D. N. Patel, J. - (1.) Looking to the contentious issues involved in this writ petition, Rule.
(2.) Counsel for the respondents is waving notice of Rule.
(3.) Counsel appearing for the petitioner has argued out the case at length and pointed out that there should not be any prerequisite for prescribing the reservation in promotion, in view of the decision rendered by Hon'ble Supreme Court in the case of M. Nagaraj and others v. Union of India and others, 2006 8 SCC 212. These criteria have been mentioned in paragraph Nos.38 and 39 of the writ petition, which read as under:- "38. That the constitutional validity Article-16(4A) fell for consideration in Nagraj's case . After dealing with the matter extensively and analysing the precedents on the subject, their Lordships summed up the conclusions in paragraph Nos. 121, 122 and 123. They read: "121. The impugned constitutional amendments by which Articles 16(4A) and 16 (4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal. 122. We reiterate that the ceiling-limit of 50% the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equity of opportunity in Article 16 would collapse. 123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard 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. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However, if they wish to exercise their discretion and made such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. From this what can be culled out is that the important facts that guide the reservation under 16(4A) are: (a) backwardness, (b) inadequacy of representation and (c) overall efficiency of the State administration under Article-335. It is also important to note that while providing reservation or making other provisions, the State must ensure that (a) the facility so created does not lead to excessiveness so as to breach the ceiling limit of 50%, (b) the creamy layer excluded and denied the benefit of reservation, and (c) the facility is not extended indefinitely. In effect, 6 indicia were identified and stipulated. It is essential to bear in mind that the reservation provided for under Article 16(4) is substantially different from the one under Article-16(4A). The former is a facility that enables persons to enter the State service by relaxing the norms of selection or the parameters of merit which are stipulated for the posts, in general. Through that process, a person who is otherwise not eligible to be appointed, is enabled to enter service under the State. The target group for this is unemployed persons, of a certain categories. In contrast, Article 16(4A) deals with the situation where the target group is already enjoying the benefit of employment on the basis of reservation under Article 16(4) and the effort is only to push them to higher places in the hierarchy. In a way, it can be said that while Article 16(4) deals with the primary and basic aspect of protective discrimination, i.e. reservation, the one under Article 16(4) is about the secondary aspect. Obviously, for this reason, the Parliament as well as the constitutional courts have made subtle distinction and have chosen to stipulate different parameters for the two. For example, the benefit under Clause 16(4) is in respect of "services under the State" whereas the objective underlying Article 16(4A) is to ensure representation of the SC/ST in the "class or classes of posts in the service under the State". Similarly, the necessity to ensure that the efficiency in administration does not suffer, is applied with a bit of greater emphasis for the reservations under Article 16(4A) than the one under Article 16(4). These are only the broader aspects. 39. That in view of the law laid down by the Hon'ble Supreme Court, as mentioned above, the following conditions are required to be fulfilled, before the reservation under Article 16 (4A) is made: "(a) Collecting of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. (b) Ensuring compliance with Article 335 which says that while making reservation, due consideration is to be given to maintenance of efficiency of administration. (c) Ensuring that the reservation provision does not cross the ceiling of 50% and does not obliterate the creamy layer and that the reservation does not extend indefinitely.";