HC quashes Uttarakhand’s 2012 order to stop quota in promotion
Uttarakhand HC gives liberty to Uttarakhand government to make law under Article 16 (4-A) of the Constitution which empowers state to make law for reservation in promotion.
The Uttarakhand high court on Monday quashed the state government’s 2012 order that had barred departments from providing reservation in promotions to scheduled caste (SC) and scheduled tribe (ST) employees in Uttarakhand, said Hari Mohan Bhatia, counsel of the petitioner in the case.
“The implications of this order is that whatever order has been issued by the state government after Uttarakhand’s formation, will now be applicable. The court has given liberty to the state government to make a law under Article 16 (4-A) of the Constitution which empowers state government to make law for reservation in promotion,” said Bhatia.
The directions were issued by the division bench of Chief Justice Ramesh Ranganathan and Justice Narayan Singh Dhanik while hearing a writ petition filed by Udham Singh Nagar based Gyan Chand, who is currently posted as assistant commissioner in the tax department at Khatima, US Nagar. He belongs to SC community.
Bhatia said the petitioner had challenged the government order issued on September 5, 2012 on the basis of judgment passed by Uttarakhand high court on July 10, 2012. The petition had been filed in 2011.
Bhatia said in the 2011 petition, the petitioner had challenged Section 3 (7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994 adopted by Uttarakhand after its formation. “Section 3 (7) was challenged on the basis of the judgment passed by Supreme Court of India in the case of M. Nagraja and others Vs Union of India and others( 2006). It was argued in HC the said provision of the Act is contrary to the dictum of the judgement passed by Supreme Court and Section 3(7) be deemed non-existent from July 10, 2012,” he said, adding SC had stated that backwardness of the SC and ST needs to be quantified first.
Bhatia said Uttarakhand issued the government order on September 5, 2012 stating that in view of HC judgment, the benefit of Section 3 (7) cannot be extended in future in promotional exercise carried by the state government.
Bhatia said the judgment affected several parties that approached the Supreme Court and filed a total of seven special leave petitions. Bhatia said in all these cases, the controversy revolved around the interpretation of the Articles of Constitution like Article 16 on equality of opportunity in matters of public employment which states that “nothing in this article shall prevent the state from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the state in favour of the scheduled castes and the scheduled tribes which, in the opinion of the state, are not adequately represented in the services under the state.”
Bhatia said the Constitution Bench of Supreme Court delivered the judgment on September 26, 2018 , in which it, in very clear words, did not declare the Article 16 (4-A) and 16 (4-B) against the basic structure of Constitution of India and left to state government to apply Article 16 (4-A) and Article 16 (4-B) in the promotional exercise carried by them.
“The apex court also stated that there is no need for the state government to collect the quantifiable data showing the backwardness of SCs and STs as stated by the Supreme Court in its earlier judgment in the case of M Nagaraja,” he said.