A Punjab and Haryana high court judge has batted for a survey to ascertain the strength of scheduled castes (SC)/scheduled tribes (ST) employees in the central government.
Senior judge on a division bench justice M Jeyapaul has directed the central government to carry out a survey within three months of all the departments and institutions where it had allowed accelerated promotions for SC/ST members and formulate a policy in this regard.
The direction has come in a matter wherein Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh, had approached the high court challenging Central Administrative Tribunal (CAT) decision that a general category employee would be deemed senior, even as he was promoted after reserved category employee, if the former was senior prior to promotion. The high court upheld the CAT order.
However, senior judge on the bench justice Jeyapaul observed in his order that it was really paining to note that SC/ST employees, who had been given a constitutional protection under Article 16(4A) had been compelled to approach the courts to give effect to the constitutional provision introduced by 85th amendment.
“There was a patent failure on the part of the states in not following the mandates in the M Nagaraj case verdict despite the fact that they have decided to exercise their option to make reservation in promotion and left SC/ST members to suffer for the past nine years,” justice Jeyapaul observed.
“Such a despicable attitude of the state (Centre) in not adhering to the mandates of the court while making an attempt to enforce the benevolent provision of the constitution is really contemptible. Had the states woken up to the reality in the light of the decision in the M Nagaraj case, hundreds of original applications before the various administrative tribunals and hundreds of writ petitions before the high courts in our country could have been avoided,” he further observed.
The 85th constitutional amendment brought in phrase of “consequential seniority” in the case of promotions. In the M Nagaraj case, the Supreme Court had stated that the state which preferred to exercise its discretion to make provision for reservation in promotion with consequential seniority for the SC and ST employees would have to collect quantifiable data reflecting backwardness of the caste.
As of Article 16(4A) of constitution it deals with reservation of appointments in favour of any backward class.
Justice Jeyapaul’s junior colleague on the bench in this matter justice Darshan Singh has differed on giving direction to the central government for a survey terming that it as “inappropriate” . To issue such a direction to collect quantifiable data would “virtually amount going beyond the observations of the apex court” in the M Nagaraja case, he stated. The issue whether the direction could be given to the Centre or not would now be decided by a larger bench.