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1993 Supreme(All) 358
IN THE HIGH COURT OF ALLAHABAD
S. N. Sahay and B. C. Saksena, JJ.
ASHOK KUMAR GUPTA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
W. P. 3088 Of 1993
Decided On : 08/04/1993
.FLR 1995 70 89
Reservation in matters of promotion is not permissible under Article 16 of the Constitution, but the existing provisions regarding reservation in matters of promotion shall continue to be in force for a period of five years from the date of the judgment in Indra Sawhney v. Union of India, as per the direction issued by the Supreme Court under Article 142 of the Constitution.
Headnote:
PROMOTION - RESERVATION - APPLICABILITY - CONSTITUTIONAL VALIDITY - U. P. SERVICE OF ENGINEERS (PUBLIC WORKS DEPARTMENT) (HIGHER) RULES, 1990 - RULE 8 - U. P. PROMOTION BY SELECTION (FOR POSTS OUTSIDE THE PURVIEW OF THE PUBLIC SERVICE COMMISSION) ELIGIBILITY LIST RULES, 1986 - RULE 5 - GOVERNMENT ORDERS DATED MARCH 8, 1972, MARCH 20, 1974, DECEMBER 27, 1974 AND JULY 5, 1984 - CONSTITUTION OF INDIA, ARTICLES 16, 141, 142, 144, 309.
Fact of the Case:
The petitioners, Assistant Engineers in the Public Works Department, challenged the selection proceedings of the Departmental Promotion Committee for the post of Executive Engineer. The selection was made on the basis of seniority subject to rejection of unfit through a selection committee constituted under Rule 8 of the U. P. Service of Engineers (Public Works Department) (Higher) Rules, 1990. The petitioners contended that the selection was illegal and void as it violated Article 16 of the Constitution, as there can be no reservation in matters of promotion where the criterion is seniority subject to rejection of unfit.
Finding of the Court:
The Court held that the existing provisions regarding reservation in matters of promotion shall continue to be in force for a period of five years from the date of the judgment in Indra Sawhney v. Union of India, as per the direction issued by the Supreme Court under Article 142 of the Constitution. The Court further held that the impugned rules made under Article 309 of the Constitution and the impugned executive orders, as contained in Annexures 2 to 7 to the writ petition, cannot be held to be unconstitutional at this stage in view of the aforesaid direction of the Supreme Court and that no interference can be made with the selection held by the respondents for promotion to the post of Executive Engineers by reason of reservation having been made in favor of Scheduled Castes and Scheduled Tribes candidates in accordance with the aforesaid impugned rules and orders.
Issues: 1. Whether reservation can be made in matters of promotion where the criterion is seniority subject to rejection of unfit? 2. Whether the existing provisions regarding reservation in matters of promotion shall continue to be in force for a period of five years from the date of the judgment in Indra Sawhney v. Union of India? 3. Whether the impugned rules made under Article 309 of the Constitution and the impugned executive orders are unconstitutional?
Ratio Decidendi: 1. The Court held that there can be no reservation in matters of promotion as it will be violative of Article 16 of the Constitution. This was the view of the majority of the Hon'ble Judges constituting the Bench deciding the matter in Indra Sawhney v. Union of India. 2. The Court held that the existing provisions regarding reservation in matters of promotion shall remain operative for a period of five years. This was the view taken by four out of nine Hon'ble Judges constituting the Bench in Indra Sawhney v. Union of India. The Court held that this amounts to a direction under Article 142 of the Constitution and would have effect accordingly. 3. The Court held that the impugned rules made under Article 309 of the Constitution and the impugned executive orders, as contained in Annexures 2 to 7 to the writ petition, cannot be held to be unconstitutional at this stage in view of the aforesaid direction of the Supreme Court.
Final Decision: The writ petition was dismissed.
( 1 ) THE petitioners who are Assistant Engineers in the Public Works Department have filed this writ petition to challenge selection proceedings of the Departmental Promotion Committee dated january 27/30, 1993 for the post of Executive Engineer. Rule 8 of the U. P. Service of Engineers (Public Works Department) (Higher) Rules, 1990 provides that recruitment to the cost of executive Engineer shall be made on the basis of seniority subject to rejection of unfit through a selection Committee constituted under the said rule. The appointing authority shall prepare an eligibility list of the candidates in accordance with the U. P. Promotion by Selection (for posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 and place the same before the Selection Committee along with their character rolls and such other records pertaining to them as may be considered proper. The Selection Committee shall consider the cases of the candidates on the basis of the records referred to above and shall prepare a list of selected candidates arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the appointing authority. Rule 6 lays down that reservation for the candidates belonging to Scheduled Castes, Scheduled Tribes and other category shall be made in accordance with the orders of the Government in force at the time of recruitment. Rule 18 of the said rules provides that nothing in these Rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Castes, scheduled Tribes and other special categories of persons in accordance with the orders of the government issued from time to time in this regard. The relevant Government orders regarding reservation have been filed as An-nexures 2, 3, 4 and 5 to the writ petition.
( 2 ) THE U. P. Promotion by Selection (for posts outside the purview of the Public Service commission) Eligibility List Rules, 1986 has been given overriding effect. Rule 5 of the said rules provides that where the criterion for promotion is seniority subject to rejection of unfit the appointing authority shall prepare three lists to be called the eligibility lists of the senior-most eligible candidates from each of the category, namely, General, Scheduled Castes and Scheduled tribes separately in the light of vacancies available for each of the said category containing names so far as may be, in the following proportion, that is to say, for 1 to 5 vacancies 2 times the number of vacancies subject to a minimum of 5 and for over 5 vacancies 1^ times the number of vacancies subject to a minimum of 10. Rule 5 further provides that the provisions contained in proviso to Rule 4 shall mutatis mutandis apply in preparing an eligibility list under this Rule For the sake of ready reference it may be stated that the proviso to Rule 4 says that if recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility lists will be prepared in respect of each such year and in such a case while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility list shall be for the second year the number according to the said proportion plus the number of vacancies in the first year; and for the third year the number according to the said proportion plus the number of vacancies in the first and second years and so on : and further that candidates who arc not considered suitable prima facie for promotion shall not be taken into account in calculating the said proportion and a note to the effect that they are not so considered shall be added against their names.
( 3 ) THE learned counsel for the petitioner stated that he will not raise any question of fact and that he will address arguments on question of law only and hence the writ petition may be finally disposed of.
