Dr. Jitendra Singh, Hon’ble Minister of State in the Ministry of
Personnel, Public Grievances and Pensions in reply to an unstarred question no.
1377 regarding reservation in promotion in the Rajya Sabha on 10th
December, 2015, inter-alia, has stated the following:
“ ....The Hon’ble Supreme Court, on 19.10.2006, in the matter of M. Nagaraj & Ors.
V/s Union of India, while upholding the validity of the Constitutional
Amendments made in favour of Scheduled Castes and Scheduled Tribes, inter-alia,
observed that the State will have to collect quantifiable data of backwardness,
inadequacy of representation before providing reservation in promotion.
In order to provide impediment free reservation in promotion to SCs and STs, the Constitutional (One Hundred and Seventeenth Amendment) Bill was introduced in the Rajya Sabha by the Government in September, 2012. The Bill was passed by the Rajya Sabha on 17.12.2012 and transmitted to the Lok Sabha for consideration and passing. The Bill could not be considered in the 15th Lok Sabha and lapsed on the dissolution of 15th Lok Sabha. The issues emanating from the Hon’ble Supreme Court’s judgment dated 19.10.2006 in M.Nagaraj case is under examination.”
Much before the
Minister gave the above reply in Parliament, the Under Secretary, CS.I
Division, DOPT vide letter no.5/10/2012-CS.I (U), dated 18th November,
2015 issued in reply to the representations given by General Category CSS
officers, has stated that implementation of the Supreme Court judgement dated
19.10.2006 in the Writ Petition (C) 61 of 2002 titled M. Nagaraj & Ors. Vs.
UOI & Ors is under consideration. On the basis of same letter dated
18/11/2015, Hon’ble CAT, Principal bench, New Delhi vide it's order dated
30/11/2015 in OA no. 4151 of 2015 filed by Suri Shambhu Nath Jasra and others
Vs UOI & Anr., has given directions to DOPT to take a decision in the
matter, within 6 months.
The same Under
Secretary and CPIO, CS.I Division, DOPT has also misrepresented the
facts available with the Department, while furnishing information under RTI Act
to Shri Anurag Goel, the main applicant in OA no.3382 / 2015 filed in CAT, New
Delhi, and furnished incorrect and incomplete information, which incidentally
suits the Applicant. The queries of Shri Goel and the information thereon given
by the CPIO are as follows:
Queries:
(i) Whether any exercise was undertaken to collect quantifiable
data showing backwardness of the SC/ST categories and inadequacy of their
representation in public employment before issue of OM no. 5/11/2014-CS.I (U),
dated 18.9.2014.
(ii) If yes, copies of relevant documents showing the outcome of
the exercise.
(iii) Copies of the note portion on which approval of the competent authority
was obtained before issue of aforesaid O.M.
Reply by the CPIO:
(i) No.
(ii) Not arise.
(iii) No note was recorded for issue of the O.M.
The sudden change in policy
of the Government comes as a surprise to thousands of SC/ST employees in the
Central Government particularly when the issues involved in
Supreme Court judgement dated 19.10.2006 in M Nagaraj case have already been
examined by DOPT in consultation with the law officers of the Government and it is already conveyed
to all State Governments/UTs, all Ministries / Departments of the Government of
India, Office of CAG of India, UPSC, Supreme Court of India, National
Commission for SCs National Commission for BCs National Commission for STs,
Railway Board, Planning Commission, PMO, President Secretariat, Rajya
Sabha Secretariat, Lok Sabha Secretariat vide letter no. 36036/2/2007-
Estt.(Res), dated 29/3/2007 that the observations made in Nagraj case
are mere obiter dicta, per incuriam and do not flow from; and cannot be
reconciled with the 9 judge bench judgement of Supreme Court in the matter of
Indra Sawhney case. The reference to creamy layer in the concluding
paragraph and other portions of the judgement does not relate to the Scheduled
Castes and Scheduled Tribes.
The conclusions
recorded by the Constitution Bench of Supreme Court in the Writ Petition (C) 61
of 2002 titled M. Nagaraj & Ors. Vs. UOI & Ors are as follows:
121.
The impugned constitutional amendments by which
Articles 16(4-A) and 16(4-B) 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 OBCs 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.
Data on Adequate Representation: The other direction of the Honorable
Supreme Court in M Nagaraj case regarding inadequacy of representation of SCs
and STs was already complied with by the DOPT with the introduction of
post-based reservation rosters vide O.M. no. 36012/2/96-Estt.(Res.), dated
02/07/1997 as prescribed by the Supreme Court in RK Sabharwal case. The DOPT
has also directed all the Ministries / Departments vide O.M. No.
36035/17/2008-Estt. (Res), dated 14/11/2008 that they should publish the all
the statistics pertaining to representation of SCs and STs in public employment
in annual reports.
Data on Adequate Representation in CS
Division: The CS Division of DOPT also maintains the reservation roster prescribed
vide O.M. dated 02/07/1997 for the purpose of ensuring adequate representation
of SCs and STs in Government jobs. The status of SC/ST vacancies in different
grades in Central Secretariat is as follows:
Year
|
US
Grade
|
SO Gr.
|
Asstt.
Gr.
|
PPS
|
PS
|
|
2004
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2005
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2006
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2007
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2008
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2009
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2010
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2011
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2012
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2013
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
||||||
2014
|
Actual
Vacancies
|
|||||
Unfilled
Vacancies
|
Data on Adequate Representation in
States Governments: Since the DOPT O.M. no. 36012/2/96-Estt.(Res.), dated 02/07/1997
regarding introduction of post-based reservation rosters as per directions of
Hon’ble Supreme Court in RK Sabharwal case, was forwarded only to
Ministries/Departments of Government of India and not to State Governments.
Therefore, some States could not adopt the mechanism of Reservation Rosters for
ensuring adequate representation and thus faltered in ensuring compliance of
one of the requirements laid down by Hon’ble Supreme Court in M Nagaraj case.
Such cases are sub-judice in Supreme Court.
Efficiency in
Administration: While the promotion guidelines issued by dopt provide for strict
benchmarks to ensure efficiency in administration, the legal issues arising out
of different Court rulings may also be examined. It was observed by the Supreme
Court in a majority judgment in Indira Sawhney case (1992) that reservation in
promotions affects efficiency in Administration. In order to clear the legal
hurdles in providing reservation to SCs and STs in the matters of promotion,
the Parliament enacted the Constitution (77th Amendment) Act, 1995. A
division bench of Hon’ble Supreme Court in S Vinod Kumar case (1996) still
ruled, without taking cognizance of the Constitution (77th Amendment) Act,
1995, that reservation in promotions is not permissible. Although, the
Parliament had enacted Constitution (82nd Amendment) Act, 2000 to nullify the
adverse effect of Supreme Court judgment in S. Vinod Kumar case, the
Constitution Bench of Supreme Court in Rohtas Bhankhar case (1998) has declared
the judgment in S. Vinod Kumar case as NOT A GOOD LAW.
The Constitution
Bench of Hon’ble Supreme Court, vide its judgment dated 15.7.2014 in the matter
of Rohtas Bhankhar & Ors Vs. UOI & anr, has also examined the issues
arising out of the earlier judgment dated 19.10.2006 in M. Nagaraj case.
The observations of the Hon’ble Supreme Court, in Rohtas Bhankhar case,
are as follows:
“8.
The conclusions recorded by the Constitution Bench in M. Nagaraj are also
relevant and they read as under:
121. The
impugned constitutional amendments by which Articles
16(4-A) and 16(4-B) 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 OBCs 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 above, the main issue concerns the “extent of reservation”. In
this regard the State concerned 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 SCs/STs in matters 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 with 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 excursiveness 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 (Eighty-first
Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and
the Constitution (Eighty-fifth Amendment) Act, 2001.
We do not think, it
is necessary for us to deal with the width and scope of Article 16(4A) any
further.”
However, the lower
level bureaucracy in DOPT, is hell bent on forcing similar kind of
illegality in the matter of reservation in promotion that was committed in 1997
which not only caused unrest among the SC/ST employees and their
representatives but also caused great loss of precious time of the Government
and Parliament in late nineties which could have been utilised
furthering the cause of development of our poor nation. The action of
DOPT in withdrawing relaxation/concessions to SC/ST in matters of promotion
vide O.M. dated 22/07/1997 has recently caused huge embarrassment to the
Government when the Constitution Bench of Supreme Court declared the said O.M.
as ILLEGAL.
The officials in DOPT
are neither following the reservation rules framed as per constitutional
provisions in true letter and spirit nor they are furnishing correct
information on compliance of reservation rules in Central Secretariat.
The SC/ST employees
in Central Secretariat have been requesting the Government, without any gain,
to avoid complicating the reservation matters at the behest of certain vested
interests and take necessary action to implement rules pertaining to
reservation in promotions as well as the latest directions of Hon’ble Supreme
Court in the Rohtas Bhankhar in letter and spirit on the following issues:
Withdrawal of DOPT’s illegal
O.M. dated 22.7.1997: DOPT’s OM No. 36012/23/96 - Estt.(Res), dated
22.7.1997 regarding withdrawal of relaxations and concessions applicable to
SC/ST employees, has been declared illegal by Hon’ble Supreme Court in Rohtas
Bhankhar case. However, as per DOPT O.M. No.36012/23/96-Estt.(Res.)
Vol. II, 03/10/2000, the said illegal O.M. has been invalidated only
from 03/10/2000 and not from the date of its issue. The
DOPT are not ready to accord the respect of the ‘Law of Land’ to
the judgment dated 15.7.2014 delivered by 5 judge Constitution Bench of
Hon’ble Supreme Court headed by Chief Justice of India in Civil
Appeal Nos. 6046-47 of 2004 titled as Rohtas Bhankhar Vs. Union of India &
anr., wherein the previous judgement of Supreme Court in S. Vinod Kumar
case has been regarded as ‘not a good law’ and the O.M. issued
thereunder has been declared as illegal. The Department should
withdraw their illegal O.M. dated 22.7.1997 from the date of its issue in
compliance with the Supreme Court judgment dated 15.7.2015 and allow
all consequential benefits given to SC/ST employees in Central
Secretariat.
Further, as per
DOPT’s reply to a Parliament Question, there were 43 vacancies reserved
for SC/ST candidates for SO Gr. of CSS under the exam quota for the SO Gr. /
Steno Gr. B LDCE, 1996. However, UPSC have recommended only 33 candidates out
of which benefit of actual promotion has been given only to 31 candidates. The
Department has not taken any action to request UPSC to recommend more
candidates against these vacancies particularly when 2 of the
Applicants in the Rohtas Bhankhar case have been left out.
In fact, many more vacancies
under SO Grade LDCEs for 1997, 1998 and 1999 need to be filled up after review
of the results of these exams which were prepared under the effect of
DOPT’s illegal O.M. dated 22.7.1997. The Department has not taken any action to
advise the UPSC to similarly modify the results of SO Gr. / Steno Gr. B Ltd.
Departmental Examinations for these years.
The casual approach
of the DOPT in implementation of Supreme Court judgment dated 15.7.2014 can
seen from the fact that modified result of SO Gr./Steno Gr. B LDCE, 1996 has
been implemented only in respect of one category. The Department has not
taken any action for implementation of recommendations of UPSC in respect of
other services covered under the exam.
Promotion of officers
against all vacancies will make way for promotion of juniors as a result of
cascading effect.
Recalculation of
SC/ST vacancies as per revised PBRRs: This Association has been making repeated
representations for implementation of instructions issued by Estt.(Reservation)
Division of DOPT in so many cases. The reserved vacancies are required to
be re-calculated by revision of Post Based Reservation Roster in terms of OM
No.26012/45/2005-Estt.(Res.) dated 10.8.2010 issued by DOPT in compliance with
the judgment of Central Administration Tribunal, Madras Bench in O.A.
No.900/2005 [S. Kalugasalamoorthy v/s. Union of India & Others], and the
High Court of judicature at Madras in the matter of U.O.I. v/s. S.
Kalugasalamoorthy WP No. 15926/2007. This has also been assured by DOP&T
vide its OM No.9/9/2007/CS.I(S), dated 25.4.2011 that the PBRRs are to be
revised in consultation with the Estt.(Res.), DOP&T.
Revision of Minimum
Qualification: After implementation of 6th Central Pay Commission
Report, the Department of Personnel and Training have directed all the
Ministries/Departments, vide OM no. AB.14017/61/2008-Estt.(RR), dated 24th March,
2009 to amend Service/Recruitment Rules of the services/posts under their
respect control to provide for revised minimum qualifying
service in a particular grade required for promotion to the next
higher grade.
However, the CS
Division, DOPT, the cadre authority of CSS has chosen to implement the above
directions selectively to harm the promotional avenues and career prospects of
SC/ST officers. In case the minimum qualifying service for promotion from
Section Officer Grade to the Under Secretary Grade is lowered from eight (8)
years to six (6) years instructions contained in said OM dated
24-3-2009, all the backlog vacancies reserved for SC/ST in Under Secretary
Grade of CSS get filled up.
Non-compliance of Reservation Rules in
Ad-hoc promotions: In terms of DOPT OM no. 36012/27/2000-Estt.(Res.), dated 15/3/2002,
the vacancies which have been identified as falling in the share of SC/ST
quota and are proposed to be filled up ad-hoc basis, should be
filled up in the same manner as in the case of filling up on regular basis. The
backlog of SC/ST vacancies is to be treated as a group distinct from the
current vacancies in terms of DOPT OM no. 36012/5/97-Estt.(RR) Vol.II, dated
20/7/2000. The DOPT is filling up all the vacancies in different grades
on ad-hoc basis without taking into account the claim of SC/ST candidates in
terms of DOPT OM no. 36012/27/2000-Estt.(Res.), dated 15/3/2002. The
officers in CS Division, DOPT have always been telling that SC/ST vacancies are
filled up to the extent of 15% and 7.5% of the total number of vacancies
being filled up under one particular promotion order whereas there are no such
instructions or rule to fill up SC/ST vacancies on ad-hoc basis in such a way.
