Court and the same was affirmed by the Apex Court in U.P. Power Corporation v. Rajesh Kumar Ors

Sri R.P. Tiwari, learned counsel for respondent no.5.

2. Present writ petition has been filed questioning the order dated

8.9.2008 passed by respondent no.2 and the order dated

24.12.2007 passed by respondent no.3. By the said order, respondent no.2 has rejected the promotion of the petitioner with direction to consider the case of respondent no.5 for promotion under reserved category. The said order was assailed before this Court and at the time of admission on 17.10.2008, following order was passed: "Heard counsel for the petitioner, standing counsel who has accepted notice. on behalf of respondents no. 1, 2 and 3 and Sri Rajesh Sharma who has put in appearance on behalf of respondent no. 5. The contention of counsel for the petitioner is that one candidate of general category namely Ramesh Pal Singh retired from the post of Lecturer. A vacancy in Lecturer Grade occurred consequent to retirement of Ramesh Pal Singh who is a general category candidate. The management passed resolution for promotion of the petitioner to the the post of Lecturer Grade being senior most teacher in the institution. It appears that respondent no. 5 made some complaint before the District Inspector of Schools, Aligarh on the ground that the post in question should be filled up by a candidate belonging to scheduled caste category. The District Inspector of Schools, Aligarh by his order dated 24.12.2007 directed the management to fill up the post in question by appointment of respondent no. 5 who is a scheduled caste candidate. The contention of counsel for the petitioner is that the petitioner being the senior most teacher in the college is entitled to promotional post. Issue notice to respondents no. 4 returnable at an early date. Notice shall indicate that the counter affidavit is to be filed by respondent no. 4 by 19th December, 2008. Standing counsel may also file counter affidavit by 19th December, 2008. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter. In the meantime, operation of the impugned order dated 8.9.2008 shall remain stayed."

3. After notices, respondents have filed the counter affidavit, wherein they have taken stand that Dr. Ishwari Prasad belongs to Scheduled Caste Category perfectly, justified and legal for promotion to the post of Lecturer under reserved category. As the quota of Scheduled Caste Category in Lecturer Grade is incomplete and as such, the fifth respondent is eligible and suitable for the said post.

4. Learned counsel for the petitioner has contended that the petitioner is a senior-most teacher and is liable to be considered for promotion to the post of Lecturer, which fell vacant in the fourth respondent-institution.

5. Despite eligibility and seniority, respondents have illegally rejected the claim of the petitioner and directed the respondents to sent proposal in favour of respondent no.5. In fact, the rule of reservation in promotion quota is interdicted by this Court and the same was affirmed by the Apex Court in U.P. Power Corporation Ltd. Vs. Rajesh Kumar & Ors. (Civil Appeal No. 2608 of 2011) following the judgment of the Apex Court in M. Nagraj Vs. Union of India, (2006) 8 SCC 212. She also relied on the observations made by the Apex Court in Rajesh Kumar (supra), which reads as under: "39. At this stage, we think it appropriate to refer to the case of Suraj Bhan Meena and another (supra). In the said case, while interpreting the case in M. Nagaraj (supra), the two-Judge Bench has observed: - "10. In M. Nagaraj case, this Court while upholding the constitutional validity of the Constitution (77thAmendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced."

40. In the said case, the State Government had not undertaken any exercise as indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions in the said judgment. It was canvassed before the Bench that exercise to be undertaken as per the direction in M.Nagaraj (supra) was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-Fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the two-Judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. Eventually, the Bench opined as follows: - "66. The position after the decision in M. Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. 16(4-A)

67. The view of the High Court is based on the decision in M. Nagaraj case as no exercise was undertaken in terms of Article to acquire quantifiable data regarding the inadequacy of representation of the Schedule Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference." After so stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan.

41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.

42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed."

6. She further submits that in view of the rule of reservation in promotion, which was made under Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules declared as ultra vires by the Apex Court. In such circumstances, the impugned order is contrary to the observations of the Apex Court in the above-referred judgment.

7. Learned counsel for the petitioner further submitted that in view of the interim direction, the petitioner is continuing as Lecturer on promotional post and he is now working as a Lecturer but salaries on the promotions post has not been released in view of the pendency of the present writ petition.

8. Considering the submissions made by learned counsel for the petitioner and also the law laid down by the Apex Court in M. Nagraj (supra) and B.K. Pavitra Vs. Union of India, AIR 2019 Supreme Court 2723 and Rajesh Kumar (supra), the impugned orders 8.9.2008 and 24.12.2007 passed by respondent nos. 2 and 3 are illegal and are accordingly, set aside. Respondent nos. 2 and 3 are directed to take appropriate decision as against proposals sent by the fourth respondent on 11.08.2007 and pass appropriate orders, within a period of two months from today. It is needless to mention that after passing the orders, all the dues of the petitioner for the post of Lecturer shall also be released, forthwith.

9. The writ petition is, accordingly, disposed of. Order Date :- 21.7.2025 Noman (Donadi Ramesh, J.) NOMAN AHMAD High Court of Judicature at Allahabad

Sri R.P. Tiwari, learned counsel for respondent no.5.

2. Present writ petition has been filed questioning the order dated

8.9.2008 passed by respondent no.2 and the order dated

24.12.2007 passed by respondent no.3. By the said order, respondent no.2 has rejected the promotion of the petitioner with direction to consider the case of respondent no.5 for promotion under reserved category. The said order was assailed before this Court and at the time of admission on 17.10.2008, following order was passed: "Heard counsel for the petitioner, standing counsel who has accepted notice. on behalf of respondents no. 1, 2 and 3 and Sri Rajesh Sharma who has put in appearance on behalf of respondent no. 5. The contention of counsel for the petitioner is that one candidate of general category namely Ramesh Pal Singh retired from the post of Lecturer. A vacancy in Lecturer Grade occurred consequent to retirement of Ramesh Pal Singh who is a general category candidate. The management passed resolution for promotion of the petitioner to the the post of Lecturer Grade being senior most teacher in the institution. It appears that respondent no. 5 made some complaint before the District Inspector of Schools, Aligarh on the ground that the post in question should be filled up by a candidate belonging to scheduled caste category. The District Inspector of Schools, Aligarh by his order dated 24.12.2007 directed the management to fill up the post in question by appointment of respondent no. 5 who is a scheduled caste candidate. The contention of counsel for the petitioner is that the petitioner being the senior most teacher in the college is entitled to promotional post. Issue notice to respondents no. 4 returnable at an early date. Notice shall indicate that the counter affidavit is to be filed by respondent no. 4 by 19th December, 2008. Standing counsel may also file counter affidavit by 19th December, 2008. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter. In the meantime, operation of the impugned order dated 8.9.2008 shall remain stayed."

3. After notices, respondents have filed the counter affidavit, wherein they have taken stand that Dr. Ishwari Prasad belongs to Scheduled Caste Category perfectly, justified and legal for promotion to the post of Lecturer under reserved category. As the quota of Scheduled Caste Category in Lecturer Grade is incomplete and as such, the fifth respondent is eligible and suitable for the said post.

4. Learned counsel for the petitioner has contended that the petitioner is a senior-most teacher and is liable to be considered for promotion to the post of Lecturer, which fell vacant in the fourth respondent-institution.

5. Despite eligibility and seniority, respondents have illegally rejected the claim of the petitioner and directed the respondents to sent proposal in favour of respondent no.5. In fact, the rule of reservation in promotion quota is interdicted by this Court and the same was affirmed by the Apex Court in U.P. Power Corporation Ltd. Vs. Rajesh Kumar & Ors. (Civil Appeal No. 2608 of 2011) following the judgment of the Apex Court in M. Nagraj Vs. Union of India, (2006) 8 SCC 212. She also relied on the observations made by the Apex Court in Rajesh Kumar (supra), which reads as under: "39. At this stage, we think it appropriate to refer to the case of Suraj Bhan Meena and another (supra). In the said case, while interpreting the case in M. Nagaraj (supra), the two-Judge Bench has observed: - "10. In M. Nagaraj case, this Court while upholding the constitutional validity of the Constitution (77thAmendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced."

40. In the said case, the State Government had not undertaken any exercise as indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions in the said judgment. It was canvassed before the Bench that exercise to be undertaken as per the direction in M.Nagaraj (supra) was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-Fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the two-Judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. Eventually, the Bench opined as follows: - "66. The position after the decision in M. Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. 16(4-A)

67. The view of the High Court is based on the decision in M. Nagaraj case as no exercise was undertaken in terms of Article to acquire quantifiable data regarding the inadequacy of representation of the Schedule Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference." After so stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan.

41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.

42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed."

6. She further submits that in view of the rule of reservation in promotion, which was made under Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules declared as ultra vires by the Apex Court. In such circumstances, the impugned order is contrary to the observations of the Apex Court in the above-referred judgment.

7. Learned counsel for the petitioner further submitted that in view of the interim direction, the petitioner is continuing as Lecturer on promotional post and he is now working as a Lecturer but salaries on the promotions post has not been released in view of the pendency of the present writ petition.

8. Considering the submissions made by learned counsel for the petitioner and also the law laid down by the Apex Court in M. Nagraj (supra) and B.K. Pavitra Vs. Union of India, AIR 2019 Supreme Court 2723 and Rajesh Kumar (supra), the impugned orders 8.9.2008 and 24.12.2007 passed by respondent nos. 2 and 3 are illegal and are accordingly, set aside. Respondent nos. 2 and 3 are directed to take appropriate decision as against proposals sent by the fourth respondent on 11.08.2007 and pass appropriate orders, within a period of two months from today. It is needless to mention that after passing the orders, all the dues of the petitioner for the post of Lecturer shall also be released, forthwith.

9. The writ petition is, accordingly, disposed of. Order Date :- 21.7.2025 Noman (Donadi Ramesh, J.) NOMAN AHMAD High Court of Judicature at Allahabad