VINOD PRAKASH NAUTIYAL Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-7-100
HIGH COURT OF UTTARAKHAND
Decided on July 10,2012

Vinod Prakash Nautiyal Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

BARIN GHOSH,.J. - (1.) IN this writ petition, vires of Section 3 (7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 has been challenged. Section 3(7) was inserted in the said Act at the time of enactment of the original Act. The original Act was enacted on 22nd March, 1994. At that time, the State of Uttarakhand was not born. After creation of the State of Uttarakhand by the Uttar Pradesh Reorganisation Act, 2000, the State of Uttarakhand, as entitled to by the 2000 Act, adopted the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, without speaking a word as to Section 3(7) of the said Act. The vires of Section 3(7) of the said Act was challenged in a group of writ petitions filed before the Honble Allahabad High Court. The challenge, thus, thrown ultimately reached the Honble Supreme Court. The Honble Supreme Court in Special Appeal No. 2608 of 2011 and connected appeals held that Section 3(7) of the said Act runs contrary to the dictum of the Honble Supreme Court rendered in the case of M. Nagaraja and others Vs. Union of India and others reported in (2006) 8 SCC 212 and, accordingly, not sustainable. The reason appears to be that, while inserting Section 3(7) of the Act, no effort was made, as was the requirement of law and pronounced in M. Nagaraja, for making reservations in the promotional posts. From the records of this case, it does not appear to be the contention of the State of Uttarakhand that at the time of enactment of Section 3(7), any such effort was made.
(2.) IN the circumstances, we also declare that Section 3(7) of the Act, as applicable to the State of Uttarakhand, also suffers from the same vires as pronounced by the Honble Supreme Court and, accordingly, on the strength thereof, no further promotion can be granted. We make it clear that the pronouncement, as above, shall be deemed to be prospective, but with effect from the date the first interim order was passed on this writ petition and connected writ petitions, namely, Writ Petition (S/B) No. 389 of 2011, Writ Petition (S/B) No. 66 of 2011, Writ Petition (S/B) No. 179 of 2011 and Writ Petition (S/B) No. 116 of 2012, which are confirmed, inasmuch as, people who have been promoted prior thereto are not before us and, accordingly, we have refrained from interfering with the status accorded to them, which status they have enjoyed for a long period of time. It is, however, made clear that henceforth, no promotion can be given by the State of Uttarakhand by taking recourse to Section 3(7) of the Act. It shall be deemed to be non -existent from today.
(3.) LEARNED counsel appearing on behalf of the State of Uttarakhand wanted an adjournment for the purpose of brining on record a new enactment commensurate with the provisions of the Constitution of India and the dictum of the Honble Supreme Court rendered in the case of M. Nagaraja. In the event, the same is done that would not be an answer to the issues raised in the instant writ petition. Accordingly, we have refused to grant an adjournment. We, however, make it clear that this judgment and order will not be treated to be a hurdle on the part of the State to bring out a valid piece of new legislation in accordance with the mandate of the Constitution of India read with the dictum of the Honble Supreme Court rendered in M. Nagaraja. The writ petition is, accordingly, disposed of.;


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