Supreme Court clarifies the application of the ‘catch-up’ rule in promotions for reserved categories: Sudhakar Baburao Nangnure vs. Noreshwar Raghunathrao Shende & Ors (2019)

LEGAL ISSUE: Whether the ‘catch-up’ rule applies to promotions of reserved category candidates and their seniority in higher posts.

CASE TYPE: Service Law (Promotions and Seniority)

Case Name: Sudhakar Baburao Nangnure vs. Noreshwar Raghunathrao Shende & Ors

[Judgment Date]: March 5, 2019

Date of the Judgment: March 5, 2019

Citation: 2019 INSC 193

Judges: Dr. Dhananjaya Y Chandrachud, J. and Hemant Gupta, J.

Can a government employee from the general category regain seniority over a reserved category employee who was promoted earlier? The Supreme Court of India addressed this complex issue in a recent judgment, clarifying the application of the ‘catch-up’ rule in promotions and seniority. This case revolves around two officers in the Maharashtra government, one from the open category and the other from a Scheduled Caste, and their competing claims for seniority after promotions.

The judgment was delivered by a two-judge bench comprising Dr. Dhananjaya Y Chandrachud, J. and Hemant Gupta, J. with the opinion authored by Dr. Dhananjaya Y Chandrachud, J.

Case Background

The case involves a dispute between Sudhakar Baburao Nangnure (appellant), belonging to the open category, and Noreshwar Raghunathrao Shende (first respondent), belonging to the Scheduled Caste, both officers in the Maharashtra Government. The dispute arose from their promotions and the subsequent determination of their seniority in higher posts.

Both the appellant and the first respondent were selected for the post of Town Planner on 1 July 1992. The appellant was promoted as Deputy Director of Town Planning (DDTP) on 1 November 2003, and the first respondent was promoted as DDTP on 3 August 2006. Subsequently, the first respondent was promoted as Joint Director of Town Planning (JDTP) on 11 August 2011, while the appellant was promoted to the same post on 2 July 2013.

The appellant claimed that despite being senior to the first respondent in the feeder cadre of DDTP, the first respondent was promoted earlier to JDTP based on a reserved vacancy. The appellant argued that the ‘catch-up’ rule should apply, allowing him to regain seniority over the first respondent once he was also promoted to JDTP. The appellant also challenged the validity of the first respondent’s promotion, arguing it was based on a circular that was later deemed invalid by the Bombay High Court.

The appellant’s primary contention was that the State government had not collected quantifiable data to justify granting consequential seniority to reserved category promotees, as mandated by the Supreme Court’s decision in M Nagaraj v Union of India [(2006) 8 SCC 212].

Timeline

Course of Proceedings

The appellant initially filed an Original Application (O.A.) before the Maharashtra Administrative Tribunal challenging the seniority list of JDTPs. The Tribunal ruled in favor of the appellant, quashing the seniority list and directing the preparation of a fresh list. The Tribunal also directed a fresh promotion order to the post of DTP.

The first respondent challenged the Tribunal’s decision before the High Court of Judicature at Bombay. The High Court allowed the writ petitions, setting aside the Tribunal’s decision. The appellant then approached the Supreme Court, which initially allowed the appellant to withdraw the Special Leave Petition and pursue a review before the High Court.

The High Court dismissed the review petitions, leading the appellant to file a fresh Special Leave Petition before the Supreme Court.

Legal Framework

The Supreme Court examined the following legal provisions and principles:

• Article 16(1) of the Constitution of India: Guarantees equality of opportunity in matters of public employment.
• Article 16(4A) of the Constitution of India: Enables the State to make provisions for reservation in promotions with consequential seniority for Scheduled Castes and Scheduled Tribes.
• Maharashtra Civil Services (Regulation of Seniority) Rules 1982: Rule 4 stipulates that seniority is generally determined by the length of continuous service.
• The Maharashtra State Public Services (Reservation for Scheduled Castes, Schedules Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act 2001 (Reservation Act 2004):
  • Section 5(1): Provides that reservation in promotion shall be at all stages of promotions.
  • Section 5(2): Saves government orders providing for reservation of posts to be filled by promotion.
  • Section 11: States that any appointment made in contravention of the provisions of the Act shall be void.
• Government Resolution (GR) dated 20 March 2003: Provides for consequential seniority for reserved category candidates in promotional cadres based on their regular date of promotion.
• Directorate of Town Planning and Valuation (Recruitment) Rules 2011: Rule 3 prescribes eligibility criteria for promotion to the post of Director of Town Planning (DTP), requiring a minimum of three years of regular service as Joint Director of Town Planning (JDTP).

The Court also considered the interplay between these provisions and the principle of consequential seniority, the ‘catch-up’ rule, and the need for quantifiable data to justify reservations in promotions.

Arguments

The arguments presented by both sides are summarized below:

Appellant’s Arguments:

• The appellant was senior to the first respondent in the feeder cadre of DDTP.
• Even if the first respondent’s promotion as JDTP was regular, the ‘catch-up’ rule should apply, allowing the appellant to regain seniority upon his promotion to the same post.
• The Government of Maharashtra’s circular dated 20 March 2003, which grants consequential seniority to reserved candidates, is invalid because the State did not collect quantifiable data as required by the Supreme Court in M Nagaraj v Union of India [(2006) 8 SCC 212].
• The circular dated 20 March 2003 cannot be construed as granting consequential seniority to a reserved candidate on the promotion to a higher post, in the absence of the collection of quantifiable date, as required by the decision of this Court in Nagaraj (supra).
• At the time the circular dated 20 March 2003 was issued, reservation in the state services was only until the entry level of class-I posts, in this case DDTP.
• Reservation within the Class-I posts was brought about for the first time by the Reservation Act 2004.
• Sections 5 and 6 of the Reservation Act 2004 specifically save certain existing circulars, and the circular on consequential seniority is not one of them. Anything done in violation of the Act is void under Section 11 of the Reservation Act 2004.
• The promotion of the first respondent on 11 August 2011 was based on a GAD circular dated 27 October 2008, which was later held to be ultra vires by the Bombay High Court in Magas Varga Karmachari-Adhikari Suraksha Mahasangh v State of Maharashtra. Therefore, his promotion is not regular and does not entitle him to seniority.
• The promotion of the first respondent as JDTP was ad-hoc, not a regular appointment, and thus he is not entitled to consequential seniority.
• The final seniority list published by the State on 15 January 2016 is in breach of the settled position of law governing consequential seniority for reserved category promotees as settled by the Constitution Bench of this Court in Nagaraj (supra).

First Respondent’s Arguments:

• The scope of adjudication should be limited to the applicability of the ‘catch-up’ rule.
• The appellant did not challenge the first respondent’s promotion to JDTP on 11 August 2011 in the O.A. before the Tribunal, and thus cannot do so now.
• The ‘catch-up’ rule can only apply if the first respondent’s promotion on 11 August 2011 is considered valid and regular.
• The first respondent’s promotion to JDTP was not ad-hoc or irregular.
• Rule 4 of the Maharashtra Civil Services (Regulation of Seniority) Rules 1982 stipulates that seniority is determined by the length of continuous service.
• Section 5(1) of the Reservation Act 2004 stipulates that reservation shall be at all stages of promotion, giving effect to Article 16 (4A).
• Section 5(2) of the Reservation Act 2004 saves all government orders providing for reservation of posts by promotion.
• The principle of consequential seniority can be provided in a rule or executive order as held in Indra Sawhney v Union of India [1992 Supp. (3) SCC 217]. Therefore, the State government was competent to provide for consequential seniority in its GR dated 20 March 2003.
• By a GR dated 20 October 1997, it was stipulated that a Backward Class officer will retain seniority in a promotional cadre by the date of regular appointment, according to the seniority rules.
• The GR dated 20 March 2003 was issued after the amendment of Article 16 (4A) by the 85th Amendment, expressly recognizing that seniority among Backward Classes/non-Backward Class candidates in government service in the promoted cadre shall be fixed on the basis of the regular dates of their promotion.
• Even if the appellant’s seniority is protected in the cadre of JDTP, he did not have the required eligibility for promotion to the post of DTP, as he did not complete three years of service as JDTP by the time the vacancy arose.

The innovativeness of the argument of the appellant was that the State of Maharashtra had not undertaken any exercise to quantify and demonstrate the inadequacy of representation to the Scheduled Castes in the matter of promotion to the senior cadre in the Town Planning and Valuation Department (Recruitment) Rules 1984. Absent such an exercise, it was urged that the mandate of a Constitution Bench decision of this Court in M Nagaraj v Union of India [(2006) 8 SCC 212] had not been fulfilled.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the main issues that the court addressed can be summarized as follows:

1. Whether the ‘catch-up’ rule applies to promotions of reserved category candidates, allowing a senior general category candidate to regain seniority upon promotion to the same level.
2. Whether the Government Resolution (GR) dated 20 March 2003, providing for consequential seniority, is valid and applicable.
3. Whether the first respondent’s promotion to JDTP was regular and valid.
4. Whether the appellant was eligible for promotion to the post of DTP.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court held that the ‘catch-up’ rule would not apply in this case due to the existence of the Government Resolution (GR) dated 20 March 2003, which provides for consequential seniority. The Court also held that the State was competent to issue such an order. The Court also held that the Reservation Act 2004 does not deal with the issue of consequential seniority.

The Court also found that the appellant was not eligible for promotion to the post of Director of Town Planning (DTP) because he did not meet the minimum requirement of three years of regular service as Joint Director of Town Planning (JDTP) as prescribed by the Directorate of Town Planning and Valuation (Recruitment) Rules 2011.

The Court rejected the appellant’s argument that the first respondent’s promotion was irregular, noting that the appellant had not challenged the promotion in the original application before the Tribunal.

The Court emphasized that a challenge to the validity of the GR dated 20 March 2003 was absent in the pleadings before the Tribunal and the High Court. The Court also noted that entertaining such a challenge at this stage would have serious consequences in the State of Maharashtra by upsetting a significant number of promotions that may have already been granted to candidates belonging to the reserved category.

The Court also noted that the appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011, and therefore, it is not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court.

The Supreme Court dismissed the appeals, upholding the High Court’s judgment.

How each authority was viewed by the Court?

• Indra Sawhney v Union of India [1992 Supp. (3) SCC 217]*: The Court relied on this case to support the position that a provision for reservation can be made by an executive order, and that the test of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes.
• Union of India v Virpal Singh Chauhan [(1995) 6 SCC 684]*: The Court acknowledged this case as the origin of the ‘catch-up’ rule.
• Ajit Singh Januja v State of Punjab [(1996) 2 SCC 715]*: The Court noted that this case adopted the ‘catch-up’ rule.
• Jagdish Lal v State of Haryana [(1997) 6 SCC 538]*: The Court acknowledged that this case took a contrary view, but it was overruled.
• Ajit Singh (II) v State of Punjab [(1999) 7 SCC 209]*: The Court relied on this case to reiterate that the ‘catch-up’ rule was upheld and that Jagdish Lal (supra) was not correctly decided.
• M Nagaraj v Union of India [(2006) 8 SCC 212]*: The Court acknowledged this case’s requirement for the State to collect quantifiable data for reservations in promotions, but noted that the appellant did not specifically challenge the GR on this basis in the original pleadings.
• Jarnail Singh v Lachhmi Narain Gupta [(2018) 10 SCC 396]*: The Court noted that this case followed Nagaraj (supra), except for the requirement that the State must demonstrate backwardness as a condition for reservation in promotion for Scheduled Castes and Tribes.
• Suraj Bhan Meena v State of Rajasthan [(2011) 1 SCC 467]*: The Court acknowledged this case’s holding that reservation in promotion is dependent on the inadequacy of representation of Scheduled Castes and Tribes.
• Uttar Pradesh Power Corporation Limited v Rajesh Kumar [(2012) 7 SCC 1]*: The Court noted that this case followed Nagaraj (supra) and held that the State must collect quantifiable data before providing for reservation.
• S Panneer Selvam v State of Tamil Nadu [(2015) 10 SCC 292]*: The Court noted that this case held that consequential seniority cannot be granted to reserved category promotees in the absence of a specific provision or policy.
• B K Pavitra v Union of India [(2017) 4 SCC 620]*: The Court noted that this case followed Panneer Selvam (supra) and held that the State must demonstrate compelling necessity for exercise of power under Article 16(4A).
• Gaurav Pradhan v State of Rajasthan [(2018) 11 SCC 352]*: The Court relied on this case to reiterate that a provision for reservation can be madeby a legislative enactment or rules and also by an executive order.
• Roshan Lal v International Airport Authority of India [(1980) Suppl.SCC 449], P Chitharanja Menon v A Balakrishnan [(1977) 3 SCC 255], and Amarjeet Singh v Devi Ratan [(2010) 1 SCC 417]*: The Court noted that the High Court had relied on these cases to justify the delay in challenging the seniority list, but did not specifically comment on their applicability in the present case.
• R Prabha Devi v Union of India [(1988) 2 SCC 233]*: The Court relied on this case to emphasize that seniority in a particular cadre does not automatically entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules.
• Palure Bhaskar Rao v P Ramaseshaiah [(2017) 5 SCC 783]*: The Court relied on this case to reiterate that seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post.
• Sanjay K Sinha-II v State of Bihar [(2004) 10 SCC 734]*: The Court relied on this case to emphasize that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority.
• Bhupendra Nath Hazarika v State of Assam [(2013) 2 SCC 516]*: The Court relied on this case to reiterate that when the infrastructure is founded on total illegal edifice, the endeavor to put forth a claim for counting the previous service to build a pyramid is bound to founder.
• PV George v State of Kerala [(2007) 3 SCC 557] and BA Linga Reddy v Karnataka State Transport Authority [(2015) 4 SCC 515]*: The Court noted that these cases were relied upon to buttress the submission that the power of the High Court to strike down cannot be exercised prospectively.

Ratio Decidendi

The ratio decidendi (the legal principle upon which the decision is based) of this case can be summarized as follows:

• Consequential Seniority Overrides ‘Catch-Up’ Rule: In cases where a government has a valid policy or rule providing for consequential seniority to reserved category candidates upon promotion, the ‘catch-up’ rule will not apply. This means that a general category candidate promoted later to the same position will not regain seniority over a reserved category candidate who was promoted earlier.
• Validity of Executive Orders on Consequential Seniority: A Government Resolution (GR) or executive order providing for consequential seniority for reserved category candidates in promotions is valid if it is issued after the constitutional amendment to Article 16(4A) and does not contravene any legal provisions.
• Challenge to Promotions: A party cannot challenge the validity of a promotion at a later stage if it was not challenged in the original proceedings.
• Eligibility for Promotion: Seniority in a lower cadre does not automatically entitle a public servant for promotion to a higher post unless he fulfills the eligibility conditions prescribed by the relevant rules.

Obiter Dicta

The obiter dicta (statements made by the court that are not essential to the decision) in this case include:

• The court noted that the appellant did not specifically challenge the validity of the GR dated 20 March 2003 on the ground that the State had not collected quantifiable data as required by M Nagaraj v Union of India [(2006) 8 SCC 212], in the original pleadings.
• The Court noted that the appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011, and therefore, it is not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court.

Impact of the Judgment

This judgment has significant implications for the application of the ‘catch-up’ rule and the determination of seniority in promotions for reserved category candidates. The key impacts are:

• Clarification on Consequential Seniority: The judgment clarifies that if a government has a valid policy providing for consequential seniority to reserved category candidates, the ‘catch-up’ rule will not apply. This provides clarity to government departments in determining seniority in promotions.
• Emphasis on Eligibility: The judgment emphasizes that seniority alone does not guarantee promotion, and candidates must meet the eligibility criteria prescribed by the relevant rules.
• Importance of Challenging Promotions in Original Proceedings: The judgment highlights the importance of challenging promotions in the original proceedings and not at a later stage.
• Importance of Quantifiable Data for Reservation in Promotions: The Court noted that there was no specific challenge to the GR in the original pleadings on the ground that the State had not collected quantifiable data as required by M Nagaraj v Union of India [(2006) 8 SCC 212]. However, it does not mean that the State is not required to collect quantifiable data.