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Supreme Court of India
Mukesh Kumar vs The State Of Uttarakhand on 7 February, 2020Author: L. Nageswara Rao
Bench: L. Nageswara Rao, Hemant Gupta
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1226 of 2020
[Arising out of S.L.P. (Civil) No. 23701 of 2019]
Mukesh Kumar & Anr.
…. Appellant(s)
Versus
The State of Uttarakhand & Ors.
…. Respondent(s)
WITH
Civil Appeal No. 1227 of 2020
[Arising out of S.L.P. (Civil) No. 22640 of 2019]
Civil Appeal No. 1228 of 2020
[Arising out of S.L.P. (Civil) No. 25508 of 2019]
Civil Appeal No. 1229 of 2020
[Arising out of Dy. No.39572 of 2019 @S.L.P. (Civil) No. 3668
of 2020]
Civil Appeal No. 1230 of 2020
[Arising out of S.L.P. (Civil) No. 27715 of 2019]
Civil Appeal No. 1231 of 2020
[Arising out of S.L.P. (Civil) No. 28039 of 2019]
Civil Appeal No. 1232 of 2020
[Arising out of S.L.P. (Civil) No. 27735 of 2019]
Civil Appeal No. 1233 of 2020
[Arising out of S.L.P. (Civil) No. 28947 of 2019]
JUDGMENT
L. NAGESWARA RAO, J.
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1. The Controversy in the above Appeals pertains to the
reservations to Scheduled Castes and Scheduled Tribes in
promotions in the posts of Assistant Engineer (Civil) in Public
Works Department, Government of Uttarakhand.
2. The Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994 (for short “ the 1994 Act”) provided for
reservation in public services and posts in favour of persons
belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes of citizens. Section 3(1) of the said Act
stipulated reservation at the stage of direct recruitment.
According to Section 3(7) of the 1994 Act, the Government
Orders providing reservation for appointment to public posts
filled up by promotion which were existing on the date of
commencement of the 1994 Act shall continue till they are
modified or revoked. After the formation of the State of
Uttarakhand in 2001, the Uttar Pradesh Public Services
(Scheduled Caste, Scheduled Tribe and Other Backward
Caste Reservation) Act, 1994 was made applicable to the
State of Uttaranchal by a Notification dated 30.08.2001 with
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a modification in the percentage of reservations. 21%
reservation for Scheduled Castes was modified to 19% and
2% for Scheduled Tribes was increased to 4%. Likewise,
21% reservation provided in the 1994 Act for Other
Backward Classes was altered to 14%.
3. A Division Bench of the High Court of Judicature at
Allahabad in Mukund Kumar Shrivastava v. State of
U.P.1 upheld the validity of Rule 8-A of the Uttar Pradesh
Servants Government Seniority Rules, 1991 (for short “ the
Seniority Rules”) which dealt with consequential seniority of
persons belonging to Scheduled Castes and Scheduled
Tribes. Later, in Prem Kumar Singh v. State of U.P.2,
another Division Bench of the High Court of Judicature at
Allahabad, Lucknow Bench held that the judgment in
Mukund Kumar Shrivastava (supra) is per incuriam and
not a binding precedent. In Prem Kumar Singh’s case
(supra), the High Court declared Section 3(7) of the 1994
Act and Rule 8-A of the Seniority Rules unconstitutional.
While declaring the correctness of the judgments of the
1 (2011) 1 ALL LJ 428
2 (2011) 3 ALL LJ 343
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High Court, this Court by its judgment in Uttar Pradesh
Power Corporation v. Rajesh Kumar3 held that Section
3(7) of the 1994 Act is unconstitutional insofar as it is
contrary to the dictum in M. Nagaraj & Ors. v. Union of
India & Ors.4
4. The challenge to Section 3(7) of the 1994 Act, as
extended to the State of Uttarakhand, was upheld by the
High Court of Uttarakhand in Vinod Prakash Nautiyal &
Others v. State of Uttarakhand & Others 5. Relying
upon the judgment of this Court in U.P. Power
Corporation (supra), the High Court of Uttarakhand
declared Section 3(7) of the 1994 Act unconstitutional and
directed that no promotion can be given by the State by
taking recourse to Section 3(7) of the 1994 Act. The
application filed for review of the judgment in Vinod
Prakash Nautiyal (supra) was dismissed. By way of
implementation of the judgment of the High Court dated
06.07.2011 in Vinod Prakash Nautiyal (supra), a
committee was constituted by the Government of
3 (2012) 7 SCC 1
4 (2006) 8 SCC 212
5 W.P. (S/B) No.45 of 2011
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Uttarakhand for collection of quantifiable data relating to
the backwardness of the reserved communities in the State
of Uttarakhand and the inadequacy of their representation
in public posts.
5. On 05.09.2012, the State Government decided that all
posts in public services in the State shall be filled up without
providing any reservations to Scheduled Castes and
Scheduled Tribes. All Government Orders to the contrary
were superseded by the proceeding dated 05.09.2012. Mr.
Gyan Chand who was working as Assistant Commissioner
(Civil), State Tax and belonging to Scheduled Caste
Community filed a Writ Petition for quashing the proceeding
dated 05.09.2012. The High Court by its judgment dated
01.04.2019 struck down the proceeding dated 05.09.2012
as being contrary to the law declared by this Court in Indra
Sawhney v. Union of India & Ors.6 and Jarnail Singh &
Ors. v. Lachhmi Narain Gupta & Ors. 7 While referring to
the judgments of this Court in M. Nagaraj (supra) and
Jarnail Singh (supra), the High Court held that Article 16(4)
6 (1992) Supp.3 SCC 217
7 (2018) 10 SCC 396
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of the Constitution in an enabling provision. The High Court
observed that it is not necessary for the State Government
to collect quantifiable data regarding representation of
Scheduled Castes and Scheduled Tribes in State services or
regarding their backwardness before providing reservation
in their favour in promotion posts. The High Court was of the
opinion that the judgment in Vinod Prakash Nautiyal
(supra) related to the constitutional validity of Section 3(7)
of the 1994 Act alone and the Notifications pertaining to
reservation in promotion in favour of Scheduled Castes and
Scheduled Tribes were not set aside. The Appeals arising
out of Civil Appeal @ S.L.P.(Civil) No.25508 of 2019 and Civil
Appeal @S.L.P. (Civil) @ Diary No.39572 of 2019 have been
filed assailing the judgment of the High Court dated
01.04.2019.
6. Vinod Kumar and three others belonging to the
Scheduled Castes working in the Public Works Department,
Government of Uttarakhand filed a Writ Petition in the High
Court of Uttarakhand seeking a direction to the Respondent
therein to prepare a separate list of eligible candidates as
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per Rule 5 of the Uttarakhand Promotion by Selection (on
posts outside the purview of Public Service Commission)
Eligibility Rules, 2003 and to prepare a separate list for each
category of eligible candidates of General, Scheduled Castes
and Scheduled Tribes for promotion to the post of Assistant
Engineer (Civil) in Public Works Department. A further
direction to the State Government was sought to hold a
departmental promotion committee for promotion to the
posts of Assistant Engineers after providing reservation to
Scheduled Castes and Scheduled Tribes in accordance with
the Government Orders dated 30.08.2001, 31.08.2001 and
17.02.2004 by which reservation was provided in promotion.
The Writ Petition was disposed of by the High Court on
15.07.2019 with a direction to the State Government to
implement reservations in promotion by promoting only
members of Scheduled Castes and Scheduled Tribes in
future vacancies to maintain the quota earmarked for the
said categories. Civil Appeals @ S.L.P.(Civil) No. 23701 of
2019 and Civil Appeal @ S.L.P. (Civil) No.22640 of 2019 are
challenging the judgment dated 15.07.2019.
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7. In the meanwhile, the Respondents in Writ Petition
(Civil) No.117 of 2019 i.e. the State of Uttarakhand filed an
application for review of the judgment dated 01.04.2019.
The High Court realized that it committed an apparent error
in its judgment dated 01.04.2019, while deciding the Writ
Petition by referring to the judgment of this Court in Jarnail
Singh (supra). The High Court clarified that the State
Government is obligated to collect quantifiable data
regarding inadequacy of representation of the Scheduled
Castes and Scheduled Tribes in state services before
providing reservation in promotion. The High Court clarified
that it is not necessary for the State Government to collect
data regarding backwardness of the Scheduled Castes and
Scheduled Tribes in the light of the direction of this Court in
Jarnail Singh (supra). The High Court also observed that
the State is not obligated to provide reservation in
promotions to members of Scheduled Castes and Scheduled
Tribes as Article 16(4-A) of the Constitution is an enabling
provision. However, reservation can be provided by the
State Government only after collecting data regarding
inadequacy of representation of the Scheduled Castes and
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Scheduled Tribes in state services. As such, the High Court
directed the State Government to collect quantifiable data
regarding inadequacy of the representation of the
Scheduled Castes and Scheduled Tribes in Government
services which would enable the State Government to take
a considered decision on providing or not providing
reservation. The State Government was directed to take a
decision whether to provide reservation or not only after
considering the data relating to the adequacy or inadequacy
of representation of Scheduled Castes and Scheduled Tribes
in the services of the State within a period of four months
from the date of receipt of the judgment. Aggrieved by the
order dated 15.11.2019 passed in Review Petition in W. P.
(S/B) No.117 of 2019, the Civil Appeal @ S.L.P.(Civil)
No.27715 of 2019, Civil Appeal @ S.L.P.(Civil) No.28039 of
2019, Civil Appeal @ S.L.P. (Civil) No.27735 of 2019 and Civil
Appeal @ S.L.P.(Civil) No. 28947 of 2019 have been filed.
8. Mr. Ranjit Kumar, learned Senior Counsel appearing for
the Appellants in SLP (C) No. 25508 of 2019, Mr. Mukul
Rohtagi and Mr. P.S. Narsimha, learned Senior Counsel
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appearing for the State of Uttarakhand contended that there
is no fundamental right to claim reservation in appointments
or promotions to public posts. There is no constitutional
duty on the part of the State Government to provide
reservations. Article 16 (4) and 16 (4-A) are merely
enabling provisions. On 15.09.2012, the State of
Uttarakhand, after due consideration, decided that there
shall be no reservation in promotions. They relied upon the
judgment of the High Court of Uttarakhand in Vinod
Prakash Nautiyal (supra) by which Section 3 (7) of the
1994 Act was declared unconstitutional. It was submitted by
them that the State Government has not brought any law in
terms of the judgment of this Court in M. Nagaraj & Ors.
(supra). It was urged by the learned Senior Counsel that
there is no necessity for collection of any quantifiable data
after the Government has taken a decision not to provide
reservations. The collection of data, according to them, is
required only to justify a decision to provide reservation. It
was also submitted by them that according to a judgment of
this Court in Suresh Chand Gautam v. State of U.P. 8 no
8 (2016) 11 SCC 113
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direction can be given by the Court to the State Government
to collect quantifiable data on the basis of which a decision
to provide reservation should be taken. They placed
reliance on the judgment of this Court in M. Nagaraj &
Ors. (supra) to argue that the State is not bound to make
reservations.
9. On the other hand, Mr. Kapil Sibal, Mr. Dushyant Dave
and Mr. Colin Gonsalves, learned Senior Counsel and Dr. K.
S. Chauhan, learned counsel, appearing for the reserved
category employees submitted that the State cannot refuse
to collect quantifiable data regarding the adequacy or
inadequacy of representation of the Scheduled Castes and
Scheduled Tribes in public services. They submitted that
there is an obligation on the State to provide reservations in
promotions for upliftment of the members of the Scheduled
Castes and Scheduled Tribes as mandated by Article 16 (4)
and 16 (4-A) of the Constitution of India. The right to
equality of persons belonging to Scheduled Castes and
Scheduled Tribes cannot be defeated by the State
Government by not discharging its constitutional obligation
of implementing Article 16 (4) and 16 (4-A) of the
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Constitution. They urged before this Court that according to
the law laid down by this Court, the State has a duty to
decide not to provide reservations only after the State is
satisfied that the Scheduled Castes and Scheduled Tribes
are adequately represented in public posts on the basis of
quantifiable data. According to them, Suresh Chand
Gautam (supra) was not correctly decided and needs
reconsideration. It was also submitted on behalf of the
reserved category candidates that a Committee was
constituted by the Government of Uttarakhand to collect
quantifiable data regarding the adequacy of representation
of persons belonging to Scheduled Castes and Schedules
Tribes in public posts in accordance with the judgment of
this Court in M. Nagaraj (supra). According to the report
submitted by the Committee, there is inadequate
representation of the Scheduled Castes and Scheduled
Tribes in government services in the State of Uttarakhand.
The said report was approved by the State Cabinet. It was
contended by the learned counsel that the State
Government was duty bound to provide reservations on the
basis of the data that was collected by the Committee.
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10. The central point that arises for our consideration in
these appeals is whether the State Government is bound to
make reservations in public posts and whether the decision
by the State Government not to provide reservations can be
only on the basis of quantifiable data relating to adequacy
of representation of persons belonging to Scheduled Castes
and Scheduled Tribes.
11. Article 16 (4) and 16 (4-A) do not confer fundamental
right to claim reservations in promotion 9. By relying upon
earlier judgments of this Court, it was held in Ajit Singh
(II) (supra) that Article 16 (4) and 16 (4-A) are in the nature
of enabling provisions, vesting a discretion on the State
Government to consider providing reservations, if the
circumstances so warrant. It is settled law that the State
Government cannot be directed to provide reservations for
appointment in public posts10. Similarly, the State is not
bound to make reservation for Scheduled Castes and
Scheduled Tribes in matters of promotions. However, if they
wish to exercise their discretion and make such provision,
the State has to collect quantifiable data showing
9 Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209
10 C.A. Rajendran v. Union of India, (1968) 1 SCR 721
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inadequacy of representation of that class in public services.
If the decision of the State Government to provide
reservations in promotion is challenged, the State
concerned shall have to place before the Court the requisite
quantifiable data and satisfy the Court that such
reservations became necessary on account of inadequacy of
representation of Scheduled Castes and Scheduled Tribes in
a particular class or classes of posts without affecting
general efficiency of administration as mandated by Article
335 of the Constitution11.
12. Article 16 (4) and 16 (4-A) empower the State to make
reservation in matters of appointment and promotion in
favour of the Scheduled Castes and Scheduled Tribes ‘if in
the opinion of the State they are not adequately
represented in the services of the State’. It is for the
State Government to decide whether reservations are
required in the matter of appointment and promotions to
public posts. The language in clauses (4) and (4-A) of
Article 16 is clear, according to which, the inadequacy of
representation is a matter within the subjective satisfaction
11 M. Nagaraj (supra)
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of the State. The State can form its own opinion on the
basis of the material it has in its possession already or it
may gather such material through a
Commission/Committee, person or authority. All that is
required is that there must be some material on the basis of
which the opinion is formed. The Court should show due
deference to the opinion of the State which does not,
however, mean that the opinion formed is beyond judicial
scrutiny altogether. The scope and reach of judicial scrutiny
in matters within the subjective satisfaction of the executive
are extensively stated in Barium Chemicals v. Company
Law Board12, which need not be reiterated13.
13. On the basis of the settled law of this Court pertaining
to the scope of Article 16 (4) and 16 (4-A) of the
Constitution, we proceed to determine the correctness of
the judgments of the High Court. As noted above, the
judgment of the High Court in Writ Petition No.117 of 2019 is
to the effect that the proceeding dated 05.09.2012 issued
by the Government of Uttarakhand by which it was decided
to fill up the promotional posts or vacancies without
12 AIR 1967 SC 295
13 Indra Sawhney v. Union of India (1992) Supp. (3) SCC 217
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providing reservations to Scheduled Castes and Scheduled
Tribes was struck down. It was held by the High Court that
the notifications that were issued by the Government of
Uttarakhand, providing for reservations, continued to
operate. A direction was issued by the High Court that
reservation in promotion in favour of the Scheduled Castes
and Scheduled Tribes can be made by the State Government
without having quantifiable data regarding the
backwardness of the Scheduled Castes and Schedules Tribes
or the adequacy of their representation in the Government
services.
14. The application filed for review of the judgment in Writ
Petition No.117 of 2019 was decided by a judgment dated
08.11.2019 by the High Court. Realising the error
committed in its judgment dated 01.04.2019, the High Court
modified the judgment by holding that according to the
decision of this Court in Jarnail Singh v. Lachhmi Narain
Gupta14, the State was obligated to collect quantifiable
data regarding the inadequacy of representation of the
Scheduled Castes and Scheduled Tribes in public services.
14 (2018) 10 SCC 396
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The High Court observed that Article 16 (4) and 16 (4-A) of
the Constitution are enabling provisions, and the State
Government is not obligated to provide reservations in
promotion in favour of members of the Scheduled Castes
and Scheduled Tribes. The High Court expressed its opinion
that reservation in promotion to public posts can be
provided by the State Government only after collecting data
regarding the inadequacy of their representation in service.
In light of the above, the High Court directed the State
Government to collect quantifiable data regarding the
adequacy or inadequacy of representation of Scheduled
Castes and Scheduled Tribes in state services which would
enable the State Government to take a considered decision
as to whether or not reservation in promotion should be
provided in favour of Scheduled Castes and Scheduled
Tribes. The collection of quantifiable data was directed to
be completed within four months from the date of receipt of
the judgment.
15. The High Court committed an error by striking down
the proceeding dated 05.09.2012 by which a decision was
taken not to provide reservation in promotions without
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giving any reasons, except stating that the said decision is
contrary to the judgments of this Court in Jarnail Singh and
Indra Sawhney (supra). A perusal of the proceeding dated
05.09.2012 would show that the decision taken by the State
Government was by way of implementation of the judgment
of the High Court of Uttarakhand in Vinod Prakash
Nautiyal (supra) by which Section 3(7) of the 1994 Act,
relating to the provision of reservation in promotion, was
struck down. By its judgment dated 10.07.2012 in Vinod
Prakash Nautiyal (supra), the High Court declared Section
3 (7) of the 1994 Act as contrary to the law laid down by this
Court in M. Nagaraj (supra). There was a further
declaration that no promotion can be given by the State of
Uttarakhand by taking recourse to Section 3 (7) of the 1994
Act. However, the State Government was given liberty to
bring out another legislation in accordance with the
mandate of the Constitution of India, by following the
judgment in M. Nagaraj (supra). This Court dismissed the
SLP filed against the said judgment. At this juncture, it is
relevant to mention that certain notifications were issued
after the formation of the State of Uttarakhand by which
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reservation in promotion to public posts as provided in the
State of Uttar Pradesh was adapted with certain
modifications. As stated above, the Government of
Uttarakhand appointed a Committee for collection of
quantifiable data pertaining to the adequacy or inadequacy
of representation of the members of Scheduled Castes and
Scheduled Tribes in public services in the State. The
Committee submitted its report, according to which the
representation of Scheduled Castes and Scheduled Tribes is
inadequate. The State Cabinet approved the
recommendation of the Committee on 12.04.2012.
Ultimately, the State Government by a proceeding dated
05.09.2012 decided to set aside all previous Government
orders relating to reservation in promotions to Government
services in the State. As the Government is not bound to
provide reservation in promotions, we are of the opinion
that there is no justifiable reason for the High Court to have
declared the proceeding dated 05.09.2012 as illegal.
16. The direction that was issued to the State Government
to collect quantifiable data pertaining to the adequacy or
inadequacy of representation of persons belonging to
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Scheduled Castes and Scheduled Tribes in Government
services is the subject matter of challenge in some appeals
before us. In view of the law laid down by this Court, there
is no doubt that the State Government is not bound to make
reservations. There is no fundamental right which inheres in
an individual to claim reservation in promotions. No
mandamus can be issued by the Court directing the State
Government to provide reservations. It is abundantly clear
from the judgments of this Court in Indra Sawhney, Ajit
Singh (II), M. Nagaraj and Jarnail Singh (supra) that
Article 16 (4) and 16 (4-A) are enabling provisions and the
collection of quantifiable data showing inadequacy of
representation of Scheduled Castes and Scheduled Tribes in
public service is a sine qua non for providing reservations in
promotions. The data to be collected by the State
Government is only to justify reservation to be made in the
matter of appointment or promotion to public posts,
according to Article 16 (4) and 16 (4-A) of the Constitution.
As such, collection of data regarding the inadequate
representation of members of the Scheduled Castes and
Schedules Tribes, as noted above, is a pre requisite for
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providing reservations, and is not required when the State
Government decided not to provide reservations. Not being
bound to provide reservations in promotions, the State is
not required to justify its decision on the basis of
quantifiable data, showing that there is adequate
representation of members of the Scheduled Castes and
Schedules Tribes in State services. Even if the under-
representation of Scheduled Castes and Schedules Tribes in
public services is brought to the notice of this Court, no
mandamus can be issued by this Court to the State
Government to provide reservation in light of the law laid
down by this Court in C.A. Rajendran (supra) and Suresh
Chand Gautam (supra). Therefore, the direction given
by the High Court that the State Government should first
collect data regarding the adequacy or inadequacy of
representation of Scheduled Castes and Scheduled Tribes in
Government services on the basis of which the State
Government should take a decision whether or not to
provide reservation in promotion is contrary to the law laid
down by this Court and is accordingly set aside. Yet another
direction given by the High Court in its judgment dated
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15.07.2019, directing that all future vacancies that are to be
filled up by promotion in the posts of Assistant Engineer,
should only be from the members of Scheduled Castes and
Scheduled Tribes, is wholly unjustifiable and is hence set
aside.
17. The submission made on behalf of the reserved
category candidates that the judgment of this Court in
Suresh Chand Gautam (supra) needs reconsideration is
without substance in view of the findings recorded above.
We are in agreement with the decision of this Court in
Suresh Chand Gautam (supra) in which it was held that
no mandamus can be issued by the Court to the State to
collect quantifiable data relating to adequacy of
representation of the Scheduled Castes and Scheduled
Tribes in public services.
18. The High Court was not informed about the
appointment of a Committee for collection of quantifiable
data and the completion of such exercise by the Committee,
which was approved by the State Cabinet. However, the
State Government took a conscious decision not to provide
reservation in promotions. The direction given by the High
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Court to collect quantifiable data, therefore, is wholly
unnecessary as the State is already in possession of the said
data.
19. In view of the aforesaid, the impugned judgments of
the High Court in Writ Petition (S/B) No.351 of 2019, Writ
Petition (S/B) No.117 of 2019 and Review Application No.389
of 2019 in Writ Petition (S/B) No.117 of 2019 are set aside.
20. The Appeals are disposed of accordingly.
.…………………………..J.
[L. NAGESWARA RAO]
……………………………J.
[HEMANT GUPTA]
New Delhi,
February 07, 2020.
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