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2015 Supreme(Tri) 144
THE HIGH COURT OF TRIPURA, AGARTALA
DEEPAK GUPTA, U.B. SAHA, S.C. DAS, JJ.
Jayanta Chakraborty & Ors. - Petitioners
Versus
State of Tripura & Ors. - Respondents
WP(C) 189 & 109 OF 2011 & WP(C) 124 OF 2012
Decided on : 09.04.2015
Advocate Appeared:
For the petitioners: Ms. Kiran Suri, Mr. S. Deb, Mr. K.N. Bhattacharji, Mr. B.B. Das, Mr. A. Bhowmik, Mr. Kohinoor N. Bhattacharji, Mr. S. Dutta, Ms. Y. Taneja Bhattacharji
For the respondents: Mr. B.C. Das, Mr. P.S. Patwalia, Mr. A.K. Bhowmik, Mr. S.M. Chakraborty, Mr. Rajat Singh, Mr. T.D. Majumder, Mr. Rituraj Biswas, Ms. A.S. Lodh, Mr. S.C. Das, Mr. P. Dutta, Ms. R. Guha, Mr. R. Dutta, Mr. S. Bhattacharji, Ms. B. Chakraborty
The State is empowered to provide for reservation in promotion with consequential benefit of seniority to SCs and STs who are backward, but while making such a provision, the State must ensure that there exists backwardness of a class, inadequacy of representation in employment, and these must be balanced with the requirements of administrative efficiency.
Headnote:
The judgment deals with the constitutional validity of reservation in promotion for Scheduled Castes (SCs) and Scheduled Tribes (STs) in the State of Tripura. It examines the relevant provisions of the Constitution, the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991, and the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992, in light of the Supreme Court's decision in M. Nagaraj and others vs. Union of India and others [(2006) 8 SCC 212].
Fact of the Case:
The petitioners, who belong to the general category, challenged the reservation policy of the State of Tripura for SCs and STs in promotions, arguing that it violated the principle of equality enshrined in Article 16(1) of the Constitution. They contended that the State had not collected quantifiable data to demonstrate the backwardness of the SCs and STs or the inadequacy of their representation in public employment, as required by the Supreme Court in Nagaraj's case.
Finding of the Court:
The Court upheld the constitutional validity of the reservation policy for SCs and STs in promotions, subject to certain conditions. It held that the State is empowered to provide for reservation in promotion with consequential benefit of seniority to SCs and STs who are backward, but while making such a provision, the State must ensure that there exists backwardness of a class, inadequacy of representation in employment, and these must be balanced with the requirements of administrative efficiency.
Issues: 1. Whether the State has collected quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment? 2. Whether the State has taken into consideration the efficiency of public service while making reservations in accordance with Article 335 of the Constitution of India? 3. Has the State conducted any exercise to find out whether reservation has led to any improvement or otherwise in administrative efficiency? 4. Whether the data collected by the State in terms of Rule 14 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 is adequate data as contemplated in Nagaraj’s case (supra)? 5. Whether even where the class or caste is not duly represented, should the quantifiable data be applied department-wise or cadre-wise or reservations should continue even in a department where the Scheduled Castes or Scheduled Tribes are adequately represented? 6. Whether the State can continue to apply the reservation roster in a department or cadre where the Scheduled Castes and Scheduled Tribes are adequately represented in a particular grade? In such cases, should the reservation roster be followed or should the principle of replacement as laid down in R.K. Sabharwal’s case [(1995) 2 SCC 745] be followed? 7. Whether an employee who is promoted by giving benefit of reservation under the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and the rules framed thereunder can be treated to be an unreserved candidate for filling up the next higher post? 8. Whether Rule 9(2) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 is violative of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and the Constitution of India?
Ratio Decidendi: 1. The State must collect quantifiable data to determine the backwardness of SCs and STs and the inadequacy of their representation in public employment, cadre-wise. 2. The State must consider the efficiency of public service while making reservations, and reservation cannot exceed 50% of the cadre strength. 3. The State must conduct periodic reviews to assess the impact of reservation on administrative efficiency. 4. The data collected by the State under Rule 14 may be adequate, but it must be collated and appreciated in light of Nagaraj's case. 5. Quantifiable data must be applied cadre-wise, and reservation cannot continue in a cadre where SCs and STs are adequately represented. 6. The principle of replacement as laid down in R.K. Sabharwal's case must be followed. 7. An employee who gets the benefit of reservation at any stage of their career cannot be treated as an unreserved candidate for filling up the next higher post. 8. Rule 9(2) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 is violative of the Act and the Constitution, but it can be read down to make it valid.
Final Decision: The Court upheld the constitutional validity of the reservation policy for SCs and STs in promotions, subject to the conditions mentioned above. It directed the State to collect quantifiable data, consider administrative efficiency, conduct periodic reviews, apply the reservation roster cadre-wise, follow the principle of replacement, and ensure that employees who benefit from reservation are not treated as unreserved candidates for subsequent promotions.
Deepak Gupta, J.
This full Bench has been constituted to answer certain questions which we shall refer to hereinafter. The petitioners who belong to the general category claim that they have been deprived of the right to equality as the State has granted promotions to the reserved category candidates in total violation of the law laid down by the Apex Court in M. Nagaraj and others vs. Union of India and others, [(2006) 8 SCC 212].
2. The case of the petitioners is that promotions have been granted by the State to the persons belonging to the Scheduled Caste (SC) and Scheduled Tribe (ST) categories without taking into consideration the existence of the three essential compelling circumstances namely (i) backwardness of the class; (ii) inadequacy of representation in service; and (iii) overall administrative efficiency before making provisions for reservation. It is urged that the Act and rules framed by the State are unconstitutional and illegal as they violate the law laid down by the Apex Court. It is also submitted that the State without collecting or considering the relevant and requisite quantifiable data, cadre-wise as required by law has granted reservation in promotion to the reserved categories. The petitioners contend that without assessing the backwardness or inadequacy of reservation promotions have been made much in excess of the cap of 50% ordained by law.
3. The contest is between the individual rights of people claiming that they are entitled to promotion on the basis of merit and those sections of society which have been deprived of their rights of equality for ages and who claim that it is now their time to get reservation at every level and that there can be no limitation on this power of reservation granted by the Constitution.
4. On the one hand, we have to balance the right of equality of the individual petitioners and on the other hand, we have to balance the preferential treatment which is available to those belonging to the reserved categories so that there is a level playing field in the matter of public employment. We have to ensure that the individuals belong to the reserved categories are not denied the benefits available to them under law but at the same time, there is no reverse discrimination against the individuals belonging to the general category.
The Constitutional History:
5. Before enumerating the questions referred to the larger Bench, it would be pertinent to give a brief background of the Constitutional history of reservation in promotion. We may make it clear that this entire discussion is in respect of reservation in promotion only.
6. Article 16(4) of the Constitution reads as follows:-
“16(4). Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
7. The Apex Court in the celebrated case of Indra Sawhney & others v. Union of India & others [1992 Supp (3) SCC 217] held that reservation in promotion is invidious and not permissible. In paras-819 to 831 of the report, the Apex Court dealt with the question whether Clause (4) of Article 16 permits reservation in matter of promotions. The Apex Court summarized its views thus:-
“859(7). Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion—be it Central Services o
