February 12, 2017 11:05:53 am
In order to provide reservation in promotions, the states must first determine whether the criteria of ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’ are fulfilled, the Supreme Court has said. The apex court set aside provisions of the ‘Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the posts in the civil services of the State) Act’, 2002, which did away with ‘catch up’ rule and provided consequential seniority to persons belonging to Schedule Castes and Schedule Tribes in promotion.
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As per an earlier judgement of apex court, ‘Catch up’ rule means that if a senior candidate of general category is promoted after SC/ST candidates, he would regain his seniority in promotion over the juniors promoted ahead of him under the reserved vacancies.
Relying on a constitution bench judgement, the court said the provisions of the Act are ultra vires to Articles 14 (right to equality) and 16 (equality of opportunity in goverment service) of the Constitution.
A bench of Justices A K Goel and U U Lalit, while setting aside the High Court order upholding the Act, said under the 85th amendment to the Constitution, liberty has been given to states to give reservation in promotion with consequential seniority under Article 16(4A), if warranted under the criterias of ‘backwardness, ‘inadequacy of representation’ and ‘overall efficiency’.
“It is clear that exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A).
“Mere fact that there is no proportionate representation in promotional posts for SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy,” it said while allowing the appeals of government employees.
The High Court had upheld the validity of the Act, which provided for grant of consequential seniority to the public servants belonging to SC and ST categories and promoted under the reservation policy.
The government employees have challenged the High Court verdict along with the constitutional validity of the Act before the apex court which had held that it was for the state to place material on record that there was “compelling necessity” for exercise of such power and its decision was based on the material including the study that overall efficiency is not compromised.
“In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation,” the apex court said.
The bench said the plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation.
“Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the ‘catch up’ rule which fully applies,” it said.
The bench, while allowing the appeals of these employees, said the verdict will not affect those who have already retired and the financial benefits already taken.
It said that the consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed.
The apex court directed that the seniority list may now be revised in the light of the judgment within three months and further consequential action may be taken accordingly within the next three months.
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