GYAN CHAND Vs. STATE OF UTTARAKHAND AND OTHERS

JUDGEMENT

(1.) Heard Sri M.S. Tyagi, learned counsel for the petitioner and Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand and, with their consent, this writ petition is being disposed of at the stage of admission.

(2.) Reservation in promotion in favour of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes was extended by the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short 'the 1994 Act'), which was enacted by the then U.P. State Legislature on 22.03.1994. Section 3(7) of the 1994 Act stipulated that if, on the date of commencement of the Act, reservation was in force under Government Orders, for appointment to posts to be filled up by promotion, such Government Orders shall continue to be applicable till they are modified or revoked. The constitutional validity of Section 3(7) of the 1994 Act was subjected to challenge before the Allahabad High Court and, in the light of two conflicting judgments, the said controversy was resolved by the Supreme Court in U.P. Power Corporation vs. Rajesh Kumar (judgment in Civil Appeal No. 2608 of 2011 and batch dated 27.04.2012) holding that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules were ultra vires as they ran counter to the dictum in M. Nagaraj and others s. Union of India and others, 2006 8 SCC 212; and any promotion that had been given on the dictum of Indra Sawhney vs. Union of India, 1992 Supp3 SCC 217, and without the aid or assistance of Section 3(7) and Rule 8A, would remain undisturbed.

(3.) Thereafter, a Division Bench of this Court, in Vinod Prakash Nautiyal and others vs. State of Uttarakhand and others (judgment in Writ Petition (S/B) No. 45 of 2011 dated 10.07.2012), declared Section 3(7) of the 1994 Act, which was adopted by the State of Uttarakhand, as suffering from the same vires as was pronounced by the Supreme Court in its order in Civil Appeal No. 2608 of 2011 and batch. The Division Bench held that no further promotion could be granted; its pronouncement was prospective with effect from the date of the first interim order passed in that writ petition and connected writ petitions, as persons who had been promoted prior thereto were not before the Court. The Division Bench, however, made it clear that, henceforth, no promotion could be given by the State of Uttarakhand by taking recourse to Section 3(7) of the Act; and the said provision should be deemed to be nonexistent from that day.