D. N. Patel, J. - (1.) 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",. This criteria has been mentioned in paragraph Nos. 38 and 39 of the writ petition, which reads as under: "38. That the constitutional validity Article-16(4-A) 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(4-A) and 16(4-B) 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(4-A) 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(4-A). 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(4-A) 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 (4-A) 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 (4-A) 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(4-A) 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."
(2.) Despite the notice issued upon the respondents-State by this Court and the time granted to file reply vide order, dated 9.01.2017, till date, no reply has been filed by the State.
(3.) Hon'ble Supreme Court in the case of "M. Nagaraj and others v. Union of India and others, 2006 8 SCC 212", as : , at paragraph No. 117, has held as under: "117. The test for judging the width of the power and the test for adjudicating the exercise of power by the State concerned are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply "the width test". In applying "the width test" we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the State concerned has identified and valued the circumstances justifying it to make reservation. This question has to be decided casewise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on the facts of each case. The judgment in Indra Sawhney does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution." Further, Hon'ble Supreme Court in the case of "Anil Chandra v. Radha Krishna Gaur, 2009 9 SCC 454", as , at paragraph Nos. 17, has held as under: "17. In the present case and in the facts and circumstances stated hereinearlier, we are of the view that it was the constitutional obligation of the State, at the time of providing reservation in the matter of promotion to identify the class or classes of posts in the service for which reservation is required, however, neither any effort has been made to identify the class or classes of posts for which reservation is to be provided in promotion nor any exercise has been done to quantify the extent of reservation. Adequate reservation does not mean proportional representation. Rule 8-A has been inserted mechanically without taking into consideration the pre requisites for making such a provision as required under Article 16(4-A) of the Constitution of India. 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 equality of opportunity in Article 16 would collapse. However, in this case, as stated, the main issue concerns the "extent of reservation" and in this regard, the State should have shown the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation." Again, Hon'ble Supreme Court in the case of "Suraj Bhan Meena v. State of Rajasthan, 2011 1 SCC 467", as : , at paragraph No. 64, has held as under: "64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution." The Hon'ble Supreme Court also in the case of "U.P. Power Corpn. Ltd. v. Rajesh Kumar, 2012 7 SCC 1", as :, at paragraphs 81 & 86, has held as under: "81. From the aforesaid decision in M. Nagaraj case and the paragraphs we have quoted hereinabove, the following principles can be carved out: (i) Vesting of the power by an enabling provision may be constitutionally valid and yet "exercise of power" by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. (ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14. (iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate. (iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. (v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons-- "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced. (vi) If the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact situation. (vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation. (viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case. (ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. (x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment. xxx xxx xxx 86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.";