Anoop V. Mohta, J.
1. All the writ petitions are heard by consent as assigned expressly. The issues are common and, therefore, this concluding common decision.
Introduction of the controversy
2. The constitutional reservation policy always put the respective State Government in imbroglio. It is going to last long, as no one in the present scenario or otherwise is in frame of mind to compromise. Having once granted the constitutionally recognized reservation in diverse areas including in the state employment, it's total abolition is unwarrantable and without a solution. The legitimate rights once created and settled, since so many years, just cannot be taken away by a stroke of pen. It is not the case of grant of the reservation in service for the first time but question is of its continuance or discontinuance in part or full. Therefore, the crux of the matter is whether existing reservation policy, in the State employment, can be taken away by declaring such Reservation Statute and the Promotion Circulars, ultra vires or illegal. To understand such situation and the dilemma of all the concerned, we have to see the constitutional provisions and the existing Reservation Policy.
3. The constitutional validity of Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001 (the Reservation Act) and Government circular, (GR No. BCC 2001/1887/PR. KR. 640/01/16B dated 25.05.2004) (The Promotion Circular) issued by the State of Maharashtra (The State) has been the focus of the writ petitions.
4. The Maharashtra Administrative Tribunal (MAT) by judgment and order dated 28 November 2014 in Transfer Application Nos. 1 and 2 of 2014, (transferred Writ Petition No. 8452/2004 on 18 June 2013), has declared the Reservation Act and the Promotion Circular violative of Article 16(4) and 16(4A) of the Constitution of India and of the judgment of Supreme Court in M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212).
5. The operative part of the impugned judgment is :
OPERATIVE ORDER
134. Thus, for the reasons separately set out, we concur in the conclusion that the impugned Act being Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001, is ultravires the Constitution and the law laid down by Hon'ble Supreme Court in the matter of M. Nagaraj and others Vs. Union of India and others (2006) 8 SCC 212. It will have to be and is hereby struck down. The impugned G.R. No. BCC-2001 / 1887/pr.kr.640/01/16-B, dated 25th May, 2004 is also struck down. But we do realize that this judgment will be applicable only to the Maharashtra State Government employees and as mentioned at the outset, the Writ Petitions filed by the employees of other employers outside the jurisdiction of this Tribunal are still pending before the Hon'ble Bombay High Court. It is almost certain that this judgment will be challenged before the Hon'ble High Court or may be Hon'ble Supreme Court. Therefore, in order to save all concerned from rushing in to the next step, we think the effectuation hereof should be put on hold. In other words, the operation hereof, should be stayed. We are so disposed in the set of the facts and circumstances to stay this order for a period of one year. The parties will be free in the meanwhile to move the Hon'ble Court before whom this order will be challenged for any direction about this period also. However, as already noted there are interim orders made by the Hon'ble High Court. The said orders are in force. They will continue to govern all concerned notwithstanding this judgment and the stay granted by us to our own judgment. We cannot and do not interfere therewith.
135. The impugned Act being Maharashtra State Public Services (Reservations for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001 and impugned G.R. No. BCC-2001 / 1887/pr.kr.640/01/16B, dated 25th May, 2004 stand hereby struck down as ultravires the Constitution and ultravires the law laid down by the Hon'ble Supreme Court inter-alia in M. Nagaraj and others Vs. Union of India and others (2006) 8 SCC 212. The operation hereof is stayed for a period of one year from today during which period the interim stay granted by the Hon'ble High Court shall continue to govern all concerned. Both these Transfer Applications are allowed in the above terms with no order as to costs.
6. The State, being aggrieved and affected by the judgment and order has filed Writ Petition No. 2797/2015. Another Writ Petition No.3009/2015 is filed by Vimukta Jatis, Nomadic Tribes And Special Backward Class Employees And Officers Association being the party to the impugned judgment. Writ Petition No.3287/2004 is filed by Best Officers Association, opposing the reservation policy, will be considered on it's fact based merits separately. In W.P/1590/2015, the Petitioners support the reservation policy.
7 The parties have filed their affidavits, reply, rejoinder, sur-rejoinder, in support of their respective submissions. The State affidavits are supported by the data, charts and the documents. The earlier statutes and the circulars are noted to deal with the center of attention.
Prospect in Public employment to all the social group.
8. The historical provisions of law of reservation policy of Central and the State Government are important. The relevant clauses of Article 16 of the Constitution of India read and referred by the counsel appearing for the parties from their respective points of view.
16. Equality of opportunity in matters of public employment.
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(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 favor 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.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
9. The conclusion in M. Nagaraj (supra) is :
121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) 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 OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with inbuilt concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 SC/ST in matter 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 of 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.
124 Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eight-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.
125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.
The basic Constitutional Amendments for Scheduled Castes (SC) and Scheduled Tribes (STs) :
10. In the Constitution of India, on 17 June 1995, a new clause (4A) in Article 16, has been introduced to provide for reservation in promotion for the SC and ST. The Constitution (Eighty First Amendment) Act, 2000 enabled the State to restore the position as was prevalent before 29 August 1997, thereby recognition was given to the concept Backlog vacancies by treating it as a class of vacancies. The Constitution (Eighty Second Amendment) Act, 2000 dated 8 September 2000, thus a proviso to Article 335 of the Constitution has been inserted and restored the relaxations in matters of reservation in promotion.
11. The Constitution (Eighty-Fifth Amendment) Act, 2001 (dated 4.1.2002) in the interest of the Government Servant belonging to the SC and ST categories in matters of seniority on promotion to the next higher grade, an amendment is made to Article 16(4A) thereby in matter of promotion with consequential seniority to any class has been substituted in place of words in matters of promotion to any class . This amendment has been given retrospective effect i.e. 17 June 1995, the date on which Article 16 (4A) itself was brought into force.
The other interlinked constitutional Reservation Provisions.
12. We have to read following Articles of the Constitution of India, subject to other connected provisions.
Art.14 Equality before law
Art.15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Art.40 Organisation of village panchayats
Art.330 Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People
Art.332 Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States
Art.334 Reservation of seats and special representation to cease after seventy years
Art.335 Claims of Scheduled Castes and Scheduled Tribes to services and posts
Art.338 National Commission for Scheduled Castes
Art.338A National Commission for Scheduled Tribes
Art.339 Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes Art.340 Appointment of a Commission to investigate the conditions of backward classes
Art.341 Scheduled Castes
Art.342 Scheduled Tribes
Art.366 Definitions
13. All these Articles reflect the purpose of reservation for Scheduled Tribe, Scheduled Caste and for Other Backward Class and provisions for collecting the information and the material/data for various constitutional provisions. Articles 330, 332 and 334 apportion the seats for Scheduled Caste and Scheduled Tribes in the House of the People and Legislative Assembly, on the population basis. The expression population means the population as ascertained at the last preceding census of which the relevant figures have been published . The report of 2001 is has been used for such purposes by all concerned.
14. It is stated through Article 334 that the reservations of seats and special representation ceases to effect on an expiration of a period of 70 years from the commencement of the Constitution. This is in view of Constitution 95th Amendment Act 2009 with effect from 25/01/2010, whereby the words sixty years are substituted by seventy years . This will retain the position up to year 2020.
15. Article 335 empowers the respective State or Union by keeping in mind the efficiency of administration to consider the claims of members of Scheduled Castes and Scheduled Tribes before an appointment to Union/State services and posts. This includes the power of relaxing qualifying marks in any examination and/or lowering the standards of evaluation, even for the reservation in the matter of promotion to any class or classes of services or posts in connection with the affairs of the Union and State. These provisions bind the State while enacting the Reservation Act.
16. Admittedly, National Commission for Scheduled Castes and Scheduled Tribes has been constituted in view of Articles 338 and 338A. All the concerned are working on every aspect of the castes to evaluate the progress of it's development. They annually report the recommendations in the interest of all. The Reservation Act and so also the promotion circulars cannot be in contravention of any of these reports or recommendations submitted by the commissions. Article 340 provides for appointment of commission to investigate the condition of socially and educationally backward classes within the territory of India and to make recommendations to improve their condition, to provide the grants etc. Articles 341 and 342 specifically deal with Scheduled Castes and Scheduled Tribes in compliance of constitutional provisions. This includes the power of Parliament and/or the State, with the consultation of Governor, to include and to exclude from the specified list the particular caste/group/community, through the notification by the President, from time to time. Maharashtra Scheduled List of SC and ST, OBC, SBC, DT AND NT 17 The lists of Scheduled Castes and Scheduled Tribes, Other Backward Classes, Special Backward Category, Denotified Tribes and Nomadic Tribes in Maharashtra, published and have been modified from time to time. Similar are the lists under the Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1950 (as amended from time to time). This includes even the Central List of Other Backward Classes referring to the Judgments of the Supreme Court relating to the reservation of 27% vacancies in civil posts and services, under the Government of India. The constitution of Expert Committee on Creamy Layer headed by Justice R.M.Prasad has prepared the common list covering the list of OBC for the purpose of reservation in State services, which includes apart from other 14 States, the State of Maharashtra as well. The Central list for the State has been amended and modified regularly covering the castes and communities belonged to even of OBC, apart from SC and ST so recorded above. Rarely, the castes and communities once added are deleted. There is a State list of Other Backward Classes published, modified and amended from time to time, The entries are also transferred to other list because of interpretation by the Courts. The crux is, the Central and the State Government, based upon the material available with them add and/or delete and/or bring in or out, the caste or community in the list for extending the various constitutional concession and the benefits. The process has been going on since long. It is ultimately the Central/State Government would decide, in view of enabling provision and power, to include the caste and community in the beneficiary list to provide further benefits in accordance with law. The State, therefore, required to consider the data, material collected by them to amend the list under the recognized mechanism. All the interested are entitled to claim benefits, concession in every province of the society. This definitely includes the reservation so declared in advance, before treating them in service, at the time of appointment/post and/or in promotion if so required. The reservation process does not commence only at the time of appointment and/or granting concession to the class or categories and/or for promotion, but even prior to the same.
The State Historical reports and recommendations.
A) THADE COMMITTEE REPORT 1961
18. The Thade Committee constituted by the State in the year 1960. The report was given referring to the data of population of Vimukta Jati, Nomadic Tribes and Semi-Nomadic Tribes within the State. However, there was no specific recommendation, regarding these communities, made at that time, is the opponent's argument.
B) B. D. DESHMUKH REPORT, 1964
19. The report has dealt with the Government decision and statistical data so provided and recorded in recruitment of VJ NT community and it's low percentage in reservation. The basis of backwardness is also recorded including the genesis and origin of reservation. Ultimately, the recommendations have been provided to grant reservation as VJ/NT need special consideration and, therefore, recorded that the reservation in promotion is also necessary for VJ/NT.
C) EDATE COMMITTEE REPORT, 1999 :
20. The recommendation so provided based upon the population of VJNT as per 1931 Census. It is recognised mode for assessing the percentage of population and percentage of reservation in proportion. After due survey, it is observed that there was inadequacy of representation. The percentage of population of VJA, NTB, NTC, NTD are also provided for giving proper representation and the percentage of reservation.
21. The National Commission for Backward Classes Act, 1993 (for short, NCBC Act) was promulgated on 2 April 1993. The National Commission for Backward Classes has been constituted accordingly. The relevant definition of backward classes and Lists are reproduced as under:
2(a) backward classes means such backward classes of citizens other than the Scheduled Castes and the Scheduled Tribes as may be specified by the Central Government in the lists;
2(c) lists means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India.
22. The function and power that the Commission is required to consider the representation/request for inclusion of any classes of citizen as backward class in the list. It also includes to consider the complaints of over-inclusion or under-inclusion of any backward classes. It is stated that the advice of the Commission shall normally be binding upon the Central Government. It is also provided to have a periodic revision of list after every succeeding period of ten years to add or delete the list of those who have seized to be backward classes.
D) State Backward Class Commission Reports
23. As directed by the Supreme Court to constitute Backward Class Commission, the Standing Committee was appointed. Later on converted into State Backward Class Commission under the Chairmanship of Shri Justice Khatri. As decided, adopted the process for preparing the report. The criterion prepared by The Mandal Commission was also noted. The material and information so collected, after holding detailed inquiry by submitting even the separate Reports. The detailed report/data, survey, material are also part of record. The Commission has dealt with about 147 representations of various communities. The proposals of 59 communities have been studied so also 95 representations were considered. Ultimately, recommendations have been made referring to inclusion and rejection. All the related issues have been considered accordingly.
24. The State has separate Backward Class Cell (General Administration Department) which has the data of inadequacy of recommendation of the backward class. It collects and updates annual data regarding representation of backward class in service. The Reservation Act reflects the intention of the State Legislation.
25. Any Legislation reflects the intention of the Legislators Parliamentarians. The Reservation Act, as enacted, in view of the judgments/directions/observations of the Supreme Court. An interpretation of any such statues needs to be, by keeping in mind, the constitutional provisions and related laws and mainly including Articles 14, 15, 16, 330, 335, 341, 342 to 354 and also 1950 Orders and scheduled list and related State Scheduled List as amended. All these constitutional provisions are interlinked and interdependent decide the reservation policy in India.
Basic Provisions of the Reservation Act
26. The clauses of the Reservation Act read and referred by the learned counsel appearing for the parties :
Section 2. In this Act, unless the context otherwise requires, -
(a) "appointing authority" in relation to public services and posts means the authority empowered to make appointment to such services or posts;
(b) "Denotified
Tribes (Vimukta Jatis)" means the Tribes declared as such by the Government from time to time;
(c) "establishment" means any office of the Government or of a local authority or statutory authority constituted under any Act of the State Legislature for the time being in force, or a University or a Company, a Corporation or a Cooperative Society in which share capital is held by the Government or any Government aided Institutions.
Explanation. For the purposes of this clause the expression "Government aided institutions" shall also include institutions or industries which have been given either prior to coming into force of this Act or thereafter, aid in the form of Government land at concessional rates or any other monetary concessions by Government, or is recognised, licenced, supervised or controlled by Government;
(d) "Government" means the Government of Maharashtra;
(e) "Group 'A', 'B', 'C' or 'D' means the posts falling within the Group 'A', 'B', 'C' or 'D', as the case may be, as classified by Government by issuing general or special orders issued in this behalf, from time to time;
(f) "Nomadic Tribes" means the Tribes wandering from place to place in search of their livelihood as declared by Government from time to time;
(g) "Other Backward Classes" means any socially and educationally backward classes of citizens as declared by the Government and includes Other Backward Classes declared by the Government of India in relation to the State of Maharashtra;
(h) "prescribed" means prescribed by rules framed by the Government under this Act;
(i) "public services and posts" means the services and posts in connection with the affairs of the State and includes services and posts in
(i) a local authority;
(ii) a co-operative society established under the Maharashtra Co-operative Societies Act, 1960, in which Government is a shareholder;
(iii) a Board or a Corporation or a statutory body established by or under a Central or a State Act which is owned and controlled by the Government, or a Government Company as defined in section 617 of the Companies Act, 1956;
(iv) an educational institution owned and controlled by the Government, which receives grant-in-aid from the Government including a university established by or under a Maharashtra Act;
(v) any establishment; and
(vi) respect of which reservation was applicable by government orders on the date of commencement of this Act and which are not covered under sub-clauses (i) to (v);
(j) "recruitment year" means the English calendar year during which the recruitment is actually made;
(k) "reservation" means the reservation of post in the services for the members of Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes;
(l) "Scheduled Castes" and "Scheduled Tribes" shall have the meanings, respectively assigned to them in the clauses (24) and (25) of Article 366 of the Constitution of India;
(m) "Special Backward Category" means socially and educationally backward classes of citizens declared as a Special Backward Category by the Government.
Section 4. (1) Unless otherwise provided by or under this Act, the posts reserved for the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes shall not be filled in by the candidates not belonging to that caste, tribe, category or class for which the posts are reserved.
(2) Subject to other provisions of this Act, there shall be posts reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes, at the stage of direct recruitment in public services and posts specified under clause (j) of section 2, as provided below:
| Description ofCaste/Tribe/Category/Class | Percentage of vacanciesor seats to be reserved |
| (1) Scheduled Castes | 13 per cent |
| (2) Scheduled Tribes | 7 per cent |
| (3) DenotifiedTribes (A) | 3 per cent |
| (4) Nomadic Tribes (B) | 2.5 per cent |
| (5) Nomadic Tribes (C ) | 3.5 per cent |
| (6) Nomadic Tribes (D) | 2 per cent |
| (7) Special Backward Category | 2 per cent |
| (8) Other Backward Classes | 19 per cent |
| Total: | 52 per cent : |
(i) State, in the case of State cadre posts, and
(ii) concerned district, in the case of district cadre posts:
Provided further that, the principle of Creamy Layer shall be applicable to all categories mentioned above except Scheduled Castes and Scheduled Tribes.
Provided also that, if on the date of coming into force of this Act, if any additional reservation is in force for the Scheduled Tribes in Thane, Nashik, Dhule, Nandurbar, Raigad, Yavatmal, Chandrapur and Gadchiroli districts for direct recruitment in Groups C and D posts, under any Government orders, such reservation shall continue to be in force till such orders are modified or revoked.
(3) The reservation specified for the categories mentioned at serial numbers (3) to (6) (both inclusive) in the table under subsection (2) shall be inter transferable. If suitable candidates for the posts reserved for any of the said categories are not available in the same recruitment year, the posts shall be filled by appointing suitable candidates from any of the other said categories.
(4) In all posts at the divisional level or district level the percentage of reservation occurring in a recruitment year in such categories of Group-C and Group-D posts as may be notified by the Government in this behalf, shall be maintained at such divisional or district level only.
Section 5 : (1) The reservation in promotion shall be at all stages of promotions.
(2) On the date of coming into force of this Act, if any Government orders providing for reservation for any posts to be filled by promotion, are in force, the same shall continue to be in force unless modified or revoked, by Government.
Section 6 : (1) If in respect of any recruitment year, any vacancy reserved for any category of persons under subsection (2) of section 4 remains unfilled, such vacancy shall be carried forward upto five years in case of direct recruitment and three years in case of promotion:
Provided that, on the date of commencement of this Act, if any Government order regarding filling up the posts, in case of non availability of Backward Class candidates are in force, such Government orders shall continue to be in force unless modified or revoked, by Government.
Section 10 : (1) The Government may, by order, provide for nomination of officers belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in the selections, screening and departmental promotion committee for the purpose of selecting persons for appointment or promotions, as the case may be, to public services and posts.
(2) The Government may, by order, grant such concession in respect of fees for any competitive examination or such other similar examinations or interviews, and relaxation in upper age limit as it may be considered necessary in favour of the categories of persons specified in sub-section (2) of section 4.
(3) The Government orders, in force on the date of the commencement of this Act, in respect of concessions and relaxation including concession in fees for any competitive examinations or such other similar examinations or interview and relaxation in the upper age limit shall continue to be applicable, unless modified or revoked, by Government.
Impugned Promotion Circular 27 The relevant clauses of Government Notification for promotion dated 25 May 2004 (The Circular) are:
2. At present, Government, vide column No. 5 of the Reservation Act No. 8 published in the Govt. of Maharashtra Gazette, dated 29th January, 2004, made the following provisions:
(A) Section 5, sub section (1) : The reservation in promotion shall be at all stages of promotions.
(B) According to Sub Section (2), on the date of coming into force of this Act, if any Government orders providing for reservation for any posts to be filled by promotion are, are in force, the same shall continue to be in force unless modified or revoked, by Government.
3. In supersession of the orders dated 23rd May, 1974, 20th January 1975 and 23rd January 1991, the following revised orders are being issued in view of provision under Sub-Section (1) and (2) of Section 5 of the Act which has been brought into force newly.
Government Resolution for promotion:
(A) As per the Sub Section (1) of Section 5 of the Maharashtra Act No. 8 (Reservation Act), the principle of reservation shall be applicable to those posts which are filled up by promotions. In view of this, principle of reservation in promotion shall be applicable in respect of all posts, including those posts also for which proportion of direct recruitment is more than 75%. The provisions under the Govt. Resolution dated 23.1.1991 stand cancelled.
(B) The reservation in promotions will be as follows:
(1) Scheduled Castes - 13%
(2) Scheduled Tribes - 07%
(3) De-Notified Tribes (A) - 3%
(4) Nomadic Tribes (B) - 2.5%
(5) Nomadic Tribes (C) - 3.5%
(6) Nomadic Tribes (D) - 2%
(7) Special Backward Classes - 2%
Total : 33%
(C) The principle of reservation shall be applicable from 29/1/2004 onwards at all stages of promotions on posts for which there is provision of giving promotion in the Recruitment Rules and the principle of reservation was not applicable earlier.
(D) Those Backward Class of employees who have been promoted, prior to 29/1/2004, on the post above the first stage of class I posts shall be considered as having been promoted as per the seniority and merit.
(E) Posts to be filled up as per above provisions of the Act shall be filled up step by step in accordance with the availability of vacant posts.
(F) The orders issued under G.R. No. BCC-1097/C.R. 63/97/16-B, dated 18.10.1997 shall be applicable for such cadres / posts to which principle of reservation in promotions is being made applicable newly. However, for calculating number of reserved posts, total number of sanctioned posts should not be taken into consideration. The number of vacant posts in that cadre which become available after 29/1/2004 should be taken into consideration to decide number of reserved posts as per the percentage of reservation prescribed for various backward class categories.
(G) The provisions of reservation of the Act will not be applicable in respect of the process of selection started prior to 29.1.2004 for giving promotions on posts above the first stage of class I posts and on such posts for which reservation in promotion was not previously applicable. However, for the process of selection for giving promotion to be started after 29/1/2004 the principle of reservation as per the provisions of the Act shall be applicable.
Historical background of the Promotion Circular
28. The Reservation Act came into force from 25 May 2004. The State Reservation Policy even before the Reservation Act, based upon the last Caste Census of 1931 and the natural growth of the population including the Population Census of 2001. There were various State Notifications/circulars published and implemented from time to time in this regard.
7 January 1961 : Resolution expressing sympathy for the predicament of the BSC and requiring returns to be filed on their representation in various departments. Pre 1974 :
Reservations introduced at entry point in various services of the State. 23 May 1974 : Reservations in promotional posts made for (13% SC, 7% ST and 4% Denotified Tribes and Nomadic Tribes) to all posts. 28 January 1975 : Reservation in matters of promotion up to Class I (level 1 : entry point) posts recruited on the basis of positive merit. 31 July 1976 : No reservations in promotional posts where direct recruit reservations 66.6% or more. 23 January 1991 : No reservations in promotional posts where direct recruitment reservation is 75% or more. 16 November 1992 : Mandal judgment of Supreme Court (Indra Sawhney (1992) Supp. 3 SCC 217 at prs. 827-8 p. 745-7 that reservations in matters of promotion are contrary to equality. 17 June 1995 : Constitution (77th Amendment) Act permitting promotions reservation in or SC and ST are inadequately represented. No change was made in favour of the OBCs. 18 October 1997: Resolution implementing R.K. Sabharwal's case (1997) 2 SCC 945 to ensure that percentages do not cross over the prescribed limits. 13 December 1999: Indira Sawhney II (2000) 1 SCC 168 at pr. 65 that equality is part of the basic structure of the Constitution. Note also the decision in M. G. Badappanavar (2001) 2 SCC 666 at pr. 13 reiterating that equality is part of the basic structure. 9 June 2000 : Constitution (81st Amendment) Act 2000 permitting carryover of vacancies to subsequent years. 2001 : Constitution (85th Amendment) Act 2001 seeking to grant consequential seniority for reservation promotees. 22 January 2004 : Maharashtra State Public Service (Reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes Act 2004 (Act of 2004). 25 May 2004 : Resolution purporting to implement the Act of 2004.
The other Promotion Rules
29 Some earlier service rules relating to seniority and promotion are :
28th Jan. 1975 : Promotions upto Class I (Level I) on seniority subject to fitness and in Class I on basis of positive merit .
Where seniority and fitness rule was applied, sympathetic consideration to be given to BCs.
7 April 1983 : Rules under Article 309 for Engineering cadres fixing cadre wise seniority.
16 September 1990 : Ajit Singh (II) (1999) 7 SCC 209 stating that to be consistent with equality, seniority would be cadre based to recognize entry point seniority.
25 May 2004 : Clause (D) of the Notification of 25 May 2004 suggests that all persons promoted up to 29 January 2004 have presumed merit.
4 February 2005 : Separate Notifications for (i) Chief Engineers (ii) Secretary, Executive Director/ Director General that appointment shall be strictly on the basis of merit and strict selection.
All these circulars and the rules have been acted upon by all at least till the State statutes.
Respondent's (Claimant) short submissions
30 Respondent Nos.1 to 4's submissions are :
(i) An examination of the rules in respect of reservations, seniority and promotions show a haphazard reversal of earlier policies by the Promotion Circular to a manner and extent inconsistent with the requirements of the Mandal decision: Indira Sawhney (supra) and M. Nagaraj (supra).
(ii) The Reservation Act fails to disaggregate permissible reservations in promotions (for SC and ST) under Article 16 (4A) and (B) and impermissible reservations for others (OBC and other beneficiaries). This runs through the entire Act in ways that defy severability.
(iii) In any event, the Reservation Act is also invalid on other grounds on the basis of the definition of the institutions and posts the fixing of percentage and quota without examining the need for `adequate representation', the over-barred carry over provisions, the inter-transferability of beneficiaries and ambiguous provisions on the creamy layer and other provisions.
(iv) The Promotion Circular is arbitrary, shows non-application of mind and is inconsistent with the Mandal Judgment (1992) and Article 16 (4A) and (4B) even if the constitutional amendments enacting article 16(4A) and 16(4B) are treated as valid.
(v) The Apex Court has in M. Nagaraj, (supra); Suraj Bhan Meena v. State of Rajasthan; Uttar Pradesh Power Corporation Ltd v. Rajesh Kumar; S. Panneer Selvam v. Government of Tamil Nadu (2015) 9 SCALE 350 reiterate that the impugned Constitutional Amendments are valid because they are enabling. But any legislation or action under them must, satisfy the following requirements: compelling necessity, 50% reservation limit, inadequacy of representation, creamy layer restriction and lack of excessiveness on the basis of relevant quantifiable data.
(vi) No relevant quantified data exists to support the Reservation Act and the Promotion Circular.
31. The Respondents' gist of challenge to the respective Sections of the Reservation Act and the Promotion Circular are :
i) Preamble to the Reservation Act does not provide for special justification for reservation of Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category and Other Backward Classes.
ii) Section 5 of the Reservation Act and the Promotion Circular to the extent it is contrary to Article 16 (4A), has been correctly struck down by the MAT.
iii) Sections 4 and 5 of the Reservation Act are not compliant with the requirements provided in Nagaraj (supra) and in breach of the 50% rule as laid down in Indra Sawhney, R.K. Sabharwal and M. Nagaraj.
iv) The State failed to exclude the creamy layer both at the stage of direct recruitment and promotions for Scheduled Castes and Scheduled Tribes and therefore reservation for Scheduled Caste and Scheduled Tribes, both at the stage of direct recruitment and promotions are required to be quashed and set aside on this ground alone.
v) The Reservation Act also fails to satisfy the criterion of Nagaraj as regards inadequacy of representation on basis of quantifiable data and overall administrative efficiency has been correctly struck down by the MAT.
vi) The Reservation Act is also invalid on the ground that the definition of institutions and posts is too wide. The overbroad carry over provisions, the inter-transferability of beneficiaries and ambiguous provisions on the creamy layer and other provisions makes the provisions of the statute unworkable.
vii) The unworkable provisions of the Reservation Act are not severable and therefore the entire Reservation Act was rightly struck down by the MAT.
viii) This Court has considered the law laid down by the Supreme Court as well as the Division Bench of this High Court and held that MAT had the jurisdiction to decide the constitutional challenge to the Reservation Act and that the Respondents as Original Petitioners had the locus to maintain the said challenge.
(ix)The judicial review of impugned order passed by a statutory Tribunal under Article 226 of the Constitution of India is limited;
(x) The Tribunal has power to decide the constitutional validity of the Act and/or the Circular. The State's preliminary objection, is unsustainable about the Locus standi of original Petitioner.
32. Citations referred in the impugned judgment of MAT M. Nagraj and ors (supra), RK Sabharwal (supra), Ajit Singh Januja and ors v. State of Punjab (1996) 7 SCC 209), Kalyan Darhah's, Gopal Krishnaji Ketkar v. Mohammed Haji Latif and ors (AIR 1962 SC 1416), General Manager, Southern Railway v. Rangachari Gurbus Das (AIR 1962 SC 36), Indira Sawhney (supra), Union of India (supra), State of Kerala (supra), Akhil Bhartiya Sushikshit Karamchari Sangh (Railway) (supra), Barium Chemicals Ltd vs. Company Law Board (1966 Supp. SCR 311), Uttar Pradesh State Power Corporation vs. Rajesh Kumar (2012) 7 SCC 1), Reservation M. R. Balaji (supra), Shri Sanjeet Shukla v. State of Maharashtra [Petition(L) No.2053 of 2014); PH Advani vs. Harpal Singh (AIR 1975 Bom 120), Keshavananda Bharti Case (1973) 4 SCC 225), Virpal Singh Chauhan, (supra), Minerva Mills Ltd (supra), Suraj Bhan Meena (supra) and also relied upon judgment of Madhra Pradesh High Court in Writ Petition No.1942/2011R.
B. Rai v. State of Madhya Pradesh along with connected matters dated 30.04.2016.
33. The following Judgments have been read/referred and distinguished in addition.
a) Surajbhan Meena Vs. State of Rajasthan (supra)
b) U.P. Power Corporation Vs. Rajesh Kumar and Ors.
c) Salauddin Ahmed Vs. Samata Andolan
d) S.V. Joshi Vs. State of Karnataka
e) Himachal Pradesh Schedule Tribes Employees Federation Vs. Himachal Pradesh S.V.K.K. and Ors.
f) S. Panneer Selvam Vs. The General Manager
g) Sushil Kumar Singh and Ors. Vs. State of Bihar and Ors. (CAJ Case No. 19114 of 2012) (HC Patna)
h) Jayanta Chakraborty and Ors. Vs. State of Tripura and Ors. (WP(C) 189 of 2011)HC (Tripura)
i) Sanjit Shukla Vs. State of Maharashtra, 2015(2) BCR 267-Basic principles have been relied by all.
34. For their respective submissions, the learned senior counsel appearing for the parties have read and referred the Supreme Court judgments in the matter of such reservation and all related specific doctrines/principles from their respective points of views:
(i) Reservation Quota limits (e.g. 50% )(Quantifiable data) Quantitative limits M. R. Balaji (1963) Supp. 1 SCR 439) M. Nagraj (supra)
(ii) Treating reservation as an instance of equality and not an exception to it. N. M. Thomas, (1976) 2 SCC 310).
(iii) The `carry over' principle. Devadassan, ((1964) 4SCR 680) Indra Sawhney (1992) Supp. (3) SCC 217).
(iv) Lowering standards , N. M. Thomas, (1976) 2 SCC 310) Akhil Bharatiya, (1981) 1 SCC 246)Vinod Kumar (1996) 6 SCC 580)
(v) Non-division of SC/ST on basis of further backwardness
E. V. Chinnaiah (2005) 1 SCC 394)
(vi) Denial of reservation in promotions , Indra Sawhney,
(vii) Stopping roster , R. K. Sabharwal (1995) 6 SCC 684 : (1995) 2 SCC 745)
(viii) Accelerated seniority and catchup rule , Virpal Singh Chauhan, (1995) 6 SCC 684) Ajit Singh (I), (1996) 2 SCC 715) M. Nagaraj (supra) (ix) Creamy layer , Indra Sawhney, Indra Sawhney (II), (2000) (1) SCC 168) Ashok Thakur, (2008) 6 SCC 1) M. Nagaraj (supra)
(x) Aspects of Efficiency , (Article 335) Indra Sawhney (supra) Vinod Kumar (1996) 6 SCC 580).
35. All these Supreme Court judgments on law, need no discussion. It binds all. We have to apply the law on facts and circumstances of the case in hand. Most of above principles have been taken note of while deciding the points so discussed.
36. The counsel for the State and the other Petitioners in support of Reservation Act and the Promotion Circulars have referred :
a) Census Data on caste as available in 1931, but its natural grown data
b) The B. D. Deshmukh report is 1964,
c) The Thade Committee 1961,
d) The Edate Committee 1999 and
e) Population Census reports and the judgments
f) Various data/material/stated to be quantifiable data.
37. The State submissions and the cited judgments (1) General Manager, S. Rly. v. Rangachari, (1962) 2 SCR 586), (paras 23, 26).
(2) State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 (Paras 21, 24, 29, 75, 184, 186, 191).
(3) Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 1 SCC 246 (Paras 34, 36)
(4) Indra Sawhney (supra) (paras 796, 797, 798, 809, 810, 860) verify
(5) M. Nagaraj (supra)
(6) Commissioner of Commercial Taxes, A.P. Hyderabad vs. G. Sethumadhava Rao, 1996 (7) SCC 512 (para 10)
(7) Union of India v. Rakesh Kumar, (2010) 4 SCC 50 (paras 41, 42, 43)
(8) K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 (paras 65, 66, 67)
(9) Suraj Bhan Meena and ors v. State of Rajasthan, 2011 (1) SCC 467. (paras 65, 66 )
(10) Uttar Pradesh Power Corporation Limited v. Rajesh Kumar, 2012 (7) SCC 1 (para 36)
(11) S.V. Joshi v. State of Karnataka, (2012) 7 SCC 41 (paras 9 to 13)
Set of circumstances of the State
38. The Reservation Act came into force on 29 January 2004. It was implemented by Government Resolution dated 25 May 2004. By writ petition No. 8452 of 2004 filed on 11 October 2004, in the Bombay High Court, the constitutional validity of it and the legality of the Promotional was challenged.
39. On behalf of the State, Mr. Dinkar Dhondu Tiwrekar, Under Secretary, GAD, filed an affidavit and contended that, (i) There is a presumption of validity in favour of the Act, unless proven otherwise; (ii) the challenge to the Constitutional validity of Amendment to Article 16(4A) was pending before the Supreme Court and therefore, the Supreme Court was seized off the matter; (iii) by way of 77 constitutional Amendment 16(4A) was added to Article 16(4) providing for reservation in promotion and therefore the law laid down in R.K. Sabharwal's case was not applicable; (iv) Creamy Layer concept was not applicable to SC and ST; (v) 85th Amendment of the Constitution to Article 335 empowers the State to make provision in favour of members of SC and ST; (vi) the High Court passed an order directing the parties to maintain status quo. Same was the position of other Petitions.
40. On 30 March 2005, a detailed affidavit-in-reply was filed by Mr. R.G. Pawar, Depurty Secretary, GAD pointing out the law laid down by the Supreme Court in Indra Sawhney's case. Development after Indra Sawhney's case and subsequent amendment to Article 16(4A) providing for Reservation in promotion. Brief history as to why VJ/NT are treated as Backward Class. Detailed discussions have been made on the backwardness of some classes who have been termed as depressed classes and also regarding some nomadic tribes who indulged in criminal activities and were called criminal tribes. The findings of Thade Committee Report, B.D. Deshmukh Committee Report were discussed and findings therein have been given. Government Resolution gave classification of backward classes. The state Resolution dated 9 April 1965 gave the percentages of reservation against each caste as classified. GAD Resolution dated 23 May 1974 provided for reservation for promotions till first stage of class. GAD resolution of 4 August 1992 included Dhangar Community along with its sub caste in the list of VJ/NT. Order in Writ Petition No. 1142 of 1986 as well as order in Appeal No. 924 of 1986 dated 24 July 1992 were pointed out. Order dated 24 July 1992, held that until such time as the representation were made and decided Banjara and Vanjari community should be treated as synonyms of each other and confidential circular 5 March 1986 not to be acted upon. SLP against order dated 24 July 1994 dismissed by the Supreme Court. Order dated 9 June 1992 passed by MAT in O.A. No. 77/91 in Writ Petition No. 855 of 1990 directed the State Government to appoint a Committee to decide whether Banjara and Vanjari are synonyms. Committee Appointed under chairmanship of Dr. D.G. Wadhwa on 31 July 1992. On 9 August 1993, Wadhwa Committee submitted its report that Banjara and Vanjari were not synonyms of the same group. Banjari Community came to be included in the list of VJ/NT. Constitution of Khatri Committee and its report have been discussed. Action taken by the Government on the basis of the Khatri Committee modifying the list of VJ/NT and OBC and also gave details of the extent of Backlog of each category. Detailed discussion on why VJ/NT have been provided with reservation in promotion and why creamy layer has been excluded.
41. On 20 April 2005, High Court granted Rule in Writ Petition and refused to modify the interim order of stay dated 22 February 2005 of the Promotion Circular. On 5 August 2005, the Supreme Court refused to interfere with the said order of stay.
42. On 17 August 2006, the High Court allowed Civil Application No. 1783 of 2006 filed on 6 July 2006 in Writ Petition No. 8452 of 2004 pointing out the difficulties being faced in the matter of promotions in view of the order dated 22 February 2005 as huge number of posts were vacant. The High Court by its order dated 17 August 2006, permitted the State Government to grant promotion to SC/ST only subject to outcome of the Petition. The State by Resolution dated 24 August 2006, implemented the provisions of GR dated 25 May 2004 as per order dated 17 August 2006. In the month of September 2006, Civil Application No. 2283 of 2006 was filed by the Respondent for modification of interim order dated 17 August 2006 and to stay to Government Resolution dated 24 August 2006. On 19 September 2006, the High Court passed an order whereby held that promotion given after 18 August 2006 shall be subject to final decision in Civil Application No. 2283 of 2006. On 25 September 2006, SLP No. 16485 of 2006 was filed by the Respondent in Supreme Court to challenge orders dated 17 August 2006 and 19 September 2006 passed by the High Court. On 27 September 2006, Supreme Court stayed the above orders passed by Bombay High Court.
43. An additional Affidavit-in-reply was filed challenging the maintainability of Civil Application No. 2283/2006 on various grounds including the ground that by the Civil Application the Respondent (original Petitioner No.1) for seeking a Review of order dated 17 August 2006 passed by the High Court in Civil Application No. 1783 of 2006.
44. On 19 October 2006, the Constitutional Bench of the Supreme Court decided the matter of M. Nagaraj Vs. Union of India (Supra). On 10 November 2006, the State filed an affidavit in SLP No.16485 of 2006. On 6 November 2006, the Supreme Court by order directed the Bombay High Court to consider Civil Application Nos. 1783 of 2006 and 2283 of 2006 de novo in the light of M. Nagaraj case. On 15 December 2006, the State filed Civil Application No. 3130 of 2006 in Writ Petition No. 8452 of 2004 in this Court and prayed to permit to fill in the promotional posts. On 26 December 2006, Respondent (Original Petitioner) filed Civil Application No. 134 of 2007 in Writ Petition No. 8452 of 2004 and prayed to stay the operation of the Promotion Circular and the policy of reservation in promotions. On 9 March 2007, this Court considered Civil Application Nos. 3130 of 2006, 1783 of 2006, 2283 of 2006 and by dismissing Civil Application No. 134 of 2006 passed the order allowing the State to fill promotional posts to the extent of 67% from open category, 13% from SC, 7% from ST and remaining 13% from VJNT/SBC to remain vacant till final disposal of Writ Petition No. 8452 of 2004. On 13 March 2007, the Respondent (Original Petitioner) has challenged the order of this Court in the Supreme Court by filing SLP No. 4984 of 2007. On 9 April 2007, the State has filed an affidavit in the SLP. On 4 May 2007, the State filed Review Application (Stamp) No. 11463 of 2007 in Writ Petition No. 8452 of 2004 to vacate above order dated 9 March 2007. On 13 July 2007, this Court rejected the Review Petition. On 16 July 2007, the State pursuant to order dated 9 March 2007 passed by this Court gave promotion excluding persons belonging to VJNT/SBC. On 5 September 2007, order dated 9 March 2007 of this Court was challenged by the State in the Supreme Court vide SLP No. 18534-18537 of 2007. On 28 March 2008, the Supreme Court i modified order dated 9 March 2007 and permitted the State to fill 13% posts of VJNT and SBC subject to final decision in Writ Petition.
45. On 27 December 2010, an additional Affidavit was filed by S.N. Rankhambe, Deputy Secretary, GAD in reply to the amendment carried out by the Respondent (Original Petition ) in Writ Petition No. 8452 of 2004. The main contention raised in the said affidavit was that conjoint reading of Articles 14, 15(4), 46 of the Constitution of India gives ample power to the State to take steps and measures for the advancement of socially and economically weaker sections of the Society. Reliance was placed on Thade Committee Report, Deshmukh Committee Report, Khatri Committee Report, Indra Sawhney decision. It was pointed out that the decision to provide for Reservation was taken in the basis of data collected from various departments of the State and reading backlog pertaining to different categories of backward classes. It was pointed out that save and except making allegations the Respondent (Original Petitioner) has not been able to show any cogent evidence that there was no satisfaction on the part of the State in respect of Backwardness of the categories covered, inadequacy of the representation, maintenance of the administrative efficiency and concept of creamy layer. On 19 July 2010, the Supreme Court disposed off the SLP No. 4984 of 2007 in terms of its order dated 28 March 2008. The State had made the promotions accordingly.
46. On 17 February 2011, an additional Affidavit-in-reply was filed by S.N. Rankhambe, Deputy Secretary, GAD in Writ Petition No. 8452 of 2004. It was pointed out that history of reservation dates back to early 1880s till date and that the concept of Reservation was not new. Reliance was placed on Justice Khatri Committee Report in the light of Indra Sawhney case. Reliance was placed on Deshmukh Committee Report, pursuant to which policy decision was taken to provide reservation in promotion up to class I category. It was pointed out that an analysis of data from census of India from the year 1951 to 2001 regarding literacy and dropouts for SC and ST, it was pointed that there was a wide group in literacy between SC and ST as compared to the general category.
47. On 21 February 2012, Respondent (Original Petitioner) filed Additional Affidavit-in-reply in Writ Petition No. 8452 of 2004. It was contended that the State has violated provisions of Article 16(4A) as the mandatory three tests have not been complied with. The mandatory three tests i.e. backwardness, inadequacy of representation and reservation in promotion shall not disturb the efficiency of administration. That section 5 of the impugned Act is contrary to the mandate laid down by the Supreme Court in the case of M. Nagaraj and other subsequent judgments. That according to the directions given in Indra Sawhney case the reservation in promotion was 33% upto first stage of Class I in service group A. Accordingly to the ratio laid down in the Judgment the reservation was to be only for a period of five years for SC and ST. However, the impugned Reservation Act was enacted providing for reservation in promotion in all stages thereby violating the mandatory requirements of Article 16 and 16(4A). The relevant circumstances of Other Backward Classes (OBC) 48 There are various Circulars which are placed on record, whereby the community belongs to OBC have been provided with the various concession and reservation. Government Resolution dated 23 May 1974 whereby the reservation to all classes in promotion upto Class I was challenged [1988 (Supp.) Bom. C.R. 923 (Full Bench) Gopalirishna Ramchandra Chavan and ors v. State of Maharashtra, but was dismissed. The Apex Court , by order dated 6.1.1998 [ 1998 (9) SCC 48 after Indira Sawhney's judgment (supra) dismissed the Appeal thereby maintained the G.R. By observing that if implemented the policy of reservation the quota is exceeded, it would be open to the Petitioner to approach the Court. However, by Eighty-First Constitutional amendment, Article 16(4)(B) with effect from 9.6.2000 by which unfilled vacancies were considered as a separate class of vacancies, to be filled and not to consider together with the vacancies of which succeeding year for determining the ceiling of 50% as observed.
49. Certain historical background and the related proceedings which we have noted, and as submitted by the learned senior counsel appearing for the Petitioner, for OBC/VJ/NT are reproduced:
OBC Historical background
50. The demand for reservation of government jobs was made as early as 1891 with an agitation in the princely State of Travancore against the recruitment of non-natives into public service overlooking qualified native people. In 1901, Reservations were introduced in Maharashtra in the Princely State of Kolhapur by Chhatrapati Shahu Maharaj. Reservations in the princely states of Baroda and Mysore were already in force. In 1908, reservations were introduced in favour of a number of castes and communities that had little share in the administration by the British. A delegation of Muslim nawabs, landlords, and prominent persons led by Agha Khan, leader of the Ismaili Sect, presented a memorandum demanding a share in the administration in proportion to their population. The viceroy gave it sympathetic consideration and provisions were made in the government of India Acts of 1909 and 1919 granting the Muslims due share and other facilities.
51. On 30/11/1948, The present Art 16(4) was discussed in the constituent assembly. Members like Shri. M. Ananthasayanam Ayyangar, Shri. P. Kakkan have stated that the protection of reservations for backward classes is needed even at the stage of promotions as well and the members intended that Art 16 (4) shall include reservations in promotions as well. On 26/01/1950, The Constitution of India came in force. On 1/5/1960, State of Maharashtra was formed. Prior to1961, Nomadic Tribes i.e. wandering tribes were included in depressed classes. The Nomadic tribes identified by different names in different part of India are included in schedule caste and scheduled tribes. On 21/11/1961, As per the Thade Report the Govt under Government Resolution, Education and Social Welfare Department No. CBC 1361/4, dated 21st November 1961 declared the communities indicated in schedule to the resolution as belonging to the Vimukta Jatis and Nomadic tribes in the state of Maharashtra. On 11/01/1964, B G Deshmukh committee submitted its report to the state government and proposed that the backward classes should be grouped into Schedules Castes, Scheduled Tribes, Denotified and Nomadic Tribes and Other Backward Classes. He stated that the DTNT are similarly situated with SC and ST and are most backward. On 09/04/1965, based on the recommendations of Shri B. D. Deshmukh Committee percentage of reservation for VJ/NT was fixed at 4%. On 23/05/1974, under GAD resolution No. BCC 1072J reservations for promotions were introduced for VJ/NT as they were similarly situated with SC and ST and did not have adequate representation in the State Services. The Nomadic or wandering Shepherd Class i.e. Dhangar Community came to be included in the list of VJ/NT under Govt in Social Welfare Dept Resolution No. CBC 1089/ (203)/MVK5 dated 25th May 1990. On 4/8/1992, the percentage of VJNT was increased to 6% for appointments i.e. including recruitment and promotions. On 16/11/1992, the Constitution Bench of the Hon ble Supreme Court In Indira Sawhney Vs. Union Of India held that Art 16(4) does not include reservations in promotions. However, the bench held that the state might provide reservation by direct recruitment at all stages to give adequate representation at all stages. On 23/3/1994. Vanjara Community included in the list of VJNT. VJNT increased to 11%. On 19/5/1995, The State Backward Class Commission (Khatri Commission) was formed. On 17/06/1995, Parliament by 77th Constitutional amendment inserted Art 16(4) (A) permitting reservation in promotions to the Schedule Castes and Schedule Tribes. The object of the amendment was to overcome the Judgment in Indira Sahwney Case which held that reservation of appointments or posts under Art 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion. It aimed to protect the interests of Scheduled Castes and Scheduled Tribes as their representation in services in the States have not reached the required level. Later it was further amended to include consequential seniority by 85th amendment. On 01/03/1996, in the case of Ajit Singh Januja held that the SC and though backward class candidates entitled to reservation in promotion but open category senior candidates, though promoted later than reserved category candidate, become senior to earlier promoted backward class candidate, for further promotion. On 12/11/1998, as per the recommendations of Mutatkar Commission and Khatri Commission list of VJNT and OBC s was modified. In 1999, Dr. Edate committee on the study of VJNT submitted its report after making a detailed and in depth study of every aspect and also taking into consideration the research made by Dr. Babasaheb Ambedkar Research institute Pune. The final list of VJNT was published by the Government of Maharashtra in 1999. On 9/6/2000, the Constitution 81st Amendment Act, 2000 inserted Art 16(4)(B) to create a distinct group of Backlog vacancies to exclude them from the ceiling limit of 50% reservations. The amendment gave legislative assent to the Judgment of R. K. Sabharwal.. In 2000, The Constitution 82nd Amendment Act, 2000 inserted a proviso at the end of Art 335 of the Constitution for relaxing qualifying marks and standards of evaluation in matters of reservations in promotions. This was to surmount the Judgment of S. Vinod Kumar (1996 (6) SCC 580). In 2001, Constitution 85th amendment act, 2001 [with retrospective effect from 17.6.1995] was issued amending Art. 16(4)(A) granting a consequential seniority to reserved category employees in their accelerated promoted posts roaster point promotes to get accelerated seniority. This amendment negated the effect of Virpal Singh Chauhans Case (1995 AIR SCW 4309) and Ajit Singh Januja (I) Case (1996 AIR SCW 1196). On 31/03/2002, The National Commission to review the working of the Constitution submitted its report. The report states that the continued plight of the Denotified tribes, semi-nomadic and nomadic tribes who are distributed in the list of Scheduled Castes, Scheduled Tribes and Backward class is an eloquent illustration of the failure of the machinery of planning, financial resources allocating budgeting and administration in the country to seriously follow the mandate of Art. 46. The report further states that Art 16(4) and 16(4)(A) respectively permit reservation of appointments or posts and in matters of promotions in favour of backward classes not adequately represented in the services under the State. The report further states that the adequate representation of backward classes is, however, still a far cry and special efforts need to be made for effectively enforcing reservation of backward classes to achieve their adequate representation. On 12/10/2002, Writ Petition Nos. 319/2002, 255/2002 and 234/2002 under Art 32 were filed in the Supreme Court challenging the Constitutional validity of the said amendment Act of 2001. The Supreme court did not grant stay to the Amendment Act.
72/193
52. On 11/10/2004, The Constitutional Validity of The Reservation Act and the Promotion Circular are challenged in WP no 8542 of 2004 and prayed also that in the alternative it may be made applicable only to SC and ST subject to compliance with guidelines laid down in M. Nagaraj Case. On 7/2/2005, the Division Bench of the Bombay High Court directed the parties to maintain status quo. On 20/2/2005, Respondent no 7 filed reply stating that the corporation is not at all concerned as they don t recruit/promote and the government department alone is concerned with the same. On 21/2/2005, Respondent no 8 filed reply stating that it is a matter of public knowledge as to what all posts are super specialized posts. That the corporation has no role to play in regulating the service conditions of the employees. The state replied as to how and why the VJNT are treated as Backward Classes. That a committee was set up in 1928 to inquire into the educational, economic and social conditions of the depressed classes and the term depressed classes included the Untouchables, Tribes, Criminal Tribes and wandering and other backward classes. The Criminal Tribes Act of 1924 identified large sections of the Nomadic Tribes as criminals. Although the act was repealed the stigma attached to these groups still continues and are looked at with suspicion by the administration and subject to harassment at the hand of the police and the State machinery. That Thade Commission was appointed for unification of the lists of Vimukta Jaties and Nomadic Tribes and Semi Nomadic Tribes of the entire state. Shri. Thade after an intensive survey throughout the state and studying their living conditions, health needs etc and on the basis of survey recommended for adopting uniform list. His report was accepted and on 21.11.1961 the State declared the Schedule of VJNT. Later B. D. Deshmukh committee was appointed for the reservation of backward classes in the services. The committee after discussions with various departments and officers and after obtaining statistical data of the actual position from 1950 submitted its report on 11/1/1964has recommended that the percentage of reservation should be linked to population statistics and the backward classes grouped into SC, ST, VJNT and OBC.
53. The reservation in promotions was provided from 1974 by GR dated 23/5/1974. In 1990, Dhangar and Vanjari communities were added to the list of VJNT. On 7/12/1994certain communities such as Govari, Mana, Koshti, Koli and Munnarwar were declared as Special Backward Class. The reservation of SBC is challenged in WP (OS) 2027 of 1997 (Anil R. Joshi Vs. State of Maharashtra) and is still pending before the High Court. As per the Judgment of Supreme Court in Indira Sawhney a committee of experts was converted into the State Backward Class Commission on 19.05.1995 under the Chairmanship of Shri. S. N. Khatri, retired judge of the Bombay High Court. The committee after considering various claims and the judgment applied its mind to the situation prevailing and formulated a practical test to determine backwardness of a class. The surveyors were trained .The committee carried exhaustive enquiry. The recommendations were placed before the Cabinet on 12/11/1998 and the lists of VJNT and OBCs was modified on the basis of these recommendations. That on the basis of these recommendations, the state has noted that the classes recommended by the committee are not adequately represented on the basis of a comparative statement prepared about the vacancies in direct recruitments as well as promotions of each category. Thus the satisfaction of the state was established.
54. On the basis of this data not to provide the benefits of the Act to VJNT and SBC would be harsh and violative of Art. 14. That given the extent of backwardness of VJNT groups and the Social exclusion that they have historically faced their situation is similar to that of the erstwhile untouchables.
55. On 28/3/2008, SLP (C) No 18534-18537/2007, SLP (C)No. 18538/2007, SLP (C)No. 1853942/2007 were heard. The Supreme Court was pleased modify the impugned order dated 9/3/2007 to the extent that the state government may also fill the posts in respect of the 13% from VJNT and SBC candidates subject to the final decision of the pending writ petition before the High Court. On 27/12/2010, The State filed additional reply stating that Art 14 is a generic Article. Art 15 and 16 are some facets of the said Art. That 2% marginal increase in the maximum percent does not affect efficiency of administration and such marginal excess is permitted in terms by the judgment in Indira Sawhney s case. That when the state is satisfied that certain tribes in the state, though not listed as STs in the Presidential order are comparable in all respects to the listed Scheduled Tribes of the State and in the adjoining States, the State cannot forsake its Constitutional duty to promote the economic interest and advancement of the weaker sections mandated by Art 46. It is now well settled that the fundamental right have to be interpreted in the light of the Directive Principles of State Policy. That Art 14 permits the State to make classification even beyond the scope of the classification visualized in Art 15 and Art 16. The law declared in State of Kerala V N M Thomas (1976) 2 SCC 310 (7 Judges) and approved by a larger bench of 9 Judges in Indira Sawhney makes this position very clear. That Castes and Tribes listed in the Presidential order and unlisted castes and tribes which suffer from the same degree of social, economic and educational backwardness cannot be treated differently only on the irrational ground that they were not listed in the Presidential order. Such technical view would defeat the object of the Constitution. That after analysis of available data and reports of various committees and after subjectively satisfying that there is inadequacy of representation of SC, ST, VJNT and SBC classes it is just legal and necessary to provide the reservation in Promotion at all stages. That if there would be no reservation there would be almost no representation of backward classes. That it is one of the ways of achieving economic advancement. That the opinion is formed on the basis of data. That the Supreme Court has permitted to fill the 13% seats reserved for VJNT in promotions. That the Supreme Court has upheld the Constitutional amendments giving reservation in Promotions. That in light of M. Nagaraj Judgment State had already filed detailed reply dated 30.3.2005 pointing out that the backwardness has been identified. That various committees have identified backward classes and recommended sub classification. That the State has Special Backward Class Cell in General Administration Department which looks after the collection of Statistical data that this cell had collected the data from all departments and then the State Government has reached conclusion and decided to provide reservation at all stages of promotion. That the State has been treating VJNTs on Par with Sc and ST in State. That the State Government is of the opinion that SC, ST and VJNT and SBC continue to be backward and they are inadequately represented and it was necessary to reserve post at all stages of Reservation. The State has annexed the Chart Showing inadequacy of representation.
56. On 1/2/2011, The State filed their reply contending that the demand of reservations was made way back in the year 1891 and provision of reservations were made in Maharashtra by Shahu Maharaj in 1901. That in 1942 communities was classified into advanced, intermediate and backward classes. That during the debates of the constituent assembly some members have stated that protection of reservations for backward classes is needed even at the stage of promotions. That Nomadic Tribes were included in depressed classes. That the VJNT communities are similar to that of Scheduled Tribes and they are included in the list of Scheduled Tribes in surrounding states. That some communities like Dhangar claim to be scheduled tribes but the State has deprived them of the status of Scheduled Tribes. That the classification and Sub-Classification of VJNT communities is done as per the recommendations of various committee like Thade Committee, B. G. Deshmukh Committee, Wadhwa Committee, Khatri Committee, Edate Committee after ascertaining the backwardness, occupational disadvantages and stigma of criminality. That as per the report of National Commission to review the working of Constitution the continued plight of these communities is an eloquent illustration of failure of state machinery and that special efforts need to be made for effectively enforcing reservation to achieve adequate representation. That there is still backlog of VJNT communities. That the VJNT and SBC are equally placed with SC and ST and have also suffered similar deprivation and disadvantages and hence the action taken by the state is in pursuance of the rights conferred under Art 14, 16, 46 and 335 of the Constitution of India. That their backwardness and inadequacy of representation is based on the various reports of the commissions including the state backward class commission and on the exercise conducted by the State to ascertain adequacy of representation considering all the cadres of the State. That on the basis of proper research and investigations and after collection of data with material in support thereof, the backwardness, and inadequacy of representation of VJNT and SBC is established beyond doubt. That they are not less efficient that the general category of the SC and ST. That adequate representation to backward class in the service under the state includes adequate representation in all cadres and considering the cadre strength. That the adequate representation to backward class cannot be ensured without reservations if the entire cadre is filled only by promotions and not by direct recruitment. That the reservation in promotions is permissible if the ratio of direct recruits is not more that 50%. That there is nothing to presume that direct recruits are more efficient and also the state too has not provided direct recruitment at all stages.
57. It is the case that all these communities namely SC, ST, VJNT, SBC are socially, educationally and economically backward and there was inadequacy of representation at all level and cadres. It was also evident from the past record that administrative efficiency has not suffered as after each promotion the criteria for every person in that cadre for measuring his competency and efficiency was the same and the administrative efficiency has not affected adversely in any manner since 1974. The state as also relied in the Census Data. That VJNT communities are as backward as SC and St and are treated on par with SC and ST since 1965 in all schemes. That it is not denied that these communities are equally backward like that of SC and ST. Hence this was not challenged in any court earlier. Now this history cannot be changed hurriedly to stop such the reservation benefits including to VJNTs. On 12/12/12,the State has filed the Sur-Rejoinder stating that the burden is on the original Petitioner. The original petitioner has failed to discharge his burden. There is no specific denial, with contra material to those affidavits and data placed on record by the State and the affidavit of Other Backward Class/VJ/NT/SBC.
The averments against the Reservation Act
58. On 21.06.2012, Respondent nos 1 to 4 has filed an affidavit in rejoinder to the affidavit in reply of the state dated 27.12.2010: the action of the State is ultra vires Art 16(4)(A) of the Constitution, the separate quota for VJNT was unconstitutional and sub classification was not based on backwardness, the representation of reserve category candidates was much more than required, the date provided by respondent no 1 was misleading and incomplete. That the petitioner has no objection for providing reservation to VJNT in direct recruitment but extending the scope of reservation for promotion by ignoring criterion laid down by the Supreme Court and ignoring the legitimate claim of open category candidates is not correct. (para 26), the confidential report and gradation should not be the only criteria for maintaining efficiency in administration, the respondent has not places any report to satisfy the above test, Art 16(4)(A) provides reservation in Promotion only for SC and ST and not for other categories, Khatri Committee was appointed to identify various castes to be included in OBC and the committee has solely done the job of identification of castes to be included in the OBC. The committee has not ascertained the backwardness, inadequacy and overall efficiency. There was no objection from any group so far as implementation of Art 16 (4) is concerned but when the same is extended to promotions it leads to reverse discrimination and affects administrative efficiency. It is stated that the words equally backward has no relevance, had the VJNT been equally backward they would have been included in SC/ST.
The case proceedings in High Court
59. On 28 November 2014,the MAT has struck down the Reservation Act and the Promotion Circular. The Judgment has been stayed by MAT itself for a period of 1 year. On 13 March 2015, Writ Petition No. 2797 of 2015 filed by the State in this Court challenging the impugned Judgment and Order. On 20 March 2015, this Court has granted interim stay to the execution and implementation of the Judgment and order of MAT. On 13 August 2015, Civil Application No. 2531 of 2015 filed by the Respondent to modify or vacate the interim order.
60. The parties have filed their respective Additional Affidavits and written submissions. On 29 April 2016, additional documents have been tendered by the State stating it to be the part of the original Writ Petition and the record before MAT except Compilation part No. III, District-wise caste census 1931. Part-I and Part-II consist of various Commission/Expert Committee Reports/Recommendations of all the caste in question. All these documents and materials have been placed on record by the State as to justify their reasons for enactment of the Reservation Act and the implementation of the reservation/promotion circulars. Both the learned counsel read and referred and made the additional submissions revolving around the same. Various orders have been passed, from time to time, which are part of court proceedings in record of these Writ Petitions, including of issuance of notices to all.
13 August 2015
Stand over to 3.09.2015 FOB for final hearing.
2. The Registry is directed to keep all connected matters along with these matters, whether ready or unready.
3. The Registrar (Judicial-I) is directed to call for record and proceedings of Transfer Application Nos. 1 and 2 of 2014, in W.P. No.8452/2004 and WP/470/2005, from Maharashtra Administrative Tribunal if not already called for. He shall ensure that the record and proceedings reaches this Court on 26.08.2015.
4. Stand over to 3.9.2015 First on Board in the caption of Final hearing.
3 September 2015
By consent, stand over to 30 September 2015 at 1.00 p. m. for final hearing along with all other connected matters. List of connected matters be resubmitted by the respective advocates, and specifically by the learned AGP for the State, as all other matters are not listed by the office, inspite of earlier orders.
2. It is made clear that the notices be given accordingly and circulated to the Principal Bench, as well as, other Benches of this Court at Nagpur, Aurangabad and Goa, about these matters, which are relating to the Constitutional validity of the Maharashtra State Public Services (Reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis) and Nomadic Tribes, Special Backward Classes and Other Backward Classes) Act 2001 (Maharashtra Act No. VIII of 2004), (for short, the Act ) and connected Government Resolutions. The Registry is directed to take steps and circulate the notices accordingly.
3. In the meantime, the parties to file their respective synopsis and circulate a common compilation of Judgments, if any.
61. The Court heard the counsel for the parties only these matters by consent of the parties to avoid further delay in dealing with the validity of the act, from 30 September 2015 to 4 May 2016. The other matters to be heard, once the decision of the impugned MAT is concluded. Other individual/association challenge of the Act would be considered on fact based writ petition, separately, after the conclusion of these matters in view of the urgency expressed.
16 April 2016
1] The learned counsel appearing for the parties have concluded their respective arguments/rejoinder in Writ Petition Nos.2797 of 2015, 3009 of 2015, 1590 of 2015 and 3287 of 2004.
2] The learned counsel appearing for the parties seek time to file revised written submissions and connected chart.
3] At the request of the learned counsel, stand over to 29 April 2016. To be listed under the caption for directions .
29 APRIL 2016
Mr. Yadav, the learned AGP has tendered on record
(i) the compilation of contents (ii) notes on methodology adopted for deciding the backwardness and (iii) District-wise Caste Census-1931. The copies of the same are provided to the concerned parties.
2. So far as the District-wise Caste Census-1931 is concerned, it is stated that though reference to the same is made before the Maharashtra Administrative Tribunal (MAT), the State Government is filing the relevant pages of District-wise Caste Census 1931, for first time in this Court.
3. The Respondents are also permitted to file affidavits/counter affidavits to these documents, if so advised. The parties to file revised written submissions, if not already filed, by the next date.
4. Matters be kept on 4 May 2016 (HOB).
4 May 2016
1. Arguments heard today and concluded.
2. Matters are closed for Judgment.
3. Parties to file revised submission, if not already filed and also to give it on pen drive.
All the interim orders and the promotions so made are in force till this date, as being subject to final order of these Petitions.
Specific Issues before the Tribunal.(MAT)
62. The learned Tribunal considering the rival contentions so raised, in Paragraph 19 recorded the issues in the following terms
(i) Reservation in promotion has been challenged on two grounds.
(a) Under Article 16(4A), no reservation in promotion can be provided to any backward class except S.C. and S.T. The Reservation Act provides for reservation in promotion to DT/NT and SBC also, which is in contravention of express provision of this Article.
(b) Even for S.C./S.T., there is no quantifiable data available with the State to indicate that they are inadequately represented in the services under the Government.
(ii) The Reservation Act has been challenged on the following grounds :
(a) The State does not have quantifiable data on the backwardness and adequacy of representation in respect of any of the backward classes. The Act does not disclose the basis on which percentage of reservation for different backward classes have been provided. The decision of the Government is arbitrary.
(b) Though the State is empowered to provide reservation in Government service, the law is so made as to include practically every service provided in the Private sector, thus violating Articles 13 and 16 of the Constitution.
(c) The State does not have any data regarding impact of reservation on overall administrative efficiency.
(d) The law should provide for Creamy Layer, even in promotion.
(e) Even though some part of the Reservation Act may not be ultra virus, but if some other part is so found, the whole law will have to be struck down.
(iii) The Applicants have also challenged the validity of G.R. dated 25.5.2004, which is termed arbitrary and also challenged the concept of 'presumed merit' introduced in this G.R., which goes much beyond the provision of Article 16(4A) regarding consequential seniority.
Essential reasons for the conclusions of the matters
63. Keeping in mind the issues and the provisions of law, we are proceeding, point by point, referring to the respective titles, which are interlinked and interconnected for our final conclusion and order. Reservations on the base of 1931 census and the natural growth of populations
64. Both the parties have read and referred B.D. Deshmukh Committee Report 1964, Thade Committee Report 1961 Edate Committee Report 1999, the State Backward Class Commission Reports, Census Reports and SBC Documents. The State has submitted and referred quantifiable data regarding inadequacy of representation and overall administrative efficiency. The reservation in promotion as provided is only 33% hence there is no violation of ceiling limit of 50%. The concept of creamy layer has been elaborated and discussed. Based upon R.K. Sabarwal and other Judgments, 100 point Roster and its adoption from 18 October 1997, the procedure of post-based roster to avoid excess reservation is also elaborated. The basis of percentage for reservation of every caste in question referring to the Committee/Commission Reports, so referred above, has been elaborated, with the supporting material placed on record.
65. It is relevant to note that on the basis of 1931 Census and, after taking into consideration the normal rate of natural growth and increase in the population of all sorts, the Government of India and most of the States have been adopting the population as the source for to give adequate, proper and fair representation in seats or services. Therefore, apart from the constitutional provisions, by Resolution dated 13 September 1950, the Government of India has decided to accept the population, as the basis for fixing the percentage of the reservation in public services. In the year 1961, the population Census had taken place.
66. In the year 1971, considering the general rise in the population during the Census for the period from 1961 to 1971, the percentage of population of each backward class category was made available by the Social Welfare Department. As per 1971 Census, only the population of SC and ST was available and not of other categories, VJNT and OBC. The figures in respect of VJNT and OBC categories have been also collected only in 1931. There was no such Census took place. Therefore, the State has been following the method of normal rate of increase of total population. The basic percentage of SC and ST converts to Buddhism was fixed 13%. ST, living outside the specified areas 7%, DTNT 4%, OBC 10%, therefore, total 33% has been recorded.
67. The percentage of reservation in VJNT was increased to 6% in the year 1992, as per the report of Wadhawa Commission. It was decided to increase 2% only thereby, the total reservation was increased from 33% to 36%. This percentage was again reviewed in view of decision of Indra Sawhney (Supra) (Mandal Commission). The State, in view of the Judgment has accepted 27% reservation for OBC on the basis of 1931 Census. This basis of Census was considered and permitted even by the Supreme Court in Indra Sawhney (Supra). It seems that the last such Caste Census has been the basis for fixing the reservation and/or providing reservation to the Sections of the backward classes as recorded above, throughout the India and followed by the respective States also. After 1991 general Census, the review of percentage of reservation, without crossing 50% ceiling limit, has been followed and accordingly the percentage of reservation was fixed at 49.5% (SC 13, ST 7, VJ 3, NTB 3 NTC and NTD 4 and OBC 19.5=49.5%). The percentage of VJNT was revised to 11% from 6% in the year 1994 and accordingly fixed 50% as follows. SC 13%, ST 7%, DTVJ 3%, NTB 2.5%, NTC 3.5%, NTD 2%, OBC 19% Total 50%. The category of Special Backward Class/SBC was prepared in the year 1995 and based upon their estimated population added 2%, thereby, total percentage of reservation increased from 50 to 52%.
68. This assessment is ongoing procedure, as all the concerned Commissions and the departments have been proceeding to regularize and fix the percentage of reservation to struck a balance between the reserve categories and open categories in every areas. On the basis of representation and the information so collected by the State, many communities have been added to the list of VJNT and OBC. This was also on the recommendations of the State Backward Classes Commission. However, the percentage of reservation of these categories has not been increased or decreased substantially.
69. In the year 2011, the Government of India has undertaken Caste Census while doing the Socioeconomic Census. However, as stated, it was decided not to make the public and would be used only by the Registrar General of India for statistical purposes. The State, requested to provide the details of the caste census for the Socioeconomic data and for fixing the backwardness and the percentage of the reservation. There are data and material on record whereby, the basis of fixing 6% of VJNT was provided and also the data and the percentage so fixed after 1994 covering the 19% so fixed. These includes 14 Vimukta Jati 3%, Bhatkya Jamati (Earlier 28 Castes prior to 1990) 2.5%, Bhatkya Jamati (Dhangar etc.) 3.5% and Bhatkya Jamati (Vanjari) 2%,
70. The Reservation Act, was based upon the Population Census of 2001. The statement is made that last general Census took place in the year 2011 after the Act. In a given case, the Government of India and/or the respective States required to take note of the new Census report for deciding the revised percentage, considering the normal rate of increase of the population. There is no case that there is decrease of general population of any community and caste, including of the backward classes .These naturally grown data is the only contemporary data available for all such purposes. The scope and power of Court in the setting up and fixing the percentage of respective caste/tribe
71. To fix or alter the percentage for giving adequate and proper representation to the backward and/or reserved class categories/communities, is within the realm of the respective States, even when it comes to the reservation of the other classes, than ST and SC. No decisive factor and plan are fixed or provided or available to meddle with the fraction of reservation, so fixed by the States. It is not the scope of the Writ Court under Article 226 of the Constitution of India to have a Judicial Review of percentage so fixed and or providing or withdrawing the reservation to the particular class or category. The learned counsel appearing for the parties unable to point out any Judgments whereby, any Court has fixed and/or refixed the percentage so decided by the respective States, based upon the material/information/data they have. to give representation to a particular community/ caste and/or class.
72. We have noted and as the statement is made that the reservation policy prior to this Act has been implemented on the foundation of various circulars issued by the State. Those circulars were remained intact till the Statute in question. All the parties and the respective Departments and the States and the other State Authorities, had been implementing the same. This is in no way read and referred to mean that the respective challenges to the promotion and/or related aspects and/or even appointments are not pending in other High Courts and/or the Courts. All such facts based matters will be treated separately.
73. Those relevant circulars are already reproduced and referred. Normally, the scope of Judicial Review under Article 226 is quite limited to test and verify the data, material so placed on record in support of the reservation policy. The reason behind the percentage of the particular community or caste, considering the other principles of backwardness , adequate representation as per the Constitution itself, is the State's domain. It is impermissible to direct any one to collect the data to restructure the reservation policy. The learned Senior Counsel appearing for the State reiterated their submission, by placing the additional documents on record which are stated to be the part of the record of the MAT. Those records were seen and noted as offered for the learned Members to check and/or verify. We have permitted the State to bring their supporting data on record available with the State at the time of passing of the Reservation Act or otherwise. We have gone through the same in detail.
74. The District-wise Caste Census of 1931 submitted on behalf of the State for in the High Court. District-wise Caste Census of 1931 was referred by the Supreme Court in Indra Sawhney's and M. Nagaraj (supra) and all other Judgments. Whenever there was a question of reservation figures and data, the last caste Census of 1931 was also noted. The submission and reference is always made to 1931 Census, followed by the of every decade population Census; 1961, 1971, 1991, and 2001. The point is no latest census available for any State Government to follow or proceed afresh. All have to wait for new census and it's reports. Thus the natural growing data is the available" contemporary and quantifiable data" for the purpose of such Reservation Act/Circulars. The affirmation of the State to have quantifiable adequate data of S.C., S.T and OBC.
75. The learned Tribunal noted the principles of Nagraj that State is required to collect the quantifiable data showing backwardness and inadequacy of representation read with compliance of Article 335 which requires the maintenance of efficiency of administration. The Tribunal has proceeded to consider the requirement of inadequacy of representation in service even of S.C. and S.T.in the state. The affidavits and material so placed on record, wrongly interpreted to say that there is no contemporary and quantifiable data . The Constitution itself provides and gives enabling power to State to deal with the promotion even for other backward classes apart from S.C. and S.T. in various posts, subject to Nagraj elements. The validity and/or vires, therefore, cannot be and ought not to have been decided on presumption and assumption.
76. In view of proviso to Article 335, Section 10(3) of the Reservation Act regarding concession and relaxation in fee and/or upper age could be considered at appropriate stage as is provide various concession for promotion also. This is because the basis provisions are applicable only for S.C. and S.T. class. These concessions and/or relaxations are applicable to S.C. and S.T. and not to other classes also required to be considered keeping in mind the Constitutional provision which empowers the State to grant reservation at recruitment and/or at promotional stage on the foundation of their backwardness and/or inadequate representation.
State Committees, Commissions reports about quantifiable data and Its Merit and Demerit
77. In paragraph 29, the learned Tribunal though recorded the gist of Committee Reports (B.D.Deshmukh, Thade, Wadhwa, B.R. Committee and State Backward Class Commission Khatri Commisssion,Bapat Commission), wrongly held that the reports nowhere shows figures about the representation of the communities for inclusion in the list of V.G., N.T. O.B.C. in State Service. This is by observing further that there is total absence of any quantifiable data in these reports. It is concluded wrongly that except the B.D.Deshmukh Committee Report, there is hardly any quantifiable data about representation in Government Service of various backward communities. The Tribunal has also observed that S.C. are given more reservations, while S.T. are given less reservations based upon the percentage of the population. The learned Tribunal noted that there was no explanation for this anomaly. It is wrongly observed that the figures are based on extrapolation and are not actual figures. It is observed further that the reservation for S.C. and S.T. more or less is in proportion to their population. However, figures in D.T. and N.T. are only guesstimates. The learned Tribunal not noted the Deshmukh Committee Report of the year 1961. The learned Tribunal refused to accept the submission based upon 50 years old D.B. Deshmukh Committee Report. These observations of learned Tribunal are wrong by misreading the Constitutional provisions and the Judgments. The Reservation Act itself provides that Government may by an order in the Official Gazette provides that percentage of reservation for S.C. and S.T., D.T., N.T., S.B.C. category and other backward classes, in all posts, shall be on the basis of the latest census record of population of the State, in the case of State cadre posts, and concerned District, in case of District cadre posts. Apart from this enabling constitutional provision empowers the State to provide reservation of posts for various categories in proportion to their population as per the latest census report. The material has been placed on record even of subsequent years as recorded in paragraph 29. The excessive reservation in employment, therefore, needs to be decided on the facts of the case of individual or association and/or respective department's submission.
78. The Judgment of Balaji (supra) cannot be read in isolation. The principle so laid down is also stated even about the marginal 2% excess of reservation in the present case. There are various States where reservation is more than 50 per cent. The only requirement is, as per even Nagraj (supra), State has to form its opinion on the foundation of quantifiable data and adequacy of representation of Backward class . In the same Judgment it is observed that any excessiveness needs to be decided on the facts of each case.
79. The learned Tribunal, however, wrong in concluding that the State has no quantifiable and contemporary data about backward classes in the State. It was more than 50 years old. Further observation that the State has provided reservation for S.C. and S.T., D.T. and N.T. categories in proportion to their population. However, for the creditable data of population of D.T./N.T. i.e. VJ(A), N.T.(B), N.T.(C) and N.T.(D) categories are recorded that the reservation to them was in the population proportion as per the declared Section 4 of the Reservation Act.
Reference is made to the Cabinet Note dated 30/11/1994 about the caste
80. The reference is made to the Cabinet Note dated 30/11/1994, whereby provision is made to provide employment for five communities Gowari, Manna, Halba Koshti, Machhimar Koli, Soan Koli and Munnarwar. The State, therefore, decided in the Cabinet to create a separate category and provide 2% reservation for them. No challenge was raised at any point of time so far as circular and the order dated 30/11/1994. All have been acted upon the same since then. Having so noted and decided to give representation to said communities to say that there is no material to support the claim of S.B.C. to entitle them reservation in public employment is wrong approach. The data so reflected earlier, cannot be tested at this stage, at the instance of petitioner on vague averments or pleading. The data is recorded and provided for this category also and strikingly, the learned Tribunal not even dealt with the circular so issued from time to time by the State announcing the criteria for backward class or category from time to time by following the due procedure of law and through the State scheduled provisions and the Circulars. All State provisions are intact till today. All the concerned have been acting upon the same. No challenge raised at any time earlier. Therefore, merely because the State has decided to utilize those earlier provisions and the circulars, through the Reservation Act, pursuant to the Supreme Court decision, the challenge even after Nagraj (supra), cannot be the basis to declare the Reservation Act ultra vires, on such assumption and presumption.
Specific Treatment to Other Backward Class VJ/NT
81. It has been noted that the Petitioners challenge to the validity of Article 16(4A) and (4B) of the Constitution is decided in Nagraj (supra). The challenge was raised at the same time to the Reservation Act and Circular regarding promotion in question. Once the constitutional challenge goes, that itself dilutes the Petitioners' challenge to the vires of the Reservation Act. Every important aspect of reservation to SC, ST from the stage of recruitment and/or promotion have been concluded against the Petitioners and in support of all other categories also. No specific challenge was able to sustain about the reservation provided at the recruitment stage and/or the promotional stage in view of the amended constitutional provision so referred above. This itself endorsed the earlier practice and procedure of collecting the data and the material available with the Central/State in this regard. All the reasons given by the learned Tribunal, with regard to the material, data, adequate representation, backwardness, based upon 50 years old data, are nothing but infringing upon the basic constitutional provision and the judgments of Supreme Court including Indra Sawhney, Nagraj and others. There was no question of declaring the Reservation Act ultra vires on the wrong ground of no data, no material, and/or 50 years old data inspite of fulfillment of the principles in Nagraj and other subsequent judgments by the state. All the original Petitions should have been dismissed on these grounds itself. The wrong understanding of law and/or interpretation of Supreme Court judgments resulted into unjust and contrary declaration in question. This would definitely result into miscarriage of justice and takes away the constitutional rights of the persons, who belong to scheduled categories and/or groups The promotional circular providing 33% reservation, as stated to be the provision to modify and/or a clarificatory in nature, based upon the existing promotional policy for Scheduled Caste and Scheduled Tribe and for OBC, therefore could not have been declared bad in law in such fashion for the same reasons itself. The State Quantifiable Data and updated contemporary data, though not precise but sufficient is available
82. The State has placed a comparative data of Social, educational and economic backwardness of Maharashtra State, SC/ST, VJNT and SBC as per the Census Report of 2001 and the Maharashtra State VJNT Study and Research Committee and/or Edate Committee Report of 1999. The chart of that data has submitted by the State.
We are reproducing it :
COMPARATIVE DATA OF SOCIAL, EDUCATIONAL AND ECONOMIC BACKWARDNESS OF MAHARASHTRA STATE Supreme Court, ST, VJNT AND SBC AS PER THE CENSUS REPORT OF 2001 AND MAHARASHTRA STATE VJNT STUDY AND RESEARCH COMMITTEE OR THE EDATE COMMITTEE REPORT 1999
| Social | Education | Economic | Inadequacy | |||||||
| Housepermit | WaterTap | Electricity | NoLatrine | TVset | Literacy | Avg income/An | Population % | |||
| Total | 57.82 | 64.02 | 77.49 | 64.92 | 44.1 | 79.6 | 100 | |||
| State | Urban | 81.63 | 89.18 | 94.28 | 41.92 | 70.5 | 85.5 | 57.57 | ||
| Rural | 40.33 | 45.54 | 65.17 | 81.79 | 24.7 | 70.4 | 42.43 | |||
| Total | 51.35 | 62.65 | 70.44 | 71.65 | 37.72 | 71.9 | 10.2 | |||
| SC | Urban | 71.95 | 85.81 | 89.56 | 56.13 | 63.32 | 78.3 | 61.67 | ||
| Rural | 36.80 | 46.27 | 56.93 | 82.61 | 19.64 | 67.9 | 38.33 | |||
| Total | 34.89 | 45.24 | 52.15 | 79.76 | 22.56 | 55.2 | 8.85 | |||
| ST | Urban | 70.48 | 84.10 | 87.76 | 53.52 | 59.86 | 74.2 | 12.71 | ||
| Rural | 23.35 | 32.63 | 40.60 | 88.23 | 10.46 | 52.3 | 87.29 | |||
| Total | 13.2 | 18.8 | 48.6 | 61.9 | 13.4 | 18240 | 1013 | ~2.66 | ||
| VJA | Urban | 16.7 | 22.5 | 62.5 | 36.2 | 22.0 | 21403 | 45.26 | ||
| Rural | 10.4 | 15.7 | 37.1 | 83.1 | 6.3 | 15623 | 54.73 | |||
| Total | 13.0 | 19.1 | 51.7 | 59.8 | 13.8 | 17777 | 1310 | ~1.75 | ||
| NTB | Urban | 13. 6 | 20. 1 | 60.3 | 46.1 | 16.4 | 19926 | 56.75 | ||
| Rural | 12.3 | 17.9 | 40.4 | 77.8 | 10.3 | 14957 | 43.24 | |||
| Total | 11.4 | 13.7 | 45.5 | 79.2 | 8.6 | 23.7 | 14076 | 16922 | ~3.00 | |
| NTC | Urban | 17.5 | 15.0 | 60.0 | 60.0 | 17.5 | 41.5 | 10581 | 15.69 | |
| Rural | 10.2 | 13.5 | 42.8 | 82.8 | 7.0 | 20.4 | 14726 | 84.31 | ||
| Total | 15.7 | 9.1 | 51.2 | 86.8 | 14.0 | 41.9 | 18998 | 6479 | ~1.00 | |
| NTD | Urban | 100 | 100 | 100 | 1 | 100 | 91.7 | 75425 | 3.30 | |
| Rural | 12.8 | 6.0 | 49.6 | 89.7 | 11.1 | 40.0 | 17069 | 96.69 | ||
| Total | ||||||||||
| NTC | Urban | |||||||||
| Rural | ||||||||||
Category
Direct + Promotion =
Inadequacy
VJA 840 + 173 = 1,013
NTB 993 + 317 = 1,310
NTC 13580 + 3342 =
16,922
NTD 5800 + 679 = 6,479
Total 25,724
Total Backlog/inadequacy of Backward class in direct recruitment and promotions at various stages was as follows:
| Group | Backlog |
| A | 4,713 |
| B | 4,250 |
| C | 51,781 |
| D | 18,975 |
| Total | 79,719 |
84. The process of collection of data by the State and/or by the Central, normally is for all the castes/groups/categories, in question. Every Census so read and referred, covers all these categories, apart from Central, the Committees/Commission Reports as recorded. It is difficult to dissect any of these categories as in existence since long neither intended nor submitted by the opponent to do so. Having noted even the respective data of concerned castes/tribes, as recorded, referring to all the committee reports, cover the SC/ST and OBC also. The data, so used and utilized for all these categories, covers the issues for the purpose of these challenges. The percentage for reservation for appointment at the stage of recruitment, or even for promotions are intact for all these purposes. The MAT misread historical value of the reservation and the base for such reservation.
85. It is necessary to note that Article 16 (4A) and (4B) have been introduced keeping in mind the directions given by the Apex Court in Indira Sawhnay's case (supra). Articles 341 and 342 of the Constitution of India permit the Authority to declare a community as Scheduled Caste or Scheduled Tribe. This is in the background of the Constitutional (Scheduled Castes) Order, 1950 and Constitutional (Scheduled Tribes) Order, 1950. The learned Members of the Tribunal failed to take note of the background and the declared policy of the Bombay State which was in existence prior to above orders. One of such example is Government Resolution, Political and Services Department dated 23.04.1942. After the constitution of the Bombay State, backward classes were divided into three categories, Scheduled Caste, Scheduled Tribe and Other Backward Classes which were castes deemed to be as backward as the Scheduled Caste or the Scheduled Tribe. The reservation in Government posts were provided to such classes also by Resolution dated 1.11.1950 as per the prescribed percentage. The learned Tribunal, even not noted the earlier existing Bombay Primary Education Rules, 1924, whereby the classification of communities as backward and depressed classes/Tribes had been recognised. In the year 1928 a Committee was set up for such inquiry into the educational, economic and social conditions of the depressed classes. The recommendations were accepted and the list of backward class communities were prescribed even under Government Resolution of 29.05.1933 which was subsequently revised in 1942. The reservation in Government posts was prescribed in Government Resolution of 1.11.1950 which was revised again on 24.01.1953. The modified Scheduled Castes and Scheduled Tribes List (Modification) Order, 1956 throws further light on the issue. Ultimately by Resolution dated 18.05.1959 major concessions were made available to the OBC category. There was Criminal Tribes Act, 1871 which was replaced by Criminal Tribes Act, 1924 covering large sections of Nomadic Tribes. Though the Criminal Tribes Act was repealed in 1952, this group remained unattended. (See State affidavits).
86. The learned Tribunal failed to consider the background of formation of these Commissions/Committees and the earlier Government Resolutions, Reservation Policy and the law/Statute. The learned Tribunal, however, completely overlooked the main foundation and by misreading the Nagraj has even disturbed and interfered the percentage at the recruitment as well as promotion stage so accepted and recognised for the SC, ST classes by the Supreme Court. The learned Tribunal wrongly interpreted the reservation provided for OBCs by the State being empowered to do so, on the foundation of lack of data and the material. They have fixed the percentage also. The same has remained intact. All have been acting accordingly.
87. We have to observed that after Indira Sawhney (supra), based upon the report of the Mandal Commission, the issue of reservation quotas for the backward classes in direct recruitment was reconsidered even by the State and decided to increase total reservation from 33% which was fixed in the year 1965 to 50% by Government Resolution dated 23.03.1994. We have noted that the State had, as per the requirement, need, representation, survey reports and/or commission reports and/or based upon the information collected and available with them, not only added but even withdrew the reservation from promotion of VJ, NT., however, protected their promotion in view of Supreme Court directives for 5 years from 16.11.1992.
88. For the present purpose, we are inclined to observe at this stage itself that in view of Indira Sawhney (supra), the State had constituted a Standing Committee consists of Experts under the Chairmanship of Dr. Mutkar on 15.03.1993 and lateron converted into State Backward Class Commission on 19.05.1995 under the Chairmanship of Justice S. N. Khatri. About 156 caste claims including OBCS/VJ/NT had been dealt with. The Committee, noting the provisions of Article 16(4) and the judgments and the observation in Indira Sawhney (supra) proceeded to inquire and decide the caste claims. The recommendations accordingly submitted as noted. We are inclined to observe here that there is no prescribed procedure or method provided under the Constitution and/or under the law for identification of backward classes. Therefore, ultimately it is the State and/or the concerned Authority, in view of enabling constitutional provisions, but subject to other provisions of Constitution and the law required to take steps to determine backwardness and for providing due representation, as contemplated under Article 16(4). This includes available group, section and classes in society. This is also by keeping in mind the social, educational, economy and other essential conditions as laid down in Mandal Commission. The details so provided in this committee reports/commission reports, the then existing Acts, Statutes, Circulars, Reservation Policies and the percentage so fixed which now incorporated in the Act ought not to have been disturbed in such fashion at the instance of Petitioners, based upon the vague pleadings on merit, but general submissions on presumption and assumption.
89. We are of the view that the subjective satisfaction of the Government is also a prime consideration for implementing such reservation policy, but in accordance with the law. Therefore, the State, having once treated and noted that these communities, groups, other than SC/ST, are also required representation and/or benefits being similarly placed, may not be on strict senses, but within elements of Article 16(4) are satisfied, is empowered to grant the particular percentage and the benefits of reservation to all such categories. We see there is no illegality in such extension. Therefore, in view of provision of Articles 14, 15 and 16, such express legislation is permissible. There is nothing wrong if the said benefit is continued by the State based upon the earlier statutes and the Circulars. The reservations already made based upon the earlier Circulars and the reservation policy even protected in Indira Sawhney's case, at least for further five years from the date of judgment. The State has to take decision to grant extension in such reservation. The earlier reservation policy, therefore, ought not to have been disturbed. All the parties were aware of it. The promotion is always based upon the service conditions and the State policy , if governed by the same. The reservation policy is always subject to correction. Therefore, the impugned judgment on this ground itself of declaring the whole Act ultravires on such vague pleading and on the basis of assumption and presumption is unsustainable.
90. The decision, based upon the vague pleading of the complainant who are not governed by the Administrative Tribunal Act, is also impermissible. Any case which is not within the ambit of the MAT jurisdiction though challenge has been raised to the vires of the Reservation Act and the Circular, that itself should not have been the reason to declare the Reservation Act and the Promotion Circular ultra vires. The learned Tribunal could have passed the appropriate order if the case was not governed by the Administrative Tribunal Act and/or not within the jurisdiction of the learned Tribunal. (Transfer Application No.2/2014 = Writ petition No.470/2005 M. V. Gunale).
Enthusiasm of increase and /or decrease of respective reservation percentage
91. The fixed percentage of granting benefits/concession needs to be respected by all the concerned. Therefore, unless those percentage are increased and/or lowered by the Central and/or State Government, in accordance with law, all are bound to grant constitutional benefits to the scheduled community and castes, for all the purposes and also in public employment. And if it is in excess, it is required to be tested individual caste or community wise. Any increase or decrease in percentage in any class or category would affect the command of within or beyond 50% reservation, though certain degree of excess, in a given case, is permissible. The State, therefore, if quantifiable material available, want to add and/or grant such concession/benefit to certain other new categories, the State required to reassess the percentage aspects within the umbrella of quantitative limit so referred above. There is no issue that the State required to keep in mind the constitutional provision including the merits of the general citizen/categories.
92. This is also in the background that once the class or tribe and community is included in Presidential List (Central and/or State), even any further division of any classes would be a matter of confront, as it amounts to playing with the Presidential List published so would be the case, if the fixed percentage is tinkered with. Any addition in the class of community and/or increase or decrease and/or addition and/or deletion of it in the list, required due process to be followed by the State. The Reservation Act and the Circular, therefore, in our view, is well within the umbrella of law and the record. Any contra decision of the State would have cause great injustice and hardship to all the concerned. The constitutional protection and umbrella to the persons being in the list, therefore, ought not to have been disturbed, as done in the present case in spite of there being no competing material on record.
No special challenge to the inclusion and exclusion in State Caste/Tribe Lists.
93. So far as State of Maharashtra is concerned, there is a list of Special Backward Category (SBC), which is amended and modified from time to time. There is a list of Denotified Tribes (Vimukta Jati) amended and modified from time to time. There is list of Nomadic Tribes also. Above observations are applicable to these lists of S.B.C, DT/VJ/NT.
94. The caste and community list, Central or State, covering all the categories in question for which reservation under the Act and Circular as provided, have never been challenged and or tested by the original petitioners even on the stated formula of Nagraj. There is no specific challenge raised even in this petition to the inclusion of those entries in the respective constitutionally recognized lists. The central and respective States, keeping in mind the Supreme Court Judgments, have been collecting the data, information even prior to inclusion and/or exclusion of the entries in the list, before granting the constitutional benefits/protection. Having once recognized particular community and included their names into the castes in the list, based upon the data and material available, and for want of any contra material from the other side or otherwise, the respective State is empowered to grant the benefits in accordance with law. The State has, therefore, taken the impugned decision. The detailed individual challenges on merits, if any, would be considered and/or required to be considered if the affected petitioners are able to place the sustaining material to affect their actual promotion, departmental and/or otherwise. There was no such case apart from no pleading or material to sustain the same.
The State is empowered to make reservation in State employment-recruitment
and/or promotion.
Mandamus to order Reservation OR De reservation ?
95. The Apex Court in various judgments has reinforced that no mandamus would lie to order reservation and/or de reservation and/or to collect data/material for the same. The extract of those paragraphs of respective judgments are as under :
1) Chairman and Managing Director, Central Bank of India vs. Central Bank of India SC/ST Employees Welfare Association
(2015) 1 SCALE 169 :
24. In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter, public sector/authorities which are treated as State Under Article 12 of the Constitution).
Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST category employees if, in the opinion of the State, they are not adequately represented in services under the State. Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise. (emphasis added)
The judgments cited by the parties in present case have been noted in this judgment.
96. It is relevant to note here that Supreme Court in Suresh Chand Gautam v. State of Uttar Pradesh and ors., (AIR 2016 (Supreme Court) 1321), after dealing with Articles 16(4A) and (4B) and 226 and all other judgments including the basic elements of Nagraj has observed as follows :
43. They are in different sphere than what is envisaged in Article 16(4A) and 16(4B) whose constitutional validity have been upheld by the Constitution Bench with certain qualifiers. They have been regarded as enabling constitutional provisions. Additionally it has been postulated that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect the data would tantamount to asking the authorities whether there is ample data to frame a rule or Regulation. This will be in a way, entering into the domain of legislation, for it is a step towards commanding to frame a legislation or a delegated legislation for reservation.
44. Recently in Census Commissioner and Ors. v. R. Krishnamurthy, (2015) 2 SCC 796 a three-Judge Bench while dealing with the correctness of the judgment of the high court wherein the High court had directed that the Census Department of Government of India shall take such measures towards conducting the caste-wise census in the country at the earliest and in a time-bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour, the court analyzing the context opined thus:
.....It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policymaking by adding something to the policy by ways of issuing a writ of mandamus.
We have referred to the said authority as the court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a Regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued.
The basis of State's collecting information and data and the reservation policy decision, in question, based upon the available data, ought to have been respected. No Court, in view of above judgments, including Suresh Chand (supra), could not have issued directions to collect the data. The State, on the contrary, to provide the promotion, to SC and ST and other backward classes, based upon the last caste census and the population census read with caste/categories, included in the Central, as well as, the State List to achieve the constitutional goal and has proceeded to use and utilize the quantifiable data available with them, in our view, is well within the law and the record. The beneficiaries are entitled to claim it. The declaration of the tribunal affects the rights of these beneficiaries.
Provisions for Promotion
97. Furthermore, it is relevant to note the observations of the Apex Court in Suresh Chand in paragraph 42 as under:
42 ......... Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST Civil Appeal No. of 2015 and Ors. (arising out of SLP (C) No. 4385 of 2010 and Ors.) category employees if, in the opinion of the State, they are not adequately represented in services under the State. Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise.
(emphasis added)
It is also noted in Suresh Chand (supra) as under:
In Rajesh Kumar's (AIR 2012 SC 2728) case, after culling out the principles stated in M. Nagaraj (supra) the Court has graphically stated that a fresh exercise in accord with the law laid down in M. Nagaraj (supra) is a categorical imperative. It has been held that the State can make provisions for reservation in promotion with consequential seniority on certain basis or foundation and conditions precedents have to be satisfied. ...
The State has made the reservation considering the scheme of the constitutional provisions and the law and so also the promotion circulars.
Wisdom of State Legislation = to continue the existing reservation policy for both stages for all.
98. Any legislation, includes statutes and the circulars is nothing but an intention of the State. The earlier Circulars were in force for similar benefits for all the categories. Those circulars and the reservation policy had been incorporated under the Reservation Act. The concerned/person belonging to these categories, therefore, are entitled for the reservation benefits including the promotion as already provided since long The subsequent Nagraj elements, even if any, pending the census direction in time bound programme, as recorded in Census Commission and others (supra) or even otherwise, the State's decision to achieve the constitutional goal, the social justice, ought not to have been disturbed and/or interfered with. Once the fresh census, caste-wise data, available with the State as noted are available, the State is bound to take steps to revise the reservation policy, at all levels. The reasonable and sufficient time should have been granted.
Existing recognised Constitutional Reservation for SC/ST at the recruitment level and or at promotional level is settled.
99. Even during the course of arguments, there was no much argument made so far as of these reservations of SC and ST of both the levels, recruitment, as well as, promotion. There was, even no issue discussed and/or decided and the percentage so fixed and prescribed by the Central and the State for so many years. We have noted that since the inception and/or grant of such percentage, irrespective increase of population, no such percentage is lowered and/or increased. There is no challenge and/or issue raised with regard to the extension from time to time as per Article 335. In view of this clear provisions of constitutional rights and protection granted to SC and ST class or group and/or related group, cannot be thrown away by declaring the Reservation Act unconstitutional. The effect is, the Reservation Act as declared ultra virus the reservation circulars which were in existence prior to the Reservation Act, are also not in the field now. There is no provisions pointed out whereby, those earlier circulars can be stated to be revived. The percentage so fixed, even in the circulars for the classes of SC and ST, were never challenged and/or were in the field since long. The Supreme Court Judgment in M. Nagaraj (supra), basically revolved around the issue and/or providing reservation and promotion for other backward classes. It is settled that if the case of perversity , non-application of mind and illegal reasons are made out, Article 226 of the Constitution of India, needs to be invoked in the interest of justice. Last Caste Census 1931 and natural growth binds all until new similar Caste Census is published and made effective for all the communities.
100. Admittedly, no Census has been undertaken after 1931 to determine the population of Denotified Tribes (A) (DNT), Nomadic Tribes (B) (NT-B), Nomadic Tribes (C) (NT-C), Nomadic Tribes (D) (NT-D), Special Backward Category (SBC) and Other Backward Classes (OBC) in the State. The State came to be constituted in the year 1960, by including parts of Bombay Presidency, Central Province and Berar and the State of Hyderabad, which existed during the British time. In the year 1931, the State was not in existence. The Supreme Court, has, in no case, declared that all the laws of reservation policy and/or circulars based upon 1931 Census, are bad and/or ultra virus to the Constitution. It is to be noted that even, in Indra Sawhney and M. Nagaraj (supra), though the Constitutional Bench declare the provisions ultra virus, in the year 1992, but still granted the continuation of those protections for further 5 years. There was no direction issued, even in those matters to collect the data and/or information to determine the population of respective group or class to provide the reservation. The directions to update and to collect the information and to proceed to make the concerned reservation and/or determine the population based reservation and/or to provide adequate representation to other backward classes, are different facets altogether.
No prescribed method to identify Backward Class Other Backward Class.
101. Even in Indra Sawhney (supra) (Mandal's Case), the Supreme Court has summarized answers to the questions in paragraph 860. Some of the answers are
(2) The expression 'backward class' in Article 16(4) takes in 'Other Backward Classes', SCs, STs and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are intertwined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to Article 46 do include SBCs referred to in Article 340 and covered by Article 16(4).
(4) ...
For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.
(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable nay, necessary to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.
For excluding 'creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement.
(6) A 'provision' under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature.
(7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16 (4). It is not possible or necessary to say more than this under this question.
(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so. (emphasis added)
102. It is specifically observed in paragraph Nos. 796 and 797, to answer No.3 (a) is as under:
796-797. We may now summarise our discussion under Question No. 3. (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectivities for the purposes of Article 16(4). (b) Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. If it does what emerges is a backward class of citizens within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country s population, one can well begin with it and then go to other groups, sections and classes. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (d) Creamy layer can be, and must be, excluded. (e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression backward class of citizens . The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4). (emphasis added)
(f) Adequacy of Representation in the Services under the State (emphasis added)
798. .
This opinion can be formed by the State on its own, i.e., 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, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16(4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/executive. There is no bar to provide reservation to Other Backward Class even as per above observation. It is permissible subject to data.
Quantitative limit 50%
810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristically to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
860(4). The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in farflung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.
(emphasis added)
103. In K. Krishna Murthy (Supra), the Supreme Court while dealing with the aspect of excess reservation, observed in the following words:
66. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation. For instance, the Legislative Assemblies of the States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram and Sikkim have reservations that are far in excess of the 50% limit. However, such a position is the outcome of exceptional considerations in relation to these areas. Similarly, vertical reservations in excess of 50% are permissible in the composition of local self-government institutions located in the Fifth Schedule Areas.
67. In the recent decision reported as Union of India v. Rakesh Kumar this Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in panchayats located in the Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs.
(emphasis added)
The Backward Class Commission was established on 29.01.1953
(Kelkar Commission). The caste-wise population was reported in 1961. The Mandal Commission has also dealt with it further. The 1931 Census is the base factor for determining the population for reservation including of other classes, but is not final as updated the natural growth or estimation as available utilised to determine the reservation policy from time to time.
104. In Union of India Vs. Rakesh Kumar (Supra), in paragraph No.43, it is further observed that:
43. For the sake of argument, even if an analogy between Article 243D and Article 16(4) was viable, a close reading of Indra Sawhney decision will reveal that even though an upper limit of 50% was prescribed for reservations in public employment, the said decision did recognise the need for exceptional treatment in some circumstances.
(emphasis added)
105. The Apex Court in S.V. Joshi (Supra), has recorded that the State Government shall be at liberty to make reservations in terms of the law laid down by this Court in Indra Sawhney's case (supra). The reservation upto 50% is inclusive of SC/ST and other backward classes.
106. The Apex Court in State of Kerala supra a It is stated that Article 16(4) needs to be read as a part and parcel of Article 16(1)(2). This is also keeping in mind the doctrine of equality of opportunity to all the citizens and not only to some and inequality to others. The State power to make a relaxation regarding the age in case of backward classes of citizens is also reiterated. It is also clarified by giving illustration that any reservation, exceeding 50% required to consider from the point of view of the State depending upon the large number of backward classes of citizens and therefore, in order to give them proper representation, percentage of reservation beyond permissible limits, may not be stated to be bad in law. It is made clear that the dominant object of this provision is to take steps to make inadequate representation, adequate.
107. In Akhil Bharatiya Soshit Karmachari Sangh (Railway) (Supra), the Apex Court observed that:
335. 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.
108. In Suraj Bhan Meena (Supra), while dealing with the concepts of Catchup rule and consequential seniority and after considering the decision in M.Nagaraj (Supra), it is observed that:
65. In effect, what has been decided in M. Nagaraj case is part recognition of the views expressed in Virpal Singh Chauhan case, but at the same time upholding the validity of the Seventy-seventh, Eighty-first, Eighty-second and Eighty-fifth Amendments on the ground that the concepts of catchup rule and consequential seniority are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4A) and 16(4B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Articles 16(4A) and 16(4B) would have to be satisfied, which could only be achieved after an inquiry as to identity.
109. The strong reliance was placed upon the U.P. Power Corporation Limited (supra), by the learned counsel against the Reservation Act. It was a case based upon the facts and the then law under challenge. The Supreme Court Judgment in Suraj Bhan, M. Nagaraj and others has been duly noted. This covers and includes the point of ceiling limit of 50%. This also should be based upon the identity and measure quantifiable data. This Judgment has also recognized, depends upon the numerous factors and the compelling reservation claims, to be achieved by the State. In Suraj Bhan (Supra) case, the State had not undertaken any exercise. It is reiterated that, the State is required to take steps as directed in M. Nagaraj (Supra), before providing for reservation for promotion with consequential seniority.
Proper Representation as contemplated under Article 16(1)(4) for Other Backward class permissible :
110. The term proper representation as contemplated under these Articles need to be read in the context of the State Government enabling power to provide reservation to the backward class/group. Having once noted and found, based upon the data, that particular group and/or class is backward and/or socially backward and are not duly represented as not belonging to Scheduled Caste/Scheduled Tribe class/group though they are equally situated, the State is empowered to extent and/or grant and/or provide such reservation permitting their representation in the State Government service and/or to grant equal benefits concession to such other community/class. The importance of granting such representation and reservation with intent to uplift the people belonging to disadvantageous group or class and all related provisions are in the Constitution since its inception and prior to the same. The Parliament, considering the requirement, from time to time, has been extending and/or granting the span as noted under Article 325 of the Constitution. The said protection/reservation has been continuing for any one of the purposes, then the State is also under obligation to read and refer and consider the same till the situation is restricted by appropriate constitutional provisions. The representation and/or reservation conceptually means and includes the extended benefits to similarly situated backward class/group once data is collected and sufficient to act accordingly. The Court needs to consider the object and the purpose of the reservation policy. In Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and anr. (2016) 4 SCC 754), the Supreme Court held that the object of providing reservation to the STs/STs and educationally and socially backward classes of the society is to remove inequality in public employment, as candidates belonging to these categories are unable to compete with the candidates belonging to the general category as a result of facing centuries of oppression and deprivation of opportunity.
Judicial Review of the Listing and the quantum of Quantifiable and Qualitative Data of specific Class/Group .
111. It is impossible for the Court to list or delist and/or specify backward class/community/group caste even for the purpose of Article 16(4) for State or Region, or otherwise. It is the specified work of an expert body/commission or authority of the Central and/or the respective States, specifically for want of designed straight jacket formula for the same, except the court decisions. Such Authorities/experts need to follow the Constitutional provisions and the guidelines, issues, through the law and the Judgments announced, from time to time, to achieve the constitutional aims and objects. We have noted that the practice and procedure and the mechanism and the source so adopted by the Authorities/Commission are fair, adequate, by applying its mind, the data/information for identifying and deciding the backward class/group. There is no contra material placed on record. We have noted that no case is made out to interfere with the decision/opinion/action taken of the State in this regard. The State and the Authorities have applied it's mind to the material/data/information, submitted by the expert body personnel, through the Commission, Reports with recommendations. They have been acting fairly within the frame of law, and listed the caste / group /'classes , including OBC, in the respective Scheduled Lists for the constitutional benefits/concession. There is no challenge to the criterion so fixed and acted upon by the State/Authority to collect and gather information, since so many years. There is no averment/submission that the benefits were wrongly or illegally given to the concerned caste/groups. There is no such counter challenge even by other such groups/caste. There is no perversity, illegality or malafide of any kind and even allegation of non-application of mind and breach of any constitutional provisions. The whole challenge is unsustainable. The State's Reservation Act/Circulars are valid and well within the frame work of law and the record.
The Court cannot direct or restrict the collection of upgrowing data.
112. It is correct that the Census of 1961 was restricted for SC and ST only. There is nothing on record to point out any fixed procedure or mode of identification of backward classes to determine the population based representation and/or reservation or fixed percentage. There is no declared guidelines or formulae issued, how to identify and/or collect the data and to give representation to such class and/or group and/or fix the percentage for reservation. The process of collecting material/data is on, based upon the Supreme Court judgments . Definitely, those data and/or information are of 50 years old, but it has dealt with and is a quantifiable data about the reservation in Government service of various backward communities. This is in addition to the fact that the State has also separate backward class cell, which has data for deciding the issue of adequacy of representation of backward classes. Those material and information were also part of the record, and read and referred by the respective Committees. The chart is placed on record as ordered by the Court, through the separate four volumes, in High Court also, with clear submission that except Volume I, all other data reports, comparative chart in respect of OBC and VJNT classes were part of record of the MAT. The backlog can also be of open category and it cannot be only of backward class candidates. The constitutional rights of others are also required to be protected.
The excess 2% (above 50%) reservation for recruitment stage is permissible if the data is available
113. The excess of 2%, at the stage of appointment/post and/or initial recruitment permissible, if the quantifiable data is available with the State.OBC covers SBC. The State's power is based upon the irrefutable data to justify the reservation upto 52%. The reservation beyond 50%, if any, as noted, even from the Supreme Court Judgments so cited is not totally prohibited. Additional 2%, even if any, in the present case and in view of Reservation Act and the circulars, the scope is very limited, as it is data based decision.
114. The learned Tribunal without referring to same reasons, accepted the case of original petitioners though admittedly the Circular of promotion of 2004 in question had provided reservation only 33 per cent and certainly not exceeded 50% as contended. The learned Tribunal has wrongly accepted the case that allowing reservation and carry over a promotional process for classes other than S.C. and S.T. is in direct contravention of provisions of Article 16(4A) and 16(4B).
It is wrongly accepted that it permits disproportionate carry over and refixing of quota without any basis no such factual based case is made out. These affidavits and data having placed on record to show the recommendations made by the respective Commissions and the Committee and the various position of backlog and details which provide information and material for the State to extend reservation to these category or the groups/classes including O.B.C., V.G./N.T.
115. The recommendations of these Committees/Reports including Kaka Kalekar Commission of the year 1955, B.D.Deshmukh Report (1961) have recommended sub-classification of Backward Classes into S.C. and S.T., V.G., N.T. and O.B.C. The learned Tribunal erred by holding that these reports of Committees, before 1978, before Mandal Commission Report, and therefore, are not relevant.
116. The learned Tribunal is wrong in holding against the State by observing that the State Government has not been able to convince the Central Government to include D.T., N.T. and O.B.C. in Maharashtra in the Schedule of S.Cs. and S.Ts . The Tribunal's approach was wrong. There was no question of specific inclusion of these castes in the Scheduled List of SC/ST. The point is that they are equal in backwardness and their adequate representation is required in the State. The State enactments and earlier Circulars support their decisions. The issue is about treating all equals equally. The Tribunal, in this background wrongly held that Section 5(I) of the Reservation Act violates Article 16(4A) for reservation in promotion, at all stages of promotion. This is also in the background on admitted position on record that the State has exercised its power to provide reservation for O.B.C. as defined in the Reservation Act. Section 5(2) empowers the State to do so. The Constitutional validity of any Act or provision cannot be decided on presumption and assumption. The Circular/Resolution Clause 3A provides for reservation in promotion for backward classes other than S.C. and S.T. and so also reservation for members in VJ(A), NT and SBC .It is well within the law and the record.
No data of effecting efficiency in administration
117. Prior to the insertion of Clause (4A) to Article 16, i.e. prior to the constitution (Seventy Seventh Amendment) Act, 1995 w.e.f. June 17 1995, as per Indra Sawhney (supra), the reservation of appointment of posts under Article 16(4) was confined to initial appointments only. It is observed that such reservation cannot be provided further in the matter of promotion and/or further promotion. This was also on the foundation, that the reservation in promotion might impair efficiency . In M. Nagaraj (supra), the constitutional validity of amended clauses (4A) and (4B) have been upheld. It has been declared that the State has to identify and collect quantifiable data showing backwardness of the particular class and group and inadequacy of representation of that class/group in public employment. It is further declare that this is also by keeping in mind the maintenance of efficiency in administration. This is again a subject to dealing with the facts and circumstances of the case in question. The constitutional provisions and these judgments itself empower and recognize the enabling power of the State Government to take effective steps to collect data, information after identifying the backwardness of the class with a view to provide them proper representation.
118. The Supreme Court in M. Nagaraj (supra), has even otherwise, never directed to initiate and/or mandate that all the pending matters, reservation policy based upon the existing data be rechecked, reopened and reidentified and declared first bad in law and then framed the fresh reservation policy, by creating blankness and commotion in the society. Timely action is required but after giving reasonable time to all the concerned based upon contemporary data/material. The recent judgments support the same. Apex Court in Ashok Kumar Gupta and Anr. vs. State of U.P. and Ors (1997) 5 SCC 201) has reinforced the concept of administrative efficiency in this background.
The State's bonafide action
119. This is also in the background that the basic reservation policy is in existence in the State since 1901. The State had been acted accordingly, in view of the various earlier judgments, initially in view of General Manager, Southern Railway Vs. Rangachari Gurbux Das (AIR 1962 SC 36). The subsequent reservation was restricted to 50% in Indra Sawhney (supra), until as recorded, the reservation in promotion was not accepted. However, by the subsequent constitutional amendment, such reservation in promotion, in fact, has been accepted and maintained in M. Nagaraj (supra), except on a condition as recorded above. Therefore, the important requirements, which the Court need to see are; (a) Whether there is a material in support of the backward classes of population? (b) and/or adequate representation in various posts? (c) Whether such reservation had affected adversely to the administrative efficiency? We have noted that all these elements are in favour of the State and the Reservation Act/Circular.
120. The State, cannot be stated to have no data whatsoever to grant such reservation, as already granted and implemented since long. The reservation in promotion was provided in the year 1974, though upto Class-I level had been intended to be implemented by the Reservation Act. Under Section 5, the reservation extended to all the employees at all the stage of promotions also. Section 4 of the Reservation Act, itself further added that the percentage of reservation should be on the basis of latest Census record of population. The State has established the Backward Class Commission for the same. The State had relied upon various reports, commissions and their recommendations, as recorded above: Thade Committee Report of 1961; B.D. Deshmukh Committee Report 1964; Edate Committee Report 1988; the State Backward Class Commission Report; Census Report and SBC Files. We have already dealt with same in earlier paragraphs. These reports are relevant for all concerned, unless specifically challenged.
A preliminary objection by the State
121. The learned Members of the MAT have decided the issues in pursuance to the remand order/order passed by the High Court, as recorded in earlier backgrounds, history/notes. The facts need to be tested after considering the provisions of the Administrative Tribunals Act, and specifically Section 15. Initially, there were objections raised before the High Court, that the related issues were required to be adjudicated by the MAT, being the Court of first instance but by keeping the objection open.
122. The submission, therefore, by the learned Senior Counsel appearing for the State is that the MAT has exceeded its jurisdiction in deciding the constitutional virus of the Reservation Act.
123. It is submitted by the other side that there is no bar and/or any Section of provisions pointed out, which debar and/or prohibit and/or restrict the MAT in dealing with virus and/or validity of any Act and/or related circulars. Therefore, the doctrine of appropriate and reprobate is cited, in view of the conduct of the State and R.L. Gosin Vs. Yashpal Dhir (AIR 1993 SC 352), and Rajasthan State Industrial Development and Investment Corporation and Anr. Vs. Diamond and Gem Development Corporation Ltd. and Anr. (AIR 2013 SC 1241).
124. So far as the jurisdiction and power of the MAT, the Supreme Court in S.P. Sampathkumar Vs. Union of India (AIR 1987 SC 386)has elaborated that the Tribunal is the substitute of the High Court and is entitled to exercise the power thereof, (para 31, 19, 93 and 99). In J.B. Chopra Vs. Union of India (1987 SC 357), the Apex Court clarified that the MAT, being a substitute of High Court, has power and authority to adjudicate upon all the disputes relating to the service matters, including the power to deal with questions, pursuance to the constitutional validity or otherwise of such laws which violates Articles 14 and 16 of the Constitution.
125. However, the Tribunal need to act within the scope and jurisdiction as provided under the tribunal Act. There are Writ Petitions whereby, the constitutional validity of the Reservation Act itself are challenged directly in the High Court by other similarly affected persons. Those will be heard separately.
The Power and Jurisdiction of the tribunal-MAT
126. The Supreme Court in L. Chandra Kumar vs. Union of India (AIR 1997 SC 1125) has specifically dealt with the power and jurisdiction of MAT. In paragraph 91, the Supreme Court has emphasized that the power of judicial review is with High Court under Articles 226 and 227 where vires of the legislation is questioned. It is observed that the Tribunal should restrict themselves to deal with the matters where constitutional issues are raised. This is no way to read and mean that in service matters, the MAT cannot deal with Articles 14, 15 and 16 of the Constitution. What is contemplated is, therefore, the power of Tribunal to decide and adjudicate the issue on merits. In the present case, merely because the High Court has directed the matters to the Tribunal that itself ought not to have the reason for the Tribunal to decide the constitutional validity of the Reservation Act, based upon no pleading and/or material with regard to the merits of the promotional issues. The Tribunal ought to have acted upon as the Court of first instance in respect of the areas of the law for which they have been constituted, to decide the merits of the service matter based on facts if any, keeping in mind Article 14 to 16.
Locus standi of the contesting Respondents
127. The issue of locus-standee of the original complainant, in view of above background, even if raised, but having ordered by the Division Bench after transferring the group of Writ Petitions, and as both the parties have participated before the MAT, and as the validity of the Reservation Act itself has been declared ultra virus, we are inclined to deal with the matters on validity of The Reservation act, as the confusion and non-plus situation has been created in all state reservation issues. This required to be adjudicated and decided at the earliest. Therefore heard finally these restricted matters.
128. The Apex Court in State of Maharashtra Vs. Jalgaon Municipal Council and Anr. (AIR 2003 SC 1659)rejected the case and submission that the citizen and/or voter has no locus standee to challenge the constitutional virus of the Act or the ordinance. In S.P. Gupta Vs President of India and Ors. (AIR 1982 SC 149), and Dr. D.C. Wadhwa Vs. State of Bihar (AIR 1987 SC 579), Chairman Railway Board Vs. Chandrima Das (2002) 2 SCC 465)and Mohd. Aslam Vs. Union of India (2003) 4 SCC 1). These judgments need no further discussion, as we have proceeded to decide the issues so decided by the Tribunal Judgment/order.
The tribunal jurisdiction to declare Reservation Act ultra vires
129. The learned Members of the MAT have cautiously proceeded with the matter while dealing with the validity of the provisions in view of the submissions so raised and made by the parties, including noting the basic principle of presumption in favour of the constitutionality of such statute and noting that the forum has to proceed within the limitation of judicial review while examining the virus of the statute.
130. It is settled that the presumption is always in favour of validity of enactment brought by the legislatures. The scope of Judicial Review against the presumption is very limited. In view of power and scope of Article 226 of the Constitution of India and its principle to interfere, is also restricted and limited. The scope and power of MAT of judicial review to interfere with validly enacted the Reservation Act, and circular, is further limited and restricted, than High Court. The Judgment and order passed by the MAT is always subject to the writ jurisdiction of the High Court. The purpose and object of the Tribunal in the Central, and the State service matters, is limited. The MAT may pass order and/or deal with the subject, which falls within the purview of the State Tribunal. Most of the service matters are on facts and respective service conditions and rules made therein. The jurisdiction of MAT therefore, required to be within the ambit of facts and respective service conditions, rules and regulations or circulars or its interpretation.
131. The prayers and reliefs were contested by the respective Departments. The MAT, being a first instance court, that itself mean and/or empower firstly to look the basic principles of law of pleading and law of burden of proof, specifically in view of settled position of law in favour of validity to any enactment. The scope of MAT to go into the factual details and data in question in case the disputed facts are involved is limited. Any enactment always has the foundation of prior and pre-collected information/data/material by the State agencies, before the cabinet, and before the legislation.
The Impugned Judgment of MAT
132. The learned Tribunal Members have, on the Transfer Applications Nos. 1 and 2 of 2004 (Writ Petition No.8452 of 2002 and Writ Petition No.470 of 2005) without dealing with the facts and the merits of the respective applications/writ petitions, dealt with the Reservation Act and the promotion Circular. No pleadings, affidavits and facts have been specifically dealt with to hold the foundation on merit to decide the validity. The learned Members have also, though noted the issue of incomplete and inadequate pleadings, proceeded to decide the vires and the validity of the Reservation Act merely because the original applicants/petitioners are State Servants. The learned Members have proceeded on the foundation that an adverse inference should be drawn if important documents were withhold. The learned Members thereby accepted the case of original petitioners/applicants that inadequate pleading or averments should not be the reason to dismiss the challenges so raised about the validity of the Reservation Act. This is on the unsupportive foundation that even if the burden of proof did lie on the original Petitioner, but as the State had withhold the important documents, the adverse inference should be drawn.
(Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413)
The Tribunal, therefore, ultimately proceeded wrongly by observing that it is for the State to produce material to support their claim, though quantifiable data is available with them to support the same, that the various backward classes are not adequately represented in the Government service. This is in the background of no specific order to produce any particular data or material. The requisite data/material in fact were part of the record as noted earlier.
133. Furthermore, there was no specific sustainable challenge raised for want of specific pleading with regard to the vires of the Reservation Act at the stage of recruitment on the aspect of reservations of posts for all the specified categories up to 50%. We have noted that a challenge is raised also about reservation beyond 50% excess 2% in the present case.
Abrupt discontinuation of Earlier Circular's an d existing reservation policy incorporated in the Reservation Act and the Circulars.
134. By Maharashtra Government Resolution dated 9 April 1965, a provision was made for reservation in Government Service for members of backward classes SC-including converted to Buddhism, ST-living out side the specified area, Denotified Tribes and Nomadic Tribes and other backward communities. In modifying the existing reservation, percentage was fixed for SC 13%, ST 7% DTNT 4%, and other backward communities 10%= Total 34%. These Government circulars applicable through out the State to the Department and accordingly all requisite benefits have been provided to them. The directions were issued to comply with the same also.
135. Government Resolution of 23 May 1974, even the stage of promotion was considered. Noting 50% limitation, for SC 13%, ST 7% and De notified Tribes 4%, total 24% was fixed for reservation of these classes, at the stage of promotion. That was on the basis of seniority, subject to fitness and increase to all classes, Class-I, Class-III and Class-IV posts/ grade in service. The model roster was accordingly prepared and the concerned department and parties have acted upon the same.
136. As per the State, the reservation policy has been extended to the local bodies in the year 1995 and 1996 . The same has been implemented without specific challenge by such organizations with regard to the reservation to SC/ST and OBC. In totality, we have also noted that the Reservation Act has not made any new changes and/or brought any new provisions for the first time, based upon the data and the material so placed on record and the then existing reservation policy through the circulars so recorded above, brought into force the Reservation Act 2001 w.e.f. 2004. There is no material placed on record to show that such circulars have been declared bad and/or illegal for want of quantifiable data. The State in its wisdom and in view of enabling power, decides to extent the same benefits to such class/group through these Statues. This is in addition to the earlier state data.
Nagraj's Principle discussed by the Tribunal
137. The learned Tribunal members, though recorded and noted the synopsis of reports of various Committees so recorded above and its recommendations as reproduced in paragraph 27 and so also note on behalf of State, providing information about various reports with page numbers, yet by sitting as Appellate Court and/or Forum, have expressed their opinion contrary to and/or against the opinion and the reasoned decision given by the State and it's expert bodies. The Apex Court in Indira Swahney in paragraph 842 itself recorded and restricted the scope of Court's scrutiny in such matters. This is not the case of no material whatsoever on the contrary as per the Constitutional requirement. The State being empowered to take care of the problems and difficulties of respective communities, tribes and groups. It is under obligation to provide them representation in service and/or adequate representation in service, if case is made out. What should be the level and degree of sufficiency and/or adequacy and as there is no strict jacket formula for assessing and for arriving at a conclusion to fix and grant reservation at recruitment and/or at promotion stage, therefore, it is in State's domain. The findings and the submissions that no attempt was made by the State to conduct and exercise as done in State of Bihar in August 2012, is wrong and should not have been the basis in the facts of the case.
The State under continuous obligation to collect data for modification of Reservation Policy.
138. This, nowhere led to mean that the State is restricted and/or prohibited from continuing to collect timely data for timely correction and/or amendments to the reservation policy, as per the requirement of the society in the State. This may include addition and/or lowering of percentage and/or category at appropriate stage but in accordance with law. Mere allegation that the reservation has adversely impacted on over all administrative efficiency is not sufficient. There ought to have on record the material to justify the same. The burden cannot be put upon the State to prove negative.
139. This also means, all these clauses independently or otherwise are required to be read and referred while dealing with the subjects of providing reservation even in promotion to SC/ST and other backward classes, but subject to the other constitutional provisions, including Articles 14, 15, 16 and 335. The State Government and/or appropriate Government is also required to restrict the duration, based upon the facts situation in so far as the ceiling limit on to carry over all the unfilled vacancies. This also means that there is no bar and/or restriction or any restriction is imposed upon the State and/or appropriate Government to enact the law providing for reservation for all. The 50% ceiling itself means and it covers not only SC and ST class and/or group but other backward class also as constitutionally fixed and as recognized and have been in existence since inception. This constitutional percentages covering all class and protection so granted in the year 1931, 1961, 1965, 1971 etc. have been followed by the most of the States. The decision therefore, so taken by the State, initially through the circulars and subsequently through the Reservation Act in the matter of employment, was well within the frame work of law and the record.
The state Promotion policy as per the law and service rules only.
140. If the contesting Respondents or any employee not eligible for promotion unless promotions are actually given effect to and/or there is no actual threat of any kind in any particular cadre or department, there is no question to decide the case on merits. The promotion, on merit, will be tested based upon the factual data and the relevant principles of law. The promotion policy is also subject to change. The promotion policy is also not a matter of judicial review as it is the prerogative of Executive including fixation of quota and ratio. However, it is required to be within the frame work of law and the record so declared. [Rohtas Bhankhar v. Union of India (supra)].
141. Promotion is a part of recruitment if service rules provide but subject to eligibility criteria; seniority cum merit or vise versa, ACR and other conditions. It is stated to be a mechanism of further appointment to the higher grade or category of post. The promotion is not a right, but it's entitlement if otherwise fit within the promotion policy. The State is empowered to provide for promotions but subject to criterion and need or it may not provide promotion. The Court cannot direct the State/Authority to provide for promotion, if there are no such rules. The various restrictions, eligibility criteria are normally fixed by the State at the time of recruitment itself. The employees are aware of such policy of promotion at the time of appointment to the post itself. The recruitment once made on reserved category basis, at entry level that itself may not improve their overall development even for promotion. Every employee needs to work hard and to get promotion as per the conditions, apart from regular CR/ACR (Confidential Record/Annual Confidential Record). The law of appointment/promotion is settled, so also the doctrine of creamy layer even at the stage of promotion. [In Ashok Kumar Gupta v. State of U. P., (1997) 5 SCC 201 efficiency of administration is also reinforced. ] Ajit Singh v. State of Punjab (1997) 7 SCC 209 Roster point is also a point for discussion in such circumstances. The State, therefore, is entitled to make promotion rules or modify the promotion rules, for any of the category or the group. The appointment at initial stage on reservation itself may not make them equal with general category. The selection rules or eligibility criteria, even for promotions are made by the State. The new generation, disadvantage class, even if belongs to reserved category, having exposed to new technology, in school, college or higher education, themselves surprise the State or the employer by their performances, even in public employment, because of their merits. The State, therefore, definitely need to change it 's approach and so also to such reservation policy. The social, economic, education improvement itself, in a given case, entitled them to participate, at all level, with the general category. The aspects of creamy layer , improved economic condition and education condition, itself grant and/or filter their entitlement in future promotion even for other backward class/category. The political dynamic spectrum itself cannot be the reason to give guidelines or to do list even by the Court. Let respective wings act within their declared sphere. The disadvantaged person/class cannot be treated as general category merely because they are appointed to the post because of the concession given at the time of recruitment itself. For further promotion or upgradation, subject to filtration, the State is empowered to provide reservation policy if facts and circumstances permits.
142. The Tribunal's one member has not decided issue raised in para 19(ii)(b) about the definition of Public Service and Posts and establishment . The Court will consider the same in appropriate case. We have to deal with the Public Employment and not the Private Employment . Even otherwise, it is the State, in view of the constitutional provisions, to decide and/or extend the reservation policy within framework of law. Therefore, if there is specific challenge the Court would decide the same The issue raised in para 19(ii)(c) is covered in para 19(ii)(a) so also for the above reasons. The State has always power to extend the reservation policy if required. The Court cannot restrict or direct the State to bring in or out extension of reservation policy to any State institution or establishment .
The Reservation in Promotion through Circular since long
143. The whole argument as recorded and agitated even before the MAT and/or otherwise by the Respondents was on the State's power of providing even 33% reservation in promotion. There was no serious dispute in the matter of basic recruitment which can be seen from the issues so raised by the Tribunal. There was no specific challenge or issue raised about and on recruitment process. The challenge and the percentage so prescribed, based upon the circulars since long which has remained intact till this date and now converted into the Reservation Act.
The Statute need not be declared ultra-vires or the Academic purposes.
144. On going through even the affidavits, including Para 26 to 41 and the counter-affidavit filed by the parties, read with the documents, charts, statements and the various reports, so recorded above, and as those are sufficient to consider the case of the State about the existence of data, vacancy and the representation requirement for the particular community. This is also in view of the fact that there is no specific contra material, except simple denial. We have noted, apart from the backlog and the vacancies and the requirement for providing the promotions to all the categories, further material for the years 2004 to 2011 are updated upto 31 March 2013, are also placed on record through the exhibits and charts. It is necessary to know that the reservation in promotion are made subject to various orders passed by the Supreme Court and the High Courts. . No actual affected list and/or special seniority list and/or action are placed on record by the contesting party. The Constitutional validity, therefore, in our view, ought not to have been decided only for the academic purposes.
i) Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors. (AIR 1967 SC 1)(Para 16).
ii) State of Karnataka Vs. Registrar General, High Court of Karnataka (2000) 7 SCC 333).
iii) The State of Bihar Vs. Rai Bahadur Hurdut Roy Moti Lall Jute Mills and Anr. (AIR 1960 SC 378).
Furthermore, the promotion rules itself required to complete many steps and stages, including availability of vacancies/posts before implementing the reservation in promotion. The promotion circular itself provides only fluctuating reservation. Even otherwise, such reservation policy is also subject to change and/or modification from time to time. Cadre-wise and/or class-wise and/or sub-distribution, even if any, of vacancies/posts would be decided on factual basis and as and when the particular department crosses the limitation of all kinds.
145. There is no issue that the reservation in promotion is second stage/concession to the person/caste or community who have been provided concession and/or benefits at the time of recruitment/appointment to the posts. In the present case, Act provides 52% reservation, for the basic entry points are concerned, favoring all the categories subject to the set percentage. The promotional circular grants the similar benefit only to certain categories up to 33%. Therefore, apparently in promotion, there is no case of doctrine of Reservation beyond 50%. The tribunal, therefore, ought not to have intermixed the same reasons of quantifiable data and/or material as there is no specific pleading or contra material before declaring the Reservation Act and the circular bad in law. The excess promotion and/or no case of benefits to be given to the concerned caste or community in promotion, for want of quantifiable data, required to be considered only if actual and factual data and or material are placed on record. The concerned Tribunal/Authority would consider the same by assessing the merits if case is made out. This is in the background that there is no bar and/or any prohibition and on the contrary, the Supreme Court Judgments , itself provide and permit the State to extend benefit to ST and SC, even in promotion subject to the data, which in the present case, is available. So far as other communities are concerned, the same doctrine/principles are applicable, if they are equally situated and/or placed in their backwardness and for providing reservation based upon the material and the representation so made, including the grant of similar benefit, even for the promotion. The actual uncertainty and/or complications, if any, including excess of reservation and/or representation, would be considered at the relevant stage in appropriate fact based case.
Catch UP Rules visavis interse seniority and Roster Point
146. The concept of catch up rule is well recognised while dealing with the reservation in promotion. The Supreme Court, in many judgments, has elaborated the principle referring to Article 16(4A) read with 335 of the Constitution. Catch Up Rule visavis Interse seniority ; inadequacy of representation of ST and SC ; consequential seniority ; State's obligation to collect data ; Roster point all these principles are required to be noted by the State and/or the Authority while considering the reservation in promotion.
[S. Panner Selvam (supra). It is always necessary for the State to keep in mind no reverse discrimination against the general category .
Creamy layer applies to OBC and others
147. The concept of creamy layer has been elaborated from the point of view of OBCs and not referring to the SC and ST categories in Ashok Kumar Thakur v. Union of India (2008)6 SCC 1) (Five Judges-Constitution Bench). The said principle has been followed and referred in subsequent judgments also including Rajesh Kumar (supra). The Constitution Bench of Supreme Court in Rohtas Bhankhar v. Union of India (2014) 8 SCC 872) has also dealt with the aspect of creamy layer along with the excessiveness of ceiling of 50% and the extension of reservation indefinitely, thereby maintained the Supreme Court judgment of Superintending Engineer, Public Health, U. T. Chandigarh vs. Kuldeep Singh and ors, 1997(9) SCC 199. This decision of Supreme Court, therefore, need to be followed by all while applying the reservation in promotion for OBCs. That squarely is the case of the State in the case in hand.
148. The concept of doctrine of creamy layer create a class among the reserved category itself. Though belongs to reserved category yet, if reached to level and/or fall within the ambit of umbrella of creamy layer", all the future benefits are restricted. But still their caste/class remains the same. The alike reserved category batch or group or class or individual if are not under the umbrella of creamy layer are entitle for equal opportunity " protection" even in promotion. Time will take care if all are within the umbrella of creamy layer . The constitutional extension for further 10 years reflects the whole intention of the people at large. In Democracy set up, there should be constitutional decision on these reservation policy first. The scope and power of judiciary are restricted. The judicial review or decision follows later. The interpretation of law is the judicial power and not the making of law.
MAT's finding about the Creamy Layer
149. One of the learned Tribunal, so far as the creamy layer for promotion to the O.B.C. is concerned ,has refused to decide the issue as it is held that the reservation for promotion in category other than S.C. and S.T. is invalid. However the rule of Creamy Layer would not be applicable at the time of entry and/or at the time of granting of promotion to S.C. and S.T. The other tribunal member has dealt with it.
150. The observations are made that the concept of Creamy Layer should not be applied to S.C. and S.T. both for initial appointment and for promotion in the referred Supreme Court judgments.
151. In view of above, the one learned Tribunal has not dealt with the aspect of applicability of Creamy Layer to the O.B.C. category. Lastly, we came to the conclusion that a reservation in promotion for the categories other than S.C. and S.T. is valid. The aspect of Creamy Layer to promotion of O.B.C. does survive. However, it would be subject to the existing law and the State Circulars.
152. It has been noted that Section 4(2)of the reservation act itself provides that the concept of Creamy Layer shall be applicable to all the categories mentioned in Section, except SC and ST. The said concept has been elaborated in the Government Resolution and is amended from time to time. The State Resolution, therefore, would be applicable to all the concerned, at the respective stages.
Wrong use of the Doctrine of Severability
153. The stage of appointment/recruitment by the State/Authority always governed by the constitutional reservation of particular caste and community and the percentage so fixed from time to time. In view of constitutional provision even for promotion, so far as Scheduled Tribes and Scheduled Castes are concerned, and in view of Supreme Court Judgments so referred above, the State is empowered to extend the benefit and concession. Therefore, if case is made out with the quantifiable data, the parallel benefits to the similarly situated person being backward and not adequately represented, the State is empowered, in view of the enabling constitutional provision, to widen the similar benefits at the time of recruitment and also at the time of promotion. Aspects of Article 14, 15 and 16 and other provisions need to be read together when it comes to granting such benefits to the equally placed castes and communities. The learned Tribunal, therefore, wrongly approached the matters. The reservation act has foundation of earlier enactments and the circulars. All historical facts and those necessities are interlinked and unjust to break down. All the reservation provisions are legitimate so also the Circulars. The severability tenet was invoke imperfectly.
The wrong shifting of Burden
154. The law is settled so far as the constitutional validity of any Act/Statute are concerned. The presumption is always in favour of constitutionality of statute. In the present case various material have been placed on record including the existing data, which were noted and placed even before the Cabinet and further before the State Legislature, which ultimately had passed the Reservation Act, in the 2004 based upon 2001 census and the material so collected. The original petitioners have not placed on record any contra material to challenge the provisions, The Tribunal, though noted the measurable material placed on record in support of the said action but overlooked the same and declared the Act ultra vires, on presumption and assumption. There are persons other than the petitioners, who would be benefited by this Act and the policy, are not before the Court. Though in Transfer Petition No.2the Tribunal has no jurisdiction to deal with certain matters of such corporation and the order of transfer, even if any, passed by the High Court, that itself is not sufficient to accept the case that the Tribunal has jurisdiction to decide the constitutional validity of the act which is beyond their jurisdiction in view of specific provisions of Administrative Tribunal Act and the Judgments of Supreme Court in relation to it. This was also by putting whole burden upon the State, in spite of quantifiable data placed on record.
155. This is again in the background where the State if case is made out, is entitled to provide representation to such community in every field including the State service. There is nothing pointed out that once the reservation is declared to the particular community including the percentage so fixed and prescribed, the same are not extended and/or cannot be extended for the said community/group for any other purposes. We have noted even from the judgments so cited by the parties that once the reservation/representation is granted and/or extended by the State, those are applicable to the group and/or category for all the purposes. Such reservation based upon Statutes/Circulars, cannot be taken away in such fashion even in promotion matters. [Chairman and Managing Director, Central Bank of India and ors v. Central Bank of India SC/ST Employees Welfare Association and ors. (2015) 12 SCC 308), on the contrary enforceable constitutional rights has been created by such statutes.
The Tribunal's wrong findings
156. The learned Tribunal failed to consider the Apex Court judgment in Commissioner of Commercial Taxes, A.P. Hyderabad and anr vs. G. Sethumadhava Rao and ors., (1996) 7 SCC 512) whereby Rangachari's principles have been upheld so also Thomas (supra) and Akhil Bharatiya Soshit Karmachari Sangh (Railway) v. Union of India and ors. (1981) 1 SCC 246, whereby even the rule of reservation in promotion was considered even for backward class. The learned Tribunal also failed to consider the UP Corporation and Suraj Bhan Meena Case (supra) wherein following M. Nagraj (supra), the reservation based in promotion, as stated to be permissible, subject to Nagraj's principles. Even various Committee reports with regard to the inadequacy of representation and population percentage was not duly considered. There was no challenge to the source of information and the backwardness of the backward classes and even of S.B.C. The learned Tribunal failed to note that the Supreme Court has permitted the reservation in promotion for VJ/NT category but subject to final decision. This is in the background also that the challenge was restricted to reservation in promotion and not about the reservation in direct recruitment. The other cases cited by the State were also not discussed. The learned Tribunal was wrong in relying on the principle of best evidence rule by overlooking the basic principle of burden of proof in the matter of constitutional validity. The reliance on the Maratha Reservation Case was wrong, being issue after the Reservation Act and the Promotion Circular. The difference and the different percentage of all the categories itself speaks for the State's decision to grant reservation, based upon the data and the material with them.
157. The concept any backward class of citizens covers and includes the OBC/NT and those are socially and educationally backward classes. The learned Tribunal has misread and misinterpreted Articles 15(4), 16(4), 340 and other constitutional provisions. The learned Tribunal, though recorded that the validity of impugned Reservation Act in relation to SC and ST need to be upheld, but declared the whole Reservation Act and the Circular bad in law. The principle and protection so available to SC and ST, therefore, required to be extended to other backward classes, and/or categories, if they are similarly and equally situated and requisite data is available. The Tribunal further failed to appreciate that Barium Chemical's case (supra) required to be followed in the matter of subjective satisfaction of the State. The issue of deemed State is fact based. The principles of Industrial Disputes Act ought not to have been extended in the matter of reservation. The observation regarding the cooperative society was also without any data and material including the finding revolving the definition of establishment . There was nothing to show that the reservation in promotion was as announced in excess of prescribed limit. The provisions of direct recruitment and that of promotion was wrongly interlinked and intermixed. The SBC is a part of OBC, but the Tribunal has overlooked the same. No discussion, even made about the purpose and object of Articles 338, 338A and 340 of the Constitution including Backward Class Commission's role. The Tribunal, as noted, except declaring the Reservation Act bad in law, not even discussed the State's action of giving promotion to the reserved candidates pursuant to the order passed by the High Court and the Supreme Court. The learned Tribunal, even failed to note that the State action was based on record of 34 reports of various Commissions, ranging from the period 1964 to 2008. The reservation in promotion, though upto class I, was recognised by the Full Bench of High Court in G. R. Chavan's case (1988 (Supp) BCR 923 (FB) which was confirmed by the Supreme Court in G.R. Chavan v. State of Maharashtra (AIR 1999 SC 1530). There are cases even after Nagraj, specifically U. P. Power Corporation and Suraj Bhan Meena (supra), where reservation in promotion to the VJ/NT and/or others, has been recognised. The learned Tribunal wrongly interpreted the term backward class of citizens by overlooking the Indira Sawhney's specific findings on other backward classes. [Ram Krishna Dalmiya v. Justice Tendolkar, AIR 1958 SC 538, M. Rathinaswami v. State of Tamil Nadu 2009(5) SCC 628 and Heena Kausar v. Competent Authority 2008(14) SCC 724.
Subject to the data, any such reservation is permissible for all the classes No total bar.
158. In R.B. Rai Vs. State of Madhya Pradesh (Writ Petition No. 1942 of 2011) and other matters, a Division Bench Judgment of Madhya Pradesh, at Jabalpur, for the reasons and the background, apart from the constitutional Provisions dealt with the Rules around the Madhya Pradesh Public Services (Promotion) Rules, 2002 based upon the Nagaraj (supra) is distinguishable on facts itself. The reservation act based upon update available data distinguishes the case.
159. The Judgment of Sushil Kumar Singh and Ors (2015) 2 PLJR 844) (2015) 3 PLJR 593)are of no assistance to the clamant to pursue us to differ from the view which we have taken. Additionally, impugned resolution dated 21 August 2012, was after the Nagaraj (supra) essentials, with no extra material. The Reservation Act and the Promotion circular in question, are based upon the earlier statutes, circulars and historical background so reflected and the on hand proven records, This case is totally distinguishable on facts, as well as, on law. No such data was available is the findings. The chronological background of State including the earlier statute and circulars were not discussed including the essentials of Nagaraj (supra). We have noted in the case in hand the factual data revolving around the Nagaraj (supra) elements.
160. In Full Bench Judgment of Tripura, Agartala High Court, in Shri Jayanta Chakraborty and Ors. Vs. The State of Tripura and Ors. (WP(c) 189 of 2011), there was no such data placed on record to justify the reservation. Even otherwise, considering the reasons so recorded in this Judgment, Tripura Judgment based upon the facts of the Tripura State, cannot be made applicable to the State of Maharashtra. 161 In Ram Singh and Ors. Vs. Union of India (2015) 4 SCC 697), the claim of Jat Community was involved, to be included in the Central Scheduled List. The role of National Commission for Backward Classes, (NCBC) is reiterated in Ram Singh and Ors.(supra), including its guideline, criteria for inclusion in the list of Other Backward Class (OBC). The challenge was to the Jat Community inclusion in the Central list of Backward Class for various States, inspite of rejection of such claim by the NCBC. In the Apex Court, the challenge was to the notification of the inclusion. This was a different and distinguishable case of no material, no data, no earlier Act/Circular but new inclusion therefore the challenge. In case in hand, the central/ State caste list entries were never challenged. We are concerned with the additional State action of providing them reservation in the State employment. The Nagaraj (supra) issue was not for discussion in this case.
162. The Apex Court in U. P. Power Corporation Ltd v. Rajesh Kumar (2012) 7 SCC 1) referring to the earlier judgments has crystallized the points which are further noted by the Supreme Court in other judgments. In Rajesh Kumar, Section 3(7) of the concerned Act and the Third Amendment to the Rules of 2007, as brought into force in 2007, were declared invalid, ultra vires and unconstitutional for want of data. This judgment/decision on facts, therefore, is distinguishable, but so far as the law and the points as culled out definitely govern the field. It binds all. The State is also bound to follow it. Therefore, in the case in hand, there is enough data available which is appropriate as per the requirement of the Nagraj elements, though may not be arithmetically accurate, but enough to continue the reservation policy. The promotion circular providing only 33% reservation itself distinguishes the present case . The factual clear-cut grievances are not on record.
163. In S. Panner Selvam and ors. v. State of Tamil Nadu (2015) 10 SCC 292), the Apex Court has observed as under:
20. While considering the validity of Section 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 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 v. 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 (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) 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.
37 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.
164. The Supreme Court judgments have also recognised the importance of reservation to Other Backward Class but subject to the data. There is no total bar for the State to use and utilise it's enabling power to provide Reservation to all the similarly placed class/group. 165 Most of the judgments cited by the contesting Respondents have been taken note of in this decision. The point required to be noted is that the conclusion and the reason so given in all Supreme Court judgments are based upon the peculiar factual matrix and the service rules. It is necessary for the Court to consider the factual matrix which in the case in hand is missing. The Apex Court in S. Panner Selvam(supra), directed to revise the seniority list and to apply 'catch up rule'. The principles/points which are reproduced in paragraph 20 are also reflected in Rajesh Kumar (supra).
166. The Tribunal has no jurisdiction to direct to frame rule/circular to change the service condition or any policy and also bound by law of precedent ought not to have declared the Reservation Act/Circular, bad in law. The Judicial decision to be taken when point for consideration on merit arises before the Tribunal in service matters. In above cases, there was no order passed by the State Tribunal under the Reservation Act. The Special Leave Petition against all above recent High Court's Judgments are pending in Supreme Court .All above reasons culminated into following sequitur. The appointments and promotions pending the issues need protection:
167. The learned Tribunal though declared the Reservation Act and the Circular bad in law, its operation, however, postponed for one year. This Court granted the stay of the judgment on 20/03/2015. It has been continuing till this date. Pending the issues/writ petitions, the Supreme Court and this Court have granted interim reliefs, thereby permitted the State/Department to proceed with the respective promotions even to the objected classes. However, those are made subject to the final decision of these Petitions. The appointments and promotions prior to the Tribunal's judgment and even thereafter in view of above order passed by this Court as well as Supreme Court have been acted upon by all concerned. As I am upholding the Reservation Act and the Promotion Circular, the appointments and promotions made prior to the impugned Act and in view of interim protection, based upon the interim reliefs, need to be regularised in accordance with law. The promotions cannot be disturbed, it need to be protected. This is also on the foundation of Doctrine of Prospective Overruling as the same is also applicable to service jurisprudence . [B. A. Linga Reddy v. Karnataka State Transport Authority, (2015) 4 SCC 514 and P. V. George v. State of Kerala, (2007) 3 SCC 557].
CONCLUSIONS :
168. The learned Tribunal has exceeded its jurisdiction by holding that no reservation in promotion can be provided to any backward class except SC and ST. It is wrong to hold that the reservation in DT/NT and SBC is in contravention of express constitutional provisions. The reasoning by the learned Tribunal that even for SC, ST, there is no quantifiable data available with the State to indicate that they are inadequately represented in the services reflects the non-application of mind to the law as well as the facts on record. There is ample material on record to justify action of State.
169. The Tribunal is wrong in holding that the Reservation Act is bad for want of quantifiable data on the backwardness and adequacy of representation in respect of any of the backward classes. The Tribunal erred in law in holding that the Reservation Act does not disclose the basis on which the percentage of reservation for different backward classes have been provided and further that the decision of the State is arbitrary. These reasons and findings further disclose the wrong approach of the Tribunal in view of the specific constitutional provisions and the percentage of reservation so fixed and declared from time to time even through the then existing Circulars and Statutes, apart from the judgments of the Supreme Court. This is in the background that earlier Circulars and Statues were never challenged including the percentage so fixed and announced by the State since many years. The Tribunal has recognised the State's power to provide reservation in Government service, but erred in law by holding that the law so made includes every service provided even in the private sector and thereby violating Articles 13 and 16 of the Constitution of India. This was again based upon the wrong reading of the law and no data or material and/or specific challenge from such private service provider. In this process, the learned Tribunal, wrong in holding that the State does not have any data regarding impact of reservation on overall administrative efficiency. The burden was wrongly put upon the State on every points, though the data and material have been placed on record, by misreading the provision of Evidence Act and the law,. The learned Tribunal further overlooked the principle of creamy layer and the specific protection so made including the circular of the State in this regard.
170. Importantly, the Tribunal has exceeded its jurisdiction and erred in law, though by recording that the part of the Reservation Act may not be bad but declared the whole Reservation Act and the Circular ultra vires. The Tribunal, in this process and for the same reasons, declared the promotion circular bad in law, by misreading the same and by stating that it is beyond the provision of Article 16(4A). The Tribunal ought to have considered that every caste percentage so fixed since so many years, based upon the material available with the State. The constitutional provisions, if permit, apart from the recruitment, reservation in promotion to SC and ST category at least those clauses ought not to have been declared bad in law. Similarly placed OBC category and/or other backward category and its percentage so fixed again based upon the data and the material ought not to have been declared bad in law for the same reason.
171. All the persons equally situated and as permissible, entitled the reservation in promotion also based upon the data available. There was no reason to declare the Reservation Act and the Circular bad in law. The excess reservation and/or percentage of particular category out of those already declared could have been tested on the fact based matter. The Tribunal's approach and the reasons to decide the validity of the Reservation Act and the Circular without contra material and data, in our view, was contrary to the Constitutional provisions, illegal and unsustainable in law. It is contrary to various Supreme Court Judgments so referred earlier.
172. All the elements as discussed under the respective heading in this judgment left with no option but to maintain the validity of the Reservation Act and Promotion Circular. All these State actions are well within the constitutional frame work based upon the record and law. It's foundation is based upon the unchallenged Statutes and Circular, at this stage, cannot be disturbed, unless and until new reservation policy is announced and implemented. There is no total bar not to provide such reservation at initial appointment/post or promotion stage, however, it is subject to the riders and conditions as announced. No reservation policy in State itself is against the Constitution and the law. The individual challenge may be tested on facts and circumstances. But there cannot be total ban or bar to the State to provide such reservation. The Constitution itself empowers the State to do so on the foundation of declared law.
For one constitutional reservation policy, the political spectrum may have different shades to follow. The importance of such facets need to be taken care by the respective States, being the part of it's constitutional obligations, but within the constitutional shades and sphere.
173. The Reservation policy and related issues have been seething since long. All the concerned need to work wholeheartedly to settle it. The Backwardness and the adequate representations are required to be taken into consideration first. Then comes the actual and physical distribution of posts/seats cadre-wise or caste-wise, or the department-wise of the concerned organisation and its requirement, based upon the actual figures. The source of information and/or data is not in challenge. There is even no special challenge to the backwardness and independent representation so declared to the categories in question. The statute need not be declared ultra virus for the Academic purposes. In the Democratic system any reservation policy should have an egalitarian future.
174. The Reservation Act is valid and so also the Promotion Circular. However, it is always subject to timely revision as and when required, based upon the quantifiable data so collected.
175. The data with the State as available is determinable, surveyable, significant, quantitative and measurable. It is unacceptable that it is non-quantifiable and non-contemporary. In Indra Sawhney (supra) the issues were about reservation promotion and not about the reservation at recruitment stage. The data so available of population as per the reservation policy includes the fixed percentage since so many years. No-one has challenged the said reservation policy and/or percentage for want of data at recruitment stage. In Nagraj (supra), the issue was of promotion in view of Articles 16(4A) and (4B) read with other constitutional provisions. In the present case, the reservation in promotion is only 33%. Therefore, on such self-destructive submission also no Reservation Act to be declared bad in law.
176. Once the various doctrines of service jurisprudence are made applicable to the reservation in promotion for Other Backward Class , the equally placed person, being backward with no due representation cannot be denied the reservation promotion in service. Once the creamy layer principle is extended to OBC or such related classes then only deserving employee will get reservation promotion and not all, though they were initially appointed on reservation basis.
177. The reservation for ST and SC even in promotion is permissible subject to rider of availability of contemporary and quantifiable data . The contemporary and quantifiable data , in the present case, as available, therefore, the Reservation Act and the Promotion Circular are valid.
178. The reservation for Other Backward Classes in recruitment and/or appointment stage is also permissible. There is no specific challenge raised in this regard. The contemporary and quantifiable data so placed on record are sufficient to maintain the State action, as such promotion was with rider of creamy layer only for OBC classes.
179. To grant two percent more reservation at recruitment stage is the decision based on the contemporary and quantifiable data to provide representation to the declared backward classes with the rider of creamy layer is within the State's permissible power. The already declared fifty percentage (50%) restriction, unless reduced, the State has no option, but to increase such two percent without disturbing the existing reservation percentage. In the present case, there is no excess percentage in promotion Circular as total percentage is thirty three percent (33%). Therefore also, such reservation in the promotion, in the present case, is within the legal frame work.
180. The cadre and/or department-wise promotion challenge may be considered separately, based upon the actual facts and information placed by the aggrieved person, because of such reservation policy. In these cases basic facts are missing.
181. Once the reservation is provided under the Statute/Circular, it cannot be taken away, including the reservation in promotion. All the actions based upon the orders of the Supreme Court and the High Court's are liable to be protected. The promotions so made are liable to be continued.
182. The State to act in accordance with the law to collect fresh data and revise the state reservation policy regularly.
183. In the result, the following order:
ORDER
(1) Impugned judgment and order dated 28 November 2014 in Transfer Application Nos. 1 and 2 of 2014, (transferred Writ Petition Nos. 8452/2004 and 470/2005 on 18 June 2013) by The Maharashtra Administrative Tribunal (MAT) is quashed and set aside.
(2) The Reservation Act is valid. However, subject to timely revision.
(3) The Promotion Circulars are valid. However, subject to timely revision.
(4) The appointments and promotions so made prior to the Reservation Act and the Promotion Circular and pending the Writ Petitions, based upon the interim orders passed by the Supreme Court as well as this Court be finalised/regularised in accordance with law.
(5) Appellate Side Writ Petition Nos. 2797/2015, 3009/2015 and Original Side Writ Petition No.1590/2015 are allowed accordingly.
(6) In view of above, Writ Petition No. 3287/2004 is disposed of as the validity of the Reservation Act and the Promotion Circulars is upheld and all so actions arising out of it. However, the fact based challenge to the Promotion/seniority List would be considered along with other Corporation/Undertaking matters independently on and updated averments, if such fact based fresh challenge is made.
(7) In view of disposal of Writ Petitions, Civil Application Nos. 161/2016, CAW/2301/15 and CAW/2531/2015 in Writ Petition No.2797/2015 stand disposed accordingly.
(8) There shall be no order as to costs.
Inasmuch as A. A. Sayed, J. is unable to agree with some of the views and the findings in the aforesaid judgment, he will be writing a separate judgment.