Sailesh Das & Ors. vs State Of Odisha & Ors.

―9. Having heard learned counsels appearing for the parties and considering the submissions made, this Court finds that eligibility of an employee to get the benefit of promotion in any cadre is provided under the OCS (Criteria for Promotion) Rules, 1992. While amending Rule 3 of the 1992 Rules^{33.Rule 3 of the Odisha Civil Services (Criteria for Promotion) Rules, 1992, stands thus: ―3. Criteria for Promotion.— Notwithstanding anything contained in the Recruitment Rules,— (a) all promotion to the posts or grades of different Services/Civil Posts under the State Government shall be made by selection; (b) selection for such promotion shall be made on the basis of merit and suitability in all respect with due regard to seniority and the names of persons included in the Select List shall be arranged in order of seniority in the feeder service or grade :Provided that any Junior officer of exceptional merit and suitability may be assigned a place higher than his seniors and in such case the assignment of higher position to the junior officer shall be limited to the same batch or year of allotment except where an officer of the earlier batch or year of allotment is found unsuitable for promotion: Provided further that where promotion is made from different services or posts and no common seniority among such officers exists, their names in the Select List shall be arranged on the basis of their merit adjudged during selection. Explanation.— The expression ‗BATCH OR YEAR OF ALLOTMENT‘ means the calendar year of the select list on the basis of which an officer is promoted to the higher rank. (c) In order to judge the suitability of an officer for promotion, the Orissa Public Service Commission, the Departmental Promotion Committee, the Selection Commission or Selection Board, as the case may be, shall scrutinise preceding five available annual Confidential Character Rolls [Performance Appraisal Reports (PARs), as substituted vide General Administration Department Notification No.2R/1-24/2004-5906-Gen., dated 25.02.2005.] and other documents, if any, having a bearing on the performance and conduct of all eligible officers, unless for reasons to be recorded, it is considered necessary to refer to any earlier record to adjudge an officer‘s suitability: Provided the available Confidential Character Rolls [Performance Appraisal Reports (PARs) as Added vide Odisha Gazette Extraordinary No. 668, dated 21.04.2007] taken into consideration for promotion as above shall include C.C.Rs./(P.A.Rs.) covering at least a period of three years in preceding five years. Note:I.— The expression ‗OTHER DOCUMENTS‘ means papers of whatsoever nature having bearing on the performance and conduct of eligible officers like C.B.I. or Vigilance reports, papers relating to departmental action and other confidential reports having nexus with an officer‘s performances which might have been prepared after giving an opportunity to an officer of being heard and not reflected in his C.C.Rs./(P.A.Rs.) or service records. Note:II.— The expression ‗PRECEDING FIVE YEARS‘ means the five years preceding the year which the officer‘s performance is, in accordance with the relevant Recruitment Rules, first evaluated.‖} with insertion of Rule 3A, it was clearly provided that ST & SC candidates appointed on their own merit either by direct recruitment or by promotion and placed above the Unreserved candidates in the merit list shall be considered and adjusted against the un-reserved vacancy and such candidates are not to be counted against the percentage earmarked for reservation of their category.

9.1.

This Court finds that on the face of such clear provision contained under Rule 3A of the Amendment Rules, 2022, opposite party No.3 while issuing the impugned clarification on 06.05.2024 and 27.02.2025 basing on the view given by the Law Department on 27.02.2024 held that reserve category employees who have availed reservation in appointment, could be promoted against Unreserved vacancy to treat them as their own merit.

9.2.

Placing reliance on the provisions contained under Rule 6 of the 1992 Rules, it is the view of this Court that it is only the General Administration and Public Grievances Department who is competent to issue any clarification while interpreting any of the Rules so contained under the 1992 Rules. It is also found that impugned clarification has been issued by opposite party No.3-department without prior concurrence/approval of the Hon‘ble Governor of Odisha. Since 1992 Rules as well as the Amendment Rules, 2022 have been framed under Article 309 of the Constitution of India and such a rule was issued with due approval of the Hon‘ble Governor, placing reliance on the provisions contained under Articles 154 and 162 of the Constitution of India and the decision in the case of Prasanna Kumar Sahoo^{44.State of Odisha and Others Vs. Prasanna Kumar Sahoo, (2007) 15 SCC 129.}, so followed by this Court in W.P.(C) No.12518 of 2020^{55.Gopinath Sahu Vs. State of Odisha, W.P.(C) No.12518 of 2020, vide judgment dated 03.08.2020 of High Court of Orissa.} and batch so cited (supra), it is the view of this Court that opposite party No.3 is not competent to issue any such clarification so issued on 06.05.2024 and 27.02.2025, without prior approval of the Governor and Law Department was also not competent to give its view on 27.02.2024, basing on which such a clarification was issued on 06.05.2024.

9.3.

It is also the view of this Court that in terms of the provision contained under Article 16(4A) of the Constitution of India and decisions rendered by the Hon‘ble Apex Court in the case of M. Nagaraj^{66.M. Nagaraj Vs. Union of India, (2006) 7 Suppl. SCR 336 = (2006) 8 SCC 212.}, so followed in Jarnail Singh^{77.Jarnail Singh Vs. Lachhmi Narain Gupta, (2018) 10 SCR 663 = (2018) 10 SCC 396; Jarnail Singh Vs. Lachhmi Narain Gupta, (2022) 19 SCR 711 = 2022 INSC 105.} so cited (supra) and the provision contained under Article 335 of the Constitution of India, since no quantifiable data has yet been collected by the State with regard to inadequacy of representation of reserve category candidate in any cadre of posts, so admitted before the Hon‘ble Apex Court in the case of Pravakar Mallick^{88.Pravakar Mallick Vs. State of Odisha, (2020) 5 SCR 222 = AIR 2020 SC 2122.} so cited (supra), in absence of any such quantifiable data being collected by the State showing inadequacy of representation of SC and ST candidates in any cadre and the overall efficiency, no such clarification could have been issued by opposite party No.3 on 06.05.2024 and 27.02.2025.

9.4.

Since in terms of the decision of the Hon‘ble Apex Court in the case of M. Nagraj and Jarnail Singh, no such quantifiable data has yet been collected and the impugned clarification has been issued by opposite party No.3 contrary to the provisions contained under Rule 6 of the 1992 Rules as well as Articles 154 and 162 of the Constitution of India, it is the view of this Court that the impugned clarification issued on 06.05.2024, directed to be followed in communication dated 27.02.2025 basing on the clarification issued by the Law Department on 27.02.2024, are not sustainable in the eye of law and stand quashed. Consequentially, any action taken basing on such clarification issued on 06.05.2024 and 27.02.2025 are also not sustainable in the eye of law and stand quashed. The decisions rendered by this Court in the case of Lalit Kumar Nayak as well as Litu Behera on the face of the provision contained under Article 16(4A) of the Constitution of India and the decision in the case of M. Nagraj as well as Jarnail Singh as per the considered view of this Court are judgments per-incuriam.

9.5.

Therefore, this Court while quashing clarification dated 06.05.2024 and communication dated 27.02.2025 so issued by opposite party No.3 as well as consequential action taken thereof by various departments of the State, direct the concerned departments in the present batch of Writ Petitions to follow the provisions contained under Rule 3A of the Amendment Rules, 2022 and so also the provision contained under Article 16(4-A) of the Constitution of India read with the decision in the case of M. Nagraj and Jarnail Singh with regard to promotion of SC & ST candidates.

10.

With the aforesaid observation and direction, all the Writ Petitions stand disposed of accordingly‖

―11. It is now well settled that a State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution of India.

12.

Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.

13.

In A. Umarani v. Registrar, Coop. Societies, (2004) 7 SCC 112 this Court has held:

‗45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.‘

14.

The Circular Letter dated 21.03.1995 even does not purport to lay a policy decision relating to regularisation or absorption of the census employees. It only provided for relaxation of age. Such relaxation was also subject to strict compliance with the recruitment rules. If by reason of some misconception or otherwise, the Tribunal had granted some relief in favour of some census employees, the same by itself, in our opinion, would not confer any legal right upon a person for being absorbed in State services without compliance with the mandatory provisions of the recruitment rules and the constitutional scheme adumbrated under Article 16 of the Constitution of India.‖

―2. The facts in the above writ petition, which is the lead petition, are as follows:

The petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in Union of India Vs. Virpal Singh Chauhan, (1995) 6 SCC 684, Ajit Singh Januja Vs. State of Punjab, (1996) 2 SCC 715 (Ajit Singh-I), Ajit Singh (II) Vs. State of Punjab, (1999) 7 SCC 209, Ajit Singh (III) Vs. State of Punjab, (2000) 1 SCC 430, Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217 and M.G. Badappanavar Vs. State of Karnataka, (2001) 2 SCC 666. The petitioners say that Parliament has appropriated the judicial power to itself and has acted as an Appellate Authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. The petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. The petitioners say that the equality in the context of Article 16(1) connotes ―accelerated promotion‖ so as not to include consequential seniority. The petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). The petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. The petitioners say that in Indra Sawhney, 1992 Supp (3) SCC 217 decided on 16.11.1992, this Court has held that under Article 16(4), reservation to the Backward Classes is permissible only at the time of initial recruitment and not in promotion. The petitioners say that contrary to the said judgment delivered on 16.11.1992, Parliament enacted the Constitution (Seventy-seventh Amendment) Act, 1995. By the said amendment, Article 16(4-A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-seventh Amendment) Act, 1995 is also challenged by some of the petitioners. The petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would have retired from service. The petitioners say that the consequences of the impugned 85th Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre.

***

107.

It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that 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. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between ―equality in law‖ and ―equality in fact‖ (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of ―guided power‖. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.

108.

Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-second Amendment) Act, 2000 we find that the said proviso has a nexus with Articles 16(4-A) and 16(4-B). Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring discretionary power on the State to relax qualifying marks or standards of evaluation. Therefore, the question before us is— whether the State could be empowered to relax qualifying marks or standards for reservation in matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in Article 335 is not obliterated. Reason is that ―efficiency‖ is a variable factor. It is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.

109.

In conclusion, we reiterate that the object behind the impugned constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and the constitutional limitations indicated above.

***

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, namely, backwardness and inadequacy of 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 OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, 1992 Supp (3) SCC 217, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal, (1995) 2 SCC 745.

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 equality of opportunity in Article 16 would collapse.

123.

However, in this case, as stated above, the main issue concerns the ―extent of reservation‖. In this regard the State concerned 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 SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make 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 with 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.

124.

Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.‖

―1. The present group of cases arises out of two reference orders— the first by a two-Judge Bench referred to in a second reference order, dated 15.11.2017, which is by a three-Judge Bench, which has referred the correctness of the decision in M. Nagaraj Vs. Union of India, (2006) 8 SCC 212, (―Nagaraj‖), to a Constitution Bench.

***

21.

Thus, we conclude that the judgment in Nagaraj (supra) does not need to be referred to a seven– Judge Bench. However, the conclusion in Nagaraj (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney Vs. Union of India (Indra Sawhney 1), (1992) Suppl. 3 SCC 217 = (1992) 2 Suppl. SCR 454 is held to be invalid to this extent.‖

―12. In view of the judgments as referred above, 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. The advocate for State specifically admitted that the Govt. has not issued any executive order or has passed any legislation. 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. As is evident from the order of the High Court, the State in its counter affidavit has taken the stand that there is no necessity for bringing out any law to extend the benefit of seniority for those who are promoted in reserved vacancies. 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 this Court. The Resolution has no legal basis. The Seniority/Gradation List dated 16.05.2001 of OAS-I (JB) was prepared correctly by following the ratio laid down by this Court and in absence of any law or decision by way of executive order based on acceptable material for conferring additional benefit of consequential seniority, the Gradation List dated 03.03.2008 was prepared by altering the positions which were maintained in the List dated 16.05.2001. 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, as held by this Court. 13. Further, the submission of the learned counsel— Sri A. Subba Rao— that the benefit of reservation in promotion is given in the services of OAS-I for scheduled caste and scheduled tribe officers as per Section 10 of Orissa Act 38 of 1975, but same cannot be countenanced for the reason that such Act was enacted by the State of Orissa in the year 1975 but no provision is brought to our notice in such Act for giving the benefit of seniority for the promotees who were promoted in reserved vacancies. In absence of any provision in the said Act for conferring the benefit of seniority, and in absence of any amendment after Constitution (Eighty-Fifth) Amendment Act of 2001, by which Article 16(4A) was amended, benefit of seniority cannot be extended relying on Section 10 of the Act. In view of the stand of the respondent-State in the counter affidavit filed in the writ petition and further in view of the submission made by the learned counsel for the State of Orissa that no benefit of seniority was extended by any State Act or by any executive order by examining adequate representation in terms of Article 16(4A) of the Constitution, we do not find any merit in this appeal so as to interfere with the well reasoned judgment of the High Court. The judgment of this Court rendered in the case of Jarnail Singh, (2018) 10 SCC 396 relied on by the learned counsel for the appellants also would not take any further the case of the appellants. In the said judgment also for giving the benefit of promotion with consequential seniority, the need to examine adequate representation in posts in terms of the judgment of this Court in the case of M. Nagaraj, (2006) 8 SCC 212 is maintained. As such, the said judgment would not render any assistance for the case of appellants.

14.

For the aforesaid reasons, the appeal is dismissed with no order as to costs.‖

―32. Similarly, this court in Niravkumar Dilipbhai Makwana Vs. Gujarat Public Service Commission (2019) 9 SCR 47 while considering an identical factual situation involving a circular barring consideration of reserved category candidates on unreserved posts observed as under:

‗22. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time. ***

23.

In the instant case, the State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age-limit, experience, qualification, permitting number of chances in the written examination, etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post. ***

34.

There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the Circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.‘ The Court affirming the proposition of law stated that once relaxation has been taken by a reserved category candidate, they cannot be considered for unreserved vacancies. Inescapably, the aforesaid judgement also strengthens the view taken by us hereinabove interpreting the rules that if a reserved category candidate takes benefit of relaxation though at initial stage, it will effectively amount to taking relaxation even at the final stage of the selection process because without giving relaxation to him, he was not in a position to participate in the Main examination and to set forth his claim of cadre allocation.

‗32. On an analysis of the aforecited cases, we summarise as follows:

Whether a reserved candidate who has availed relaxation in fees/upper age limit to participate in open competition with general candidates may be recruited against unreserved seats would depend on the facts of each case. That is to say, in the event there is no embargo in the recruitment rules/employment notification, such reserved candidates who have scored higher than the last selected unreserved candidate shall be entitled to migrate and be recruited against unreserved seats. However, if an embargo is imposed under relevant recruitment rules, such reserved candidates shall not be permitted to migrate to general category seats. ***

33.

Accordingly, we hold as the respondents-writ petitioners had availed concession of age for participating in the recruitment process, in the teeth of office memorandum dated 01.07.1998, the High Court was wrong in applying the ratio in Jitendra Kumar (supra) and permitting them to be considered for appointment in the unreserved category. Consequently, we set aside the common impugned judgment and order dated 12.10.2018 and order dated 26.02.2019 and allow the appeals. Pending application(s) if any, stand disposed of.‘

―20. In view of the multifaceted nature of reservation in India, a unique service law jurisprudence spurred by Constitutional mandate has emerged. Reservations have been classified into two categories, namely, vertical and horizontal, with respect to which certain judicial norms have evolved through a series of landmark decisions. The definitions and interrelationship between the two kinds of reservations have been succinctly described in the landmark case of Indra Sawhney Vs. Union of India, (1992) Supp. 2 SCR 454 = (1992) Supp. 3 SCC 217, in the following words:

‗812. *** the reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations— that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains— and should remain— the same. ***‘

21.

In respect of vertical reservation, the social reserved category posts are to be filled by the candidates belonging to that social category only and not by others. However, with reference to the Unreserved or Open category posts, there is no such restrictions as it could be filled up by anyone from any category and there could be movement from one reserved category to the Unreserved category based on merit, which is called mobility in reservation. This movement from a reserved category to the unreserved, however, will not affect the quota for the reserved category. This principle has been indicated by this Court in Indra Sawhney (supra) in the following words:

―811.In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.‘

―59. The features of vertical reservations are:

59.1.

They cannot be filled by the open category, or categories of candidates other than those specified and have to be filled by candidates of the social category concerned only (SC/ST/OBC).

59.2.

Mobility (―migration‖) from the reserved (specified category) to the unreserved (open category) slot is possible, based on meritorious performance.

59.3.

In case of migration from reserved to open category, the vacancy in the reserved category should be filled by another person from the same specified category, lower in rank.

59.4.

If the vacancies cannot be filled by the specified categories due to shortfall of candidates, the vacancies are to be ―carried forward‖ or dealt with appropriately by rules.

60.

Horizontal reservations on the other hand, by their nature, are not inviolate pools or carved in stone. They are premised on their overlaps and are ―interlocking‖ reservations [The expression used by B.P. Jeevan Reddy, J., in Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217. As a sequel, they are to be calculated concurrently and along with the inviolate ―vertical‖ (or ―social‖) reservation quotas, by application of the various steps laid out with clarity in para 21.3. The first rule that applies to filling horizontal reservation quotas is one of adjustment i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation.

23.

In the horizontal reservation there is also the concept of overall reservation and compartmental horizontal, which has been explained in Anil Kumar Gupta v. State of U.P., (1995) Supp. 2 SCR 396 = (1995) 5 SCC 173 in the following manner:

‗15. On a careful consideration of the revised notification of 17.12.1994 and the aforementioned corrigendum issued by the Lucknow University, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: take this very case; out of the total 746 seats, 112 seats (representing fifteen per cent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for OBCs; if the 112 special reservation seats are also divided proportionately as between OC, OBC, SC and ST, 30 seats would be allocated to the OBC category; in other words, thirty special category students can be accommodated in the OBC category; but say only ten special reservation candidates belonging to OBC are available, then these ten candidates will, of course, be allocated among OBC quota but the remaining twenty seats cannot be transferred to OC category (they will be available for OBC candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in OC category or not; the special reservation would be a watertight compartment in each of the vertical reservation classes (OC, OBC, SC and ST). As against this, what happens in the overall reservation is that while allocating the special reservation students to their respective social reservation category, the overall reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to OC category which means that the number of special reservation candidates in OC category would be 56 + 20 = 76. Further, if no special reservation candidate belonging to SC and ST is available then the proportionate number of seats meant for special reservation candidates in SC and ST also get transferred to OC category. The result would be that 102 special reservation candidates have to be accommodated in the OC category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between OC, OBC, SC and ST will not be altered.‘

24.

In the present case, though the reservation pattern as indicated in the advertisement is of compartmentalised reservation, it may not be necessary to dwell on that aspect much further, as the issue involved in the present case is only about the mobility of a PWD-LV candidate from a reserved category of OBC-A to the Unreserved horizontal category of UR(PWD-LV).‖

―Tribal Welfare Department

ORDER

The 15th March 1994

S.R.O. No.244/1994—

In exercise of the powers conferred by sub-section(2) of Section 4 of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (Orissa Act 38 of 1975) and in supersession of the order of the Government of Orissa in the erstwhile Harijan & Tribal Welfare Department No.3989, dated the 15th February 1983, the State Government do hereby determine that the reservation of vacancies in posts and services in the case of initial recruitment as well as promotion—

(i)

for the Scheduled Castes shall be at 16.25 per cent; and

(ii)

for the Scheduled Tribes shall be at 22.50 per cent of the total number of vacancies.

[No.9144-Emp.(V)-18/94-(T.W.)]

By order of the Governor

M. K. PURKAIT

Commissioner-cum-Secretary

to Goverrnment‖

―Government of Odisha

General Administration and

Public Grievances Department

No.10094/GAD-SC-GCS-0064-2023/Gen. Bhubaneswar,

Dated the 10^th April, 2023

To

The Special Secretary to Government, Water Resources Department.

Sub: Clarification on ‗zone of consideration and criteria for promotion ‗for compliance of court orders passed in favour of Assistant Engineers (Civil) belonging to Scheduled Caste Category of this Department regarding their promotion to the rank of Assistant Executive Engineer (Civil) against unreserved vacancy on merit-cum-seniority basis.

Sir,

In inviting reference to your Letter No.3821/WR, dated 13.02 2023 on the subject cited above, I am directed to clarify the following points:

Sl. No.	Question	Clarification
3	A detailed description on ‗own merit by direct recruitment and own merit by promotion‘ and how to determine the merit between two employees: i) When they belong to same batch in same grade i.e., one employee belonging to SC/ST category appointed against UR vacancy and placed above another employee belonging to General Caste category appointed against UR vacancy. ii) When they belong to two different batches in same grade i.e., one employee belonging to SC/ST category appointed against SC/ST vacancy from earlier batch and placed above another employee belonging to General Caste category appointed against UR vacancy from later batch.	In this respect, the considered views of Law Department has been received as at (NIL Noting 9-10, Page1) which is reproduced below: i) The reserved category officers who have availed reservation in appointment and falling in seniority/merit above the last unreserved candidate could be promoted against unreserved vacancy treating them as ‗own merit‘. ii) Scheduled Caste/ Scheduled Tribe candidates appointed on their own merit can be considered for promotion and adjusted against the unreserved vacancies. Similarly, SC/ST candidates who have availed reservation in appointment and falling in seniority/merit above the last unreserved candidate could be promoted against unreserved vacancy. iii) Senior reserved category candidates (not appointed on their own merit) in the gradation would be considered in zone of consideration for unreserved vacancies. It is mentioned here that where junior vertical reservation candidates like SEBC, Ex-Servicemen & General R.A. appointees (who are Junior in feeder Cadre to SC & ST candidates) avail UR posts in promotion. Now it is prudent enough to say the senior/merit SC & ST candidates can avail the UR post in promotion because UR is not a category in itself and it is open to all the so-called reserved categories, even an SC/ST/OBC candidate can be considered under the unreserved post on his/her own merit/seniority. It is well articulated in Criteria for Promotion Rules, 1992, that: (a) All promotions to the posts or grades of different Services/Civil posts under the State Government shall be made by selection; (b) Selection for such promotion shall be made on the basis of merit and suitability in all respects with due regard to seniority and the names of persons included in the select list shall be arranged in order of seniority in the feeder service or grade: Provided that any junior officer of exceptional merit and suitability may be assigned a place higher than his seniors and in such cases the assignment of higher position to the junior officer shall be limited to the same

batch or year of allotment except where an officer of the earlier batch; or year of allotment is found unsuitable for promotion.

―1.1 Background:

This report is prepared by the Scheduled Caste and Scheduled Tribe Development Department, Government of Odisha for submission to General Administration Department pursuant to the judgment dt. 26.09.2018 of Hon‘ble Supreme Court in Special Leave Petition (Civil) No.30621 of 2011 filed by Jarnail Singh and others Vrs Lachhmi Narain Gupta & others along with SLP (C) No. 31735 of 2011 and SLP(C) No. 22985 of 2018 and a number of similar Leave Petitions clubbed together which gave the ruling that the 77th & 85th Constitutional amendments are constitutionally valid and that these are enabling provisions and States will have to make out a case for providing reservations in promotion with consequential seniority based on quantifiable data that such reservation became necessary on account of inadequacy of representation of Scheduled Castes/ Scheduled Tribes in a particular class or classes of posts without affecting the general efficiency of service as mandated under Article 335 of the Constitution. In the light of such a judgment pronounced by the Hon‘ble Supreme Court, it is incumbent on the part of the State Government to prepare a report indicating the following two components:

I. Quantifiable data indicating inadequacy of representation of Scheduled Castes and Scheduled Tribes in Government Services.

II. Observations on overall Administrative Efficiency of Government is Machinery in the Light of Reservations in Government Services in Odisha.

Government of Odisha has made an effort to come up with a report basing on the data provided by various Government Departments as on 31.03.2015 in respect of the above two components which was collected in compliance with the requirement of the judgement of the Hon‘ble Supreme Court in M. Nagraj case versus Union of India & Others.‖

―6.4 Conclusion:

Thus, from the above analysis of facts and statistics, it is clear that the Scheduled Castes and Scheduled Tribes suffer from a large number of socio-economic disabilities and they have inadequate representation in Government services both in direct recruitment posts and also in the promotional posts. However, the data collected from the administrative departments further shows that there is no adverse impact of representation of Scheduled Castes and Scheduled Tribes in Government jobs, particularly in case of promotional posts. In other words, reservation of posts has no bearing on the administrative inefficiency in the State of Odisha as is revealed from the available data.‖

―Government of Odisha

ST & SC Development, Minorities &

Backward Classes Welfare Department

***

No.9838/STSCD-RP-Policy-0012-2013/SSD Bhubaneswar, Dated 06.05.2024

From

Ms. Roopa Roshan Sahoo, IAS

Commissioner-cum-Secretary to Government

The Additional Chief Secretarieis/Principal Secretaries/

Commissioner-cum-Secretaries to Government

All Departments

Sub: Clartfication on the concept of ‗own merit‘ in direct recruitment/promotion

Madam/Sir,

In inviting a reference to the subject mentioned above, I am to say that a clarification was sought from the Law Department with respect to the concept of ‗own merit‘ In promotion to the unreserved vacancies from among the reserved category candidates in the gradation list. The Law Department, after taking into consideration the various case matters has elucidated in detail the above point. The detailed views of the Law Department issued on 27.02.2024 is enclosed herewith for inference, and necessary action of all Departments.

Further, DoPT, Government of India vide OM No.36012/16/2019-Estt. (Res.) dated 12.04.2022 (copy enclosed) has clarified that in the judgment dated 28.01.2022 in the case of Jarnail Singh and Ors. Vs. Lachhmi Narain Gupta and Ors, which currently holds the field, the Supreme Court has set out conditions that are to be satisfied by the Government in order to implement the policy of reservation in promotions. The same has to be ensured before the DPC, by all the Departments for avoiding any legal complications in future.

This is for your kind information and necessary action.

Yours faithfully,

Commissioner-cum-Secretary

to Government‖ (Criteria for Promotion) Rules, 1992^{1010.Rule 6 of the Odisha Civil Services (Criteria for Promotion) Rules, 1992, reads as follows: ―6. If any doubt arises on interpretation of any of the provisions of these rules, it shall be referred to Government in General Administration Department for final decision.‖} as well as Article 154 and Article 162 of the Constitution of India and having observed so, the learned Single Judge held the impugned clarification issued on 06.05.2024 directed to be followed as circulated by way of communication dated 27.02.2025 basing on the opinion of the Law Department on 27.02.2024 is not tenable in the eye of law and, quashed the same. Nevertheless, this Court, as observed in the foregoing paragraphs that, the learned Single Judge being not apprise of elaborate ―Report on quantification of data regarding the SCs and STs with regard to inadequate representation in Government Services and Overall Administrative efficiency of Government machineries in the Light of Reservations in Government Services in Odisha‖ as prepared by the Scheduled Tribes and Scheduled Castes Development Department on 26.06.2019, he had no occasion to deal with the issue raised by the respective parties in proper perspective. Therefore, this Court does perceive that the appellants have made out a case for reconsideration of the merit of the writ petition(s) afresh on each point.