The State must collect quantifiable data to establish the need for reservation and ensure the efficiency of administration is not adversely affected before making reservations for scheduled castes and scheduled tribes.

Deepak Gupta, J.

1. By means of this writ petition, the petitioner i.e. Himachal Pradesh Samanaya Varg Karamchari Kalyan Mahasangh has challenged the validity of the instructions dated 7th September, 2007 issued by the State of Himachal Pradesh which makes provision for reservations in the matter of promotions with consequential seniority in all classes of posts in the services under the State in favour of the scheduled castes and scheduled tribes.

2. The State by these instructions has taken a decision to make reservation in promotion for the scheduled castes and scheduled tribes in terms of the provisions of Articles 16(4), 16(4-A) and 16(4-B) of the Constitution of India. The petitioners are aggrieved by the said instructions and certain observations made therein some of which are extracted hereinafter.

3. While making these reservations the State has referred to various judgments of the Apex Court. The judgment of the Supreme Court in M. Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC 212, has been noted but the State has decided that there is no need to collect data as mandated in the said case and made the following observations:

However, controlling factors or compelling reasons, namely, backwardness and inadequacy of representation which enable the State to provide for reservation keeping in mind the over all efficiency of State administration under Article 335 will con-tinue to apply with mandatory compliance of Constitutional requirement of Ceiling limit of 50% quantitative limitation. Moreover it is made clear that in the State of Himachal Pradesh the State Government has already made provision for reservation in promotion after due consideration prior to 19.10.2006, thus, collection of data as mandated by para 124 of the judgment in M. Nagaraj case AIR 2007 SC 71 is not required.

4. This portion of the circular is challenged on the ground that it is against the mandate of the Apex Court.

5. In the State of Himachal Pradesh reservations to scheduled castes and scheduled tribes in promotion was being granted even prior to the constitution amendments made hereinabove. After the decision of the Apex Court in Indra Sawhney v. Union of India 1992 Supp. (3) SCC 217, such promotions could not be made. Thereafter, the Constitution was amended. Then came the decision in R.K. Sabharwal and Ors. v. State of Punjab and Ors. (1995) 2 SCC 745. Thereafter, the State of H.P. issued instructions in the years 1996 and 1997 which were in consonance with the rule laid down in R.K. Sabharwal's case (supra). According to the State these instructions stand negated by coming into force of the Constitution (85th Amendment) Act, 2001 w.e.f. 17.6.1995. The State has also directed that where there are two posts in a cadre at least one post shall always be reserved for the reserved category candidate to mandate the balance of 50%. This portion of the instructions reads as follows:

...Thus, in a cadre of 2 posts one post will always have to be reserved to the reserved category candidates in order to maintain balance between reserved category and general category by extending permissible limit up to 50% reservation provided candidate belonging to Scheduled Caste/Scheduled Tribe fulfilling the eligibility criteria prescribed in the relevant Recruitment and Promotion Rules are available within the zone of consideration.

6. While dealing with the creamy layer the State has given the following directions:

(a) Scheduled Castes/Scheduled Tribes Government servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority with effect from 17.6.1995 retrospectively without introduction of concept of creamy layer as per policy decision of Central Government, contained in Government of India Ministry of Personnel Public Grievances and Pensions, Department of Personnel and Training, Letter No. 36036/2/2007-Estt.(Res.), dated 29.3.2007.

7. This Petition has been contested by the State as well as the Asso