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, 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 the meantime. On 11th January, 2013, the State of Himachal Pradesh issued instructions to all the departments to stop granting promotions. 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 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 Court by order dated 7th January, 2013, whereby the State was directed not to make any JUDGMENT 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 regarding implementation of Constitution (85th 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.
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 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 to order dated 7th September, 2007 will continue. Therefore, mandamus is to be issued not for providing JUDGMENT reservations but 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 the State Government 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 counsel relied upon Salauddin Ahmed & Anr. Vs. Samta Andolan 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).
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. JUDGMENT Virpal Singh Chauhan & Ors. 6, Ajit Singh Januja & Ors. Vs. 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 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:
“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 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 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 JUDGMENT the State has reasons to make reservation, as stated above, 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 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 lie to order reservations or de-reservations because Article 16(4), (4A) & (4B) 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 (II)’s case (supra).
24.We have very carefully considered the submissions made by the learned counsel for the parties.
25.Undoubtedly, in the case of C.A. Rajendran (supra), this JUDGMENT Court has held as follows:-
“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 promotion. In other words, Article 16(4) is an enabling provision and confers a discretionary power on the State to make 13 1968 (1) SCR 721 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 to make good his submission on this aspect of the case.”
26.Similarly, in R.Rajeshwaran (supra), this Court observed as follows:- “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 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 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 JUDGMENT granted the same.”
27.The aforesaid dicta reiterated the earlier pronouncement of this Court in Ajit Singh (II)’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 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. 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 cases right from 1963.
28.In our opinion, the reliance placed on the aforesaid observations by Dr. Dhwan is misplaced. Controversy herein is not about whether the court can issue mandamus to 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 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 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. Non-compliance of the direction in M. Nagaraj was the sole reason for which the High Court had quashed the instructions 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 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 JUDGMENT mouse game has gone far enough. Therefore, we will not content ourselves with the justification that the State has to 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 policy decision. In these instructions, H.P. Government had decided to grant seniority 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 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 7th September, 2007 was again operative for making promotions. Thereafter another Circular was issued on 23rd January, 2010 amending the circular JUDGMENT dated 16th November, 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 the earlier decision to implement the policy of reservation in promotions and the grant of consequential seniority. Therefore, a clever statement was made before this Court on 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 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 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 JUDGMENT and certainly not false. This confidence in statements made by the learned counsel is founded on the 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. Worsley 15 about the conduct expected of an Advocate. “As an advocate, he is a minister of justice equally 15 [1967] 1 QB 443 with the Judge…………………I say “all he 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 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, 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 JUDGMENT Barrister to do all this is not a code of law. It is the code of honour.” In our opinion, the aforesaid dicta of Lord 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. 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 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. Inspite of the requisite data being available, the policy of reservation already adopted by the State has not been implemented. We, therefore, 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. JUDGMENT
31.The prayer is : “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 ; 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 finalisation 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 extension of time. This last excuse about awaiting the finalisation of the proposed 117th Constitutional Amendment is the proverbial last straw on the camel’s back. As stated earlier, the proposed 117th Constitutional Amendment would not adversely affect the merits of the clam of the petitioner for grant of promotion with consequential seniority. By the aforesaid proposed amendment, the existing Article 16 clause (4A) is to JUDGMENT 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, 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 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.”
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 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 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 the ConstitutionJUDGMENT(Seventy-seventh Amendment) Act, 1995 and a new clause (4A) was inserted in article 16 to enable 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 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 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 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 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. 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. Thus, in the wake of the judgment of the Supreme JUDGMENTCourt in M. Nagaraj case, the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected. 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 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 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 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 clause (4A) of article 16 with effect from the date of coming into force of that clause as originally introduced, that is, from the 17th day of June, 1995.”
34.The aforesaid leaves no manner of doubt that the 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 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 process of extensions and hold the State to honour its 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 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.
….….…………………..J. JUDGMENT [Surinder Singh Nijjar] [Pinaki Chandra Ghose] New Delhi; September 13, 2013.