Supreme Court of India
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION & ANR.versusHIMACHAL PRADESH S. V. K. K. & ORS.
- Citation
- 2013 INSC 618
- Decided
- 13 September 2013
- Disposal
- Case Allowed
- Bench
- S S NIJJAR
Holding
The State must take a final decision on reservation in promotions based on the data already available and cannot defer implementation on the ground of the pending 117th Amendment.
Summary
The petitioners, representing Scheduled Tribes employees, sought a direction that Himachal Pradesh implement its own policy of reservation in promotions with consequential seniority under the 85th Constitutional Amendment, relying on data already collected. The State argued that implementation should be deferred pending the passage of the 117th Constitutional Amendment Bill. The Supreme Court examined the State's multiple circulars, its earlier statement to the Court, and the availability of requisite data, concluding that the State cannot use the pending amendment as a pretext to avoid compliance. The Court held that the State must decide the reservation issue within three months based on the existing data and that the direction restraining promotions remains in force. Consequently, the interlocutory application seeking such a direction was allowed.
Issues considered
- Whether the State of Himachal Pradesh must implement its own reservation policy in promotions with consequential seniority despite the pendency of the 117th Constitutional Amendment Bill.
- Whether the Court can issue a mandamus directing the State to adopt a reservation policy or merely to implement its own decisions.
- Whether the State's multiple circulars and statements indicate an intention to evade compliance with the High Court's judgment and the Supreme Court's directions.
- Whether the availability of quantifiable data satisfies the requirements laid down in M. Nagaraj for reservation in promotion.
Legislation cited
- Constitution (117th Amendment) Bill, 2012
- Constitution (77th Amendment) Act, 1995
- Constitution (85th Amendment) Act, 2001
- Constitution of Indias. Article 16(4), s. Article 16(4A)
Subjects
reservation in promotionconsequential seniorityScheduled CastesScheduled Tribesconstitutional amendmentmandamusservice lawstate compliancejudicial statements
Judgment
[2013] 9 S.C.R. 384
A H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION
&ANR.
v.
HIMACHAL PRADESH S. V. K. K. & ORS.
INTERLOCUTORY APPLICATION NO. 6 OF 2012
B IN
SPECIAL LEAVE PETITION (C.) NO. 30143 OF 2009
SEPTEMBER 13, 2013
[SURINDER SINGH NIJJAR AND
c PINAKI CHANDRA GHOSE, JJ.)
SERVICE LAW:
ReseNation in promotion - Consequential seniority -
D Compliance of direction in M. Nagaraj's case - State of
Himachal Pradesh issuing circulars dated 7.9.2007 and
23.1.2010- Plea of State Government to await the finalization
of 117th Constitution Amendment - Held: The material on
record indicates the intention of the State not to comply with
E the earlier decision to implement the policy of reseNation in
promotions and the grant of consequential seniority - State
Government, directed to take a final decision on the issue -
The proposed 117th Constitutional Amendment would not
adversely affect the merits of the claim of petitioner, for grant
of promotion with consequential seniority.
F
Practice and Procedure:
Statement made by counsel before Court - Disposal of
case accordingly - Held: When a statement is made before
G the court it is, as a matter of course, assumed that it is made
sincerely and is not an effort to over-reach the court - The
statement by the counsel is not expected to be flippant,
mischievous, misleading and certainly not false - This
confidence in statements made by the counsel is founded on
H 384
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 385
HIMACHAL PRADESH S. V. K K
the assumption that the counsel is aware that he is an officer A
of the,. court.
On 7.9.2007, with a view to give effect to the 85th
Amendment to the Constitution, the State of Himachal
Pradesh issued instructions by letter No. PER (AP)-C-F 8
(1 )-1/2005, and thereby provided for assignment of
consequential seniority to the members of Scheduled
Castes and Scheduled Tribes in service under the State.
The policy was to take effect from 17 .6.1995. The
instructions were challenged by respondent No. 1 and
the High Court by order dated 18.09.2009 relying upon M. C
Nagaraj 1 , allowed the writ petition, and quashed the
instructions dated 07.09.2007 as the State Government
had issued the instructions without collecting the
(quantifiable) data. The State Government by letter dated
16.11.2009, rescinded the instructions dated 07 .09.2007. D
The judgment of the High Court dated 18.09.2009 was
. challenged in SLP (Civil) No. 30143 of 2009 by Himachal
. Pradesh Schedules Tribes Employees Federation, and
. Himachal Pradesh SC/ST Government Employees
. Welfare Association. By order dated 26.04.2010, the E
Supreme Court disposed of the SLP No. 30143 of 2009
and the contempt petition No. 27 of 2010 on the
undertaking given by the State to collect more details with
regard to representation of SCs/STs and to pass
appropriate orders. The State Government was stated to F
have collected the necessary data. Thereafter I. A. No. 6
was filed by the petitioner seeking a dii·ection to the State
to take a decision on the issue of reservation on the basis
of data already collected or submitted to Cabinet Sub
Committee on 25.04.2011. The Court, by order dated G
06.09.2012, directed the State Government to take the
necessary policy decision on the question of providing
reserv.ation to the members of Scheduled Castes and
1. M. Nagaraj & Ors. v. Union of India & Ors. 2006 (7) Suppl. SCR 336. H
386 SUPREME COURT REPORTS [2013] 9 S.C.R.
A Scheduled Tribes in the matter of promotion in the
services within the State. On 31.01.2013, the State
directed that since the Constitution (117the Amendment)
Bill, 2012 was pending consideration in Parliament, the
matter regarding implementation of Constitution (85th
B Amendment) Act, 2001 in the State may be deferred. On
04.02.2013, the State Government sought modification of
the restriction placed by the Court by order dated
07 .01.2013, whereby the State was directed not to make
any promotions. The State Government prayed that the
c existing reservation· system in promotions be continued
till the finalization of matter relating to the Constitution
(117th Amendment) Bill, 2012. ·
Allowing the I. A., the Court
D HELD: 1.1. The issue relates only to ensuring that the
respondent-State implements its own decisions. The only
excuse given by the State for not implementing its
decision dated 31.01.2013 is the pendency of the 117th
Amendment Bill. The State had admitted that necessary
E data had been collected and placed before the Cabir.et
Sub-Committee on 25.04.2011, which has the base as on
31.10.2009. The State also affirmed that fresh data
showing the position as on 30.06.2011 would be available
shortly. Therefore, it is patently apparent that there is no
F impediment in the way of the respo'ndent State to take the
necessary policy decision on the basis of the available
data. Non-compliance of the direction in M. Nagaraj was
t'"ie sole. reason for which the High Court has quashed
the instructions dated 07.09.2007. With the·cbllection of
G the necessary data, there exists no justifiable reason not
to take the required decision. [para 28) [402-E-H; 403-A]
1.2. The State has taken a policy decision for
implementation of the 85th Constitution Amendment Act.
Instructions dated 07 .09.2007, had been issued for
H
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 387
. HIMACHAL PRADESH S. V. K. K.
implementation of the policy decision. In these A
instructions, the Government had decided to grant
seniority to SC/ST employees. But this circular dated
07 .09.2007 was withdrawn by Circular dated 16.11.2209.
However, the implementation of this Circular was stayed
by this Court on 04.12.2009. The State then issued B
another Circular No. PER(AP)-C-F(1 )/2009 dated
20.01._2010 withdrawing circular dated 16.11.2009. Thus,
the situation prevalent prior to the Circular dated
07 .09.2007 was again operative for making promotions.
Thereafter another Circular was issued on 23.01.2010 c
· amending the circular dated 16.11.2009 by substituting
words "wherever reservation is available" with the words
"wherever consequential seniority by virtue of reservation
will be applicable." The issuance of so many circulars is
indication of the intention of the State not.to comply with
0
the earlier deci;:;ion to implement the policy of reservation
in promotions and the grant of consequential seniority.
Therefore, a statement was made before this Court on
26.04.2010 on the basis of which the SLP was disposed
of. This Court is of the opinion that the statement was E
only to avoid a decision on merits with regard to the
correctness of the impugned judgment of the High Court.
[para 29] [403-C-H; 404-A-B]
2.1. w·hen a statement is made before this Court it is,
as a matter of course; assumed that it is made sincerely F
and is not an effort to over-reach the court. Numerous
matters even involving momentous questions of law are
very often disposed of by this Court on the basis of the
statement made by the counsel for the parties. The
statement is accepted as it is assumed without doubt, to G
be honest, sincere, truthful, solemn and in the interest of
justice. The statement by the counsel is not expected to
be flippant, mischievous, misleading and certainly not
false. This confidence in statements made by the counsel
is founded on the assumption that the counsel is aware H
388 SUPREME COURT REPORTS [2013] 9 S:C.R.
A that he is an officer of the Court. [para 30] [404-B-D]
Rendel v. Worsley (1967) 1 QB 443 - referred to.
2.2. In the instant case, on 26.04.2010 a statement
was made on behalf of the State Government that "the
B state intends to collect more details with regard to
representation of the SCs/STs and to pass appropriate
orders within a reasonable time, i.e., approximately within
three months after collecting the necessary details and
datas." It can not be said that the applicants are seeking
c a mandamus to adopt a policy in reservation. They want
the State to implement its own decisions. [para 30] [405-
B-C, D-E]
2.3. The final excuse offered by the State is that it
awaits the finalization of the 117th Constitution
D Amendment. The reasons put forward for not honouring
the statement solemnly made to this Court on 26.04.2010
cannot be accepted. This Court has been more than
considerate to the requests made by the State for
extension of time. The proposed 117th Constitutional
E Amendment would not adversely affect the merits of the
claim of the petitioners for grant of promotion with
consequential seniority. The purpose of amendment is to
remove any impediment in the grant of consequential
seniority upon promotion. on the basis of reservation.
F [para 32-33] [405-G-H; 406-A-B, E-F]
2.4. Furthermore, the proposed amendment is to be
introduced with retrospective effect from 17.6. 1995. In
this view of the matter, there can be no impediment in the
way of the State Government to implement the policy of
G reservation which existed till the issuance of the various
instructions prior to the making of the Statement before
this Court on 26.4. 2010. The State Government is
directed to take a final decision on the issue either on the
basis of the data already submitted to the Cabinet Sub-
H Committee on 25.4.2011 or on the basis of the data
H.P. SCHEDULEDTRIBES EMPLOYEES FEDERATION v. 389
HIMACHAL PRADESH S. V. K. K.
reflecting the position as on 30.6.2011. (para 34-35] (408- A
G-H; 409-B]
M. Nagaraj & Ors. Vs. Union of India & Ors. 2006
(7) Suppl. SCR 336 = 2006 (8) SCC 212 - referred to.
Karam Chand Vs. Haryana State Electricity Board & Ors. B
1988 (3) Suppl. SCR 702 = 1989 (1) Suppl. SCC 342, Indra
Sawhney & Ors. Vs. Union of India & Ors. 1992 (2) Suppl.
SCR 454 = 1992 (3) Suppl. SCC 217; R.K. Sabharwal &
Ors. Vs. State of Punjab & Ors., 1995 (2) SCR 35 = 1995 (2)
SCC 745; Sa/auddin Ahmed & Anr. Vs. Samta Ando/an 2012 c
(7) SCR 402 = 2012 (10) SCC 235, Union of India & Ors. Vs.
Virpal Singh Chauhan & Ors. 1995 (4) Suppl.
SCR 158 = 1995 (6) SCC 684, Ajit Singh Januja & Ors. Vs.
State of Punjab & Ors. 1996 (3) SCR 125 = 1996 (2)
SCC 715, Chander Pal & Ors. Vs. State of Haryana 1997
(10) SCC 474, Jagdish Lal & Ors. Vs. State of Haryana & Ors. D
1997 (6) SCC 538, Ajit Singh & Ors. (//) Vs. State of Punjab
& Ors. 1999 (2) Suppl. SCR 521 = 1999 (7) SCC 209; Suraj
Bhan Meena & Anr. Vs. State of Rajasthan & Ors. 2010 (14)
SCR 532= 2011 (1) SCC 467; and Uttar Pradesh Power
Corporation Limited Vs. Rajesh Kumar & Ors. 2012 (4) E
SCR 118 = 2012 (7) SCC 1; C.A. Rajendran Vs. Union of
India (UOI) & Ors. 1968 (1) SCR 721; and Union of India Vs.
R. Rajeshwaran & Anr. 2003 (9) SCC 294 - cited.
Case Law Reference:
F
1988 (3) Suppl.SCR 702 cited para 6
1992 (2) Suppl. SCR 454 cited para 7
1995 (2) SCR 35 cited para 7
2006 (7) Suppl. SCR 336 referred to para 10 G
2012 (7) SCR 402 cited para 21
1995 (4) Suppl. SCR 158 cited para 22
1996 (3) SCR 125 cited para 22
1996 (2) s~c 115 cited para 22 H
390 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 1997 (10) sec 474 cited para 22
1997 (6) sec 538 cited para 22
1999 (2) Suppl. SCR 521 cited para 22
2010 (14) SCR 532 cited p~ra 22
B 2012 (4) SCR 118 cited para 22
1968 (1) SCR 721 cited para 23
2003 (9) sec 294 cited para 23·
(1967) 1 QB 443 referred to para 30
c CIVIL APPELLATE JURISDICTION: I.A. No. 6
IN
SLP (Civil) No(s). 30143 of 2009.
Wtih
D
Contempt Petition (C) No. 91 of 2013.
IN
SLP (Civil) No. 30143 of 2009.
From the Judgment & Order dated 18.09.2009 of the High
E Court of Himachal Pradesh at Shimla in Civil Writ Petition
Transferred No. 2628 of 2008.
Vijay Hansaria, Dr. Rajeev Dhawan, Kanika Singh, Ashok
Mathur, Debasis Misra, Kiran Suri, S.J. Amith, Suryanaryana
F Singh, Pragati Neekhra, Varinder Kumar Sharma, P.V.
Yogeswaran for the appearing parties.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. This Interlocutory
G Application No.6 was filed on 16th March, 2012, by the
appellants herein in the S.L.P. (Civil) No. 30143 of 2009,
'seeking direction to the State of Himachal Pradesh to take a
decision on the issue of reservation in promotions on basis of
data already collected or submitted to Cabinet Sub Committee
H on 25th April, 2011 within a period of one month. For the
H.P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 391
HIMACHAL PRADESH S. V K. K. [SURINDER SINGH NIJJAR, J.]
purpose of adjudicating the present I.A., it would be pertinent A
to make a reference to facts concerning S.L.P. (Civil) No.
30143 of 2009 that was disposed of by this Court on 26th April,
2010.
2. SLP (Civil) No. 30143 of 2009 was filed against
8
judgment and order dated 18th September, 2009 passed by
the High Court of Himachal Pradesh. By the said judgment/
order, the High Court allowed the CWP-T No. 2628 of 2008
and thereby quashed the instructions dated 7th September,
2007 issued by the State of Himachal Pradesh. The said
instructions made provision for reservation in promotions with C
consequential seniority in favour of Scheduled Castes and
Scheduled Tribes in all classes of posts in services under the
State.
3. The aforesaid S.L.P. was disposed of on 26th April, D
2010 by passing the following order:-
"The State of Himachal Pradesh has issued a Circular on
07.09.2007 as regards the promotion of SCs/STs in the
State service. The said circular was challenged by the
E
respondent no.1 and the circular was quashed by the High
Court by the impugned judgment. Learned counsel
appearing for the State submits that the circular issued on
07.09.2007 has since been withdrawn as the State intends
to collect more details with regard to representation of SCs/
STs and to pass appropriate orders within reasonable F
time i.e. approximately within three months after collecting
necessary details and datas. The petitioner would be at
liberty to take appropriate steps, if any adverse order is
passed. This Special Leave Petition and the Contempt
Petition are thus disposed of finally." G
4. Although the present l.A.No.6 is filed in the disposed of
SLP, it would be appropriate to notice the manner, in which the
order dated 16th April, 2010 came to be passed.
H
392 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 5. On 27th November, 1972, Government of India issued
instructions vi de letter No. 27-2/71-Estt(SCT), whereby
provision was made for providing reservation in promotion for
the members of Scheduled Castes and Scheduled Tribes. On
24th April, 1973, State of Himachal Pradesh issued instructions
a vide Letter No. 2-11/72-DP (Appt.), wherebY. reservation was
provided for promotion of employees. On 9th/13th August,
1973, State of Himachal Pradesh issued instructions vide Letter
No 2-11/72-DP (Apptt.), and thereby, followed the Reservation
policy of the Union Government relating to promotion for the
. C members of Scheduled Castes and Scheduled Tribes. It may
be mentioned here that the Reservation Policy of the Union
Government was set out in Letter/Order dated 2nd March, 1972,
24th March, 1972 and 11th August, 1972, 28th October 1972,
30th January, 1973 and 12th March, 1973.
D 6. Meanwhile on 31st October, 1988, this Court in the case
of Karam Chand Vs. Haryana State Electricity Board & Ors., 1
approved the grant of consequential seniority in promotions
given to Scheduled Castes and Scheduled Tribes. The State
·of Himachal Pradesh, by instructions vide letter No. PER (AP-
E II) F (1)-1/87 dated 31st January, 1989, introduced Reservation
Roster in both direct recruitment and promotions.
7. Later, a Constitution Bench of this Court in Indra
Sawhney & Ors. Vs. Union of India & Ors. 2 held that reservation
F in promotion is not permissible under Article 16(4) cf
Constitution and directed to discontinue such reservations after
5 years. Thereafter, in R.K. Sabharwal & Ors. Vs. State of
Punjab & Ors., 3 this court held that the operation of roster must
stop running when the prescribed quota of posts have been
occupied by the reserved category. It was in this backdrop that
G the Parliament of India enacted Constitution (77th Amendment)
1. (1989) Supp 1 sec 342.
2. 1992 (Supp) 3 sec 217.
H 3. 1995 (2) sec 745
H.P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 393
HIMACHAL PRADESH S. V. K. K. [SURINDER SINGH NIJJAR, J.]
Act, 1995, thereby adding Article 16(4A) which permits the State A
to provide reservation in matters of promotion to Scheduled
castes and Scheduled Tribes. In 2001, Parliament approved
Constitution (85th Amendment) Act, permitting promotions with
consequential seniority to government service.
8
8. On 7th September, 2007, with a view to give effect to
the 85th Amendment to the Constitution, the State of Himachal
Pradesh issued instructions vide letter No. PER (AP)-C-F (1 )-
1/2005, and thereby provided for assignment of consequential
seniority to the members of Scheduled Castes and Scheduled
Tribes in service under the State. The policy was to take effect C
from 17th June, 1995. The instructions •further provided, as
under:-
"Thus as a result of this decision of State Government to
implement the aforesaid amendment with effect from o
17.6.1995, State Government employees belonging to
Scheduled Castes and Scheduled Tribes shall also be
entitled to consequential seniority on promotion by virtue
of rule of reservation. However, controlling factors or
compelling reasons, namely, backwardness and E
inadequacy of representation which enable the State to
provide for reservation keeping in mind the over all
efficiency of State administration under Article 335 will
continue to apply with mandatory compliance of
Constitutional requirement of Ceiling limit of 50% F
quantitative limitation. Moreover it is made clear that in the
State of Himachal Pradesh the State Government has
already made provision for reservation in promotion after
due consideration prior to 19.10.2006, thus, collection of
data as mandated by para 124 of the judgment in
M.Nagaraj case (AIR 2007 Sc.71) is not required." G
9. The instructions were challenged by respondent No.1
herein by filing Original Application No. 19 of 2008 before the
Himachal Pradesh Administrative Tribunal, Shimla. Since the
Administrative Tribunal was thereafter abolished, the O.A. was H
0
394 SUPREME COURT REPORTS [2013] 9 S.C.R.
A transferred to be heard and adjudicated by the High Court of
Himachal Pradesh at Shimla and was renumbered as Civil Writ
Petition -T No. 2628 of 2008. By the impugned order dated
18th September, 2009, the High Court allowed the writ petition,
and quashed the instructions dated 7th September, 2007.
B
10. In its judgment, the High Court inter alia relied upon
the law laid down in M. Nagaraj & Ors. Vs. Union of India &
Ors. 4 The High Court noticed that the State was bound to collect
data to show that the so called backward classes are actually
backward and they are inadequately represented in the service'
C under the State. It was also held that the State has to provide
for reservations in such a manner that the efficiency of
administration is not adversely affected. The High Court then
proceeded to determine that whether such an exercise was
undertaken by the State while issuing instructions dated 7th
D September, 2007. The High Court,came to the conclusion that
the State admittedly has not carried out any such exercise to
collect such data. The reason provided by the State for not
carrying out such an exercise was that since there was already
a policy for providing reservation in promotion in the State prior
E to the judgment in Indra Sawhney's case (supra), collection of
data as mandated in M. Nagaraj's case (supra) is not required.
It was also urged on behalf of the State that the decision for
providing reservations in promotions was taken after "due
consideration". These reasons
I
were rejected by the High Court,
F and it was held that:
'"Due Consideration' is totally different from collecting
quantifiable data. This exercise has to be conducted and
no reservation in promotion can be made without
conducting such an exercise. Therefore, the State cannot
G
be permitted to make reservations till such exercise is
carried out and clear-cut quantifiable data is collected on
the lines indicated in M.Nagaraj's case. We may also point
H 4. c200B) a sec 212.
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 395
HIMACHAL PRADESH S. V K. K. [SURINDER SINGH NIJJAR, J.)
out that other than making vague reference to "due A ..
consideration" having been done, till date the State has
not produced before us any clear-cut quantifiable data
which could establish the need for reservation.
Merely because the amended provision of the Constitution B
enable the State to make reservation is no ground not to
collect data. Therefore, the instructions have to be struck
down as being violate of the law laid down in M. Nagaraj's
'Case by the Apex Court."
11. In compliance with the aforesaid directions, the State C
of Himachal Pradesh, vide letter No. PER (AP)-C-F (1)01/2009
dated 16th November, 2009, rescinded the instructions dated
7th September, 2007. In the letter (dated 16th November,
2009), the State of Himachal Pradesh also directed that all the
promotions made on or after 7th September, 2007 may be D
regulated in accordance with the procedure applicable prior to
the said date. The letter also made it clear that promotion policy
has to be interpreted in the manner "as if the instructions dated
7th September, 2007 and subsequent instructions thereof had
never been issued." E
12. The judgment of the High Court dated 18th September,
2009 was challenged in the Civil Appeal @ SLP (Civil) No.
30143 of 2009, filed by Himachal Pradesh Schedules Tribes
Employees Federation, and Himachal Pradesh SC/ST
Government Employees Welfare Association. This Court, by F
order dated 4th December, 2009 issued notice and granted
interim stay on the operation of the impugned judgment.
Meanwhile, the State Government withdrew the instructions
dated 16th November, 2009 and issued fresh instructions vide
letter dated 20th January, 2010, ~hich were further amended G
by letter dated 16th March, 2010. By the aforesaid two letters,
the Government Departments were refrained from making
further promotions where consequential seniority is involved.
13. By order dated 26th April, 2010, this Court disposed H
396 SUPREME COURT REPORTS [2013] 9 S.C.R.
A of the S.L.P. (Civil) No. 30143 of 2009 and the contempt
petition No. 27 of 2010 on the undertaking given by the State.
In the said order, this court inter alia observed as under:
"Learned counsel appearing for the State submits that the
circular issued on 07.09.2007 has since been withdrawn
B
as the State intends to collect more details with • regard to
representation of SCs/STs and to pass appropriate
orders within reasonable time i.e. approximately within
three months after collecting necessary details and datas
(sic). The petitioner would be at liberty to take appropriate
c steps, if any adverse order is passed. This Special Leave
Petition and the Contempt Petition are thus disposed of
finally."
14. This Court, by order dated 7th July, 2010, dismissed
D I.A. No. 5 in the aforesaid SLP seeking modification/
clarification of the aforesaid order.
15. It appears that the State of Himachal Pradesh collected
the necessary data as on 31st December, 2011. This is evident
from the answers given to the Assembly Question Unstarred
E No.196, to which the reply was given on 4th April, 2012. The
question was specific in the following terms:
"(a) How much is the present SC/ST backlog in the
State; and
F
(b) What steps the Government is taking to fill-up the
backlog of these categories?"
The answer to the aforesaid question (a) and {b) was that
G "The necessary information is at Annexure - "A"."
16. A perusal of the Annexure-A shows that the details of
backlog position of Scheduled Castes/Scheduled Tribes in
direct recruitment and promotion in the services of the State
H and Boards/Corporations/Public Sector Undertakings etc. as
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATiON v. 397
HIMACHAL PRADESH S. V K. K. [SURINDER SINGH NIJJAR, J.]
on 31st December, 2011, is clearly indicated. A
17. It was in this backdrop that I.A. No. 6 came to be
preferred by the petitioner herein on 16th March, 2012, seeking
a direction to the State to take a decision on the issue of
reservation on the basis of data already collected or submitted B
to Cabinet Sub Committee on 25th April, 2011 within a period
of one month. The petitioner also prayed for stay on all the
promotions, pending the decision taken in this case. This Court,
by order dated 6th September, 2012, directed inter alia as
under:
c
"In our opinion, in the facts and circumstances of this
case, it is necessary for the State of Himachal Pradesh
to take the necessary policy decision on the question of
providing reservation to the members of Scheduled Castes
and Scheduled Tribes in the matter of promotion in the D
services within the State of Himachal Pradesh, within a
period eight weeks from the date of receipt of a copy of
this order."
The State of Himachal Pradesh is directed to place on E
record the compliance report before the next date of
hearing."
This direction was given upon consideration of the
submission of the State in its reply to this I.A. dated 4th July,
2012, that the petitioners themselves had reservations with F
regard to the data placed before the Cabinet Sub-Committee
on 25th April, 2011. Accordingly, the Government decided to
collect afresh data and material showing position as on 30th
June, 2011. According to the respondent State, the policy
decision would have to relate to the data showing the position G
as on 30th June, 2011, which would be available shortly.
18. On 2nd November, 2012, an I.A. was filed by the State
of Himachal Pradesh in the Civil Appeal, seeking extension of
time for complying with the order of this Court until 31st January,
H
398 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 2013. By order dated 7th January, 2013, this Court granted
extension to the State of Himachal Pradesh as sought and
further directed it not to make any promotions in t)1e meantime.
On 11th January, 2013, the State of Himachal Pradesh issued
instructions to all the departments to stop granting promotions.
B On 31st January, 2013, the State of Himachal Pradesh in
Letter No. PER (AP)-C-F(1 )-2/2011 noticed that since the
Constitution (117th Amendment) Bill, 2012 is pending
consideration in the Parliament, the matter regarding
implementation of Constitution (85th Amendment) Act, 2001 in
c the state may be deferred. It was also decided that the
instructions dated 11th January, 2013 issued pursuant to interim
order dated 7th January, 2013 in I.A. No. 6 of 2012 in SLP
(Civil) No. 30143 of 2009 will continue in operation in the
meantime. On 4th February, 2013, the State of Himachal
Pradesh sought modification of the restriction placed by this
0
Court by order dated 7th January, 2013, whereby the State was
directed not to make any promotions. The stand taken in the
said affidavit was that since the Constitution (117th Amendment)
Bill, 2012 is pending consideration in the Parliament, the matter
E regarding implementation of Constitution (8_5th Amendment)
Act, 2001 in the state may be deferred. The State Government
also prayed that the existing reservation system in promotions
be continued till the finalization of matter relating to the
Constitution (117th Amendment) Bill, 2012.
F Submissions:
19. Mr. Vijay Hansaria, learned senior counsel appeared
for the appellants. Whereas, Dr. Rajeev Dhawan, learned
senior counsel appeared for the respondent no.1, State of
G Himachal Pradesh.
20. Mr. Hansaria submitted that the State Government has
already taken a decision to provide reservation in promotion.
In its order dated 31st January, 2013, the State Government
mentions that the existing system for providing reservation, prior·
H to order dated 7th September, 2007 will continue. Therefore,
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 399
HIMACHAL PRADESH S. V. K. K. [SURINDER SINGH NIJJAR, J.]
mandamus is to be issued not for providing reservations but A
to direct the State to implement its own policy decision.
21. Mr. Hansaria further submitted that the data collected
by the State reveals that there is backlog in the government
services. Further, it was submitted that data was available to
B
the State Go~ernment on 31st October, 2009, but this fact was
suppressed from this Court. It was also argued that the defence
put by the State that they deferred the matter concerning
implementation of 85th Amendment on the ground of 117th
Amendment Bill is without any basis since it already has the
data. Thus, they must take a decision thereon. Learned senior 0
counsel relied upon Sa/auddin Ahmed & Anr. Vs. Samta
Ando/an, 5 to submit that this Court had earlier directed the
State to comply with the directions given in M. Nagaraj (supra)
and Suraj Bhan Meena (supra).
D
22. Dr. Dhawan, learned senior counsel, firstly, reiterated
the well known principles concerning the concept of reservation
laid down by this Court in the following cases: Indra Sawhney
(supra). R.K.Sabharwal (supra), Union of India & Ors. Vs.
Virpal Singh Chauhan & Ors. 6, Ajit Singh Januja & Ors. Vs. E
State of Punjab & Ors. 7, Chander Pal & Ors. Vs. State of
Haryana 8, Jagdish Lal & Ors. Vs. State of Haryana & Ors., 9
Ajit Singh & Ors. (II) Vs. State of Punjab & Ors. 10 Dr. Dhawan
relied upon M. Nagaraj's case (supra), and submitted that this
Court has laid down certain conditions which are required to
F
be complied with by the State before providing Reservation
under Article 16(4). The learned senior counsel relied on the
following observations of this Court:
5. c2012) 10 sec 235.
G
6. (1995) 6 sec 684.
1. (1996) 2 sec 715.
8. (1997) 10 sec 474.
9. (1997) 6 sec 538.
1o. (1999) 7 sec 209) H
400 SUPREME COURT REPORTS [2013] 9 S.C.R.
A "As stated above, the boundaries of the width of the power,
namely, the ceiling-limit of 50% (the numerical
benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of
representation and the overall administrative efficiency are
B not obliterated by the impugned amendments. At the
appropriate time, we have to consider the law as enacted
by various States providing for reservation if challenged.
At that time we have to see whether limitations on the
exercise of power are violated. The State is free to
exercise its discretion of providing for reservation subject
c to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation
in a class of post(s) keeping in mind the overall
administrative efficiency. It is made clear that even if the
State has reasons to make reservation, as stated above,
D if the impugned law violates any of the above substantive
limits on the width of the power the same would be liable
to be set aside."
Further, Dr. Dhawan submitted that this Court, applying the
E aforesaid ratio in M. Nagaraj's case(supra), quashed the
reservation policy of the respective states in Suraj Bhan Meena
& Anr. Vs. State of Rajasthan & Ors. 11 and Uttar Pradesh
Power Corporation Limited Vs. Rajesh Kumar & Ors. 12
23. Dr. Dhawan further submitted that no mandamus would
F lie to order reservations or de-reservations because Article
16(4), (4A) & (48) are enabling provisions. Learned senior
counsel relied upon C.A. Rajendran Vs. Union of India (UOI)
& Ors.13 Union of India Vs. R. Rajeshwaran & Anr. 14 and Ajit
Singh (ll)'s case (supra).
G
11. (2011) 1 sec 467.
12. (2012) 1 sec 1.
13. 1968 (1) SCR 721.
H 14. (2003) g sec 294.
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 401
HIMACHAL PRADESH S. V. K. K [SURINDER SINGH NIJJAR, J.)
24. We have very carefully considered the s·ubmissions A
made by the learned counsel for the parties.
25. Undoubtedly, in the case of C.A. Rajendran (supra),
this Court has held as follows:-
B
"Our conclusion therefore is that Article 16(4) does not
confer any right on the petitioner and there is no
constitutional duty imposed on the Government to make a
reservation for Scheduled Castes and Scheduled Tribes,
either at the initial stage of recruitment or at the stage of C
promotion. In other words, Article 16(4) is an enabling
provision and confers a discretionary power on the State
to make a reservation of appointments in favour of
backward class of citizens which, in its opinion, is not
adequately represented in the Services of the State. We
are accordingly of the opinion that the petitioner is unable D
to make good his submission on this aspect of the case."
26. Similarly, in R.Rajeshwaran (supra), this Court
observed as follows:-
E
"9. In Ajit Singh (II) v. State of Punjab this Court held that
Article 16(4) of the Constitution confers a discretion and
does not create any constitutional duty and obligation.
Language of Article 15(4) is identical and the view in
Comptroller and Auditor General of India, Gian Prakash
F
v. K.S. Jagannathan and Superintending Engineer, Public
Health v. Kuldeep Singh that a mandamus can be issued
either to provide for reservation or for relaxation is not
correct and runs counter to judgments of earlier
Constitution Benches and, therefore, these two judgments G
cannot be held to be laying down the correct law. In these
circumstances, neither the respondent in the present case
could have sought for a direction nor the High Court could
have granted the same."
27. The aforesaid dicta reiterated the earlier H
402 SUPREME COURT REPORTS [2013] 9 S.C.R.
A pronouncement of this Court in Ajit Singh (Jl)'s case (supra),
wherein this Court observed as follows:-
28. We next come to the question whether Article 16(4)
and Article 16(4-A) guaranteed any fundamental right to
reservation. It should be noted that both these articles
B
open with a non obstante clause - "Nothing in this Article
shall prevent the State from making any provision for
reservation .... " (emphasis supplied) There is a marked
difference in the language employed in Article.16(1) on the
one hand and Article 16(4) and Article 16(4-A) on the other.
c There is no directive or command in Article 16(4) or Article
16(4-A) as in Article 16(1). On the face of it, the above
language in each of Articles 16(4) and 16(4-A) is in the
nature of an enabling provision and it has been so held in
judgments rendered by Constitution Benches and in other
D cases right from 1963.
28. In our opinion, the rel\ance placed on the aforesaid
observations by Dr. Dhwan is misplaced. Controversy herein
is not about whether the court can issue mandamus to
E introduce the policy of reservation. The issue relates only to
ensuring that the respondent-State 'Implements its own
decisions. The only excuse given by the State for not
implementing its decision dated 31st January, 2013 is the
pendency of the 117th Amendment Bill. As noticed earlier, the
F State had admitted in answer to the unstarred Assembly
question that necessary data had been collected. Furthermore,
in the reply dated 4th July, 2012 to this application the State
has admitted the existence of the data which was placed before
the Cabinet Sub-Committee on 25th April, 2011, which has the
G base as on 31st October, 2009. The State also affirmed that
fresh data showing the position as on 30th June, 2011, would
be available shortly. Therefore, it is patently apparent that there
is no impediment in the way of the respondent State to take
the necessary policy decision on the basis of the available data.
H Non-compliance of the direction in M. Nagaraj was the sole
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 403
HIMACHAL PRADESH S. V. K. K. [SURINDER SINGH NIJJAR, J.]
reason for which the High Court had quashed the instructions A
dated 7th September, 2007. With the collection of the
necessary data, there exists no justifiable reason not to take
the required decision.
29. The State has very skilfully avoided a decision on B
merits in SLP (C) No.30143 of 2009. Thereafter, it is a series
of false starts to avoid the implementation of their own decision
and the directions issued by this Court. In our opinion, that this
cat and mouse game has gone far enough. Therefore, we will
not content ourselves with the justification that the State has to C
await the outcome of the 117th Amendment. We see no
relevance of the amendment to the implementation by the State
of its earlier decision making reservation in promotions. It has
taken a policy decision for implementation of the 85th
Constitution Amendment Act. Instructions dated 7th
September, 2007 had been issued for implementation of the D
policy decision. In these instructions, H.P. Government had
decided to grant ser;iiority to SC/ST employees. But this circular
dated 7th September, 2007 was withdrawn in compliance of
the High Court judgment by issuing Circular No. PER(AP)-
CF ( 1)-1 /2009 dated 16th November, 2009. But the E
implementation of this Circular was stayed by this Court in SLP
(C) No.30143 of 2009 on 4th December, 2009. The State then
issued another Circular No. PER(AP)-C-F(1)-1/2009 dated
20th January, 2010 withdrawing circular dated 16th November,
2009. Thus, the situation prevalent prior to the Circular dated F
7th September, 2007 was again operative for making
promotions. Thereafter another Circular was issued on 23rd
January, 2010 amending the circular dated 16th November,
2009 by substituting words "wherever reservation is available"
with the words "wherever consequential seniority by virtue of G
reservation will be applicable." The issuance of so many
circulars is indication of the intention of the State not to comply
with the earlier decision to implement the policy of reservation
in pr~motions and the grant of consequential seniority.
Therefore, a clever statement was made before this Court on H
/
404 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 26th April, 2010 on the basis of which the SLP was disposed
of. We are of the opinion that the statement was only to avoid
a decision on merits with regard to the correctness of the
impugned judgment of the High Court.
30. When a statement is made before this Court it is, as
8
a matter of course, assumed that it is made sincerely and is
not an effort to over-reach the court. Numerous matters even
involving momentous questions of law are very often disposed
of by this Court on the basis of the statement made by the
learned counsel for the parties. The statement is accepted as
C it is assumed without doubt, to be honest, sincere, truthful,
solemn and in the interest of justice. The statement by the
counsel is not expected to be flippant, mischievous,
misleading and certainly not false. This confidence in
statements made by the learned counsel is founded on the
D assumption that the counsel is aware that he is an officer of
the Court. Here we would like to allude to the words of Lord
Denning, in the case of Rendel vs. Worsley15 about the conduct
expected of an Advocate. "As an advocate, he is a minister of
justice equally with the Judge ..................... I say "all he
E honourably can" because his duty is not only to his client. He
has a duty to the Court which is paramount. It is a mistake to
suppose that he is the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is none of these
things. He owes allegiance to a higher cause. It is the cause
F of truth and justice. He must not consciously mis-state the facts.
He must not knowingly conceal the truth. He must not unjustly
make a charge of fraud, that is, without evidence to support it.
He must produce all the relevant authorities, even those that are
against him. He must see that his client discloses, if ordered,
G the relevant documents, even those that are fatal to his case.
He must disregard the most specific instructions of his client,
if they conflicts with his duty to the court. The code which
requires a Barrister to do all this is not a code of law. It is the
H 15. [1967] 1 QB 443.
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 405
HIMACHAL PRADESH S. V. K. K. [SURINDER SINGH NIJJAR, J.]
code of honour." In our opinion, the aforesaid dicta of Lord A
Denning is an apt exposition of the very high standard of moral,
ethical and professional conduct expected to be maintained by
members of the legal profession. We expect no less of an
Advocate/Counsel in this country. Here, in this case, on 26th
April, 2010 a statement was made on behalf of the State of H.P. B
that "the state intends to collect more details with regard to
representation of the SCs/STs and to pass appropriate orders
within a reasonable time, i.e., approximately within three months
after collecting the necessary details and datas." Having very
deftly avoided a decision on merits in the SLP (C) No.30143 c
of 2009, the State has totally failed to live up to the solemn
statement made to this Court. It has hedged and hemmed and
prevaricated from 26th April, 2010 till date. lnspite of the
requisite data being available, the policy of reservation already
adopted by the State has not been implemented. We, therefore, D
do not agree with Dr. Dhawan that the applicants are seeking
a mandamus to adopt a policy in reservation. From the above
narration, it is evident that the applicants want the State to
implement its own decisions.
31. The prayer is : E
"Direct the Respondent/State Government to decide the
. case in time bound manner on the basis of data already
available/submitted to Cabinet Sub Committee on
25.4.2011 within a period of one month and ; F
Further direct stay on all promotions. pending decision
taken in this Case."
32. The final excuse offered by the State for not granting
the aforesaid relief is that the State now awaits the Qnalisation G
of the 117th Constitution Amendment. We decline to accept the
reasons put forward for not honouring the statement solemnly
made to this Court on 26th April, 2010. This Court has been
more than considerate to the requests made by the State for
extens~on of time. This last excuse about awaiting the H
406 SUPREME COURT REPORTS [2013] 9 S.C.R.
A finalisation of the proposed 117th Constitutional Amendment
is the proverbial last straw on the camel's back. Jt.s stated
earlier, the proposed 117th Constitutional Amendm~nt would
not adversely affect the merits of the clam of the petitioner for
grant of promotion with consequential seniority. By the aforesaid
B proposed amendment, the existing Article 16 claus,e (4A) is to
be substituted by the following clause 4A:-
"(4A) Notwithstanding anything contained elsewhere in the
Constitution, the Scheduled Castes and the Scheduled
Tribes notified under article 341 and article 342,
c respectively, shall be deemed to be backward and nothing
in this article or in article 335 shall prevent the State from
making any provision for reservation in matters of
promotions, with consequential seniority, to any class or
classes of posts in the services under the State in favour
D of the Scheduled Castes and the Scheduled Tribes to the
extent of the percentage of reservation provided to the
Scheduled Castes and the Scheduled Tribes in the
services of the State."
E 33. A bare perusal of the aforesaid would show that the
purpose of amendment is to remove any impediment in the
grant of consequential seniority upon promotion on the basis
of reservation. The aforesaid conclusion is stated explicitly in
the Statement of Objects and Reasons for the proposed 117th
F Constitutional amendment. For facility of reference, the
Statement of Objects and Reasons is reproduced hereunder:-
"Statement of Objects and Reasons
The Scheduled Castes and the Scheduled Tribes have
G been provided reservation in promotions since 1955. This
was discontinued following the judgment in the case of
Indra Sawhney Vs. Union of India, wherein it was held that
it is beyond the mandate of Article 16(4) of the Constitution
of India. Subsequently, the Constitution was amended by
H the Constitution (Seventy-seventh Amendment) Act, 1995
H. P. SCHEDULED TRIBES EMPLOYEES FEDERATION v. 407
HIMACHAL PRADESH S. V. K K [SURINDER SINGH NIJJAR, J.]
and a new clause (4A) was inserted in article 16 to enable A
the Government to provide reservation in promotion in
favour of the Scheduled Castes and the Scheduled Tribes.
Subsequently, clause (4A) of article 16 was modified by
the Constitution (Eighty-fifth Amendment) Act, 2001 to
provide consequential seniority to the Scheduled Castes B
and the Scheduled Tribes candidates promoted by giving
reservation.
The validity of the constitutional amendments was
challenged before the Supreme Court. The Supreme Court
while deliberating on the issue of validity of Constitutional C
amendments in the case of M. Nagaraj Vs. UOI & Ors.,
observed that 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 D
for reservation in promotion.
Relying on the judgment of the Supreme Court in M.
Nagaraj case, the High Court of Rajasthan and the High
Court of Allahabad have struck down the provisions for E
reservation in promotion in the services of the State of
Rajasthan and the State of Uttar Pradesh, respectively.
Subsequently, the Supreme Court has upheld the
decisions of these High Courts striking down provisions
for reservation in respective States. F
It has been observed that there is difficulty in collection of
quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public
employment. Moreover, there is uncertainty on the
methodology of this exercise. G
Thus, in the wake of the judgment of the Supreme Court
in M. Nagaraj case, the prospects of promotion of the
employees belonging to the Scheduled Castes and the
Scheduled Tribes are being adversely affected. H
408 SUPREME COURT REPO.RTS [2013] 9 S.C.R.
A Demands for carrying out further amendment in the
Constitution were raised by various quarters. A discussion
on the issue of reservation in promotion was held in
Parliament on 3-5-2012. Demand for amendment of the
Constitution in order to provide reservation for the
B Scheduled Castes and the Scheduled Tribes in promotion
has been voiced. by the Members of Parliament. An All-
Party Meeting to discuss the issue was held on 21-08-
2012. There was a general consensus to carry out
amendment in the Constitution, so as to enable the State
c to continue the scheme of reservation in promotion for the
Scheduled Castes and the Scheduled Tribes as it existed
since 1995.
In view of the above, the Government has reviewed the
position and has decided to move the constitutional
D amendment to substitute clause (4A) of article 16, with a
view to provide impediment-free reservation in promotion
to the Scheduled Castes and the Scheduled Tribes and
to bring certainty and clarity in the matter. It is also
necessary to give retrospective effect to the proposed
E clause (4A) ,of article 16 with effect from the date of
coming into force of that clause as 9riginally introduced,
that is, from the 17th day of June, 1995."
34. The aforesaid leaves no manner of doubt that the
F amendment is with the view to provide impediment free
reservation in promotion to the Scheduled-Castes and
Scheduled-Tribes and to bring certainty. and clarity in the matter.
Furthermore, the aforesaid proposed amendment is to be
introduced with retrospective effect from 17th June, 1995. In
G view of the above, there can be no impediment in the way of
the State Government to implement the policy of reservation
which existed till the issuance of the various instructions prior
to the making of the Statement before this Court on 26th April,
2010. It is time to put an end to this charade; this never ending
H
H. P. SCHEDULED TRIBES EMPLOYEl;S FEDERATION v. 409
HIMACHAL PRADESH S. V K K [SURINDER SINGH NIJJAR, J.)
process of extensions and hold the State to honour its A
statements.
35. We, therefore, allow this Interlocutory Application and
direct the State of Himachal Pradesh to take a final decision
on the issue either on the basis of the data already submitted 8
to the Cabinet Sub-Committee on 25th April, 2011 or on the
basis of the data reflecting the position as on 30th June, 2011,
within a period of three months from today. Till a final decision
is taken, the direction restraining the State of Himachal Pradesh
from making any promotion shall continue.
c
R.P. I.A. allowed.
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