Constitution Not Charter Of Privilege, Reservation In Promotion Can't Be Introduced Without Statutory Amendment: P&H High Court
The Punjab & Haryana High Court has held that reservation in promotion cannot be implemented by executive action or policy decision in the absence of an enabling statutory rule framed under Article 309 of the Constitution.
The Court observed that the Department acted beyond its jurisdiction in granting promotion benefits to juniors belonging to Scheduled Caste category by extending reservation in promotion, even though the Haryana Health Department Subordinate Offices Ministerial Staff (Group-C) Service Rules, 1997 and Group-B Service Rules, 1982 contained no provision for such reservation.
Justice Sandeep Moudgil said, "In the present case, the respondent–department sought to introduce reservation in promotion by executive action by drawing inspiration from judicial decision without any amendment to the statutory rules. Such an approach disregards the balance that the framers of the Constitution, and later the Supreme Court, have sought to maintain between social justice and administrative merit."
The Court reiterated that promotion in public service is not merely a procedural elevation and it represents institutional recognition of merit, experience, and dedication.
"When employees who have consistently performed well are displaced due to earlier accelerated promotions granted under the umbrella of reservation, the equilibrium between inclusion and fairness is disturbed," it added.
Constitution Not Charter Of Privilege
The Court observed that the Constitution is not a charter of privilege but a framework of justice. "The protection of disadvantaged sections is an enduring constitutional mandate, yet it must be pursued through lawful means, consistent with the larger principles of equality and efficiency."
"The courts, as guardians of constitutional morality, must ensure that in seeking to uplift one section, the State does not inadvertently alienate another. Justice, to be just, must remain fair to all," the bench said.
The petitioners entered service as Clerks in the Health Department and were later promoted as Assistants. Their names were included in the seniority list for promotion to the post of Deputy Superintendent under the 1997 Rules.
However, during the promotion process conducted on 21 September 2010, certain junior officers were promoted under the Scheduled Caste category by applying reservation in promotion. The same pattern was repeated on 31 May 2013 during promotions to the post of Superintendent.
Despite making repeated representations pointing out that the applicable rules did not provide for reservation in promotion, the petitioners received no relief. Consequently, they approached the High Court challenging the promotion orders dated 13.09.2010 and 26.04.2011, seeking quashing of these orders and a direction for grant of promotion with retrospective effect.
The petitioners argued that the Department's action violated Articles 14 and 16(1) of the Constitution and was contrary to the statutory framework governing service promotions. It was submitted that neither the 1997 Group-C Rules nor the 1982 Group-B Rules contain any clause providing for reservation in promotion.
Their counsel contended that reservation in promotion can only be introduced through statutory amendment after satisfying constitutional preconditions, such as quantifiable data on backwardness and inadequate representation, as laid down in M. Nagaraj v. Union of India (2006) 8 SCC 212 and Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396.
Without amending the rules, the Department could not have relied on executive orders or judicial interpretations to extend reservation in promotion. The petitioners, being senior and eligible, had a vested right to be considered strictly under the existing rules.
The State defended its action by contending that the promotions were made in accordance with the government's policy and judicial pronouncements recognizing reservation in promotion for Scheduled Castes and Scheduled Tribes.
It was argued that after M. Nagaraj (supra) and Jarnail Singh (supra), the State was duty-bound to ensure adequate representation of Scheduled Castes in higher posts and thus extended the benefit of reservation in promotion to eligible employees.
The respondents further submitted that promotion is not a matter of right and depends on eligibility conditions, including reservation policy in force. The Department, it was claimed, acted bona fide in line with constitutional principles of social justice.
The Court undertook a detailed examination of the constitutional and legal framework governing reservation in promotion.
Referring to Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, the Court reiterated that reservation in promotion was initially impermissible and that the insertion of Article 16(4A) by the 77th Constitutional Amendment (1995) merely conferred an enabling power, not an automatic right, upon the State to provide reservation in promotion, and only after collecting quantifiable data demonstrating inadequate representation.
However, in the present case, the Court found that no amendment was made to the 1997 or 1982 Service Rules, and no exercise was undertaken to gather quantifiable data. The Department's reliance on “judicial pronouncements” and “policy directions” was therefore misplaced and legally unsustainable.
“Judicial pronouncements are interpretative tools, not vehicles of amendment. They do not substitute legislative or statutory action. The principle of separation of powers forbids reading into the Rules what the competent authority has consciously omitted,” the Court observed.
Citing Union of India v. Hemraj Singh Chauhan (2010) 4 SCC 290, the Court emphasized that the right to fair consideration for promotion is a facet of the fundamental right to equality under Articles 14 and 16 of the Constitution.
The Court observed that denying promotion to eligible seniors, while granting it to juniors in violation of service rules, constitutes arbitrary deprivation of service rights and offends the doctrine of fairness in public employment.
Allowing the writ petition, the Court held that the Department's action in granting reservation in promotion without amending the service rules was ultra vires and contrary to the constitutional and statutory scheme.
The Court directed that the petitioners be granted retrospective promotion to the posts of Deputy Superintendent (with effect from 21.09.2010) and Superintendent (with effect from 31.05.2013), along with all consequential benefits, including seniority, pay fixation, and arrears.
Mr. Ravinder Malik (Ravi), Advocate with Mr. Garvit Mittal, Advocate and
Mr. Ritender Rathee, Advocate for the petitioners
Mr. Sushil Bhardwaj, Addl. AG Haryana
Title: OM PRAKASH AND ANOTHER v. STATE OF HARYANA AND ORS.
Citation: 2025 LiveLaw (PH) 427