REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6631-6632 of 2015
(Arising out of SLP (Civil) Nos. 8366-8367 of 2012)
S. PANNEER SELVAM & ORS. ..Appellants
Versus
GOVERNMENT OF TAMIL NADU & ORS. ..Respondents
WITH
CIVIL APPEAL NO. 6633 of 2015
(Arising out of SLP (Civil) No.10928 of 2012)
VENKATACHALAM & ORS. ..Appellants
Versus
THE SECRETARY, GOVERNMENT OF TAMIL NADU & ORS. ..Respondents
AND
CIVIL APPEAL NOS. 6634-6636 of 2015
(Arising out of SLP (Civil) Nos. 16692-16694 of 2012)
GOVERNMENT OF TAMIL NADU AND ANR. ETC.ETC. .Appellants
Versus
V. VIVEKANANDAN & ORS. ETC. ETC. ..Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted in all the special leave petitions.
2. Common issues involved in this bunch of appeals are:-(i) In the
absence of policy decision taken by the State/rules framed pursuant to the
enabling provision of Article 16 (4A) of the Constitution of India whether
a reserved category candidate promoted on the basis of reservation earlier
than his senior general category candidate in the feeder category can claim
consequential seniority in the promotional post; (ii) In the absence of
policy decision taken by the State with regard to Tamil Nadu Highways
Engineering Service Rules, whether Division Bench was right in holding that
Article 16(4A) of the Constitution of India by itself would give
consequential seniority in addition to accelerated promotion to the roster-
point promotees.
3. These appeals are filed assailing the common judgment dated
25.11.2011 passed by the High Court of Judicature at Madras in Writ Appeals
No. 113, 207 and 208 of 2009 whereby the High Court while setting aside the
order passed by the learned Single Judge observed that the object of the
amending Article 16 (4A) of the Constitution of India is to give
consequential seniority in addition to accelerated promotion to
roster–point promotees thereby holding that ‘catch-up rule’ is not
applicable among the Assistant Divisional Engineers appointed from the post
of Junior Engineers following the rule of reservation. For convenience,
parties are referred to as per their array in the appeals arising out of
SLP (Civil) Nos. 8366-8367 of 2012.
4. The appellants are graduate Assistant Engineers and the
contesting private respondents are Diploma holder Junior Engineers are
entangled in several rounds of litigation for about two decades over the
nagging question of ‘catch-up rule’ and the consequential seniority in the
promotional post of Assistant Divisional Engineers. Before adverting to
the legal issues, it would be appropriate to refer to the background facts.
Engineers of Tamil Nadu Highways Department viz., Chief Engineers,
Superintending Engineers, Divisional Engineers and Assistant Divisional
Engineers are governed by Tamil Nadu Highways Engineering Service Rules.
Assistant Engineers, Junior Engineers, Supervisors and further lower
categories are governed by Tamil Nadu Highways Engineering Subordinate
Service Rules. The categories viz., Assistant Engineers and Junior
Engineers were feeder categories to the category of Assistant Divisional
Engineer and the first three vacancies to be filled by Assistant Engineers
and the fourth vacancy to be filled by recruitment by transfer by Junior
Engineer of Tamil Nadu Highways Engineering Subordinate Service. Rule 12 of
Special Rules to Tamil Nadu Highways Engineering Service prescribes
application of rule of reservation for the appointment of Assistant
Divisional Engineers by direct recruitment and recruitment by transfer.
Accordingly prior to 24.05.1993, the Assistant Engineers and Junior
Engineers were appointed as Assistant Divisional Engineers by recruitment
by transfer after following the rule of reservation.
5. List of Assistant Engineers/Junior Engineers as on 01.01.1993
was published vide Chief Engineer Memo No. 960/N4/91 dated
18.04.1994 not following the ‘catch up rule’. One Assistant Divisional
Engineer (ADE) D. Rajendran who belonged to general category, who was
overlooked for promotion by Assistant Engineers who belonged to reserved
category filed O.A. No.2186/1996 before the Tamil Nadu Administrative
Tribunal challenging the consequential seniority given to the reserved
category Assistant Divisional Engineers and prayed to revise the seniority
in the higher category as obtained in the lower category. Relying upon
Ajit Singh Januja & Ors. vs. State of Punjab & Ors., (1996) 2 SCC 715,
vide order dated 29.11.1996, the tribunal allowed the application observing
that even though the respondents therein were promoted as ADEs earlier to
D. Rajendran, they cannot be placed above the applicant by virtue of
accelerated promotion and giving them the consequential seniority.
Aggrieved by the order in O.A. 2186/1996, Special Leave Petition (Civil)
No. 24455/1996 was filed by the ADEs of the reserved category which was
dismissed by this Court vide order dated 18.12.1996.
6. On 29.04.2004, seniority list of Assistant Divisional Engineers
was published by applying ‘catch-up rule’ among ADEs appointed from
Assistant Engineers and consequential seniority was not given to SC/ST
Assistant Divisional Engineers appointed from Assistant Engineers. But the
‘catch-up rule’ was not applied among the ADEs appointed from Junior
Engineers and thereby giving benefit of consequential seniority to SC/ST
Assistant Divisional Engineers appointed from Junior Engineers in addition
to accelerated promotion. Aggrieved by the seniority list dated 29.04.2004
and the subsequent seniority list fit for further promotion to the post of
Divisional Engineer dated 19.08.2005, the Assistant Engineers who were
selected by the Tamil Nadu Public Service Commission under the junior
category filed the writ petition in the High Court. Contention advanced by
the appellants/writ petitioners was that the promotion given to Junior
Engineers as ADEs was based on rule of reservation and in the promotional
post it would not reverse the seniority of the seniors in the feeder
category who gained promotions subsequently. Relying on the decisions of
this Court reported in Union of India And Ors. vs. Virpal Singh Chauhan And
Ors., (1995) 6 SCC 684; Ajit Singh Januja And Ors. vs. State of Punjab
And Ors., (1996) 2 SCC 715; R.K. Sabharwal And Ors. vs. State of Punjab
And Ors., (1995) 2 SCC 745; Ajit Singh And Ors. (II) vs. State of Punjab
And Ors., (1999) 7 SCC 209 and M. Nagaraj And Ors. vs. Union of India And
Ors., (2006) 8 SCC 212, learned Single Judge of the High Court held that
the State failed to follow the dictum laid down by the Supreme Court in the
above judgments and erred in issuing the seniority list of Assistant
Divisional Engineers, Tamil Nadu Highways Engineering Service by ignoring
the principle of ‘catch-up rule’ vis-a-vis ‘inter-se seniority’ of the
seniors who have gained promotion subsequently. The Single Judge thus
allowed the batch of writ petitions by setting aside the seniority list
dated 29.04.2004 and directed the authorities to prepare the revised
seniority list of the Assistant Divisional Engineers.
7. Aggrieved, the respondents-promotees promoted as ADEs from
Junior Engineers in the reserved category preferred writ appeals and the
Division Bench by the impugned judgment while setting aside the order
passed by the Single Judge held that the object of the amending Article 16
(4A) of the Constitution of India is to give accelerated promotion to
roster-point promotees in addition to accelerated promotion and thereby
held that the ‘catch-up rule’ is not applicable among the Assistant
Divisional Engineers appointed from the post of Junior Engineers by
recruitment by transfer following reservation rules. These appeals assail
the correctness of the above judgment.
8. Having heard both the parties, we have given our thoughtful
consideration to the rival contentions in the light of the principles
enunciated by this Court in a catena of decisions.
9. The concept of ‘catch-up rule’ and ‘consequential seniority’ is
judicially evolved concepts to control the extent of reservation. The
question of reservation and the associated promotion and the consequential
seniority have been the matter of discussion in various decisions of this
Court. The matter regarding reservation in promotions was considered by a
nine Judge Bench of this Court in Indra Sawhney And Ors. vs. Union of
India And Ors., (1992) Supp. 3 SCC 217 and this Court held that the
reservation under Article 16(4) of the Constitution of India is confined
only to initial appointment and cannot extend to reservation in the matter
of promotion. In order to nullify the effect of the aforesaid dicta, there
was an amendment to Article 16 by Constitution (Seventy-seventh Amendment)
Act with effect from 17.06.1995. Vide this Amendment, after Clause (4),
Clause (4A) was inserted in Article 16 of the Constitution.
10. Clause (4) and Clause (4A) of Article 16 of the Constitution of
India read as under:-
“Clause 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.
Clause 4A. Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or classes
of posts in the services under the State in favour of the Scheduled Castes
and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.”
11. Article 16 (4) of the Constitution of India enables the State
to make a provision for reservation for appointments or posts in favour
of any backward class of citizens which in its opinion is not adequately
represented in the services under the State. The constitutional position on
the insertion of Clause (4A) in Article 16 is that the State is now
empowered to make provision for reservation in the matter of promotions as
well, in favour of SCs and STs wherever the State is of the opinion that
the SCs and STs are not adequately represented in the service under the
State. Clause (4A) of Article 16 of the Constitution is only an enabling
provision which empowers the State to make any provision for reservation
for SC and ST candidates in the matter of promotion as well.
12. In Union of India And Ors. vs. Virpal Singh Chauhan And Ors.,
(1995) 6 SCC 684, a question had arisen as to whether a person in SC or ST
category who gets accelerated promotion because of reservation would also
get consequential seniority in the higher post if he gets that promotion
earlier than his senior in general category and this Court held that such
an employee belonging to SC/ST category on promotion would not get
consequential seniority and his seniority will be governed by the panel
position. It was held as under:-
“24. …In short, it is open to the State, if it is so advised, to say that
while the rule of reservation shall be applied and the roster followed in
the matter of promotions to or within a particular service, class or
category, the candidate promoted earlier by virtue of rule of
reservation/roster shall not be entitled to seniority over his senior in
the feeder category and that as and when a general candidate who was senior
to him in the feeder category is promoted, such general candidate will
regain his seniority over the reserved candidate notwithstanding that he is
promoted subsequent to the reserved candidate. There is no
unconstitutionality involved in this. It is permissible for the State to so
provide…”
13. The decision in Virpal Singh Chauhan case led to another
Constitution Amendment and the Parliament enacted Constitution (Eighty-
fifth Amendment) Act 2001 whereby Clause (4A) of Article 16 was further
amended enabling the State to make a provision for reservation in matters
of promotion with consequential seniority. Amended Clause (4A) reads as
under:-
“4A. Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion with consequential
seniority to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under
the State.”
Eighty-fifth Amendment was made effective retrospectively from 17.06.1995,
that is, the date of coming into force the original Clause (4A) of Article
16 of the Constitution of India.
14. In Ajit Singh Januja And Ors. vs. State of Punjab And Ors.,
(1996) 2 SCC 715, by placing reliance on the principle laid down in Indra
Sawhney case and also the Constitution Bench judgment in R.K. Sabharwal And
Ors. vs. State of Punjab And Ors., reported in (1995) 2 SCC 745, a three
Judge Bench accepted the principle of ‘catch-up rule’ as laid down in
Virpal Singh Chauhan case observing that the balance must be maintained in
such a manner that there was no reverse discrimination against the general
category candidates and that any rule/circular or order which gives
seniority to the reserved category candidates promoted at the roster-point
would be violative of Articles 14 and 16 of the Constitution of India.
15. In Jagdish Lal And Ors. vs. State of Haryana And Ors., (1997) 6
SCC 538, another three Judge Bench opined that seniority granted to the
Scheduled Caste and Scheduled Tribe candidates over a general category
candidate due to his accelerated promotion does not in all events got wiped
out on promotion of general category candidate.
16. In Ajit Singh And Ors.(II) vs. State of Punjab And Ors., (1999)
7 SCC 209, the Constitution Bench was concerned with the issue whether the
decisions in Virpal Singh Chauhan and Ajit Singh Januja case which were
earlier decided to the effect upholding the ‘catch-up rule’, that is, the
seniority of general category candidates is to be confirmed or whether the
later deviation made in Jagdish Lal case against the general category
candidates. In Ajit Singh (II) case, inter-alia, the following points arose
for consideration:-
(i). Can the roster-point promotees count their seniority in the promoted
category from the date of their continuous officiation vis-à-vis general
candidates, who were senior to them in the lower category and who were
later promoted to the same level?
(ii) Have Virpal [(1995) 6 SCC 684] and Ajit Singh [(1996) 2 SCC 715] been
correctly decided and has Jagdish Lal [(1997) 6 SCC 538] been correctly
decided?
(iii) Whether the “catch-up” principles are tenable?
17. The Constitution Bench held that Articles 16(4) and (4A) did
not confer any fundamental right to reservation and that they are only
enabling provisions. Overruling the judgment in Jagdish Lal case and
observing that rights of the reserved classes must be balanced against the
interests of other segments of society in para (77), this Court held as
under:-
“77. We, therefore, hold that the roster-point promotees (reserved
category) cannot count their seniority in the promoted category from the
date of their continuous officiation in the promoted post, — vis-à-vis the
general candidates who were senior to them in the lower category and who
were later promoted. On the other hand, the senior general candidate at the
lower level, if he reaches the promotional level later but before the
further promotion of the reserved candidate — he will have to be treated as
senior, at the promotional level, to the reserved candidate even if the
reserved candidate was earlier promoted to that level. We shall explain
this further under Point 3. We also hold that Virpal, (1995) 6 SCC 684 and
Ajit Singh, (1996) 2 SCC 715 have been correctly decided and that Jagdish
Lal, (1997) 6 SCC 538 is not correctly decided. Points 1 and 2 are decided
accordingly.”
18. Constitutional validity of Clauses (4A) and (4B) of Article 16
of the Constitution was challenged in M. Nagaraj And Ors. vs. Union of
India And Ors., (2006) 8 SCC 212. The question that came up for
consideration was whether by virtue of impugned constitutional amendments,
the power of Parliament was so enlarged as to obliterate any or all of the
constitutional limitations and requirements upholding the validity of the
said Articles with certain riders. On the concept of ‘catch-up rule’ and
consequential seniority, this Court held as under:-
“79. Reading the above judgments, we are of the view that the concept of
“catch-up” rule and “consequential seniority” are judicially evolved
concepts to control the extent of reservation. The source of these concepts
is in service jurisprudence. These concepts cannot be elevated to the
status of an axiom like secularism, constitutional sovereignty, etc. It
cannot be said that by insertion of the concept of “consequential
seniority” the structure of Article 16(1) stands destroyed or abrogated. It
cannot be said that “equality code” under Articles 14, 15 and 16 is
violated by deletion of the “catch-up” rule. These concepts are based on
practices. However, such practices cannot be elevated to the status of a
constitutional principle so as to be beyond the amending power of
Parliament. Principles of service jurisprudence are different from
constitutional limitations. Therefore, in our view neither the “catch-up”
rule nor the concept of “consequential seniority” is implicit in clauses
(1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan, (1995)
6 SCC 684.”
19. In Nagaraj case Court further considered two questions viz.:-
(1) Whether there is any upper-limit beyond which reservation is not
permissible? (2) Whether there is any limit to which seats can be reserved
in a particular year; in other words, the issue is whether the percentage
limit applies only on the total number of posts in the cadre or to the
percentage of posts advertised every year as well? Answering the said
questions in paras (121) and (123), this Court held as under:-
“121. The impugned constitutional amendments by which Articles 16(4-A) and
16(4-B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do not
obliterate any of the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and STs
on the other hand as held in Indra Sawhney, 1992 Suppl. (3) SCC 217, the
concept of post-based roster with inbuilt concept of replacement as held in
R.K. Sabharwal, (1995) 2 SCC 745.
123. However, in this case, as stated above, the main issue concerns the
“extent of reservation”. In this regard the State concerned will have to
show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative
efficiency before making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has to collect
quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance
with Article 335. It is made clear that even if the State has compelling
reasons, as stated above, the State will have to see that its reservation
provision does not lead to excessiveness so as to breach the ceiling limit
of 50% or obliterate the creamy layer or extend the reservation
indefinitely.”
The Constitution Bench judgment in Nagaraj case (supra) was subsequently
followed in Shiv Nath Prasad vs. Saran Pal Jeet Singh Tulsi And Ors.,
(2008) 3 SCC 80 and Chairman And Managing Director, Central Bank of India
And Ors. vs. Central Bank of India SC/ST Employees Welfare Association And
Ors., 2015 (1) SCALE 169.
20. While considering the validity of Section 3(7) of Uttar
Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes
and Other Backward Classes) Act, 1994, and Rule 8A of U.P. Government
Servants Seniority Rules, 1991 which provided for consequential seniority
in promotions given to SCs/STs by virtue of rule of reservation/roster and
holding that Section 3(7) of the 1994 Act and Rule 8A of 1991 Rules are
ultra vires as they run counter to the dictum in M. Nagaraj’s case in Uttar
Pradesh Power Corporation Limited vs. Rajesh Kumar And Ors., (2012) 7 SCC
1, in paragraph (81), this Court summarized the principles as under:
“(i) Vesting of the power by an enabling provision may be constitutionally
valid and yet “exercise of power” by the State in a given case may be
arbitrary, particularly, if the State fails to identify and measure the
backwardness and inadequacy keeping in mind the efficiency of service as
required under Article 335.
(ii) Article 16(4) which protects the interests of certain sections of the
society has to be balanced against Article 16(1) which protects the
interests of every citizen of the entire society. They should be harmonized
because they are restatements of the principle of equality under Article
14.
(iii) Each post gets marked for the particular category of candidates to be
appointed against it and any subsequent vacancy has to be filled by that
category candidate.
(iv) The appropriate Government has to apply the cadre strength as a unit
in the operation of the roster in order to ascertain whether a given
class/group is adequately represented in the service. The cadre strength as
a unit also ensures that the upper ceiling limit of 50% is not violated.
Further, roster has to be post-specific and not vacancy based.
(v) The State has to form its opinion on the quantifiable data regarding
adequacy of representation. Clause (4-A) of Article 16 is an enabling
provision. It gives freedom to the State to provide for reservation in
matters of promotion. Clause (4-A) of Article 16 applies only to SCs and
STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-
A) will be governed by the two compelling reasons-“backwardness” and
“inadequacy of representation”, as mentioned in Article 16(4). If the said
two reasons do not exist, then the enabling provision cannot be enforced.
(vi) If the ceiling limit on the carry over of unfilled vacancies is
removed, the other alternative time factor comes in and in that event, the
timescale has to be imposed in the interest of efficiency in administration
as mandated by Article 335. If the timescale is not kept, then posts will
continue to remain vacant for years which would be detrimental to the
administration. Therefore, in each case, the appropriate Government will
now have to introduce the duration depending upon the fact situation.
(vii) If the appropriate Government enacts a law providing for reservation
without keeping in mind the parameters in Article 16(4) and Article 335,
then this Court will certainly set aside and strike down such legislation.
(viii) The constitutional limitation under Article 335 is relaxed and not
obliterated. As stated above, be it reservation or evaluation,
excessiveness in either would result in violation of the constitutional
mandate. This exercise, however, will depend on the facts of each case.
(ix) The concepts of efficiency, backwardness and inadequacy of
representation are required to be identified and measured. That exercise
depends on the availability of data. That exercise depends on numerous
factors. It is for this reason that the enabling provisions are required to
be made because each competing claim seeks to achieve certain goals. How
best one should optimize these conflicting claims can only be done by the
administration in the context of local prevailing conditions in public
employment.
(x) Article 16(4), therefore, creates a field which enables a State to
provide for reservation provided there exists backwardness of a class and
inadequacy of representation in employment. These are compelling reasons.
They do not exist in Article 16(1). It is only when these reasons are
satisfied that a State gets the power to provide for reservation in the
matter of employment.”
21. In the light of the above, we shall consider the factual matrix
and the rival contentions urged and the purport of Rule 12 of Tamil Nadu
Highways Engineering Service Rules.
22. Dr. Rajiv Dhawan, learned Senior Counsel for the appellants
submitted that while it is well-settled law followed by this Court in a
catena of cases M. Nagaraj And Ors. Vs. Union of India & Ors., (2006) 8 SCC
212 that Article 16 (4A) is only an enabling provision and does not
automatically confer right on the reserved categories and when no policy
decision was taken by the State, Article 16 (4A) does not per se applicable
to Tamil Nadu Highways Engineering Service conferring consequential
seniority to the Junior Engineers who obtained accelerated promotion by
following rule of reservation. It was further submitted that post of
Assistant Engineers to be promoted as ADEs constitute more than 75% of the
cadre strength and by not applying the ‘catch up rule’ among the Assistant
Divisional Engineers promoted from Junior Engineers by following rule of
reservation would result in patent discrimination creating disharmony
amongst the cadre. Onbehalf of the appellants, it was urged that the
implementation of the impugned judgment of the Division Bench of the High
Court would result in conferring seniority to a less qualified and less
experienced Assistant Divisional Engineer appointed from Junior Engineer
belonging to SC/ST category and who stand on a higher footing both on
education and experience than the Assistant Divisional Engineers belonging
to general category would offend the rule of equality.
23. Per contra, learned Senior Counsel Mr. R. Thiagarajan and Ms.
Kiran Suri appearing for the respondents contended that there is no common
list of seniority of the appellants who are the direct recruit Assistant
Engineers and the respondents who are in the cadre of Junior Engineers and,
therefore, the services of the appellants and the respondents cannot be
compared and the ‘catch up rule’ is not applicable. The learned Senior
Counsel further contended that promotion given to the respondents were not
accelerated promotion but promotion on account of rule of reservation
following Rule 12 of Tamil Nadu Highways Engineering Service Rules. The
respondents contended that Article 16 (4A) of the Constitution has been
added to protect the consequential seniority arising out of accelerated
promotions and when such amendment is held to be valid and not ultra vires
the Constitution by this Court in M. Nagaraj case (supra), the Single Judge
ought not to have allowed the writ petitions and the Division Bench rightly
set aside the order of the Single Judge.
24. Article 16(4A) of the Constitution is only an enabling
provision which specifically provides that the concerned State may make any
provision for providing reservation of appointments or posts in favour of
any backward class citizens which is not adequately represented in the
services under the State. Articles 16(4) and 16(4A) have to be read with
Article 335 of the Constitution which deal with norms of Scheduled Castes
and Scheduled Tribes to services and posts and lay down that the claims of
the members of the Scheduled Castes and the Scheduled Tribes shall be taken
into consideration consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State. In the absence of
any policy decision taken by the State of Tamil Nadu, Eighty-fifth
Amendment per se will not protect the consequential seniority granted to
the respondents who were promoted to the post of Assistant Divisional
Engineers following the rule of reservation.
25. The respondents placed heavy reliance upon Rule 12 of the
Special Rules Tamil Nadu Engineering Service and contended that their
consequential seniority is protected in terms of Rule 12 and under Article
16 (4A) of the Constitution of India. Rule 12 reads as under:-
“Rule 12: Reservation of appointments: The rule of reservation of
appointments (General Rule 22) shall apply to the appointment of Assistant
Divisional Engineers by direct recruitment and recruitment by transfer
separately and the appointment of Assistant Engineers by direct
recruitment.”
As per Rule 12, reserved category Assistant Engineers and the reserved
category Junior Engineers secured promotion as Assistant Divisional
Engineers much earlier to the general category Assistant Engineers and
Junior Engineers respectively because of their accelerated promotion
following rule of reservation.
26. The true legislative intent under Article 16 (4A) of the
Constitution is to enable the State to make provision or frame rules giving
consequential seniority for the accelerated promotion gained based on the
rule of reservation. Rule 12 evidently does not provide for the
consequential seniority for reserved category promotees at any point of
time. The consequential seniority for such reserved category promotees can
be fixed only if there is express provision for such reserved category
promotees in the State rules. In the absence of any specific provision or
policy decision taken by the State Government for consequential seniority
for reserved category accelerated promotees, there is no question of
automatic application of Article 16 (4A) of the Constitution.
27. Respondents contended that in about eight departments of the
State, rule of reservation is followed and one among them is Tamil Nadu
Highways Engineering Service and in terms of Rule 12 practice of following
rule of reservation in promotion is in existence for more than sixty years
and therefore the Division Bench rightly extended the protection under
Article 16(4A) to accelerated promotees. We are not impressed with the
above submission. In terms of Rule 12, reservation is followed only for
promotion of AEs/JEs as Assistant Divisional Engineers and Rule 12 does not
protect the consequential seniority to ADEs who were promoted following the
rule. The appellants belonging to the general category are not questioning
the accelerated promotion granted to the Junior Engineers/Assistant
Engineers by following rule of reservation but are only seeking fair
application of the ‘catch up rule’ in the fixation of seniority in the
category of ADEs.
28. Protection of the consequential seniority conferred on the
Assistant Engineers appointed as Assistant Divisional Engineers following
rule of reservation during the year 1994 was held to be unconstitutional in
the earlier round of litigation in Original Application No.2186/1996 dated
29.11.1996 before the Tamil Nadu Administrative Tribunal and the same was
confirmed by this Court in Special Leave Petition (Civil) No.24455/1996
titled Tr. J. Sabapathy And Ors. vs. D. Rajendran And Ors. decided on
18.12.1996. Pursuant to the same seniority of the Assistant Engineers
promoted as ADEs following rule of reservation had been lowered following
‘catch up rule’.
29. Now let us consider the crux of the dispute. While publishing
the impugned seniority list dated 29.04.2004, the ‘catch up rule’ was
applied among the Assistant Divisional Engineers appointed from Assistant
Engineers and consequential seniority was not given to SC/ST Assistant
Divisional Engineers appointed from Assistant Engineers; but the ‘catch up
rule’ was not applied to the Assistant Divisional Engineers promoted from
Junior Engineers and thus consequential seniority was given to the SC/ST
Assistant Divisional Engineers-accelerated promotees. According to the
State, ‘catch-up rule’ was applied to the Assistant Divisional Engineers
promoted from Assistant Engineers, since, Assistant Engineers were
recruited by Tamil Nadu Public Service Commission and at the time of their
initial recruitment as Assistant Engineers, rule of reservation was
strictly followed by Tamil Nadu Public Service Commission. In the counter
affidavit filed before the High Court, the State has taken the stand that
the ‘catch up rule’ was not applied in the case of JEs promoted as ADEs or
regarding their inter se seniority of Assistant Engineers and the Junior
Engineers since rule of reservation was not followed at the time of their
appointment as Junior Engineers.
30. Mr. Thiagarajan, learned Senior Counsel appearing for the
private respondents submitted that under the Right to Information Act,
information was sought for onbehalf of respondent U. Palaniappan and
Government furnished the Government Orders for temporary panel of Junior
Engineers for promotion as Assistant Divisional Engineers and the said
Government Orders furnished would clearly show that there is inadequate
representation of Scheduled Caste candidates in various category of Tamil
Nadu Highways Engineering Service. It was further submitted that there are
only two persons belonging to Scheduled Caste community promoted from the
rank of Junior Engineer after 17.06.1995 to the higher post of Assistant
Divisional Engineer and Divisional Engineer and of these two persons one
has been promoted to the post of Superintending Engineer and no other
person is available in the entire department and the inadequacy of
representation was rightly taken into consideration by the Government while
implementing the rule of reservation and consequential seniority.
31. The respondents’ submission regarding inadequacy of
representation of Scheduled Castes/Scheduled Tribes in the Tamil Nadu
Highways Engineering Service by itself is not sufficient to uphold the
inadequacy of representation of SCs/STs in the said service. Even after
Eighty-fifth Amendment, the State is duty bound to collect data so as to
assess the adequacy of representation of the Scheduled Caste candidates in
the service and based on the same the State should frame a policy/rules for
consequential seniority. No material is placed on record that the State of
Tamil Nadu has ever undertaken such exercise of collecting data of adequacy
of representation of the SC/ST candidates in the Tamil Nadu Highways
Engineering Service. In the absence of any rule conferring consequential
seniority in the State of Tamil Nadu ‘catch up rule’ is applicable even
amongst Junior Engineers promoted as ADEs following rule of reservation and
also for their inter-se seniority amongst AEs promoted as ADEs and JEs
promoted as ADEs following rule of reservation.
32. Respondents placed reliance on Rule 35 (aa) of Tamil Nadu State
and Subordinate Service Rules (General Rules) to contend that they are
entitled to consequential seniority in promotional position. Rule 35 (aa)
relied on by the respondents reads as under:-
“*(aa). The seniority of a person in a service, class, category or grade
shall where the normal method of recruitment to that service, class,
category or grade is by more than one method of recruitment, unless the
individual has been reduced to a lower rank as a punishment be determined
with reference to the date on which he is appointed to the service, class,
category or grade.
Provided that where the junior appointed by a particular method or
recruitment happens to be appointed to a service, class, category or grade
earlier than the senior appointed by the same method of recruitment, the
senior shall be deemed to have been appointed to the service, class,
category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available
to the senior only for the purpose of fixing inter-se seniority….” (*
Substituted in G.O. Ms. No.523, P & AR, dated 4.06.1982, w.e.f. 13.07.78)
Rule 35 (aa) of Tamil Nadu State and Subordinate Service (General) Rules
relied upon by the 3rd respondent is applicable only for normal
appointments to any service, class, category or grade and not reserved
category promotions. Rule 35 (aa) does not specifically provide for
consequential seniority to the accelerated promotees who were promoted
following the rule of reservation and Rule 35 (aa) is of no assistance to
the contesting respondents.
33. As noticed earlier, by application of Rule 12, it is evident
that the Assistant Engineers and Junior Engineers of reserved category got
promotion to the post of Assistant Divisional Engineer much earlier to the
general category candidates. At this juncture, we may refer to the
comparative table of service particulars of some of the appellants promoted
as ADEs from Assistant Engineers/Junior Engineers and the respondents in
the post of Assistant Engineer and Junior Engineer and their position in
the cadre of Assistant Divisional Engineer to appreciate the patent
discrimination as under:-
If we look at the above comparative table of the service particulars of the
appellants and the respondents, it is seen that the contesting respondents
U. Palaniappan joined the service almost seven years after the appellants,
his seniority is automatically accelerated at an unprecedented rate and as
on 01.04.2004 his seniority rank as ADE is 150 and seniority of V.
Appadurai is 120. The appellants who are qualified and seniors than the
contesting respondents are placed much below in rank in comparison to the
person belonging to the reserved class promotees who were promoted
following the rule of reservation. It is to be noted that the private
respondents in the present case have been promoted temporarily under Rule
39 (a) and Rule 10 (a) (i) of the General Rules with the condition that
their inclusion in the promotional order shall not confer on them any right
whatsoever in the service. Determination of seniority is a vital aspect in
the service career of an employee and his future promotion is dependent on
this. Therefore, determination of seniority must be based on some
principles which are just and fair. In the absence of any policy decision
taken or rules framed by the State of Tami Nadu regarding Tamil Nadu
Highways Engineering Service, accelerated promotion given to the
respondents following rule of reservation in terms of Rule 12 will not give
them consequential accelerated seniority.
34. Appellants were appointed as Assistant Engineers directly,
while the respondents were initially appointed as Junior Engineers. Hence
according to the respondents, there was no common seniority between the
Assistant Engineers belonging to general category and Junior Engineers
belonging to reserved class and therefore promotion of JEs as ADEs
applying Rule 12 is of no relevance to the appellants. This contention does
not merit acceptance. Both the Assistant Engineers in the Tamil Nadu
Engineering Service and the Junior Engineers in the Tamil Nadu Engineering
Subordinate Service are feeder categories for filling up higher post of the
Assistant Divisional Engineer in the ratio of 3:1 between them. Although,
Assistant Engineers and Junior Engineers are presently two distinct
categories, prior to 1993, both Assistant Engineers and Junior Engineers
were in one category of service-Tamil Nadu Highways Engineering Subordinate
Service. Only after G.O.Ms.No.807, Public Works (HK) Department dated
24.05.1993, the post of Assistant Engineer was raised to the level gazetted
status and they were brought in to State Service/Tamil Nadu Highways
Engineering Service. For promotion, even though two separate seniority
lists are prepared for each category, they are actually of the same cadre
and the respondents cannot contend that if Junior Engineers are promoted as
ADEs following rule of reservation applying Rule 12, it does not affect the
services of the Assistant Engineers.
35. In the absence of any provision for consequential seniority
in the rules, the ‘catch up rule’ will be applicable and the roster-point
reserved category promotees cannot count their seniority in the promoted
category from the date of their promotion and the senior general candidates
if later reach the promotional level, general candidates will regain their
seniority. The Division Bench appears to have proceeded on an erroneous
footing that Article 16 (4A) of the Constitution of India automatically
gives the consequential seniority in addition to accelerated promotion to
the roster-point promotees and the judgment of the Division Bench cannot be
sustained.
36. In the result, the impugned judgment is set aside and these
appeals are allowed. State Government-respondent Nos. 1 and 2 are directed
to revise the seniority list of Assistant Divisional Engineers applying the
‘catch up rule’ within four months. Pursuant to the impugned judgment of
the Division Bench of Madras High Court, if any further promotion had been
granted to the Assistant Divisional Engineers promoted from the rank of
Junior Engineers following rule of reservation with consequential
seniority, the same shall be reversed. Further promotion of Assistant
Divisional Engineers shall be as per the revised seniority list. The
parties shall bear their own costs.
J. T.S. THAKUR
J. R.BANUMATHI
New Delhi;
August 27, 2015
