated promotion with consequential seniority should be given or not, would be matters which would fall within the discretion of the Government keeping in mind backwardness, inadequacy in representations in public employment and over-all efficiency of services. This necessary exercise has not been undertaken by respondent no. 2 while affording promotions to persons belonging to Scheduled Castes and Scheduled tribes, while also giving them consequential seniority in preparing the impugned seniority list. It is further asserted that in R.K Sabharwal v. State of Punjab, 1995 AIR SCW 1371, the apex Court has held that the entire cadre strength should be taken into account to determine whether reservation up to the quota limit had been reached. This has been reaffirmed in Nagaraj's case. However, respondent no. 2 while affirming the promotions on the basis of reservation has only taken into account the existing vacancies and not the cadre strength. This has clearly overlooked the claims of persons belonging to the General Merit category. The petitioners have produced a statement in a tabular form at Annexure-F, to indicate persons who are juniors to the petitioners occupying higher posts, especially, respondents 4 to 10, who are placed above the petitioners. So also, Annexure-C, which indicates that in the cadres of Superintending Engineers and Chief Engineers, persons belonging to the category of Scheduled Caste and Scheduled Tribe, occupying more number of posts than what could have been permitted if the quota rule was followed strictly. This, the petitioners contend, is the consequence of not implementing the catch up rule and effecting promotions on the basis of reservation, without taking into account the entire cadre strength.
16. It is further pointed out that a seniority list dated 1.1.2009 was published in the face of the judgment in Nagaraj's case, which had already been pronounced as on that date and hence, it is unsustainable. It is in this vein that the learned Counsel would seek to take this court through several authorities in support of the prayers in the writ petition.
17. Shri. S.S Ramdas, Senior Advocate, appearing for the Counsel for respondents 2 and 3, on the other hand, would contend as follows:-
That the present writ petitions lack merit and are liable to be dismissed in limine. It is contended that originally, a batch of petitions were filed before the Supreme Court to declare that the Constitutional (Eighty Fifth) Amendment Act, 2001 introducing amendment to Article 16(4A) whereby the words “in the matter of promotion, with consequential seniority, to any class” as being violative of the Constitution of India. The apex Court in Nagaraj's case, supra, considering the same upheld the Constitutional validity and while observing that the main issue was with respect to the extent of reservation and therefore, the State concerned, would have to show in each case the existence of compelling reasons namely, the backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. It is not bound to make reservations for Scheduled Castes and Scheduled Tribes in the matter of promotions, but, if they wish to exercise their discretion, the State would, first of all, have to collect quantifiable data showing backwardness of their class and inadequacy of representation of that class in public employment in addition to compliance with Article 335 etc. It was also clarified that the validity of the individual enactments of appropriate States was not examined and that question would have to be gone into in individual writ petitions by the appropriate bench in accordance with the law laid down therein and that is how the matter was remanded back to the High Court and renumbered as WP 14655/2010 and connected petitions and the same was dismissed by a judgment dated 23.12.2010 on merits.
18. It is hence contended that the relief sought herein is clearly covered by that judgment and hence it would have to be rejected on that ground alone.
19. Without prejudice to the above, it is contended that the claim of the petitioners prior to 1995 reservation was restricted only to initial appointments and did not extend to promotions is incorrect. The Government of Karnataka, with a view to provide adequate representation in public appointments had decided to include reservation even in the matter of promotions as early as in the year 1978. Public appointments were made either by recruitments or by promotions and the Government had accordingly issued directions to extend reservations in favour of Scheduled Castes and Scheduled Tribes in promotional vacancies also. Reservation was provided only for promotions up to the lowest cadre of Class-A posts, as such posts did not have an element of direct recruitment, which is up to Assistant Executive Engineer in the Board. The concept of providing reservation in appointments with no direct recruitment was introduced as an extension of the prevailing policy which has been implemented for the last several decades. Therefore, the respondents have merely complied with the Government Orders on reservation with effect from the year 1978. As the State Electricity Board was originally constituted by the Government under Section 5 of the Electricity (Supply) Act, 1948, it is bound to follow the directions issued by the State Government from time to time and therefore, the reservation policy envisaged by the Government has been followed in the matter of appointments by recruitment or by promotion.
20. As per the policy of reservation declared by the Government Order dated 3.2.1999 reservation for Scheduled Castes and Scheduled Tribes was to be made to the extent of 15% and 3% respectively, and the adequacy was to be determined by the working strength in the respective cadre. Reservation was applicable up to and inclusive of the cadre of Assistant Executive Engineers only. Adequacy in the higher cadres was not part of the policy and therefore, not looked into. The composition of Scheduled Caste and Scheduled Tribe and General Merit in higher cadres thereafter has been dictated by the promotions based on their seniority in lower cadres.
21. The consequence of promotions based on seniority in the immediate lower cadres is bound to result in varying percentages of Scheduled Caste and Scheduled Tribe and General merit candidates and as per Annexure-C produced by the petitioners, disclosed a higher percentage of general candidates in certain cadres. The petitioners ought not to have included Scheduled Caste and Scheduled Tribe category employees in posts higher than the Assistant Executive Engineer, as they have been promoted on the basis of their seniority-cum-merit. It is pointed out that the details as per Annexure-F to the writ petition are true to the extent that the employees mentioned therein have joined service much after the petitioners but have secured promotions to higher cadres earlier to the petitioners. The difference in seniority is a consequence of seniority in the lower cadres. The marked difference in seniority has also occurred due to the extension of reservation for promotion up to the cadre of Assistant Executive Engineers for the period from 30.12.1990 to 2.12.1998 and as per the direction issued by the apex Court in Indira Sawhney v. Union of India, to the effect that if reservation in promotion is already in place then the same shall continue for a period of five years from the date of the order passed by the said case. With regard to the posts of Director (Technical) and Managing Director are not included in the Recruitment and Promotion Regulations and the said posts are filled by the Government by appointment of officers of the Administrative Service or officers in the cadre of Chief Engineers. These appointments cannot be equated as promotions under the Recruitment and Promotion Regulations. The extent of reservation based on the quantification of the backwardness had to be decided by the Government of Karnataka and then directions in the said matter would be issued. Since no such directions had been given, the respondent was bound to follow the existing policies and the respondent is also required to fill up vacancies arising from time to time in order to render service to the public and hence the promotions have been considered to the next higher cadre in the order of seniority as available from the Final Seniority List dated 1.1.2009
22. The Seniority List had been published as required under the Regulations after taking into consideration the representations and by way of abundant caution were made subject to the outcome of the pending writ petition before the Supreme Court and hence, there was no lapse on the part of the respondent and as per the Regulations, the Final Seniority List had already been published. It is further stated that both the petitioners have been promoted as Chief Engineers (Electrical) as on 31.12.2011 Hence, the challenge to the Final Seniority List dated 1.1.2009 no longer survives.
23. The Counsel for respondents 4 to 10 on the other hand, would submit that following the dictum of the Supreme Court in Indira Sawhney's case as regards the reservation policy, the first respondent had reviewed the reservation policy and directed that the reservation shall continue for a further period of five years from 16.11.1992, subject to the condition that the reservation categories were not adequately represented in a particular service. However, reconsidering the reservation of persons belonging to Scheduled Castes and Scheduled Tribes under Article 16(4) of the Constitution of India, the Government Order dated 17.4.1993 was withdrawn on 11.5.1993 directing that reservation in promotion as provided in Government Order dated 27.4.1978 shall continue to be in force.
24. Consequent to the judgment in Indira Sawhney's case, supra, the Constitution was amended as the 77 Amendment Act, 1995 inserting Clause (4A) to Article 16 of the Constitution of India which enabled the State to provide for reservation in matters of promotion to the posts in the services under the State of Scheduled Castes and Scheduled Tribes. It is contended that pursuant to the various judgments of the apex court relating to the constitutional provisions and the orders of the Government of India, the first respondent had issued fresh instructions to continue reservation in promotion only in cases where the representation of the Scheduled Castes and Scheduled Tribes had not reached 15% and 13%, respectively and the first respondent, by order dated 3.2.1999 considering the judgment of the Supreme Court in Indira Sawhney's case, supra issued a modified order, by which reservation in promotion was provided in favour of Scheduled Castes and Scheduled Tribes in a cadre up to and inclusive of the lowest cadre in Group-A. Thus, the State Government, pursuant to the 77 Amendment permitted the State Governments to provide reservation for Scheduled Castes and Scheduled Tribes in promotion.
25. It is further contended that consequent to the judgment of the Supreme Court in rendering Badappanavar's case, denying the benefit of roster promotion to the promotees belonging to the Scheduled Castes and Scheduled Tribes, the Government of India inserted 85 Constitutional Amendment Act, by which Article 16(4A) of the Constitution was amended giving consequential seniority to promotees and roster promotion. It is contended that pursuant to the 85 Amendment, enabling the State Governments to provide, among other things, for reservation in promotion with consequential seniority, the State Government enacted the Karnataka Determination of Seniority of Government Servants promoted on the basis of reservation (to the post of civil services in the State) Act, 2002 (hereinafter referred to as the ‘Act 10/2002’ for brevity). Aggrieved by the same, the persons belonging to the General category filed writ petitions challenging the constitutional validity of the 85 amendment. The apex Court however upheld the constitutional amendment and disposed of the petition with certain observations, as already stated hereinabove. Therefore, extending the benefit of reservation in promotion in terms of the Government Order dated 27.4.1978 is in conformity with the Constitutional amendments and hence, the writ petition is not maintainable.
26. It is also contended that seniority and promotion are not fundamental rights. Seniority is only a civil right. Even assuming that seniority and promotion of the petitioners are affected, because of the reservation, the same cannot have the effect of contravening the fundamental rights of the petitioners. This legal position is affirmed by the Supreme Court in the case of Union of India v. S. Krishna Murthy, (1989) 4 SCC 689. Act 10/2002 also protects seniority as on the date it came into force. The Government Order dated 3.2.1999 expressly indicates that the reservation will not exceed 15% and 3% representation in Government employment for Scheduled Castes and Scheduled Tribes, respectively. The petitioners have not produced any material to demonstrate that there is excess representation in any particular cadre where the reservation m promotion is affected.
27. As can be seen from the stand of the respondents, there is no dispute as to the legal position, as settled by the several decisions of the Apex Court The point, however, for consideration would be whether the complaint of the petitioners that promotions were made by the respondents 2 and 3 on the basis of reservation as and when vacancies arose to accommodate persons belonging to the Scheduled Caste and Scheduled Tribe category who were also provided with consequential seniority, as a result of which several persons, who were juniors to the petitioners in the cadre of Assistant Executive Engineers, were promoted to the higher cadres and to higher posts while the petitioners languished in positions lower than them? In this regard, reliance is placed by the petitioners on Annexure-C and Annexure-F to the Writ Petition. Beyond this, the petitioners have not placed any material in respect of their contentions. On a closer examination, it is to be seen that the policy of reservation declared by the Government Order dated 3rd February 1999 whereby reservation for Scheduled Caste and Scheduled Tribe candidates was to be made to the extent of 15% and 3%, respectively and the adequacy was to be determined by the working strength in the respective cadre has been adopted by the respondents and that the respondents were aware, as to reservation being applicable up to and inclusive of the cadre of Assistant Executive Engineers only and that adequacy in the higher cadres was never a part of the policy and therefore was not relevant. The assertion of me respondents that the composition of scheduled caste, scheduled tribe and general merit candidates in the higher cadres thereafter having been dictated by the promotions based on the seniority in the lower cadres, would have to be accepted. Therefore, the consequences of promotions based on seniority made in the lower cadres resulting in varying percentages of scheduled caste, scheduled tribe and general merit cadres as reflected in Annexure-C to the writ petition, which in fact, indicates a higher percentage of general merit candidates in certain cadres. Therefore, the further contention on behalf of the respondents that the petitioners ought not to have included Scheduled Caste and Scheduled Tribe category employees in posts higher than the Assistant Executive Engineer, as they were apparently promoted on the basis of their seniority-cum-merit will also have to be accepted. The further assertion that Annexure-F to the writ petition indicating, that though employees mentioned therein had joined the services of the respondents 2 and 3 much after the petitioners but may have secured promotions to higher cadres earlier to the petitioners and therefore the difference in seniority being a consequence of seniority in the lower cadres, also rings true. The marked difference in seniority having occurred due to extension of reservation in promotion up to the cadre of Assistant Executive Engineers, between the period from 30 December 1990 to 2nd December 1998 and as per the directions of the Apex Court in the Indira Sawhney case to the effect that promotions if already conferred, the same shall continue for a period of five years from the date of the order passed in the said case, will also have to be kept in view.
28. Therefore, the respondents having followed the existing policies and addressing the need to fill up the vacancies arising from time to time in the order of seniority, may not be capable of being challenged by the petitioners, in the light of the above stand of the respondents being accepted. Further, the petitioners having been promoted as Chief Engineers (Electrical) even during the pendency of this petition as on 31st December 2011, may be yet another ground to hold that the petitions lack merit and accordingly stand dismissed.
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