HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 20771 OF 2021

O R D E R:

The present Writ Petition is filed under Article 226 of the Constitution of India challenging the validity of Memo No.73/Cabinet/A1/2019-14 dated 27.08.2021, whereby the objections of petitioner to Memo No.1356/SU.I/A1/2021 dated 24.07.2021 were rejected, and the consequential Government Order in G.O.Ms.No.248 dated 27.08.2021, by which revised panels were finalised unsettling the promotion of the petitioner to the cadre of Assistant Secretary.

2. The grievance of petitioner is that the impugned proceedings, though justified by the State as a "review" undertaken in compliance with the Division Bench judgment in Writ Petition No. 4415 of 2016 dated 11.12.2018, are in truth a wholesale revision of panels which disturb vested promotions and consequential seniority, and are therefore, unconstitutional. 2.1. Petitioner belongs to Scheduled Tribe community and entered service in 2002 as Typist-cum-Assistant under reserved category recruitment by the Andhra Pradesh Public Service Commission. She thereafter, earned promotions as Assistant Section Officer, Section Officer and ultimately in 2016 as Assistant Secretary. These promotions were effected under the policy laid down in G.O.Ms.No.5 dated 14.02.2003 and G.O.Ms.No.26 dated 20.02.2009, which provided for reservation in promotions with consequential seniority. It is her contention that Para 5.2 of Memo No.1356 dated 24.07.2021, which stipulates that once adequacy of representation is achieved, promotions shall be governed only by general seniority from the feeder cadre, effectively deprives Scheduled Castes and Scheduled Tribe promotees of consequential seniority and revives the "catch-up" principle which had been annulled by the

85th Amendment to the Constitution.

2.2. Petitioner relies on settled constitutional jurisprudence. In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, the nine- Judge Bench held that Article 16(4) did not permit reservation in promotions but only in initial appointments. This led to insertion of Article 16(4A) through the 77^th Constitutional Amendment Act, 1995, which enabled the State to make provisions for reservation in matters of promotion in favour of Scheduled Castes and Scheduled Tribes. Subsequently, the 81^st Constitutional Amendment Act, 2000 inserted Article 16(4B) to permit the State to carry forward unfilled reserved vacancies to subsequent years without affecting the fifty per cent ceiling. The 85^th Constitutional Amendment Act, 2001 further amended

seniority," thereby legislatively nullifying the "catch-up" principle that had been recognised in the judgment in Virpal Singh Chauhan v. Union of India, (1995) 6 SCC 684, Ajit Singh Januja v. State of Punjab, Article 16(4A) to include the words "with consequential and Ajit Singh (II) v. State of Punjab, 1999 (7) SCC 209. Later, the 117^th Constitutional Amendment Bill was introduced in Parliament to insert Article 16(4A) in a broader form, clarifying that reservation in promotions with consequential seniority is a constitutional right; though it lapsed with the dissolution of the 15^th Lok Sabha, its very introduction reflected the legislative intent to reinforce the constitutional validity of reservation in promotions.

2.3. In M. Nagaraj v. Union of India, (2006) 8 SCC 212, the Constitution Bench upheld the validity of the 77th, 81st and 85th Amendments but made it clear that the State must collect quantifiable data on inadequacy of representation, demonstrate backwardness, and ensure that efficiency in administration under Article 335 is not compromised. While holding that Article 16(4A) is only enabling, the Court observed that once the State decides to exercise the enabling power, the conditions must be fulfilled.

3 1996 (2) SCC 715

2.4. In Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396, the Hon’ble Supreme Court clarified that the requirement in Nagaraj’s case of proving backwardness afresh was contrar