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State cannot obliterate “Catch Up Principle” by passing resolution, in absence of law made under under Art. 16(4A): SC

The SC on April 17, 2020 {Pravakar Mallick & Anr. v. The State of Orissa & Ors.} held that Article 16(4A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post in question as per Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors. {(2018) 10 SCC 396}. 

It was observed by SC Bench comprising of Justice R. Subhash Reddy & Justice Mohan M. Shantanagoudar, in this case, it is to be noticed that after Constitution (Eighty-Fifth) Amendment Act, 2001, amending Article 16(4A) of the Constitution which enabled the State to extend the benefit of promotion with consequential seniority by examining the adequacy of representation to scheduled castes and scheduled tribes in the State services, the State of Orissa has not made any provision, either by way of legislation or by an executive order, to extend such benefit in the Class-I Services. It was held that the advocate for State specifically admitted that the Govt. has not issued any executive order or has passed any legislation. It was held that the Government Resolution dated 20.03.2002 is issued merely based on the instructions issued by the Government of India, without examining the adequacy of representation in posts. 

It was held by the SC that Government Resolution dated 20.03.2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4A), nor does it satisfy the parameters laid down in the various decisions of the SC. The Resolution has no legal basis.

Further held that while it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4A) but the Resolution dated 20.03.2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts.

By the aforesaid Resolution, while withdrawing the earlier instructions, for fixation of seniority of Scheduled Caste/Scheduled Tribe (SC/ST) government servants on promotion by virtue of rule of reservation, the State Government has issued instructions to the effect that the “Catch Up Principle” adopted earlier by the State Government in General Administration Department Resolution No.39374 dated 02.11.2000 shall not be followed any longer. It is further ordered that the government servants belonging to SCs/STs shall retain their seniority in the case of promotion by virtue of rule of reservation. In the said G.O. it is further clarified that the government servants belonging to general/OBC category promoted later will be placed junior to the SC/ST government servants promoted earlier, by virtue of rule of reservation.

In the present case, the High Court has allowed the writ petition and quashed the aforesaid G.O. and Gradation List dated 03.03.2008 mainly on the ground that, unless and until the State Government makes a law for conferring the benefit of promotion with consequential seniority to SC/ST candidates, they are not entitled to claim seniority in the promoted categories over the general category candidates. The said judgment was upheld by the SC.

The SC, while dismissing the appeal, held that there is no merit in this appeal so as to interfere with the well reasoned judgment of the High Court. 

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