Petitioner is an Association of employees working in Government Industrial Training Institute. They filed O.A.No.7150 of 1998 seeking for a direction to implement the Government's order in G.O.Ms.No.44 Adi Dravidar and Tribal Welfare Department dated 20.05.1998 and after taking note of the constitutional mandate which provides reservation for filling up the vacancy either directly or by promotion. G.O.Ms.No.44 Adi Dravidar and Tribal Welfare Department dated 20.05.1998 came to be issued in the context of the judgment of the Supreme Court in Indra Sawhney's case dated 16.11.1992. In the said Government Order, in para 6 to 8, it has been observed as follows:
"6.This Committee shall function as a Standing Committee. The Committee shall take up the review of all departments/Institutions at least once in a year. The Chairman of the Committee shall decide the periodicity and the number of meetings of the Committee.
7.Based on the review and assessment of the number of posts in the Groups A, B, C, D selection by direct recruitment in respect of Scs/STs shall be undertaken by the recruitment bodies and agencies like the Tamil Nadu Public Service Commission, Tamil Nadu Uniformed Services Recruitment Board and Teachers Recruitment Board and appointments shall be made immediately.
8.The Secretaries to Government in all Departments, the Head of Departments etc., shall be responsible to implement the orders fully. Based on these orders, the Secretary to Government, Adi Dravidar and Tribal Welfare Department shall function as a Nodal Officer to evaluate and aid the functions of other departments in this regard."
Therefore, the petitioner wanted all the backlog vacancies to be filled up with the Scheduled Caste candidates.
2.On notice from the Tribunal, the respondents have filed reply affidavit dated 05.12.2001. In para 22 of the reply affidavit, it was stated that the Government's decision to fill up backlog vacancies from 01.04.1989 was only to the entry level post in all categories with reference to G.O.Ms.No.33 Adi Dravidar and Tribal Welfare Department dated 08.05.2000 within a period of five years and therefore in view of the subsequent decision of the State Government, the earlier order in G.O.Ms.No.44 is no longer operative. Further, it was also stated that there are no backlog vacancies in any of the posts mentioned by the petitioner-Association. It was further stated that the rule of reservation is not followed for promotion as per the orders of the Government.
3.In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.38094 of 2006.
4.It must be noted that subsequent to the judgment in Indra Sawhney Vs. Union of India (1992 Supp (3) SCC 217), Constitution was amended by the 77th amendment and
Article 16(4A) was introduced with effect from 17.06.1995. The said provision is only an enabling provision. Unless the State Government decides to provide reservation by amending appropriate Rules, the question of Court giving direction to implement the said provision by providing reservation for promotion to the post does not arise. The Supreme Court vide its judgment in Ajit Singh Vs. State of Punjab ((1999) 7 SCC 209) has held that
Article 16(4A) do not confer any fundamental right nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation of the circumstances mentioned in those Articles so warranted. In the light of the same, the writ petition shall stand dismissed. No costs.
mmi To
1.The Secretary to Government, Labour and Employment, Fort St. George, Chennai 9.
2.The Director, Employment and Training, Chennai 5.
3.The Secretary, Ministry of Adi Dravida Welfare Dept., Chennai 5.
4.The Nodal Officer for SC/ST Grievance Cell, Directorate of Employment and Training, Chennai 5