PHOLPATI DEVI Vs. ASHA JAISWAL

JUDGEMENT

(1.) HEARD Sri M. M. Sahai for the appellant, Sri Sanjeev Singh for respondent No. 1 and learned Standing Counsel for respondent Nos. 2 and 3.

(2.) THIS intra Court appeal has been preferred against the judgment dated 22. 4. 2004 passed by Hon'ble Single Judge by which it has allowed the writ petition of petitioner-respondent No. 1 (hereinafter referred to as 'respondent No. 1') observing that at the time when recruitment in question was made, the Statute did not provide any reservation in promotion for Scheduled Castes, scheduled tribes and therefore, the appointment of respondent No. 4 treating the vacancy reserved for Scheduled Castes was illegal.

(3.) THE question as to whether reservation in promotion is permissible or not came up for consideration before the Apex Court in Indira Sawhney v. Union of India and others, AIR 1997 SC 597 and the Apex Court clearly held that reservation in promotion is permissible under Article 16 (4-A) of the Constitution of India though majority decision at that time deprecated the practice of providing reservation in promotion and said that after the short while, i. e. five years such reservation must come to an end. THEreafter, the Parliament amended the Constitution and inserted Article 16 (4-A) which specifically made it permissible to the authorities concerned to provide reservation in promotion if necessary provisions have been made in this regard. In view of the amendment in the Constitution, if law has been made, namely, either by the Legislature itself or by Subordinate Legislation or even by Executive Orders providing for reservation in promotion for scheduled castes/scheduled tribes, such reservation is permissible in law and it cannot be said that it is unconstitutional. Here, in the case in hand, the Government Order dated 12. 7. 1978 admittedly provided for reservation in promotion in educational institutions and the said Government Order having not been superseded by any subsequent enactment, it continued and therefore, the Hon'ble Single Judge was wrong in holding that the reservation in promotion in educational institutions was not available.