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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
Mukesh Kumar And Another – Appellant
Versus
State of Uttarakhand And Others – Respondent
Civil Appeal No. 1226-1233 of 2020 [Arising out of S.L.P. (Civil) No. 22640, 23701, 25508, 27715, 27735, 28039, 28947 of 2019 & Arising out of Dy. No.39572 of 2019 @S.L.P. (Civil) No. 3668 of 2020]
Decided On : 07-02-2020
(A) Service Law – Reservation – Article 16 (4) and 16 (4-A) of Constitution of India – Article 16 (4) and 16 (4-A) do not confer fundamental right to claim reservations in promotion – State Government cannot be directed to provide reservations for appointment in public posts10. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions – However, if they wish to exercise their discretion and make such provision, State has to collect quantifiable data showing inadequacy of representation of that class in public services – If decision of State Government to provide reservations in promotion is challenged, State concerned shall have to place before Court requisite quantifiable data and satisfy Court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of Constitution – It is for State Government to decide whether reservations are required in matter of appointment and promotions to public posts – Inadequacy of representation is a matter within subjective satisfaction of State – State can form its own opinion on the basis of material it has in its possession already or it may gather such material through a Commission/Committee, person or authority – All that is required is that there must be some material on the basis of which opinion is formed – Court should show due deference to opinion of State which does not mean that opinion formed is beyond judicial scrutiny altogether. [Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 – Section 3(7)] (Paras 11 and 12)
(B) Constitution of India – Article 16 (4) and 16 (4-A) – Right to reservation – State Government is not bound to make reservations – There is no fundamental right which inheres in an individual to claim reservation in promotions – No mandamus can be issued by Court directing State Government to provide reservations – Data to be collected by State Government is only to justify reservation to be made in matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of Constitution – As such, collection of data regarding inadequate representation of members of Scheduled Castes and Schedules Tribes, is a pre requisite for providing reservations and is not required when State Government decided not to provide reservations – Not being bound to provide reservations in promotions, State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of Scheduled Castes and Schedules Tribes in State services – Even if underrepresentation of Scheduled Castes and Schedules Tribes in public services is brought to notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation – Direction given by High Court that State Government should first collect data regarding adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in Government services on the basis of which State Government should take a decision whether or not to provide reservation in promotion is contrary to law laid down by this Court and accordingly set aside. (Para 16)
Facts of the case:
Controversy in present Appeals pertains to reservations to Scheduled Castes and Scheduled Tribes in promotions in the posts of Assistant Engineer (Civil) in Public Works Department, Government of Uttarakhand. Central point that arises for our consideration in these appeals is whether State Government is bound to make reservations in public posts and whether the decision by the State Government not to provide reservations can be only on the basis of quantifiable data relating to adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes.
Findings of the Court:
Direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in Government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion is contrary to the law laid down by this Court and is accordingly set aside.
Result : Appeals disposed of.
JUDGMENT :
L. NAGESWARA RAO, J.
1. The Controversy in the above Appeals pertains to the reservations to Scheduled Castes and Scheduled Tribes in promotions in the posts of Assistant Engineer (Civil) in Public Works Department, Government of Uttarakhand.
2. The Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "the 1994 Act") provided for reservation in public services and posts in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens. Section 3(1) of the said Act stipulated reservation at the stage of direct recruitment. According to Section 3(7) of the 1994 Act, the Government Orders providing reservation for appointment to public posts filled up by promotion which were existing on the date of commencement of the 1994 Act shall continue till they are modified or revoked. After the formation of the State of Uttarakhand in 2001, the Uttar Pradesh Public Services (Scheduled Caste, Scheduled Tribe and Other Backward Caste Reservation) Act, 1994 was made applicable to the State of Uttaranchal by a Notification dated 30.08.2001 with a modification in the percentage of reservations. 21% reservation for Scheduled Castes was modified to 19% and 2% for Scheduled Tribes was increased to 4%. Likewise, 21% reservation provided in the 1994 Act for Other Backward Classes was altered to 14%.
3. A Division Bench of the High Court of Judicature at Allahabad in Mukund Kumar Shrivastava vs. State of U.P., (2011) 1 ALL LJ 428 upheld the validity of Rule 8-A of the Uttar Pradesh Servants Government Seniority Rules, 1991 (for short "the Seniority Rules") which dealt with consequential seniority of persons belonging to Scheduled Castes and Scheduled Tribes. Later, in Prem Kumar Singh vs. State of U.P., (2011) 3 ALL LJ 343 another Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench held that the judgment in Mukund Kumar Shrivastava (supra) is per incuriam and not a binding precedent. In Prem Kumar Singhs case (supra), the High Court declared Section 3(7) of the 1994 Act and Rule 8-A of the Seniority Rules unconstitutional. While declaring the correctness of the judgments of the High Court, this Court by its judgment in Uttar Pradesh Power Corporation vs. Rajesh Kumar, (2012) 7 SCC 1 held that Section 3(7) of the 1994 Act is unconstitutional insofar as it is contrary to the dictum in M. Nagaraj & Ors. vs. Union of India & Ors., (2006) 8 SCC 212.
4. The challenge to Section 3(7) of the 1994 Act, as extended to the State of Uttarakhand, was upheld by the High Court of Uttarakhand in Vinod Prakash Nautiyal & Others v. State of Uttarakhand & Others W.P. (S/B) No.45 of 2011. Relying upon the judgment of this Court in U.P. Power Corporation (supra), the High Court of Uttarakhand declared Section 3(7) of the 1994 Act unconstitutional and directed that no promotion can be given by the State by taking recourse to Section 3(7) of the 1994 Act. The application filed for review of the judgment in Vinod Prakash Nautiyal (supra) was dismissed. By way of implementation of the judgment of the High Court dated 06.07.2011 in Vinod Prakash Nautiyal (supra), a committee was constituted by the Government of Uttarakhand for collection of quantifiable data relating to the backwardness of the reserved communities in the State of Uttarakhand and the inadequacy of their representation in public posts.
5. On 05.09.2012, the State Government decided that all posts in public services in the State shall be filled up without providing any reservations to Scheduled Castes and Scheduled Tribes. All Government Orders to the contrary were superseded by the proceeding dated 05.09.2012. Mr. Gyan Chand who was working as Assistant Commissioner (Civil), State Tax and belonging to Scheduled Caste Community filed a Writ Petition for quashing the proceeding dated 05.09.2012. The High Court by its judgment dated 01.04.2019 struck down the proceedi
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