No Reservation in Promotions without Examining Adequacy of Representation in Promotional Posts

Following the theory that vacancies in promotions cannot be given without reviewing the adequacy of representation in promotional posts, on Friday the Supreme Court upheld the quashing of an Orissa Government resolution.

With consequential seniority, the impugned resolution passed in 2002 had made quotas for Scheduled Castes and Scheduled Tribes in Orissa Administrative Service promotional posts.

The Orissa High Court quashed the resolution mainly on the ground that, according to Article 16(4A) of the Constitution, it cannot be called a statute in the exercise of the State's enabling power, nor does it meet the criteria set by the Supreme Court. Furthermore, the High Court held that there was no legal justification for such a resolution, and quashed the same and subsequent gradation list accordingly.

In the appeal challenging the HC judgment, the appellants contended that, following the 85th amendment to the Constitution which inserted Article 16(4A), the State was always open to expanding the reservation gain with consequential seniority, either by executive order or by way of legislation. This was also noted that this Amendment to the Constitution was upheld in India's M Nagaraj v Union case.

The bench held: "In view of the judgments as referred above, in this case, it is to be noticed that after Constitution (Eighty-Fifth) Amendment Act, 2001, amending Article 16(4A) of the Constitution which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to scheduled castes and scheduled tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benefit in the Class-I Services. The advocate for State specifically admitted that the Govt. has not issued any executive order or has passed any legislation. The Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts. As is evident from the order of the High Court, the State in its counter affidavit has taken the stand that there is no necessity for bringing out any law to extend the benefit of seniority for those who are promoted in reserved vacancies. Government Resolution dated 20.03.2002 can be termed as law did not make in exercise of enabling power of the State under Article 16 (4A), nor does it satisfy the parameters laid down in the various decisions of this Court. The Resolution has no legal basis".

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