Constitution (Eighty-Fifth) Amendment Act, 2001 – Art.16(4A) – Respondents were appointed to Orissa Administrative Service-II (OAS-II) posts – They were senior to appointees belonging to SC/ST category and were subsequently promoted in next higher category, OAS-I(JB) – Appellants and others belonging to SC/ST category, recruited with the respondents in subsequent batches, were given promotion to the rank of OAS-I(JB) against reserved vacancies during 1995 & 2000 – Original seniority position in the cadre of OAS-II prepared by Public Service Commission was retained without any changes – Irrespective of getting promotion in subsequent years, the inter se seniority of respondents and the SC/ST roster point promotees in the rank of OAS-I was maintained in the seniority list dated 16.05.2001 – Art.16(4A) was amended by 85 th amendment – State of Orissa issued Resolution dated. 20.03.2002 issuing instructions to all the departments to extend the benefit of seniority for SC/ST govt. servants on promotion by virtue of rule of reservation – Gradation List dated. 03.03.2008 prepared by altering the seniority of respondents, contrary to the list dated.16.05.2001 – OA filed by respondents – Dismissed by Tribunal – Writ petition allowed – Held: Seniority for general category officers was restored in the Gradation List of OAS-I(JB) dated 16.05.2001, by extending the benefit of “Catch Up Rule”, evolved by Supreme Court in the case of Virpal Singh Chauhan, subsequently accepted in Ajit Singh (II) – Validity of 85th amendment was upheld in the case of M.Nagaraj – After the said amendment, amending Art.16(4A) which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to SCs/STs in the State services, the State of Orissa has admittedly not made any provision, either by way of legislation or an executive order, to extend such benefit in the Class-I Services – Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by Govt. of India, without examining the adequacy of representation in posts – It has no legal basis – Seniority/Gradation List dated 16.05.2001 of OAS-I (JB) was prepared correctly following the ratio laid down by Supreme Court – In absence of any law or decision by way of executive order based on acceptable material for conferring additional benefit of consequential seniority, the Gradation List dated 03.03.2008 was prepared by altering the positions maintained in List dated 16.05.2001 – Well reasoned judgment of the High Court is not interfered with – Service Law.
Dismissing the appeals, the Court
HELD: 1.1 The seniority for general category officers was restored in the Gradation List of OAS-I(JB) which was prepared on 16.05.2001, by extending the benefit of “Catch Up Rule”, evolved by this Court in the case of Virpal Singh Chauhan which is subsequently accepted in the case of Ajit Singh (II). After Constitution (Eighty-Fifth) Amendment Act, 2001, amending Article 16(4A) of the Constitution which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to scheduled castes and scheduled tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benefit in the Class-I Services. The advocate for State specifically admitted that the Govt. has not issued any executive order or has passed any legislation. The Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts. Government Resolution dated 20.03.2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down in the various decisions of this Court. The Resolution has no legal basis. The Seniority/Gradation List dated 16.05.2001 of OAS-I (JB) was prepared correctly by following the ratio laid down by this Court and in absence of any law or decision by way of executive order based on acceptable material for conferring additional benefit of consequential seniority, the Gradation List dated 03.03.2008 was prepared by altering the positions which were maintained in the List dated 16.05.2001. While it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4A) but the Resolution dated 20.03.2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, as held by this Court. [Paras 12, 13] [231-D-H; 232-A-F]
M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336 ; Ajit Singh & Ors. (II) v. State of Punjab & Ors. (1999) 7 SCC
209 : [1999] 2 Suppl. SCR 521 – followed.
Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors. (2018) 10 SCC 396 : [2018] 10 SCR 663 – held inapplicable.
Union of India & Ors. v. Virpal Singh Chauhan & Ors. (1995) 6 SCC 684 ; [1995] 4 Suppl. SCR 158 ; Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors. (2011) 1 SCC 467 : [2010] 14 SCR 532 ; B.K. Pavitra & Ors. v. Union of India & Ors. (2017) 4 SCC 620 : [2017] 1 SCR 631 – relied on.
Indra Sawhney & Ors. v. Union of India & Ors. (1992) Supp. 3 SCC 217 : [1992] 2 Suppl. SCR 454 ; Jagdish Lal & Ors. v. State of Haryana & Ors. (1997) 6 SCC
538 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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