Mukesh Kumar vs The State Of Uttarakhand on 7 February, 2020


Supreme Court of India

Mukesh Kumar vs The State Of Uttarakhand on 7 February, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta

                                               Non-Reportable

           IN THE SUPREME COURT OF INDIA
            CIVIL APPELLATE JURISDICTION
              Civil Appeal No.    1226      of 2020
       [Arising out of S.L.P. (Civil) No. 23701 of 2019]

     Mukesh Kumar & Anr.
                                               .... Appellant(s)
                          Versus
     The State of Uttarakhand & Ors.
                                             …. Respondent(s)
                              WITH
               Civil Appeal No. 1227         of 2020
        [Arising out of S.L.P. (Civil) No. 22640 of 2019]
               Civil Appeal No. 1228 of 2020
        [Arising out of S.L.P. (Civil) No. 25508 of 2019]
               Civil Appeal No. 1229        of 2020
[Arising out of Dy. No.39572 of 2019 @S.L.P. (Civil) No. 3668
                             of 2020]
               Civil Appeal No. 1230        of 2020
        [Arising out of S.L.P. (Civil) No. 27715 of 2019]
              Civil Appeal No. 1231 of 2020
       [Arising out of S.L.P. (Civil) No. 28039 of 2019]
              Civil Appeal No. 1232 of 2020
       [Arising out of S.L.P. (Civil) No. 27735 of 2019]
              Civil Appeal No. 1233 of 2020
       [Arising out of S.L.P. (Civil) No. 28947 of 2019]

                     JUDGMENT

L. NAGESWARA RAO, J.

1 | Page

1. The Controversy in the above Appeals pertains to the

reservations to Scheduled Castes and Scheduled Tribes in

promotions in the posts of Assistant Engineer (Civil) in Public

Works Department, Government of Uttarakhand.

2. The Uttar Pradesh Public Services (Reservation for

Scheduled Castes, Scheduled Tribes and Other Backward

Classes) Act, 1994 (for short “ the 1994 Act”) provided for

reservation in public services and posts in favour of persons

belonging to Scheduled Castes, Scheduled Tribes and Other

Backward Classes of citizens. Section 3(1) of the said Act

stipulated reservation at the stage of direct recruitment.

According to Section 3(7) of the 1994 Act, the Government

Orders providing reservation for appointment to public posts

filled up by promotion which were existing on the date of

commencement of the 1994 Act shall continue till they are

modified or revoked. After the formation of the State of

Uttarakhand in 2001, the Uttar Pradesh Public Services

(Scheduled Caste, Scheduled Tribe and Other Backward

Caste Reservation) Act, 1994 was made applicable to the

State of Uttaranchal by a Notification dated 30.08.2001 with

2 | Page
a modification in the percentage of reservations. 21%

reservation for Scheduled Castes was modified to 19% and

2% for Scheduled Tribes was increased to 4%. Likewise,

21% reservation provided in the 1994 Act for Other

Backward Classes was altered to 14%.

3. A Division Bench of the High Court of Judicature at

Allahabad in Mukund Kumar Shrivastava v. State of

U.P.1 upheld the validity of Rule 8-A of the Uttar Pradesh

Servants Government Seniority Rules, 1991 (for short “ the

Seniority Rules”) which dealt with consequential seniority of

persons belonging to Scheduled Castes and Scheduled

Tribes. Later, in Prem Kumar Singh v. State of U.P.2,

another Division Bench of the High Court of Judicature at

Allahabad, Lucknow Bench held that the judgment in

Mukund Kumar Shrivastava (supra) is per incuriam and

not a binding precedent. In Prem Kumar Singh’s case

(supra), the High Court declared Section 3(7) of the 1994

Act and Rule 8-A of the Seniority Rules unconstitutional.

While declaring the correctness of the judgments of the

1 (2011) 1 ALL LJ 428
2 (2011) 3 ALL LJ 343

3 | Page
High Court, this Court by its judgment in Uttar Pradesh

Power Corporation v. Rajesh Kumar3 held that Section

3(7) of the 1994 Act is unconstitutional insofar as it is

contrary to the dictum in M. Nagaraj & Ors. v. Union of

India & Ors.4

4. The challenge to Section 3(7) of the 1994 Act, as

extended to the State of Uttarakhand, was upheld by the

High Court of Uttarakhand in Vinod Prakash Nautiyal &

Others v. State of Uttarakhand & Others 5. Relying

upon the judgment of this Court in U.P. Power

Corporation (supra), the High Court of Uttarakhand

declared Section 3(7) of the 1994 Act unconstitutional and

directed that no promotion can be given by the State by

taking recourse to Section 3(7) of the 1994 Act. The

application filed for review of the judgment in Vinod

Prakash Nautiyal (supra) was dismissed. By way of

implementation of the judgment of the High Court dated

06.07.2011 in Vinod Prakash Nautiyal (supra), a

committee was constituted by the Government of

3 (2012) 7 SCC 1
4 (2006) 8 SCC 212
5 W.P. (S/B) No.45 of 2011

4 | Page
Uttarakhand for collection of quantifiable data relating to

the backwardness of the reserved communities in the State

of Uttarakhand and the inadequacy of their representation

in public posts.

5. On 05.09.2012, the State Government decided that all

posts in public services in the State shall be filled up without

providing any reservations to Scheduled Castes and

Scheduled Tribes. All Government Orders to the contrary

were superseded by the proceeding dated 05.09.2012. Mr.

Gyan Chand who was working as Assistant Commissioner

(Civil), State Tax and belonging to Scheduled Caste

Community filed a Writ Petition for quashing the proceeding

dated 05.09.2012. The High Court by its judgment dated

01.04.2019 struck down the proceeding dated 05.09.2012

as being contrary to the law declared by this Court in Indra

Sawhney v. Union of India & Ors.6 and Jarnail Singh &

Ors. v. Lachhmi Narain Gupta & Ors. 7 While referring to

the judgments of this Court in M. Nagaraj (supra) and

Jarnail Singh (supra), the High Court held that Article 16(4)

6 (1992) Supp.3 SCC 217
7 (2018) 10 SCC 396

5 | Page
of the Constitution in an enabling provision. The High Court

observed that it is not necessary for the State Government

to collect quantifiable data regarding representation of

Scheduled Castes and Scheduled Tribes in State services or

regarding their backwardness before providing reservation

in their favour in promotion posts. The High Court was of the

opinion that the judgment in Vinod Prakash Nautiyal

(supra) related to the constitutional validity of Section 3(7)

of the 1994 Act alone and the Notifications pertaining to

reservation in promotion in favour of Scheduled Castes and

Scheduled Tribes were not set aside. The Appeals arising

out of Civil Appeal @ S.L.P.(Civil) No.25508 of 2019 and Civil

Appeal @S.L.P. (Civil) @ Diary No.39572 of 2019 have been

filed assailing the judgment of the High Court dated

01.04.2019.

6. Vinod Kumar and three others belonging to the

Scheduled Castes working in the Public Works Department,

Government of Uttarakhand filed a Writ Petition in the High

Court of Uttarakhand seeking a direction to the Respondent

therein to prepare a separate list of eligible candidates as

6 | Page
per Rule 5 of the Uttarakhand Promotion by Selection (on

posts outside the purview of Public Service Commission)

Eligibility Rules, 2003 and to prepare a separate list for each

category of eligible candidates of General, Scheduled Castes

and Scheduled Tribes for promotion to the post of Assistant

Engineer (Civil) in Public Works Department. A further

direction to the State Government was sought to hold a

departmental promotion committee for promotion to the

posts of Assistant Engineers after providing reservation to

Scheduled Castes and Scheduled Tribes in accordance with

the Government Orders dated 30.08.2001, 31.08.2001 and

17.02.2004 by which reservation was provided in promotion.

The Writ Petition was disposed of by the High Court on

15.07.2019 with a direction to the State Government to

implement reservations in promotion by promoting only

members of Scheduled Castes and Scheduled Tribes in

future vacancies to maintain the quota earmarked for the

said categories. Civil Appeals @ S.L.P.(Civil) No. 23701 of

2019 and Civil Appeal @ S.L.P. (Civil) No.22640 of 2019 are

challenging the judgment dated 15.07.2019.

7 | Page

7. In the meanwhile, the Respondents in Writ Petition

(Civil) No.117 of 2019 i.e. the State of Uttarakhand filed an

application for review of the judgment dated 01.04.2019.

The High Court realized that it committed an apparent error

in its judgment dated 01.04.2019, while deciding the Writ

Petition by referring to the judgment of this Court in Jarnail

Singh (supra). The High Court clarified that the State

Government is obligated to collect quantifiable data

regarding inadequacy of representation of the Scheduled

Castes and Scheduled Tribes in state services before

providing reservation in promotion. The High Court clarified

that it is not necessary for the State Government to collect

data regarding backwardness of the Scheduled Castes and

Scheduled Tribes in the light of the direction of this Court in

Jarnail Singh (supra). The High Court also observed that

the State is not obligated to provide reservation in

promotions to members of Scheduled Castes and Scheduled

Tribes as Article 16(4-A) of the Constitution is an enabling

provision. However, reservation can be provided by the

State Government only after collecting data regarding

inadequacy of representation of the Scheduled Castes and

8 | Page
Scheduled Tribes in state services. As such, the High Court

directed the State Government to collect quantifiable data

regarding inadequacy of the representation of the

Scheduled Castes and Scheduled Tribes in Government

services which would enable the State Government to take

a considered decision on providing or not providing

reservation. The State Government was directed to take a

decision whether to provide reservation or not only after

considering the data relating to the adequacy or inadequacy

of representation of Scheduled Castes and Scheduled Tribes

in the services of the State within a period of four months

from the date of receipt of the judgment. Aggrieved by the

order dated 15.11.2019 passed in Review Petition in W. P.

(S/B) No.117 of 2019, the Civil Appeal @ S.L.P.(Civil)

No.27715 of 2019, Civil Appeal @ S.L.P.(Civil) No.28039 of

2019, Civil Appeal @ S.L.P. (Civil) No.27735 of 2019 and Civil

Appeal @ S.L.P.(Civil) No. 28947 of 2019 have been filed.

8. Mr. Ranjit Kumar, learned Senior Counsel appearing for

the Appellants in SLP (C) No. 25508 of 2019, Mr. Mukul

Rohtagi and Mr. P.S. Narsimha, learned Senior Counsel

9 | Page
appearing for the State of Uttarakhand contended that there

is no fundamental right to claim reservation in appointments

or promotions to public posts. There is no constitutional

duty on the part of the State Government to provide

reservations. Article 16 (4) and 16 (4-A) are merely

enabling provisions. On 15.09.2012, the State of

Uttarakhand, after due consideration, decided that there

shall be no reservation in promotions. They relied upon the

judgment of the High Court of Uttarakhand in Vinod

Prakash Nautiyal (supra) by which Section 3 (7) of the

1994 Act was declared unconstitutional. It was submitted by

them that the State Government has not brought any law in

terms of the judgment of this Court in M. Nagaraj & Ors.

(supra). It was urged by the learned Senior Counsel that

there is no necessity for collection of any quantifiable data

after the Government has taken a decision not to provide

reservations. The collection of data, according to them, is

required only to justify a decision to provide reservation. It

was also submitted by them that according to a judgment of

this Court in Suresh Chand Gautam v. State of U.P. 8 no

8 (2016) 11 SCC 113

10 | P a g e
direction can be given by the Court to the State Government

to collect quantifiable data on the basis of which a decision

to provide reservation should be taken. They placed

reliance on the judgment of this Court in M. Nagaraj &

Ors. (supra) to argue that the State is not bound to make

reservations.

9. On the other hand, Mr. Kapil Sibal, Mr. Dushyant Dave

and Mr. Colin Gonsalves, learned Senior Counsel and Dr. K.

S. Chauhan, learned counsel, appearing for the reserved

category employees submitted that the State cannot refuse

to collect quantifiable data regarding the adequacy or

inadequacy of representation of the Scheduled Castes and

Scheduled Tribes in public services. They submitted that

there is an obligation on the State to provide reservations in

promotions for upliftment of the members of the Scheduled

Castes and Scheduled Tribes as mandated by Article 16 (4)

and 16 (4-A) of the Constitution of India. The right to

equality of persons belonging to Scheduled Castes and

Scheduled Tribes cannot be defeated by the State

Government by not discharging its constitutional obligation

of implementing Article 16 (4) and 16 (4-A) of the

11 | P a g e
Constitution. They urged before this Court that according to

the law laid down by this Court, the State has a duty to

decide not to provide reservations only after the State is

satisfied that the Scheduled Castes and Scheduled Tribes

are adequately represented in public posts on the basis of

quantifiable data. According to them, Suresh Chand

Gautam (supra) was not correctly decided and needs

reconsideration. It was also submitted on behalf of the

reserved category candidates that a Committee was

constituted by the Government of Uttarakhand to collect

quantifiable data regarding the adequacy of representation

of persons belonging to Scheduled Castes and Schedules

Tribes in public posts in accordance with the judgment of

this Court in M. Nagaraj (supra). According to the report

submitted by the Committee, there is inadequate

representation of the Scheduled Castes and Scheduled

Tribes in government services in the State of Uttarakhand.

The said report was approved by the State Cabinet. It was

contended by the learned counsel that the State

Government was duty bound to provide reservations on the

basis of the data that was collected by the Committee.

12 | P a g e

10. The central point that arises for our consideration in

these appeals is whether the State Government is bound to

make reservations in public posts and whether the decision

by the State Government not to provide reservations can be

only on the basis of quantifiable data relating to adequacy

of representation of persons belonging to Scheduled Castes

and Scheduled Tribes.

11. Article 16 (4) and 16 (4-A) do not confer fundamental

right to claim reservations in promotion 9. By relying upon

earlier judgments of this Court, it was held in Ajit Singh

(II) (supra) that Article 16 (4) and 16 (4-A) are in the nature

of enabling provisions, vesting a discretion on the State

Government to consider providing reservations, if the

circumstances so warrant. It is settled law that the State

Government cannot be directed to provide reservations for

appointment in public posts10. Similarly, the State is not

bound to make reservation for Scheduled Castes and

Scheduled Tribes in matters of promotions. However, if they

wish to exercise their discretion and make such provision,

the State has to collect quantifiable data showing

9 Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209
10 C.A. Rajendran v. Union of India, (1968) 1 SCR 721

13 | P a g e
inadequacy of representation of that class in public services.

If the decision of the State Government to provide

reservations in promotion is challenged, the State

concerned shall have to place before the Court the requisite

quantifiable data and satisfy the Court that such

reservations became necessary on account of inadequacy of

representation of Scheduled Castes and Scheduled Tribes in

a particular class or classes of posts without affecting

general efficiency of administration as mandated by Article

335 of the Constitution11.

12. Article 16 (4) and 16 (4-A) empower the State to make

reservation in matters of appointment and promotion in

favour of the Scheduled Castes and Scheduled Tribes ‘if in

the opinion of the State they are not adequately

represented in the services of the State’. It is for the

State Government to decide whether reservations are

required in the matter of appointment and promotions to

public posts. The language in clauses (4) and (4-A) of

Article 16 is clear, according to which, the inadequacy of

representation is a matter within the subjective satisfaction

11 M. Nagaraj (supra)

14 | P a g e
of the State. The State can form its own opinion on the

basis of the material it has in its possession already or it

may gather such material through a

Commission/Committee, person or authority. All that is

required is that there must be some material on the basis of

which the opinion is formed. The Court should show due

deference to the opinion of the State which does not,

however, mean that the opinion formed is beyond judicial

scrutiny altogether. The scope and reach of judicial scrutiny

in matters within the subjective satisfaction of the executive

are extensively stated in Barium Chemicals v. Company

Law Board12, which need not be reiterated13.

13. On the basis of the settled law of this Court pertaining

to the scope of Article 16 (4) and 16 (4-A) of the

Constitution, we proceed to determine the correctness of

the judgments of the High Court. As noted above, the

judgment of the High Court in Writ Petition No.117 of 2019 is

to the effect that the proceeding dated 05.09.2012 issued

by the Government of Uttarakhand by which it was decided

to fill up the promotional posts or vacancies without

12 AIR 1967 SC 295
13 Indra Sawhney v. Union of India (1992) Supp. (3) SCC 217

15 | P a g e
providing reservations to Scheduled Castes and Scheduled

Tribes was struck down. It was held by the High Court that

the notifications that were issued by the Government of

Uttarakhand, providing for reservations, continued to

operate. A direction was issued by the High Court that

reservation in promotion in favour of the Scheduled Castes

and Scheduled Tribes can be made by the State Government

without having quantifiable data regarding the

backwardness of the Scheduled Castes and Schedules Tribes

or the adequacy of their representation in the Government

services.

14. The application filed for review of the judgment in Writ

Petition No.117 of 2019 was decided by a judgment dated

08.11.2019 by the High Court. Realising the error

committed in its judgment dated 01.04.2019, the High Court

modified the judgment by holding that according to the

decision of this Court in Jarnail Singh v. Lachhmi Narain

Gupta14, the State was obligated to collect quantifiable

data regarding the inadequacy of representation of the

Scheduled Castes and Scheduled Tribes in public services.

14 (2018) 10 SCC 396

16 | P a g e
The High Court observed that Article 16 (4) and 16 (4-A) of

the Constitution are enabling provisions, and the State

Government is not obligated to provide reservations in

promotion in favour of members of the Scheduled Castes

and Scheduled Tribes. The High Court expressed its opinion

that reservation in promotion to public posts can be

provided by the State Government only after collecting data

regarding the inadequacy of their representation in service.

In light of the above, the High Court directed the State

Government to collect quantifiable data regarding the

adequacy or inadequacy of representation of Scheduled

Castes and Scheduled Tribes in state services which would

enable the State Government to take a considered decision

as to whether or not reservation in promotion should be

provided in favour of Scheduled Castes and Scheduled

Tribes. The collection of quantifiable data was directed to

be completed within four months from the date of receipt of

the judgment.

15. The High Court committed an error by striking down

the proceeding dated 05.09.2012 by which a decision was

taken not to provide reservation in promotions without

17 | P a g e
giving any reasons, except stating that the said decision is

contrary to the judgments of this Court in Jarnail Singh and

Indra Sawhney (supra). A perusal of the proceeding dated

05.09.2012 would show that the decision taken by the State

Government was by way of implementation of the judgment

of the High Court of Uttarakhand in Vinod Prakash

Nautiyal (supra) by which Section 3(7) of the 1994 Act,

relating to the provision of reservation in promotion, was

struck down. By its judgment dated 10.07.2012 in Vinod

Prakash Nautiyal (supra), the High Court declared Section

3 (7) of the 1994 Act as contrary to the law laid down by this

Court in M. Nagaraj (supra). There was a further

declaration that no promotion can be given by the State of

Uttarakhand by taking recourse to Section 3 (7) of the 1994

Act. However, the State Government was given liberty to

bring out another legislation in accordance with the

mandate of the Constitution of India, by following the

judgment in M. Nagaraj (supra). This Court dismissed the

SLP filed against the said judgment. At this juncture, it is

relevant to mention that certain notifications were issued

after the formation of the State of Uttarakhand by which

18 | P a g e
reservation in promotion to public posts as provided in the

State of Uttar Pradesh was adapted with certain

modifications. As stated above, the Government of

Uttarakhand appointed a Committee for collection of

quantifiable data pertaining to the adequacy or inadequacy

of representation of the members of Scheduled Castes and

Scheduled Tribes in public services in the State. The

Committee submitted its report, according to which the

representation of Scheduled Castes and Scheduled Tribes is

inadequate. The State Cabinet approved the

recommendation of the Committee on 12.04.2012.

Ultimately, the State Government by a proceeding dated

05.09.2012 decided to set aside all previous Government

orders relating to reservation in promotions to Government

services in the State. As the Government is not bound to

provide reservation in promotions, we are of the opinion

that there is no justifiable reason for the High Court to have

declared the proceeding dated 05.09.2012 as illegal.

16. The direction that was issued to the State Government

to collect quantifiable data pertaining to the adequacy or

inadequacy of representation of persons belonging to

19 | P a g e
Scheduled Castes and Scheduled Tribes in Government

services is the subject matter of challenge in some appeals

before us. In view of the law laid down by this Court, there

is no doubt that the State Government is not bound to make

reservations. There is no fundamental right which inheres in

an individual to claim reservation in promotions. No

mandamus can be issued by the Court directing the State

Government to provide reservations. It is abundantly clear

from the judgments of this Court in Indra Sawhney, Ajit

Singh (II), M. Nagaraj and Jarnail Singh (supra) that

Article 16 (4) and 16 (4-A) are enabling provisions and the

collection of quantifiable data showing inadequacy of

representation of Scheduled Castes and Scheduled Tribes in

public service is a sine qua non for providing reservations in

promotions. The data to be collected by the State

Government is only to justify reservation to be made in the

matter of appointment or promotion to public posts,

according to Article 16 (4) and 16 (4-A) of the Constitution.

As such, collection of data regarding the inadequate

representation of members of the Scheduled Castes and

Schedules Tribes, as noted above, is a pre requisite for

20 | P a g e
providing reservations, and is not required when the State

Government decided not to provide reservations. Not being

bound to provide reservations in promotions, the State is

not required to justify its decision on the basis of

quantifiable data, showing that there is adequate

representation of members of the Scheduled Castes and

Schedules Tribes in State services. Even if the under-

representation of Scheduled Castes and Schedules Tribes in

public services is brought to the notice of this Court, no

mandamus can be issued by this Court to the State

Government to provide reservation in light of the law laid

down by this Court in C.A. Rajendran (supra) and Suresh

Chand Gautam (supra). Therefore, the direction given

by the High Court that the State Government should first

collect data regarding the adequacy or inadequacy of

representation of Scheduled Castes and Scheduled Tribes in

Government services on the basis of which the State

Government should take a decision whether or not to

provide reservation in promotion is contrary to the law laid

down by this Court and is accordingly set aside. Yet another

direction given by the High Court in its judgment dated

21 | P a g e
15.07.2019, directing that all future vacancies that are to be

filled up by promotion in the posts of Assistant Engineer,

should only be from the members of Scheduled Castes and

Scheduled Tribes, is wholly unjustifiable and is hence set

aside.

17. The submission made on behalf of the reserved

category candidates that the judgment of this Court in

Suresh Chand Gautam (supra) needs reconsideration is

without substance in view of the findings recorded above.

We are in agreement with the decision of this Court in

Suresh Chand Gautam (supra) in which it was held that

no mandamus can be issued by the Court to the State to

collect quantifiable data relating to adequacy of

representation of the Scheduled Castes and Scheduled

Tribes in public services.

18. The High Court was not informed about the

appointment of a Committee for collection of quantifiable

data and the completion of such exercise by the Committee,

which was approved by the State Cabinet. However, the

State Government took a conscious decision not to provide

reservation in promotions. The direction given by the High

22 | P a g e
Court to collect quantifiable data, therefore, is wholly

unnecessary as the State is already in possession of the said

data.

19. In view of the aforesaid, the impugned judgments of

the High Court in Writ Petition (S/B) No.351 of 2019, Writ

Petition (S/B) No.117 of 2019 and Review Application No.389

of 2019 in Writ Petition (S/B) No.117 of 2019 are set aside.

20. The Appeals are disposed of accordingly.

.…………………………..J.

[L. NAGESWARA RAO]

……………………………J.

[HEMANT GUPTA]
New Delhi,
February 07, 2020.

23 | P a g e



Source link