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Tuesday, February 14, 2017

the question of validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 (the impugned Act). The Act inter alia provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy. It also protects consequential seniority already accorded from 27th April, 1978 onwards.= In view of the above, we allow these appeals, set aside the impugned judgment and declare the provisions of the impugned Act to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution.

                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 2368 OF 2011



B.K. PAVITRA  & ORS.
…APPELLANTS

                                   VERSUS

UNION OF INDIA &  ORS.                                   ...RESPONDENTS


                                    WITH

CIVIL APPEAL NOS.2369 OF 2011, 2370-2373 OF 2011, 2374-2377 OF 2011, 2378
OF 2011, 2379 OF 2011, 4320-4327 OF 2011 AND 5280-5286 OF 2011


                               J U D G M E N T


ADARSH KUMAR GOEL, J


1.    These appeals involve  the  question  of  validity  of  the  Karnataka
Determination of  Seniority of  the  Government  Servants  Promoted  on  the
Basis of Reservation (To the Posts in the Civil Services of the State)  Act,
2002 (the  impugned  Act).   The  Act  inter  alia  provides  for  grant  of
consequential seniority to the Government servants  belonging  to  Scheduled
Castes and the Scheduled Tribes promoted under reservation policy.  It  also
protects consequential seniority already  accorded  from  27th  April,  1978
onwards.


2.    The validity of the Act was challenged before this  Court  by  way  of
Writ Petition (Civil) No.61 of 2002 titled M. Nagaraj and  others  v.  Union
of India and others.  The  issue  referred  to  larger  Bench  in  the  writ
petition along with connected matters was decided  by  this  Court  on  19th
October, 2006[1].   While  upholding  the  constitutional  validity  of  the
Constitution  (seventy-seventh  Amendment)  Act,  1995;   the   Constitution
(Eighty-first  Amendment)  Act,  2000;   the   Constitution   (Eighty-Second
Amendment) Act, 2000 and  the  Constitution  (Eighty-fifth  Amendment)  Act,
2001,  individual  matters  were  remitted  to  the  appropriate   Bench[2].
Thereafter, the matter was remitted back to the High Court for deciding  the
question of validity of the said enactment[3].


3.    The petition was re-numbered  by  the  High  Court  as  Writ  Petition
(Civil) No.14672 of 2010.  The High Court by the impugned judgment has  held
the Act to be valid.  The question framed  for  determination  by  the  High
Court is as follows :


“Whether the State Government has  shown  the  compelling  reasons,  namely,
backwardness,  inadequacy  of  representation  and  overall   administrative
efficiency before making provision for reservation for Scheduled Castes  and
Scheduled Tribes in matters of promotion and as to  whether  the  extent  of
reservation provided for promotion in favour of  the  persons  belonging  to
Scheduled Castes and  Scheduled  Tribes  at  15%  and  3%  respectively,  in
Karnataka is justified?





4.    It will be appropriate  to  notice  the  factual  matrix  relevant  to
determine  the  controversy.   Policy  of  reservation  in   promotion   was
introduced in the State  of  Karnataka  vide  Government  Order  dated  27th
April, 1978.  The reservation in promotion was provided to the SCs  and  STs
to the extent of 15% and 3% respectively  but  upto  and  inclusive  of  the
lowest Group-A posts in the cadres where  there  is  no  element  of  direct
recruitment and where the direct recruitment does not exceed             66?
%.  A roster of 33 points was issued  applicable  to  each  cadre  of  posts
under each appointing authority.  Prior to 1st April,  1992,  there  was  no
carry forward system of the vacancies.  It  was  introduced  on  1st  April,
1992.  In the stream of graduate Engineers,  the  reservation  in  promotion
was available upto and inclusive of third level, i.e.,  Executive  Engineers
upto 1999 and on the date of filing  of  the  petition  (in  2002),  it  was
available  upto  second  level,  i.e.  Assistant  Executive  Engineer.    In
Diploma Engineers,  it  was  available  upto  third  level,  i.e.  Assistant
Executive Engineer – Division II.  According to  the  appellants,  Assistant
Engineers of SC/ST category recruited in the year 1987 were promoted to  the
cadre of Assistant Executive Engineers while  in  general  merit,  Assistant
Engineers recruited in 1976  were  considered  for  promotion  to  the  said
cadre.  The representation of the SC/ST group was as follows:


EE Cadre               19.9%


SE Cadre               23.95%


CE Cadre               4.3% (being a selection post)


Engineer-in-chief      44.44%


5.    Thus, according to the  appellants,  SC/ST  candidates  got  promotion
early and  on  account  of  consequential  seniority,  percentage  of  SC/ST
candidates was much  higher  than  the  permitted  percentage  and  all  top
positions were likely to be filled up by SC/ST  candidates  without  general
merit candidates getting to higher positions.  This  aspect  was  considered
in the judgment of this Court dated 1st December, 2000 in M.G.  Badappanavar
 v. State of Karnataka[4].  This Court applying the principles laid down  in
Ajit Singh Januja v. State of Punjab (Ajit Singh I)[5]; Ajit Singh  (II)  v.
State of Punjab[6] and  R.K.  Sabharwal  v.  State  of  Punjab[7]  issued  a
direction to the State of Karnataka to redo the seniority and  take  further
action in the light of the said judgments.  Pointing out the consequence  of
accelerated seniority to the roster point promotee, it has been  averred  in
the writ petition that the roster  point  promotee  would  reach  the  third
level by the age of 45 and fourth, fifth and sixth level in next three,  two
and two years.  The general merit promotee would reach the third level  only
at the age of 56 and retire before reaching the fourth level.    This  would
result in reverse discrimination and  representation  of  reserved  category
would range between 36% to 100%.


6.    Stand of the State and the contesting respondents who have been  given
promotion under the reservation, is that inter se seniority amongst  persons
promoted on any occasion is determined as per Karnataka Government  Servants
(Seniority) Rules, 1957 (1957 Rules).  By amendment dated  1st  April,  1992
provision was made to fill-up backlog vacancies which  was  upheld  by  this
Court in  Bhakta  Ramegowda  v.  State  of  Karnataka[8].   On  that  basis,
Government order dated 24th June, 1997 was issued for fixation of  seniority
of SC/ST  candidates  promoted  under  reservation.   Thus,  all  candidates
promoted ‘on the same  occasion’  retained  their  seniority  in  the  lower
cadre.  This aspect was not considered in Badappanavar (supra).   Extent  of
reservation for SC and ST was 15%  and  3%  respectively  on  the  basis  of
census  figures  of  1951,  though  the  population  of  SCs  and  STs   has
substantially increased.  As per census figures of  1991  population  of  SC
and ST was 16.38% and 4.26% respectively.  The stand of the appellants  that
the SC/ST candidates reach level four at 45 years or become Chief  Engineers
by 49 years or there is reverse discrimination has been denied.


7.    In the light of the above pleadings and judgment of this Court  in  M.
Nagaraj (supra), the matter was put in issue before  the  High  Court.   The
contention  raised  on  behalf  of  the  appellants  was   that   grant   of
consequential  seniority  to  candidates  promoted  by  way  of  reservation
affected efficiency of administration and was violative of Articles  14  and
16.  In spite of 85th  Amendment  having  been  upheld,  law  laid  down  in
Badappanavar (supra), Ajit Singh II (supra) and Union of  India  v.   Virpal
Chauhan[9] remained relevant in absence of  ‘backwardness’,  ‘inadequacy  of
representation’ and ‘overall administrative efficiency’ being  independently
determined.  The State Government had not provided any material or  data  to
show inadequacy of reservation to the members of SC/ST  nor  the  State  has
given any thought to the issue of overall administrative efficiency.


8.    On the other hand, the submission on behalf  of  the  State  was  that
reservation to SCs and STs to the extent of 15% and  3%  respectively  could
never be said to be excessive in view of progressive increase in  population
of SCs and STs.


9.    The High Court referring  to  this  Court’s  judgment  in  M.  Nagaraj
(supra)  observed  that  concept  of  “catch  up”  rule  and  “consequential
seniority”  are  judicially  evolved  concepts  to  control  the  effect  of
reservations. Deleting the said rule cannot by itself be  in  conflict  with
“equality code” under the Constitution.  The 85th Amendment gave freedom  to
the State  to  provide  for  reservation  in  promotion  with  consequential
seniority  under  Article  16(4-A)   if   ‘backwardness’,   ‘inadequacy   of
representation’ and ‘overall efficiency’ so warranted.  There  is  no  fixed
yardstick to identify and measure the above three  factors.   If  the  State
fails to identify and measure the above three factors, the  reservation  can
be invalid.  Examining whether the State had  in  fact  measured  the  above
factors, the High Court observed that  Order  dated  27th  April,  1978  was
issued by the State of Karnataka after considering the statistics  available
about the representation of SCs and STs in  promotional vacancies.   On  3rd
February, 1999, the policy was modified to limit  reservation  in  promotion
in cadre upto and inclusive of the  lowest  category  of  Group-A  posts  in
which there is no element of recruitment beyond 66?  %.  The said order  was
further amended on 13th April, 1999 to the effect that  reservation  in  the
promotion  for  SCs  and  STs  will   continue   to   operate   till   their
representation reached 15% or 3% respectively and promotion of SCs  and  STs
and against backlog was to continue as per order dated 24th June, 1997  till
the said percentage was so reached in the total working  strength.   As  per
the Karnataka Scheduled Castes, Scheduled Tribes and other Backward  Classes
(Reservation of seats in Educational Institutions  and  of  appointments  or
posts in the services under the State) Act, 1994 (the Karnataka  Act  43  of
1994), seniority in the lower cadre is maintained in promotional  posts  for
the persons promoted “on one occasion”.  Since reservation had not  exceeded
15% and 3% for SCs and STs while  population  of  the  said  categories  had
increased, there was adequate consideration of the above  three  factors  of
“backwardness”, inadequacy  of  representation”  and  “overall  efficiency”.
Section 3 of the  Act  provided  for  an  inbuilt  mechanism  for  providing
reservation in promotion to the extent of 15% and 3%  respectively  for  the
SCs and STs.  The State Government  collects  statistics  every  year.   The
High Court held that contention that if all the  posts  in  higher  echelons
may be filled by SCs and STs, the promotional  prospects  of  general  merit
candidates will get choked or blocked could not be accepted  as  reservation
in promotion was  provided  only  upto  the  cadre  of  Assistant  Executive
Engineers.  It was further observed that there was no pleading that  overall
efficiency of service would be hampered by promoting  persons  belonging  to
SCs and STs.


10.   The impugned judgment has been challenged on behalf of the  appellants
mainly  relying  upon  judgment  of  this  Court  in  Uttar  Pradesh   Power
Corporation Limited v. Rajesh Kumar[10].  It was  submitted  that  the  High
Court erroneously held that there was an inbuilt mechanism under  Section  3
of the impugned Act or that  the  seniority  rule  maintaining  lower  cadre
seniority in respect of persons promoted on  a  particular  occasion  was  a
safeguard  against  excessive  reservation.   Similarly,  the  finding  that
reservation was only  upto  a  particular  level  and  not  beyond  or  that
accelerated promotion upto that level did not affect further promotions  was
erroneous.  It was also submitted that there was no provision for  excluding
the creamy layer which also rendered the  Act  invalid.   It  was  submitted
that no exercise  whatsoever  in  terms  of     M.  Nagaraj  case  has  been
undertaken by the State.


11.   Shri Basava Prabhu S.  Patil,  learned  senior  counsel  appearing  on
behalf  of  the  State  submitted  that  the  Act  did  not  deal  with  the
reservation.   It  only  dealt  with  seniority.   Seniority   was   not   a
fundamental right but a civil right as held in Bimlesh Tanwar vs.  State  of
Haryana[11].  M. Nagaraj judgment of this Court had dealt  with  reservation
and not with  consequential  seniority.   Once  reservation  is  within  the
prescribed  limit,  there  was  no  bar  to  consequential  seniority  being
granted.  It was further submitted that even if seniority is  to  be  struck
down, the clock cannot be entirely reversed so as  to  affect  seniority  of
persons who had retired or who are  about  to  retire  or  who  had  reached
higher positions.


12.   Shri S.N. Bhat, learned counsel for the private respondents  supported
the impugned judgment  and submitted that the Government  was  not  required
to carry out the exercise of  finding  out  ‘backwardness’,  ‘inadequacy  of
representation’  and  ‘overall  administrative  efficiency’  for   providing
consequential seniority to officers on the basis of reservation.   The  said
exercise was required to be carried out only for  providing  reservation  in
promotion.  Reservation in promotion  was  permissible  only  upto  Class  I
posts in Karnataka.  Moreover, inter se seniority of reserved  category  and
general category  candidates  promoted  together  was  not  disturbed.   The
roster  points  ensured  that  there  was  no  excessive  representation  in
different cadres  of  service.   In  view  of  Government  Order  dated  3rd
February, 1999 there was enough data available  to  justify  continuance  of
provision  for  consequential  seniority  under  the  impugned  Act.    Data
collected  by  the  Department  of  Statistics  with   regard   to   overall
representation of SCs and STs  as  on  31st  March,  2002  showed  that  the
representation of SCs and  STs  was  not  above  15%  and  3%  respectively.
Section 4 of the  Act  only  protected  consequential  seniority  which  was
already given.  Promotions already effected cannot be disturbed.


13.   Reference may now be made to the impugned Act.  The  preamble  of  the
Act refers to policy of reservation in promotion  in  favour  of  Government
servants belonging to SCs and STs in terms of order dated 27th April,  1978.
 Para 7 of the  said  order  stipulates  that  inter  se  seniority  amongst
persons promoted in accordance with the said order has to be  determined  in
the manner provided under Rule 4 or Rule 4A of  the  1957  Rules.  There  is
further reference to the judgment of this Court in Badappanavar  (supra)  to
the effect that there was  no  specific  rule  permitting  seniority  to  be
counted for persons promoted against a reserved roster  point.   It  further
refers  to  the  Constitution  (85th   Amendment)   Act,   2001   permitting
consequential  seniority  in  the  case  of  promotion  on  the   basis   of
reservation.  It states that to remove any ambiguity  and  to  clarify  that
government servants belonging to SCs and STs  promoted  in  accordance  with
the reservation in promotion  shall  be  entitled  to  seniority  as  it  is
available to government servants belonging to other categories.   Section  3
of the impugned Act provides that government servants belonging to  SCs  and
STs promoted in accordance with the policy reservation  in  promotion  shall
be entitled to consequential seniority on the basis of length of service  in
a cadre.  Proviso to the said section to the effect that inter se  seniority
of  government  servants  belonging  to  SCs/STs  and  those  belonging   to
unreserved category promoted at the same time by a common order shall be  on
the basis of inter se seniority in the lower cadre.  Section 4 provides  for
protection of consequential seniority  already  accorded  from  27th  April,
1978.  Since Sections 3 and 4 are the key sections, the same are  reproduced
below :


“3. Determination of Seniority of the Government Servants  Promoted  on  the
basis of Reservation.- Notwithstanding anything contained in any  other  law
for the time being in  force,  the  Government  Servants  belonging  to  the
Scheduled Castes and the Scheduled Tribes promoted in  accordance  with  the
policy of reservation in promotion provided for  in  the  Reservation  Order
shall be entitled to consequential seniority. Seniority shall be  determined
on the basis of the length of service in a cadre.


Provided that the seniority inter-se of the  Government  Servants  belonging
to the Scheduled Castes and the Scheduled Tribes as well as those  belonging
to the unreserved category, promoted to a cadre,  at  the  same  time  by  a
common 5 order, shall be determined on the basis of their  seniority  inter-
se, in the lower cadre.


Provided further that where the posts in a cadre, according to the rules  of
recruitment applicable to them are required to be filled by  promotion  from
two or more lower cadres,-


(i) The number of vacancies available in the promotional (higher) cadre  for
each of the lower cadres according to the rules  of  recruitment  applicable
to it shall be calculated; and


(ii) The roster shall be applied separately to the number  of  vacancies  so
calculated in respect of each of those lower cadres;


Provided also that the serial numbers of the roster points specified in  the
Reservation Order are intended only to facilitate calculation of the  number
of vacancies reserved for promotion at a time and  such  roster  points  are
not intended to determine inter-se  seniority  of  the  Government  Servants
belonging to the Scheduled Castes and the  Scheduled  Tribes  vis-a-vis  the
Government Servants belonging to the unreserved  category  promoted  at  the
same  time  and  such  inter-se  seniority  shall  be  determined  by  their
seniority  inter-se  in  the  cadre  from  which  they  are   promoted,   as
illustrated in the Schedule appended to this Act.


4. Protection of consequential seniority already accorded from  27th  April,
1978, onwards.- Notwithstanding anything contained in this Act or any  other
law for the  time  being  in  force,  the  consequential  seniority  already
accorded to the Government servants belonging to the  Scheduled  Castes  and
the Scheduled Tribes who were promoted in  accordance  with  the  policy  of
reservation in promotion provided for in the Reservation Order  with  effect
from the Twenty Seventh Day of April, Nineteen  Hundred  and  Seventy  Eight
shall be valid and shall be protected and shall not be disturbed. “





14.   Question for consideration is whether the impugned Act  is  consistent
with Articles 14 and 16 of the Constitution.  The  said  question  has  been
gone into by this Court inter alia in identical circumstances in Suraj  Bhan
Meena v. State of Rajasthan[12] and Uttar Pradesh Power Corporation  Limited
(supra) to which we will make a reference at appropriate place.


15.   We proceed to deal  with  the  contention  that  High  Court  judgment
proceeds on incorrect understanding of the  law  laid  down  in  M.  Nagaraj
(supra).   While no doubt in M. Nagaraj (supra), 85th Amendment  was  upheld
with the observation that enabling the State to do away with the ‘catch  up’
rule, a judicially evolved concept to control the  effect  of  reservations,
was valid but the exercise of power to  do  away  with  the  said  rule  and
providing consequential seniority in favour of  roster  point  promotees  of
reserved category was subject to the limitation  of  determining  the  three
factors of  ‘backwardness’,  ‘inadequacy  of  representation’  and  ‘overall
efficiency’.  The High Court brushed aside the  said  mandatory  requirement
by simply observing that Section 3 provided for an inbuilt mechanism as  the
extent of mechanism was limited to 15% and 3% respectively for the  SCs  and
STs which dispensed  with  any  requirement  of  determining  inadequacy  of
representation or backwardness.   High  Court  further  dispensed  with  the
requirement of determining overall efficiency by observing  that  there  was
no pleading that overall efficiency would be hampered by  promoting  persons
belonging to SCs and STs.  This  reasoning  in  the  judgment  of  the  High
Court, it is submitted, is contrary to the mandate of law as  recognized  in
M. Nagaraj (supra) and the view similar to the impugned  judgment  has  been
repeatedly disapproved in decisions of this Court.


16.   We find considerable force in the submission.  The issue is no  longer
res integra and it will be suffice to refer to the law clearly laid down  by
this Court in this regard.


17.   In M. Nagaraj (supra), this Court considered  constitutional  validity
of 77th, 81st, 82nd and  85th  Amendments.   In  doing  so,  the  Court  was
concerned with the  question  whether  the  amendment  infringed  the  basic
structure of the Constitution.  It was held that equality  is  part  of  the
basic structure but in  the  present  context,  right  to  equality  is  not
violated by an enabling provision if exercise of  power  so  justifies.   In
this regard, following observations are worthwhile to note :

“31. At the outset, it may be noted that equality,  rule  of  law,  judicial
review and separation of powers are  distinct  concepts.  They  have  to  be
treated separately, though they are intimately connected. There  can  be  no
rule of law if there is no equality before the law;  and  rule  of  law  and
equality before the law would be empty words if their violation  was  not  a
matter of judicial scrutiny or judicial review and judicial relief  and  all
these features would lose their  significance  if  judicial,  executive  and
legislative functions were united in only one authority, whose dictates  had
the force of law. The rule of law and equality before the law  are  designed
to secure among other things,  justice  both  social  and  economic       ……
      ……                  ……
32. In Minerva Mills [(1980) 3 SCC 625] Chandrachud, C.J., speaking for  the
majority, observed that Articles 14  and  19  do  not  confer  any  fanciful
rights.  They  confer  rights  which  are  elementary  for  the  proper  and
effective functioning of democracy. They are  universally  regarded  by  the
Universal Declaration of Human Rights. If Articles 14 and 19 are put out  of
operation, Article 32 will be rendered nugatory      …..
……               ……                   ……

33. From these observations, which are binding on us,  the  principle  which
emerges is that “equality” is the essence of democracy  and,  accordingly  a
basic   feature   of   the   Constitution.              ……                ……
       ……

34. However, there is a difference between formal equality  and  egalitarian
equality which will be discussed later on.

xxxx

42.   ….. ….There can be no justice without equality. Article 14  guarantees
the fundamental right to equality before  the  law  on  all  persons.  Great
social injustice resulted from treating sections of the Hindu  community  as
“untouchable”  and,  therefore,  Article  17  abolished  untouchability  and
Article 25 permitted the State to make any law providing for  throwing  open
all public Hindu religious temples to  untouchables.  Therefore,  provisions
of Part III also provide for political and social justice.




18.      Considering   the   right   of   equality   in   the   context   of
reservation/affirmative action it was observed :

“43. … … … Therefore, the concept of “equality of  opportunity”  in   public
employment concerns an individual, whether that individual  belongs  to  the
general category or Backward Class.  The  conflicting  claim  of  individual
right under  Article  16(1)  and  the  preferential  treatment  given  to  a
Backward Class has to be balanced. Both the claims have a particular  object
to be achieved.  The  question  is  of  optimisation  of  these  conflicting
interests and claims.”

19.   Thereafter, concepts of ‘equity’,  ‘justice’  and  ‘merit’  in  public
employment were referred to and  it  was  held  that  application  of  these
concepts in public employment depends upon quantifiable data in  each  case.
It was observed:

“44. … … …Backward Classes seek justice. General class in public  employment
seeks equity. The difficulty comes in when  the  third  variable  comes  in,
namely, efficiency in service. In the issue of  reservation,  we  are  being
asked to find a stable equilibrium between justice to the backwards,  equity
for the forwards and efficiency for the entire system.  Equity  and  justice
in the above context are hard concepts. However, if you  add  efficiency  to
equity and justice, the problem arises in the context  of  the  reservation.
This problem has to be examined, therefore,  on  the  facts  of  each  case.
Therefore, Article 16(4) has to be construed in the light of Article 335  of
the Constitution. Inadequacy  in  representation  and  backwardness  of  the
Scheduled Castes and Scheduled Tribes are  circumstances  which  enable  the
State Government to act under Article 16(4) of  the  Constitution.  However,
as held by this Court the limitations on the discretion  of  the  Government
in the matter of reservation under Article 16(4) as well as Article  16(4-A)
come in the form of Article 335 of the Constitution.

45. … … …The basic presumption, however, remains that it is  the  State  who
is in the best position to define and measure  merit  in  whatever  ways  it
consider it to be relevant to public employment because  ultimately  it  has
to bear the costs arising from  errors  in  defining  and  measuring  merit.
Similarly, the concept  of  “extent  of  reservation”  is  not  an  absolute
concept and like merit it is context-specific.

46. … … …Therefore, “vesting of the power” by an enabling provision  may  be
constitutionally valid and yet “exercise of the power” by  the  State  in  a
given case may be arbitrary, particularly, if the State  fails  to  identify
and measure backwardness and inadequacy keeping in mind  the  efficiency  of
service as required under Article 335.”

20.   The above discussion  led  this  Court  to  hold  that  conferment  of
enabling power on State under Article 16(4A) did not by itself  violate  the
basic feature of equality.   If  the  affirmative  action  stipulated  under
Article 16(4A) could be balanced with the need for  adequate  representation
for justice to the backwards while upholding equity  for  the  forwards  and
efficiency for the entire system  with  the  further  observation  that  the
content of a right is defined by the Courts and even while the amendment  as
such could be upheld, validity of an individual enactment  was  required  to
be gone into.  If the State wished to exercise its discretion under  Article
16(4A), it was to collect quantifiable  data  showing  backwardness  of  the
class and inadequacy of representation of that class  in  public  employment
in addition to compliance with Article 335. It was made clear that  even  if
the State has compelling reasons, as stated above, the State  will  have  to
see that its reservation provision does not lead to excessiveness so  as  to
breach the ceiling limit of 50% or obliterate the  creamy  layer  or  extend
the reservation indefinitely.

21.   It may also be worthwhile to note further observations of  this  Court
in the said judgment :

“49.  Reservation  is  necessary  for  transcending  caste   and   not   for
perpetuating it. Reservation has to be used in a limited sense otherwise  it
will perpetuate casteism in the country. Reservation is  underwritten  by  a
special justification.
      xxxx

59. Giving the judgment of the Court in Indra Sawhney [(1992) Supp. (3)  SCC
217]  Jeevan  Reddy,  J.  stated  that  Article  16(4)  speaks  of  adequate
representation  not  proportionate  representation  although  proportion  of
population of Backward Classes to the total population  would  certainly  be
relevant    …………             ……                  ……
      xxxx

102.  ….    …..   …..    Therefore, in every case where  the  State  decides
to provide for reservation  there  must  exist  two  circumstances,  namely,
“backwardness” and “inadequacy of representation”. As stated above,  equity,
justice and efficiency are variable  factors.  These  factors  are  context-
specific. There is no fixed yardstick to identify and  measure  these  three
factors, it will depend on the facts and circumstances of each  case.  These
are the limitations on the mode of the exercise of power by the State.  None
of these limitations have been removed by the impugned  amendments.  If  the
State concerned fails to identify and measure backwardness,  inadequacy  and
overall administrative efficiency then  in  that  event  the  provision  for
reservation would be invalid    ……           ……           ……

      xxxxx

104.   …..   …..  As  stated  above,  be  it  reservation   or   evaluation,
excessiveness in either would result  in  violation  of  the  constitutional
mandate. This exercise, however, will depend on the facts of each  case.  In
our view, the field of exercise of the amending power  is  retained  by  the
impugned amendments, as  the  impugned  amendments  have  introduced  merely
enabling  provisions  because,   as   stated   above,   merit,   efficiency,
backwardness and inadequacy cannot be identified  and  measured  in  vacuum.
Moreover, Article 16(4-A)  and  Article  16(4-B)  fall  in  the  pattern  of
Article 16(4) and as long as the parameters mentioned in those articles  are
complied with  by  the  States,  the  provision  of  reservation  cannot  be
faulted.  Articles  16(4-A)  and  16(4-B)  are  classifications  within  the
principle of equality under Article 16(4).

      xxxxx

106.  ……  …… According to the Constitutional Law of India, by H.M.  Seervai,
4th  Edn.,  p.  546,  equality  is  not  violated  by  mere  conferment   of
discretionary power. It is violated by arbitrary exercise by those  on  whom
it is conferred. This is the theory of “guided power”. This theory is  based
on the assumption that in the event of arbitrary exercise by those  on  whom
the power is conferred, would be corrected by  the  courts    …...       …..
……

107. …..  …… If the State has quantifiable data  to  show  backwardness  and
inadequacy then the State can make reservations  in  promotions  keeping  in
mind maintenance  of  efficiency  which  is  held  to  be  a  constitutional
limitation  on  the  discretion  of  the  State  in  making  reservation  as
indicated by Article 335. As  stated  above,  the  concepts  of  efficiency,
backwardness, inadequacy of representation are  required  to  be  identified
and measured  ……       ……                  ……

108. ……  …… Moreover, Article 335 is  to  be  read  with  Article  46  which
provides that the State shall promote with special care the educational  and
economic interests of the weaker sections of the people, and in  particular,
of the Scheduled Castes and Scheduled Tribes, and shall  protect  them  from
social injustice. Therefore, where the State finds compelling  interests  of
backwardness and inadequacy, it may relax the qualifying marks for  SCs/STs.
These compelling interests however have to  be  identified  by  weighty  and
comparable data.

xxxxx

117.    …..     ……  Therefore,  in  each  case  the  Court  has  got  to  be
satisfied that the State has exercised its opinion  in  making  reservations
in promotions for SCs and STs and for which the State  concerned  will  have
to place before the Court the requisite quantifiable data in each  case  and
satisfy the Court that such reservations  became  necessary  on  account  of
inadequacy of representation of SCs/STs in a particular class or classes  of
posts without affecting general efficiency  of  service  as  mandated  under
Article 335 of the Constitution.

118. The constitutional principle of equality is inherent  in  the  rule  of
law. However, its reach is limited because its primary concern is  not  with
the content of the law but with its enforcement and  application.  The  rule
of law is satisfied when laws are applied  or  enforced  equally,  that  is,
even-handedly, free of bias and without irrational distinction. The  concept
of equality allows differential treatment but it prevents distinctions  that
are not properly justified. Justification needs each case to be  decided  on
case-to-case basis.

xxxx

120. At this stage, one aspect needs to  be  mentioned.  Social  justice  is
concerned with the distribution  of  benefits  and  burdens.  The  basis  of
distribution is the area of conflict between rights, needs and means.  These
three criteria can be put under two concepts of  equality,  namely,  “formal
equality” and  “proportional  equality”.  Formal  equality  means  that  law
treats everyone equal. Concept of egalitarian equality  is  the  concept  of
proportional equality and it expects the States to take  affirmative  action
in favour of disadvantaged sections  of  society  within  the  framework  of
democratic polity. In Indra Sawhney all the Judges except Pandian,  J.  held
that the “means test” should be adopted to exclude  the  creamy  layer  from
the protected group earmarked for reservation. In Indra Sawhney  this  Court
has, therefore, accepted caste as a determinant of backwardness and  yet  it
has struck a balance with the principle of secularism  which  is  the  basic
feature of the Constitution by bringing in  the  concept  of  creamy  layer.
Views have often been expressed in this Court that caste should not  be  the
determinant of backwardness and that the economic criteria alone  should  be
the determinant of backwardness. As  stated  above,  we  are  bound  by  the
decision  in  Indra  Sawhney.  The  question  as  to  the  “determinant”  of
backwardness cannot be gone into by us in view of the binding  decision.  In
addition to the above requirements this Court in Indra Sawhney  has  evolved
numerical benchmarks like  ceiling  limit  of  50%  based  on  post-specific
roster coupled with the concept of replacement to provide  immunity  against
the charge of discrimination.

xxxx

122. We reiterate that the ceiling limit  of  50%,  the  concept  of  creamy
layer and  the  compelling  reasons,  namely,  backwardness,  inadequacy  of
representation and overall administrative efficiency are all  constitutional
requirements without which the  structure  of  equality  of  opportunity  in
Article 16 would collapse.”

22.   Question of application of principles laid down in M. Nagaraj  (supra)
for judging  the  exercise  of  enabling  power  of  granting  consequential
seniority and promotion was raised in Suraj  Bhan  Meena  (supra).   Therein
challenge  was to the validity  of  notification  dated  25th  August,  2008
issued by the State Government of Rajasthan under proviso to Article 309  of
the Constitution, amending the service  rules  in  the  State  of  Rajasthan
w.e.f.  28th  December,  2002.   The   notification    purported   to   give
consequential seniority to candidates belonging  to  SCs  and  STs  who  got
roster point  promotions.   The  challenge  to  the  notification  was  that
without quantifying figures of SCs and STs or  showing   compelling  reasons
such  as  ‘backwardness’,  ‘inadequacy  of  representation’   and   ‘overall
administrative efficiency’ as laid down in M. Nagaraj (supra) the  grant  of
consequential seniority was not permissible.  The  High  Court  quashed  the
notification providing for consequential seniority on  the  ground  that  no
exercise  had  been  undertaken  in  terms  of  Article  16(4A)  to  acquire
quantifiable data regarding inadequacy of representation to SCs and  STs  in
public service and to assess whether such reservation was  necessary.   This
was upheld by this Court as under :
“66. The position after the decision in M. Nagaraj case is that  reservation
of posts in promotion is dependent on the inadequacy  of  representation  of
members of the Scheduled Castes and Scheduled Tribes  and  Backward  Classes
and subject to the condition of ascertaining as to whether such  reservation
was at all required.
67. The view of the High Court is based on the decision in M.  Nagaraj  case
as no exercise was  undertaken  in  terms  of  Article  16(4-A)  to  acquire
quantifiable  data  regarding  the  inadequacy  of  representation  of   the
Scheduled Caste and Scheduled Tribe  communities  in  public  services.  The
Rajasthan High Court has rightly quashed the Notifications dated  28-12-2002
and 25-4-2008 issued by the State of Rajasthan providing  for  consequential
seniority and promotion to the members of the Scheduled Caste and  Scheduled
Tribe communities and the same does not call for any interference.”


23.   Again in Uttar Pradesh Power Corporation  Limited  (supra),   validity
of Rule 8A of the U.P. Government Servants Seniority Rules,  1991,  inserted
by way of an amendment in 2007, was put in issue.  While  a  Division  Bench
of Lucknow Bench in Prem Kumar Singh v. State of U.P.[13]  struck  down  the
said rule, another Division Bench at Allahabad in  Mukund  Kumar  Srivastava
v. State of U.P.[14] took a contrary view.  This Court dismissed the  appeal
filed by the U.P. Power Corporation Limited  and  upheld  the  view  of  the
Lucknow Bench.  Reference was made to observations  in  para  819  in  Indra
Sawhney v. UOI[15] to the effect that reservation  under  Article  16(4)  of
the Constitution could only be at the stage of entry into the State  service
and not in promotion.  Reservation in promotion is bound to  generate  acute
heartburning and lead to inefficiency in  administration.   The  members  of
open category would think that whatever  be  their  record  or  performance,
members of reserved category will steal a march over  them  irrespective  of
their performance  and  competence.   Once  persons  coming  from  different
sources join a category or class, they must be treated alike  for  promotion
and  no  distinction  was  permissible  on  the   basis   of   ‘birth-mark’.
Reservation in promotion will be contrary to the  mandate  of  Article  335,
viz., maintenance  of  efficiency  in  administration  and  put  premium  on
efficiency.  Members of reserved category will not work hard since  they  do
not have to compete with their colleagues and because of assured  promotion,
which will be against  the  goal  of  excellence  under  Article  51-A  (j).
Reference was also made to para 831 in the said judgment to the effect  that
extending concessions and relaxations in the matter of promotion to  members
of reserved category could affect efficiency of  administration.   Reference
was then made to the  decisions of  this  Court  holding  that  roster  only
ensured  percentage  of  reservation  in  promotion  but  could  not  affect
seniority.[16]

24.   Reference  was  then  made  to  the  Constitution  amendment  enabling
reservation in promotions and consequential seniority which  was  upheld  in
M. Nagaraj (supra).  The said judgment was summarized as follows:

“  81. From the aforesaid decision in M. Nagaraj case and the paragraphs  we
have quoted hereinabove, the following principles can be carved out:
(i) Vesting of the power by an enabling provision  may  be  constitutionally
valid and yet “exercise of power” by the  State  in  a  given  case  may  be
arbitrary, particularly, if the State fails  to  identify  and  measure  the
backwardness and inadequacy keeping in mind the  efficiency  of  service  as
required under Article 335.
(ii) Article 16(4) which protects the interests of certain sections  of  the
society has  to  be  balanced  against  Article  16(1)  which  protects  the
interests of every citizen of the entire society. They should be  harmonised
because they are restatements of the principle  of  equality  under  Article
14.
(iii) Each post gets marked for the particular category of candidates to  be
appointed against it and any subsequent vacancy has to  be  filled  by  that
category candidate.
(iv) The appropriate Government has to apply the cadre strength  as  a  unit
in the operation of the  roster  in  order  to  ascertain  whether  a  given
class/group is adequately represented in the service. The cadre strength  as
a unit also ensures that the upper ceiling limit of  50%  is  not  violated.
Further, roster has to be post-specific and not vacancy based.
(v) The State has to form its opinion on  the  quantifiable  data  regarding
adequacy of representation. Clause  (4-A)  of  Article  16  is  an  enabling
provision. It gives freedom to the  State  to  provide  for  reservation  in
matters of promotion. Clause (4-A) of Article 16 applies  only  to  SCs  and
STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-
A) will  be  governed  by  the  two  compelling  reasons—“backwardness”  and
“inadequacy of representation”, as mentioned in Article 16(4). If  the  said
two reasons do not exist, then the enabling provision cannot be enforced.
(vi) If the ceiling limit  on  the  carry  over  of  unfilled  vacancies  is
removed, the other alternative time factor comes in and in that  event,  the
timescale has to be imposed in the interest of efficiency in  administration
as mandated by Article 335. If the timescale is not kept,  then  posts  will
continue to remain vacant for  years  which  would  be  detrimental  to  the
administration. Therefore, in each case,  the  appropriate  Government  will
now have to introduce the duration depending upon the fact situation.
(vii) If the appropriate Government enacts a law providing  for  reservation
without keeping in mind the parameters in Article  16(4)  and  Article  335,
then this Court will certainly set aside and strike down such legislation.
(viii) The constitutional limitation under Article 335 is  relaxed  and  not
obliterated.  As  stated   above,   be   it   reservation   or   evaluation,
excessiveness in either would result  in  violation  of  the  constitutional
mandate. This exercise, however, will depend on the facts of each case.
(ix)  The  concepts  of   efficiency,   backwardness   and   inadequacy   of
representation are required to be identified  and  measured.  That  exercise
depends on the availability of  data.  That  exercise  depends  on  numerous
factors. It is for this reason that the enabling provisions are required  to
be made because each competing claim seeks to  achieve  certain  goals.  How
best one should optimise these conflicting claims can only be  done  by  the
administration in the context  of  local  prevailing  conditions  in  public
employment.
(x) Article 16(4), therefore, creates a  field  which  enables  a  State  to
provide for reservation provided there exists backwardness of  a  class  and
inadequacy of representation in employment. These  are  compelling  reasons.
They do not exist in Article 16(1).  It  is  only  when  these  reasons  are
satisfied that a State gets the power to  provide  for  reservation  in  the
matter of employment.”


25.   Referring to the “Social Justice Committee Report” relied upon by  the
U.P. Power Corporation, it was observed that the said report was in  respect
of population and vacancies and not in respect of the  concepts  evolved  in
M. Nagaraj (supra).  Therefore, exercise in the  light  of  judgment  in  M.
Nagaraj was a categorical imperative.  The contention that no such  exercise
was necessary could not be accepted.  Accordingly,  this  Court  upheld  the
view that grant of consequential  seniority  in  promotion  to  the  persons
belonging to SCs and STs who were granted promotion  against  roster  points
could  not  be  sustained.   Reference  may  be  made   to   the   following
observations :

“85. As has been indicated hereinbefore, it has been  vehemently  argued  by
the learned Senior Counsel for the State and the learned Senior Counsel  for
the Corporation that once the principle of reservation was  made  applicable
to the spectrum of promotion, no fresh exercise is  necessary.  It  is  also
urged that the efficiency in service is not jeopardised. Reference has  been
made to the Social Justice Committee Report  and  the  chart.  We  need  not
produce the same as the said exercise was  done  regard  being  had  to  the
population and vacancies and not to the concepts that have been  evolved  in
M. Nagaraj. It is one thing to think  that  there  are  statutory  rules  or
executive instructions to grant promotion but it cannot  be  forgotten  that
they were all subject to the pronouncement by this  Court  in  Virpal  Singh
Chauhan and Ajit Singh.

86. We are of the firm view that a  fresh  exercise  in  the  light  of  the
judgment  of  the  Constitution  Bench  in  M.  Nagaraj  is  a   categorical
imperative. The stand that the constitutional  amendments  have  facilitated
the reservation in promotion with consequential  seniority  and  have  given
the stamp of approval to the  Act  and  the  Rules  cannot  withstand  close
scrutiny  inasmuch  as  the  Constitution  Bench  has  clearly  opined  that
Articles 16(4-A) and 16(4-B) are enabling provisions and the State can  make
provisions for the same on  certain  basis  or  foundation.  The  conditions
precedent have not been satisfied. No exercise  has  been  undertaken.  What
has been argued with vehemence is that it is not necessary  as  the  concept
of reservation in promotion was already in vogue. We are  unable  to  accept
the said submission,  for  when  the  provisions  of  the  Constitution  are
treated valid with certain conditions or riders,  it  becomes  incumbent  on
the part of the  State  to  appreciate  and  apply  the  test  so  that  its
amendments can be tested and withstand the scrutiny on parameters laid  down
therein.

87. In the ultimate analysis, we conclude and hold that Section 3(7) of  the
1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run  counter
to the dictum in M. Nagaraj. Any  promotion  that  has  been  given  on  the
dictum of Indra Sawhney and without the aid or assistance  of  Section  3(7)
and Rule 8-A shall remain undisturbed.”

26.   In Central Bank of India v. SC/ST Employees  Welfare  Association[17],
question was whether in absence of a rule of reservation for promotion  such
reservation  was  permissible  merely  because  the  banks  were   following
reservation policy of the Government of India.  The Madras High Court  after
considering the statistics found that there was no  adequate  representation
of SCs and STs in higher scales.  It directed that  such  representation  be
granted.  Plea of the Bank that such reservation will affect  efficiency  in
the administration was rejected.  This Court held that  in  absence  of  any
specific provision for reservation in promotion, the Court could  not  issue
a direction for reservation.  It was observed :

“32. We have already noticed above  that  in  matters  of  promotion  within
Group A posts, which carry an ultimate salary of Rs 5700  per  month,  there
was no provision for any reservation. On a conjoint  reading  of  these  two
Office Memorandums dated 1-11-1990 and 13-8-1997,  in  the  absence  of  any
other provision or rule evidencing such  a  reservation  in  the  matter  of
promotions, it cannot be  said  that  there  was  reservation  in  promotion
within Group A posts up to the ultimate salary of Rs  5700  per  month.  The
High Court in the impugned judgment has gone by the lofty  ideals  enshrined
in Articles 15 and 16 of the Constitution as well as the fact that in  these
Banks there is no adequate representation of SC/ST category of  officers  in
Group IV and above. That may be so. It can only  provide  justification  for
making a provision of this  nature.  However,  in  the  absence  of  such  a
provision, same cannot be read by overstretching the language of the  Office
Memorandum dated 13-8-1997. It is for the State to take stock of the  ground
realities and take a  decision  as  to  whether  it  is  necessary  to  make
provision for reservation in promotions to the aforesaid post as well.”

27.   In S. Panneer Selvam v. State of Tamil Nadu[18], question  before  the
Court was whether in absence of any policy decision by the State for  giving
consequential seniority to candidates promoted on the basis  of  reservation
prior to a  senior  general  category  candidate,  claim  for  consequential
seniority could be accepted.  Answering the question  in  the  negative,  it
was held that in absence of provision for  consequential  seniority,  ‘catch
up’ rule will be applicable and the  roster  point  promotees  cannot  claim
such consequential seniority. The  senior  general  candidates  will  regain
their seniority on being promoted.  Observations  relevant  in  this  regard
are as follows :

“34. If we look at the above comparative table of  the  service  particulars
of the appellants and the  respondents,  it  is  seen  that  the  contesting
respondents U. Palaniappan joined the service almost seven years  after  the
appellants, his seniority is automatically accelerated at  an  unprecedented
rate and as on 1-4-2004 his seniority rank as ADE is 150  and  seniority  of
V. Appadurai is 120. The appellants who are qualified and  senior  than  the
contesting respondents are placed much below in rank in  comparison  to  the
person  belonging  to  the  reserved  class  promotees  who  were   promoted
following the rule of reservation. It  is  to  be  noted  that  the  private
respondents in the present case have been promoted  temporarily  under  Rule
39(a) and Rule 10(a)(i) of the General Rules with the condition  that  their
inclusion in the promotional order  shall  not  confer  on  them  any  right
whatsoever in the service. Determination of seniority is a vital  aspect  in
the service career of an employee and his future promotion is  dependent  on
this.  Therefore,  determination  of  seniority  must  be  based   on   some
principles which are just and fair. In the absence of  any  policy  decision
taken or rules framed by the  State  of  Tamil  Nadu  regarding  Tamil  Nadu
Highways  Engineering  Service,   accelerated   promotion   given   to   the
respondents following rule of reservation in terms of Rule 12 will not  give
them consequential accelerated seniority.

xxxx

36. In the absence of any  provision  for  consequential  seniority  in  the
rules, the “catch-up rule” will be applicable and the roster-point  reserved
category promotees cannot count their seniority  in  the  promoted  category
from the date of their promotion and the senior general candidates if  later
reach  the  promotional  level,  general  candidates   will   regain   their
seniority. The Division Bench appears to  have  proceeded  on  an  erroneous
footing that Article 16(4-A) of  the  Constitution  of  India  automatically
gives the consequential seniority in addition to  accelerated  promotion  to
the roster-point promotees and the judgment of the Division Bench cannot  be
sustained.”


26.   It is clear from the above discussion that  exercise  for  determining
‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’,  is
a must for exercise of power under Article 16(4A).  Mere fact that there  is
no proportionate representation in promotional posts for the  population  of
SCs and STs is not by itself enough  to  grant  consequential  seniority  to
promotees who are otherwise junior and thereby denying  seniority  to  those
who are given promotion later on account of reservation policy.  It  is  for
the State to place material on record that there  was  compelling  necessity
for exercise of such power and decision of the State was based  on  material
including the study that overall efficiency  is  not  compromised.   In  the
present case,  no  such  exercise  has  been  undertaken.   The  High  Court
erroneously observed that it was for the  petitioners  to  plead  and  prove
that the overall efficiency was adversely affected by  giving  consequential
seniority to junior persons who got promotion  on  account  of  reservation.
Plea that persons promoted at the same time were  allowed  to  retain  their
seniority in the lower cadre is  untenable  and  ignores  the  fact  that  a
senior person may be promoted later and not  at  same  time  on  account  of
roster point reservation.   Depriving  him  of  his  seniority  affects  his
further chances of  promotion.   Further  plea  that  seniority  was  not  a
fundamental right is equally without any merit in the present  context.   In
absence of exercise under Article 16(4A), it is the ‘catch  up’  rule  which
is fully applies.  It is not necessary to go into the question  whether  the
concerned Corporation had adopted the rule of consequential seniority.

27.   In view of the above, we allow these appeals, set aside  the  impugned
judgment and declare the provisions of the impugned Act  to  the  extent  of
doing away  with  the  ‘catch  up’  rule  and  providing  for  consequential
seniority under Sections 3 and 4 to persons belonging  to  SCs  and  STs  on
promotion against roster points to be ultra vires Articles 14 and 16 of  the
Constitution.  The judgment will not affect those who have  already  retired
and  will  not  affect  financial  benefits  already  taken.   Consequential
promotions granted to serving employees, based  on  consequential  seniority
benefit, will be treated as ad hoc and liable  to  be  reviewed.   Seniority
list may be now revised in the light of this judgment  within  three  months
from today.  Further consequential action may be  taken  accordingly  within
next three months.

                                                        …………..…………………………….J.
                                                       [ ADARSH KUMAR GOEL ]



                                                      .….……………………..……………..J.
                                                        [ UDAY UMESH LALIT ]



NEW DELHI
FEBRUARY 09, 2017
-----------------------
[1]





      [2] (2006) 8 SCC 212
[3]

      [4] Para 124 of ‘M. Nagaraj’ (supra)
[5]

      [6] Vide order of this Court dated 18th March, 2010
[7]

      [8] (2001) 2 SCC 666
[9]

      [10] (1996) 2 SCC 715
[11]

      [12] (1999) 7 SCC 209
[13]

      [14] (1995) 2 SCC 745
[15]

      [16] (1997) 2 SCC 661
[17]

      [18] (1995) 6 SCC 684
[19]

      [20] (2012) 7 SCC 1
[21]

      [22] (2003) 5 SCC 604
[23]

      [24] (2011) 1 SCC 467
[25]

      [26] (2011) 3 All LJ 343
[27]

      [28] (2011) 1 All LJ 428
[29]

      [30] (1992) Supp. (3) SCC 217
[31]

      [32] R.K. Sabharwal versus State of Punjab, Ajit Singh Januja versus
State of Punjab (Ajit Singh I); Ajit Singh (II) versus State of Punjab and
Union of India versus  Virpal  Chauhan  (supra)
[33]

      [34] (2015) 12 SCC 308
[35]

      [36] (2015) 1 SCC 292


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