Pramop Kumar Shukla v. Union of India

1. For the reasons stated in the application, the delay in filing the counter affidavit is condoned and the application stands disposed of WP(a No. 3107/2017 & 3241/2017

2. In both these petitions the common issue arises concerning the validity of two signals dated 24'^ January, 2017 and 29"^ March, 2017 whereby Respondents have called for drawal of Departmental Promotion Committee (DPC) panel for promotion from Subedar Major (Steno) to the rank of Assistant Commander (PS) for the vacancy year 2016-17 by considering promotees of reserved categories.

3. The challenge is also the consequential to the promotional orders of the private Respondents in both petitions. The Petitioners have also challenged seniority list issued from 2009 onwards and seek a direction to the Respondent to re-fix the seniority of the two Petitioners in the rank of Inspector (Steno) from 2009 onwards by placing them above the reserved category personnel.

4. The main plank of the submission on behalf of the Petitioners is the judgment of the Supreme Court of India in M.Nagaraj v. Union of India (2006) 8 see 212 which dealt with the constitutional validity and interpretation of Article 16 (4-A) and (4-B) of the Constitution of India in the matter of providing for reservations in promotion. One of the conclusions in the said judgment was that prior to making reservation in, W.P.(C) 3107/2017 &otherconnectedmatter Page 2of[5] V,-'' promotion an exercise had to be undertaken for determining whether the reserved categories were "adequately represented in promotional post for the purposes ofArticle 16 (4) (A)."

5. The above requirement ofthe law as explained in M. Nagaraj (supra) has been recently reiterated by another Constitution Bench ofthe Supreme Court in its decision dated 26 September, 2018 in JarnailSingh v. Laxnti Narain Gupta 2018 SCConline SC 1641. Inter-alia, the Constitution Bench has, while reiterating the earlier decision in M.Nagaraj observed: " according to us M. Nagaraj has wisely left the test for determining adequacy ofrepresentation in promotional post to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (I) {supra), there may be certain posts right atthe top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question."

6. It may also be noted that a coordinate Bench of this Court in All India Equality Forum & Others v. Union ofIndia (2017) 242 DLT 636 (DB) dealt with a similar question ofthe validity ofan OM dated 13^'' August, 1997 which provided for reservation in promotion without undertaking an exercise of determining whether there was adequate representation of the reserved categories in the promotion post. This Court referred to and relied W.P.(C) 3107/2017 &other connectedmatter page 3of[5] / a upon the decision in M. Nagaraj {supra), quashed the said memorandum dated 13"" August, 1997 and restrained the Respondents from granting any reservation in promotion to Scheduled Castes and Scheduled Tribes in exercises of the power conferred by Article 16(4) (A) of the Constitution of India: "without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, of the said categories, in service, and evaluating the situation by taking into consideration the said data, along with the competing considerations of backwardness and overall efficiency in administration, and arriving at an empirical decision on the basis thereof"

7. In the present petitions from the counter affidavits filed by official Respondents (the private Respondents not having filed replies) it is plain that the above exercise has not been undertaken prior to issuing of the impugned signals or even drawing up the earlier seniority lists from 2009 onwards.

8. In that view of the matter the impugned signals are hereby quashed and a direction is issued to the Respondents, not to grant reservation in promotion without carrying out the primarily exercise of acquiring quantifiable data indicating the inadequacy of reservation of SCs/STs in the promotion post in CRPF and evaluating the situation by taking into consideration, the said data "along with complete consideration of backwardness and overall administration and arriving at an empirical decision on that basis." The seniority lists from 2009 onwards, which,are under challenge, are hereby directed to be re-drawn in view ofthe present judgment. W.P.(C) 3107/2017& other connected matter Page 4of[5] I)

9. It may be recalled that by an order dated 11^*^ April, 2017 this Court had merely made clear that "anything done by the Respondent shall be subject to the final outcome of the writ petition". Now that these writ petitions stand allowed, the consequential orders will be passed by the Respondents.

10. The writ petitions are allowed with the above terms. Pending applications are also disposed of. No costs.