IMPORTANT POINT
While framing rules under Article 16(4A), the principles and circumstances laid down by Supreme Court must be fulfilled and parameters of Article 335 should also be kept in mind.
Article 16(4) only an enabling provision, does not apply automatically.
In absence of any rule for consequential seniority ‘catch up’ rule will apply.

Headnote:(a) Constitution of India – Article 16(4A) – It is an enabling provision – Enables States to frame rules for reservation for the weaker section – While framing the Rules, the principles and circumstances laid down by Supreme Court must be fulfilled – Parameters of Article 335 are also to be kept in mind. (Para 11)
       (1999) 7 SCC 209; (2006) 8 SCC 212; (2012) 7 SCC 1 – Relied upon
       (1995) 6 SCC 684; (1996) 2 SCC 715; (1995) 2 SCC 745; (1992) Supp. 3 SCC 217; (1997) 6 SCC 538; (2008) 3 SCC 80; 2015 (1) SCALE 169 – Referred
       (b) Special Rules Tamil Nadu Engineering Service – Rule 12 r/w Article 16 (4A), Constitution of India – Rule 12 not providing for consequential seniority for reserved category promotees at any point of time – Article 16(4) only an enabling provision, does not apply automatically. (Para 26)
       (c) Special Rules Tamil Nadu Engineering Service – Rule 12 – Rule 12 provides for reservation only for promotion of AEs/JEs as Assistant Divisional Engineers – It does not protect the consequential seniority to ADEs who were promoted following the rule – Consequential seniority conferred in 1994 on the Assistant Engineers, appointed as Assistant Divisional Engineers following rule of reservation already held unconstitutional – Catch up rule applied. (Para 28)
       SLP (C) No.24455/1996 – Relied upon
       (d) Constitution of India – Article 16(4A) – Inadequacy of representation of SC/ST in service – State required to collect data and frame rules on that basis – Submission of respondents in this regard is not enough. (Para 31)
       (e) Tamil Nadu State and Subordinate Service Rules (General Rules) – Rule 35 (aa) – Rule 35 (aa) applies only for normal appointments and not reserved category promotions – Rule 35 (aa) does not specifically provide for consequential seniority to the accelerated promotees – Rule 35 (aa) inapplicable. (Para 32)
       (f) Service law – Seniority and promotion – Direct recruit Asst. Engineers and Junior Engineers – Both feeder cadres for Asst. Divisional Engineer in the ratio of 3:1 – Both actually of same cadre – Promotion of JEs as ADEs definitely affects AEs. (Para 34)
       (g) Service law – Reservation in promotion – No rule framed for consequential seniority – ‘Catch up’ rule will apply – Article 16 (4A), Constitution of India does not automatically give consequential seniority to the roster-point promotees in addition to accelerated promotion. (Para 35)
       Facts of the case:
       The issues involved in this bunch of appeals are:-
       (i) In the absence of policy decision taken by the State/rules framed pursuant to the enabling provision of Article 16 (4A) of the Constitution of India whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post;
       (ii) In the absence of policy decision taken by the State with regard to Tamil Nadu Highways Engineering Service Rules, whether Division Bench was right in holding that Article 16(4A) of the Constitution of India by itself would give consequential seniority in addition to accelerated promotion to the roster-point promotees.
       Finding of the Court:
       In the absence of any policy decision taken or rules framed by the State of Tami Nadu regarding Tamil Nadu Highways Engineering Service, accelerated promotion given to the respondents following rule of reservation in terms of Rule 12 will not give them consequential accelerated seniority.
       Result : Appeals allowed.

JUDGMENT ;

R. BANUMATHI, J.

Leave granted in all the special leave petitions.

2. Common issues involved in this bunch of appeals are:-(i) In the absence of policy decision taken by the State/rules framed pursuant to the enabling provision of Article 16 (4A) of the Constitution of India whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post; (ii) In the absence of policy decision taken by the State with regard to Tamil Nadu Highways Engineering Service Rules, whether Division Bench was right in holding that Article 16(4A) of the Constitution of India by itself would give consequential seniority in addition to accelerated promotion to the roster-point promotees.

3. These appeals are filed assailing the common judgment dated 25.11.2011 passed by the High Court of Judicature at Madras in Writ Appeals No. 113, 207 and 208 of 2009 whereby the High Court while setting aside the order passed by the learned Single Judge observed that the object of the amending Article 16 (4A) of the Constitution of India is to give consequential seniority in addition to accelerated promotion to roster–point promotees thereby holding that ‘catch-up rule’ is not applicable among the Assistant Divisional Engineers appointed from the post of Junior Engineers following the rule of reservation. For convenience, parties are referred to as per their array in the appeals arising out of SLP (Civil) Nos. 8366-8367 of 2012.

4. The appellants are graduate Assistant Engineers and the contesting private respondents are Diploma holder Junior Engineers are entangled in several rounds of litigation for about two decades over the nagging question of ‘catch-up rule’ and the consequential seniority in the promotional post of Assistant Divisional Engineers. Before adverting to the legal issues, it would be appropriate to refer to the background facts. Engineers of Tamil Nadu Highways Department viz., Chief Engineers, Superintending Engineers, Divisional Engineers and Assistant Divisional Engineers are governed by Tamil Nadu Highways Engineering Service Rules. Assistant Engineers, Junior Engineers, Supervisors and further lower categories are governed by Tamil Nadu Highways Engineering Subordinate Service Rules. The categories viz., Assistant Engineers and Junior Engineers were feeder categories to the category of Assistant Divisional Engineer and the first three vacancies to be filled by Assistant Engineers and the fourth vacancy to be filled by recruitment by transfer by Junior Engineer of Tamil Nadu Highways Engineering Subordinate Service. Rule 12 of Special Rules to Tamil Nadu Highways Engineering Service prescribes application of rule of reservation for the appointment of Assistant Divisional Engineers by direct recruitment and recruitment by transfer. Accordingly prior to 24.05.1993, the Assistant Engineers and Junior Engineers were appointed as Assistant Divisional Engineers by recruitment by transfer after following the rule of reservation.

5. List of Assistant Engineers/Junior Engineers as on 01.01.1993 was published vide Chief Engineer Memo No. 960/N4/91 dated 18.04.1994 not following the ‘catch up rule’. One Assistant Divisional Engineer (ADE) D. Rajendran who belonged to general category, who was overlooked for promotion by Assistant Engineers who belonged to reserved category filed O.A. No.2186/1996 before the Tamil Nadu Administrative Tribunal challenging the consequential seniority given to the reserved category Assistant Divisional Engineers and prayed to revise the seniority in the higher category as obtained in the lower category. Relying upon Ajit Singh Januja & Ors. vs. State of Punjab & Ors., (1996) 2 SCC 715, vide order dated 29.11.1996, the tribunal allowed the application observing that even thou

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2015 Supreme(SC) 826

Cases Referred (10)