The state does not choose to follow the Supreme Court mandate in eschewing creamy layer: High Court
The Madras High Court on Friday declared unconstitutional and ultra vires Tamil Nadu government fixing seniority and conferring promotions for its employees based on reservation.
The government's adoption of roster point system in fixing seniority of government servants is nothing but an indirect way of providing reservation even beyond 69 per cent, a Division Bench of Justices MM Sundresh and RMT Teekaa Raman held.
Section 40 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, that governs seniority in service as per the rule of reservation and the order of rotation and section 70 that validated it notwithstanding any judgment were declared unconstitutional.
Also, a provision which gave a retrospective effect to the seniority aspect covered under section 40 of the said Act was also declared unconstitutional.
The bench, pointing to the State government taking umbrage under Article 16(4) of the Constitution that facilitates reservations, held that the government cannot take refuge under this provision if there is no constitutional amendment to allow it.
Quoting the Constitutional bench ruling and other decisions, the division bench said unless there is an express provision like the 85th constitutional amendment to extend reservation for SC/ST in promotion, the State government cannot go ahead with its scheme of promotions.
"...we are constrained to hold that the State of Tamil Nadu does not have the power, authority or cachet to introduce the impugned provisions tracing Article 16(1) (equality of opportunity) and 16 (4) of the Constitution as their source of power," the court held.
The impugned provisions are nothing but product of "legislative arbitrariness," the court held.
The state does not choose to follow the mandate of the Supreme Court in eschewing creamy layer, the court said.
The bench refuted the arguments of the Advocate General that Article 16(4) has sufficient resource to take care of situation warranting reservation in promotion, which would include seniority.
On this point, the court said,"any reservation is not automatic but can only be on need basis...reservation in selection is different from seniority and promotion. In fixing seniority and conferring promotion, different yardsticks and parameters are to be applied."
The order was passed on a batch of petitions by state government servants challenging the roster point system.
The system envisages mandatory 69 per cent vertical reservation on communal basis. Also, it includes horizontal and internal aspects as well while adopting the 69 per cent ratio.
Vertical quota covers adequate representation on the basis of community, while, horizontal reservation includes sub sects and special categories, such as, women, destitute widows, ex-serviceman, physically handicapped and persons who studied in Tamil medium.
The system followed by the Tamil Nadu Public Service Commission since 2003 was set aside by a division bench of the high court in 2015 and it was also upheld by the Supreme Court in 2016.
The state government, however, superseded the judgment by bringing in the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the court said.
The bench further held that the impugned provisions do not have the legal sanctity under Article 16 (equality of opportunity in public employment) of the Constitution of India.
Even assuming that the same is in existence, the adequacy and the need for reservation has not been supported by requisite materials. Therefore, on both these grounds, the provisions are declared ultra vires and unconstitutional, the court said.
"We find the presence of manifest arbitrariness in the impugned provisions. Neither there appears to be any power available nor procedure followed. This appears to be a knee jerk reaction to circumvent and nullify the judgment of the Division Bench in Santhosh Kumar case (on fixation of seniority), which attained finality," it said.
Holding the procedure adopted as nothing but an indirect way of reservation beyond 69 per cent, the court tasked the authorities to redo the exercise of fixation of seniority within 12 weeks.