By:- Naina Sharma
IN THE SUPREME COURT OF INDIA
|NAME OF THE CASE||Pravakar Mallick vs. State of Orissa|
|CITATION||Civil Appeal No.3240 of 2011|
|APPELLANT||Pravakar Mallick and Anr.|
|RESPONDENT||State of Orissa and Ors.|
|DATE OF CASE||17 April, 2020|
|BENCH/ JUDGE||Mohan M. Shantanagoudar, R. Subash Reddy|
|STATUES/CONSTITUTION INVOLVED||Constitution of India|
|IMPORTANT SECTIONS / ARTICLES||Article 16(4A), 85 amendment,2001, Article 335, Article|
In the present case, a civil appeal was filed against the judgment of Orissa high court in which it rejected the order passed by Orissa Administrative Tribunal and government resolution and also dismissed the consequential graduation list of Orissa Administrative Services. The Orissa government passed a resolution for fixation of seniority of SC\ST government officers. The officers belonging to SC\STs will have seniority according to rules of reservation and the government officers belonging to general and other backward classes who will be promoted later will be placed junior to SC\ST officials who were promoted earlier. The supreme court, after hearing all the arguments and understanding the case, dismissed the appeal.
The Reservation system is a system which provides relaxation in fees and entrance exams, seats in educational institutions and jobs etc for some castes. The motive behind this system is to provide representation in various fields. According to the provisions in the Indian constitution, it allows the union government, states and union territories to set reserved quotas for certain castes. In the beginning, only scheduled castes and scheduled tribes were subjected to it, but after the implementation of the Mandal commission report, other backward classes were also included in it. Scheduled castes were seen as underneath the caste system and were subjected to untouchability and scheduled tribes were primitive people, so both these were not developed and exploited and faced social discrimination, so they provided reservations. Other backward classes are those who are backward in terms of socio -economic backgrounds. The others belong to the general category which is composed of high castes and are not subjected to reservations. Reservations in jobs is about priority given to the reservation category and then considering the open category.
In this case, the respondent – writ petitioners (general category officers) were appointed to Orissa administrative services in the 1980s and were then assigned ranks according to their merits. The SC\ST officers who were appointed under reservation were placed below them. Later on, the respondent – writ petitioners were promoted and also the appellant officers under reserved vacancies, but the seniority of reserved and unreserved categories was not finalized. An amendment act was passed in 2001 which said that the state is not bound to make any reservations in matters of promotions and if the state wishes, then it has to collect quantifiable data proving backwardness. Hence, it maintained the seniority of respondent- writ petitioners and then a year later that is in 2002 a government resolution was passed extending the benefit of seniority of scheduled castes and scheduled tribes under the rule of reservation which altered the gradation list and it was given to SC\ST officers.
Then the respondent writ petitioners first of all filed an application in Orissa Administrative Tribunal but the application was outright dismissed. Then a petition was filed in the High Court regarding the same, the high court dismissed the government resolution and gradation list. Then a petition was filed in the Supreme Court challenging the order of Orissa High Court only to be dismissed.
FACTS OF THE CASE
In this case, the appellants filed a civil appeal against the judgment of Orissa high court in which it dismissed the government resolution and changed the gradation list. The writ petitioners were appointed to Orissa Administrative Services by Orissa public commission during the 1980s and different ranks were given according to their merit by the public commission itself.
The officers who were SC\ST under reservation were given ranks below writ petitioners, making them senior to the SC\ST officers. The writ petitioners later on were promoted to higher posts later on via an order dated 20 August 2000 along with them some SC\ST officers who were appointed between 1995 to 2000 under the Orissa reservation of vacancies in post and services act, 1975
The public service commission didn’t clarify the seniority of reserved or unreserved categories as it was the matter of several litigations. The Original seniority list was out of all officers even after promotion and appointment time was different on 16 May 2001, the list the SC\ST officers were shown below than writ petitioners.
After the 85 amendment in article 16(A), The Orissa government didn’t issue any order or legislation regarding the seniority of SC\ST category officers who were promoted. Referring to the instructions issued by the central government, the state of Orissa issued a resolution on 20 March 2002 giving instructions to all departments to extend the benefit of seniority for SC\ST category government officials, and then another list was prepared on 3 March 2008.
The writ petition filed an application in the Orissa Administrative Tribunal but it was dismissed claiming to be premature, then a petition was filed in the high court which quashed the government resolution and altered the list on grounds that neither it was according to law nor according to orders of court. Then a petition was filed in the Supreme Court. The learned council of state spoke on the grounds of 85 Amendment and by which article 16(4 A) was amended and later on it was made clear that the government had not issued executive orders or legislation. Hence, it was dismissed.
ISSUES RAISED BY COURT
- Whether the state is obliged to make reservations for SC/ST in matters of promotion?
- Whether the government order altering the gradation list by which SC/ST officers were given seniority against general category officers in promotions was valid ?
ARGUMENT FROM THE APPELLANT SIDE
- The learned counsel Sri Subha Rao argued on behalf of appellants that according to 85 constitutional amendment in article 16(4A) the state can extend the benefit of reservation along with seniority either by executive order or legislation.
- The learned counsel Sri Subha Rao argued on behalf of appellants that the high court quashed the decision without giving any valid reasons.
- The learned counsel Sri Subha Rao argued on behalf of appellants that when the resolution was passed the Orissa reservation of vacancies in post and services act, 1975 was in force and according to that benefit of reservation must be given in promotions as well.
- The learned counsel Sri Subha Rao argued on behalf of appellants that under section 10 of Orissa reservation of vacancies in post and services act, 1975 the promoted SC\ST officials are entitled to seniority.
ARGUMENTS FROM RESPONDENT SIDE
- The learned counsel argued on behalf of the state that there was no executive order or legislation by state after the 85 constitutional amendment in article 16(4A) to extend the benefit of promotion or seniority.
- The learned Counsel argued on behalf of the state that the amendment clearly says the state can make provisions for reservations but not bound in case of promotions and seniority but if they wish then the state has to provide quantifiable data proving backwardness of class as in article 335 of the constitution.
- The learned counsel argued on behalf of the state that under article 16(4A) the government needed to prove the “inadequacy of representation”, backwardness and overall efficiency.
- ARTICLE 16(4A)- the state is allowed to make provisions for reservation of backward classes which are not adequately represented according to state in case of appointments or posts.
- 85 AMENDMENT ACT, 2001 – the parliament amended the article 16(4A) and the idea of consequential seniority was introduced. The state can extend the benefit of consequential seniority after examining the representation of SC\ST.
- ARTICLE 335 – the claims of SC and ST to services and posts shall be taken in consideration with the maintenance of administration.
In this case, the Supreme Court dismissed the petition challenging the order of Orissa high court. The bench said that article 16(4A) can make provision for reservations in matters of promotion and consequential seniority. And validity was relied on the Nagraj Judgment in which it said that the state is not bound to make reservations but if it wishes then states have to collect data showing backwardness and it depends on availability of data and made it clear in Suraj Bhan Meena and Anr. Vs. State of Rajasthan, after the data has been collected, then only a notification can be issued and in B.K Pavitra and ors. Vs. Union of India and ors. The court said that the mere facts are not enough to provide promotional posts for reserved categories and in the absence of such important data, the catch up rule applies fully. According to catch-up rules, the candidates belonging to the SC/ST category who, by the virtue of reservation, are promoted are not entitled to seniority and if a general category candidate reaches the same post, he or she will be entitled to seniority over promoted candidates . The Catch up rule was evolved by the Supreme Court in the case of Virpal Singh.The learned counsel of state also agreed that the notification was issued without collecting adequate data. The honorable Supreme Court further said that the benefit of reservation in promotion is given according to section 10 of the Orissa Act of 1975 but that can’t be counted as a reason or ground for this and said that no benefit of seniority was given by the state by any executive order so hence, the appeal is dismissed and Supreme Court agrees with the Judgment given by High Court and relied on learned counsel that the case of appellants would not be taken further.
In this case, I agree with the judgment, but in my understanding, it turned out to be quite confusing. There seems to be a lack of clarity in the law. The judgment was mostly based on previous landmark judgments and there were times when the catch up rule was abolished and then again reinstated. Although it was made clear in the end that the dismissal of the government resolution and altered list was right as the government issued a notification but did not collect the proper data showing the backwardness of caste, inadequacy of data and overall efficiency, so it was dismissed. However, this case shows that the Indian judicial system and constitution had laid down various and many provisions to clear any confusion and rules to be followed by individual states.
 Indian kanoon, https://indiankanoon.org/doc/211089/, last visited 11, February,2022
 Main.sci.gov.in, https://main.sci.gov.in/supremecourt/2011/8579/8579_2011_32_1502_21665_Judgement_17-Apr-2020.pdf, last visited 11 February 2022