Contempt Petition = When the directions were to act in terms of the report of Bhatnagar Committee - the basic foundation of contempt petition projecting issuance of Notification does not survive as the matter was pending before High Court for consideration - when all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction - and as such contempt petition was closed. As a matter of fact, the directions issued by this Court in para 48 were clear that the State and its authorities were to act in terms of the report of the Bhatnagar Committee in accordance with the decisions in M. Nagraj and Suraj Bhan Meena1 . The basic foundation of the present contempt petitions projecting the issuance of Notification dated 11.09.2011 to be in contempt of the directions issued by this Court, thus, does not survive. In any case, challenge to said Notification and the report of the Bhatnagar Committee is still pending consideration before the High Court where the correctness and validity thereof will be gone into in accordance with law. With the decision of this Court in Jarnail Singh the matter also stands on a slightly modified footing. As concluded by this Court in Jarnail Singh the conclusion in M. Nagraj that the State has to collect quantifiable data showing backwardness of SC/ST, being contrary to the 9 Judges Bench decision in Indra Sawhney , was held to be invalid. The challenge to the recommendations given by the Bhatnagar Committee and the quantifiable data adverted to by the Committee will therefore have to be seen by the High Court in the light of the directions issued by this Court in Jarnail Singh. It is, thus, clear that all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction.

Contempt Petition  = When the directions were to act in terms of the report of Bhatnagar Committee - the basic foundation of contempt petition projecting issuance of Notification does not survive as the matter was pending before High Court for consideration - when all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction - and as such contempt petition was closed.

As a matter of fact, the directions issued by this Court in para 48 were clear that the State and its authorities were to act in terms of the report of the Bhatnagar Committee in accordance with the decisions in M. Nagraj and Suraj Bhan Meena1 . The basic foundation of the present contempt petitions projecting the issuance of Notification dated 11.09.2011 to be in contempt of the directions issued by this Court, thus, does not survive. In any case, challenge to said Notification and the report of the Bhatnagar Committee is still pending consideration before the High Court where the correctness and validity thereof will be gone into in accordance with law. With the decision of this Court in Jarnail Singh the matter also stands on a slightly modified footing. As concluded by this Court in Jarnail Singh the conclusion in M. Nagraj that the State has to collect quantifiable data showing backwardness of SC/ST, being contrary to the 9 Judges Bench decision in Indra Sawhney , was held to be invalid. The challenge to the recommendations given by the Bhatnagar Committee and the quantifiable data adverted to by the Committee will therefore have to be seen by the High Court in the light of the directions issued by this Court in Jarnail Singh.  It is, thus, clear that all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction. 

Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
1
Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
CONTEMPT PETITION (CIVIL)Nos.453-454 OF 2012
IN
CIVIL APPEAL NOS. 2504-2505 OF 2012
BAJRANG LAL SHARMA …PETITIONER
VERSUS
C.K. MATHEW AND ORS. …ALLEGED CONTEMNORS/
 RESPONDENTS
J U D G M E N T
Uday Umesh Lalit, J.
1. These Contempt Petitions seek to highlight non-compliance of
directions issued by this Court in its Judgments dated 07.12.2010 in Suraj
Bhan Meena and another vs. State of Rajasthan and others1
and
29.08.2012 in Salauddin Ahmed and another vs. Samta Andolan2
and
1
(2011) 1 SCC 467
2
(2012) 10 SCC 235
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
2
seek initiation of contempt proceedings against the alleged
contemnors/respondents.
2. The Contempt Petitioner, a Rajasthan Administrative Officer of
1982 batch, had preferred DB Civil Writ Petition No.8104 of 2008 before
the High Court3
for following reliefs:-
(i) By an appropriate writ, order or direction the
Hon’ble Court may be pleased to quash and set aside
the notification dated 25.04.2008.
(ii) By further appropriate writ order or direction the
Hon’ble Court may be pleased to direct respondents
to strictly adhere to the “catch-up rule” and revise
the seniority of all the petitioners in comparison to
SC/ST candidates after giving the benefit of
regaining of the seniority by the general category
candidates as envisaged by the circular dated
01.04.1997 and provisional seniority list dated
26.06.2000.
(iii) By further appropriate writ order or direction the
Hon’ble Court may be pleased to declare the circular
dated 20.10.2000 unconstitutional and illegal as the
same is not in accordance with the theory of
compartmentalization.
3 High Court of Rajasthan, Jaipur Bench, Jaipur
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
3
(iv) By further appropriate writ order or direction the
Hon’ble Court may be pleased to further direct
respondents to revise the seniority list since 1982 as
the benefit of seniority given to the reserved
category candidates before 1995 in accordance with
the Rule 33 of RAS Rules, 1954 is illegal.
(v) By further appropriate writ order or direction the
Hon’ble Court may be pleased to restrain the
respondents to provide consequential seniority of
SC/ST candidates as the Rules were not framed in
pursuance of Article 16(4-A). In alternative if Rule
33 talks about giving benefit of consequential
seniority then that rule be declared unconstitutional
to the extent it provides consequential seniority to
SC/ST employees.
(vi) By further writ, order or direction the respondents be
directed to strictly adhere to post based roster system
as envisaged by R.K. Sabharwal’s case and
respondents be further directed to bifurcate 53 seats
occurring in 2008 because of the selection to IAS
post in their respective years of vacancies for the
sake of holding year wise DPCs for those years.
(vii) By further writ, order or direction the respondents be
restrained to provide the benefit of reservation in
promotion with consequential seniority unless and
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
4
until they establish the existence of three compelling
reasons as enunciated in the judgment of M. Nagraj.
(viii) By further writ, order or direction the respondents be
directed to revise the seniority of all the petitioners
and they should be given the benefit of their
seniority in pursuance of the “catch-up rule”.
(ix) By further writ, order or direction the respondents be
restrained to make any selection for IAS cadre
through promotion till disposal of this writ petition.
3. The High Court by its judgment and order dated 05.02.20104
quashed the notifications dated 25.04.2008 and 28.12.2002 and all
consequential actions. The challenge to the judgment of the High Court
was considered by this Court and by its decision in Suraj Bhan1
the view
taken by the High Court was affirmed. The factual background was
considered by this Court as under:-
“4. All the writ petitioners, as also the petitioners in
SLP (C) No. 6385 of 2010, are members of the
Rajasthan Administrative Service and are governed by
the Rajasthan Administrative Service Rules, 1954. The
writ petitioners in their respective writ petitions
challenged the Notification dated 25-4-2008, issued by
the State of Rajasthan in exercise of its powers
conferred by the proviso to Article 309 of the
4 Bajrang Lal Sharma vs. State of Rajasthan, WP (C)No.8104 of 2008 (Raj) and other
connected matters
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
5
Constitution of India amending the Rajasthan “Various
Service Rules” with effect from 28-12-2002.
5. According to the writ petitioners, they had been
inducted in the Rajasthan Administrative Service in
December 1982, through selection by the Rajasthan
Public Service Commission. Vide notice dated 26-6-
2000, the State Government issued a provisional
seniority list of Rajasthan Administrative Service
Selection Grade as on 1-4-1997, in which Writ
Petitioner 1, Bajrang Lal Sharma, was placed above
Suraj Bhan Meena (Scheduled Tribe) and Sriram
Choradia (Scheduled Caste).
6. The said seniority list was published pursuant to the
order of this Court dated 16-9-1999, passed in Ajit
Singh (II) v. State of Punjab5
and another order of the
same date in Ram Prasad v. D.K. Vijay6
. Once again
provisional seniority lists were published on 27-11-
2003 and 12-5-2008. Subsequently, the State of
Rajasthan published the final seniority lists of supertime scale and selection scale of the service on 24-6-
2008 as on 1-4-1997 and provisional seniority list
dated 2-7-2008 as on 1-4-2008, wherein the name of
Bajrang Lal Sharma was shown below the names of
both Suraj Bhan Meena and Sriram Choradia.
7. The Notification dated 25-4-2008, which was the
subject-matter of challenge in the writ petition was
challenged on two grounds. It was firstly contended
that the proviso dated 28-12-2002, which had been
added to the Various Service Rules was subject to the
final decision of this Court in Writ Petition (Civil) No.
234 of 2002 filed in All India Equality Forum v. Union
of India, but the same was yet to be decided. Therefore,
during the pendency of the writ petition before this
Court, the respondents had acted improperly in
deleting the abovementioned proviso in the Various
Service Rules by the Notification dated 25-4-2008,
5
 (1999) 7 SCC 209
6
(1999) 7 SCC 251
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
6
which amounted to giving a consequential seniority to
candidates belonging to the Scheduled Castes and
Scheduled Tribes, which could not have been given
without quantifying the figures of Scheduled Caste and
Scheduled Tribe candidates to enable a decision to be
arrived at that reservation was required in promotion
and also to show that the State had to pass such orders
for compelling reasons, such as, backwardness,
inadequacy of representation, as held by this Court in
M. Nagaraj v. Union of India7
. It was contended that
since the State Government had not complied with the
directions given by this Court in M. Nagaraj case7
, the
notification in question was liable to be quashed.
8. It was further urged on behalf of the writ petitioner
Bajrang Lal Sharma, that in Indra Sawhney v. Union of
India8
, this Court had held that Article 16(4) of the
Constitution of India did not permit reservations in the
matter of promotion. Thereafter, the Constitution
(Seventy-seventh Amendment) Act, 1995, was enacted
and came into force on 17-6-1995. The subsequent
special leave petitions filed in Union of India v. Virpal
Singh Chauhan9
, Ajit Singh Januja v. State of Punjab10
[Ajit Singh (I)] and Ajit Singh (II) v. State of Punjab5
,
introduced the “catch-up” rule and held that if a senior
general candidate was promoted after candidates from
the Scheduled Castes and Scheduled Tribes have been
promoted to a particular cadre, the senior general
candidate would regain his seniority on promotion in
relation to the juniors who had been promoted against
reserved vacancies.”
7
(2006) 8 SCC 212
8
 1992 Supp. (3) SCC 217
9
(1995) 6 SCC 684
10 (1996) 2 SCC 715
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
7
3.1 After considering the decision of the Constitution Bench of this
Court in M. Nagaraj7
the matter was concluded as under:-
“60. The vital issue which fell for determination was
whether by virtue of the implementation of the
constitutional amendments, the power of Parliament
was enlarged to such an extent so as to ignore all
constitutional limitations and requirements.
61. Applying the “width” test and “identity” test, the
Constitution Bench held that firstly, it is the width of
the power under the impugned amendments
introducing amended Articles 16(4-A) and 16(4-B)
that had to be tested. Applying the said tests, the
Constitution Bench, after referring to the various
decisions of this Court on the subject, came to the
conclusion that the Court has to be satisfied that the
State had exercised its power in making reservation for
Scheduled Caste and Scheduled Tribe candidates in
accordance with the mandate of Article 335 of the
Constitution, for which the State concerned would
have to place before the Court the requisite quantifiable
data in each case and to satisfy the Court that such
reservation became necessary on account of
inadequacy of representation of Scheduled Caste and
Scheduled Tribe candidates in a particular class or
classes of posts, without affecting the general
efficiency of service.
62. The Constitution Bench went on to observe that the
constitutional equality is inherent in the rule of law.
However, its reach is limited because its primary
concern is not with efficiency of the public law, but
with its enforcement and application. The Constitution
Bench also observed that the width of the power and
the power to amend together with its limitations, would
have to be found in the Constitution itself. It was held
that the extension of reservation would depend on the
facts of each case. In case the reservation was
excessive, it would have to be struck down.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
8
63. It was further held that the impugned Constitution
Amendments, introducing Articles 16(4-A) and
16(4-B), had been inserted and flow from Article
16(4), but they do not alter the structure of Article
16(4) of the Constitution. They do not wipe out any of
the constitutional requirements such as ceiling limit
and the concept of creamy layer on one hand and
Scheduled Castes and Scheduled Tribes on the other
hand, as was held in Indra Sawhney case8
.
64. Ultimately, after the entire exercise, the
Constitution Bench held that the State is not bound to
make reservation for Scheduled Caste and Scheduled
Tribe candidates in matters of promotion but if it
wished, it could collect quantifiable data touching
backwardness of the applicants and inadequacy of
representation of that class in public employment for
the purpose of compliance with Article 335 of the
Constitution.
65. In effect, what has been decided in M. Nagaraj
case7
is part recognition of the views expressed in
Virpal Singh Chauhan case9
, but at the same time
upholding the validity of the Seventy-seventh, Eightyfirst, Eighty-second and Eighty-fifth Amendments on
the ground that the concepts of “catch-up” rule and
“consequential seniority” are judicially evolved
concepts and could not be elevated to the status of a
constitutional principle so as to place them beyond the
amending power of Parliament. Accordingly, while
upholding the validity of the said amendments, the
Constitution Bench added that, in any event, the
requirement of Articles 16(4-A) and 16(4-B) would
have to be maintained and that in order to provide for
reservation, if at all, the tests indicated in Articles
16(4-A) and 16(4-B) would have to be satisfied, which
could only be achieved after an inquiry as to identity.
66. The position after the decision in M. Nagaraj case7
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
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
9
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 case7
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.
68. Accordingly, the claim of petitioners Suraj Bhan
Meena and Sriram Choradia in Special Leave Petition
(Civil) No. 6385 of 2010 will be subject to the
conditions laid down in M. Nagaraj case
7
and is
disposed of accordingly. Consequently, Special Leave
Petitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010,
filed by the State of Rajasthan, are also dismissed.”
3.2. Thus, the view taken by the High Court that no exercise was
undertaken in terms of Article 16(4-A) of the Constitution to acquire
quantifiable data regarding inadequacy of the representation of the
Scheduled Caste (SC) and Scheduled Tribe (ST) communities in public
services, was accepted.
4. On 31.03.2011 the State Government constituted a Committee,
known as Bhatnagar Committee, to look into different aspects relating to
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
10
reservation in promotion and consequential seniority in terms of the
Judgment of this Court in M. Nagaraj7
. The Terms of Reference of the
Committee were:-
“1. Collection and analysis of quantifiable data of
inadequacy of representation of SC and ST in matters
of their promotions and consequential seniority.
2. To ascertain the extent of representation of
members of the SC/ST at each level of promotion in
the various levels of each cadre (There are 110
government cadres in the State).
3. Recommend the guiding principles of maintaining
administrative efficiency vis-à-vis reservation in
promotion of SC/STs.”
4.1 The Committee submitted its Report to the State Government on
19.08.2011. Some of the relevant portions of the Report were as under:-
“10.5. Overall analysis of inadequacy in State and
Subordinate Services as on 1.4.2010
Total Number of State Service 11457
Subordinate 64803
Grand Total 76260
Total number of Levels/Grade Pay State Service 12
Subordinate 13
Total 25
The overall picture after analyzing the position in the
Grade Pay Wise of State and Subordinate Services, in
fact, indicates highly inadequate representation for SC
and ST in these services as further detailed below.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
11
10.5.1. Inadequacy of Representation in Subordinate
Services.
There are thirteen levels for Subordinate Services as
described in Sections 10.4.13 to 1.4.25 i.e. Grade Pays
1650 to 4800 and among them they represent a total of
64326 employees which is almost 84% of the total of
State and subordinate services. In the first group taken
up for detailed analysis of 6 levels i.e. 2800 to 4800. It
would be seen that one level of 2800 has only 128 posts
and can be left out. In the remaining five levels it can
be seen that out of 20 results each for SC and ST in the
five tables above, for the SC there are results of
Alarming Shortage, 5 for Substantial Shortage, 5 for
Moderate Shortage and 1 showing Marginal Shortage.
In two cases the cadres are saturated and excess
representation has been indicated only in 3 cases (2
Moderate and 1 Marginal). In the case of ST there are
11 results showing Alarming Shortage, 2 showing
Substantial Shortage, 3 showing Moderate Shortage
and 2 showing Marginal Shortage. In the remaining 2
cases cadres are saturated. In the remaining seven
levels from 1650 to 2400, four out of them i.e., 1650,
1800, 1850 and 2100 consist of small numbers are of
no consequence. In the remaining levels at 1900, 2000
and 2400, 12 results each for SC and ST do not show
any case of alarming excess, there are two cases of
moderate excess and 5 cases of marginal excess. On
the contrary, there are 4 cases of alarming shortages, 6
of substantial shortages, five of moderate shortages and
one of marginal shortage.
10.5.2. Inadequacy of Representation in State
Services.
Out of 12 levels for state services, the initial four levels
i.e., 4800, 5400, 6000 and 6600 represent 17408
employees, i.e. almost 87% of the total of state
services. Again out of 15 results each for SC and ST,
in case of SC 6 showing Alarming Shortage, 3 show
Substantial Shortage, 6 show Moderate Shortage and
only 1 shows Marginal Excess. In the case of ST, there
are 11 results showing Alarming Shortage, 3 showing
substantial shortage and 1 showing Moderate Shortage.
The remaining one result is of Marginal Excess. In
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
12
another group of two levels i.e., 7600 and 8700
representing 2244 employees indicate a mixed picture
bordering towards Inadequacy. Exactly out of 8 results
for SC and ST each for SC there are 4 results showing
Alarming Shortage and 1 showing Marginal Shortage.
There is one case of Substantial Excess and one each
of Moderate and Marginal Excess.
In the case of ST there are 2 results showing Alarming
Shortage, 1 result of Marginal Substantial Shortage. 1
case of Moderate Shortage and 2 results of Marginal
Shortage. Finally, there is one case of Marginal
Excess.
A third group of two levels i.e., 7000 and 7200
representing only 72 employees indicates saturation
levels for both SC and ST. The last remaining group
consisting of 4 levels i.e., 6800, 8200, 8900 and 10000
representing only 240 employees generally indicate
excess representation. In fact, nut of a total number of
16 results for SC and ST each, for SC 3 indicate
Alarming Shortage and 1 shows a Marginal Shortage.
In 1 case the result shows saturation of the cadre. The
remaining 11 results show 3 Alarming Excess, 4
Substantial Excess, 2 Moderate Excess and 2 results
are of Marginal Excess. In the case of ST there are 6
cases of Alarming Shortage, 1 case of Substantial
Shortage, 1 case of Moderate Shortage and 2 cases of
Marginal Shortage. In the remaining cases there are 4
cases of Alarming Excess, 1 case of Marginal Excess
and 1 case of Cadre Saturation.”
4.2. From paragraphs 10.11.4 onwards the Committee considered
figures of excess/shortage of reserved candidates in different grades and
put the concerned data in tabulated form and the conclusions were
summarized as under:-
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
13
“16.1. Annual Census of State Government
Employees carried out by Directorate of Statistics.
Figures of years 1997, 2001, 2005 and 2009 of the
census indicate that the representation of SC and ST in
public services has increased from 18.59% to 27.19%.
The Pay Range Wise census has also indicated that the
existing levels just seem to be reaching the required
percentage in the lowest pay ranges but they are still
far behind in the higher pay ranges. (Section 9.1.2.2.).
… … …
16.7. Backwardness of SC and ST well
established on the basis of Quantifiable Data.
The Committee finds that backwardness of SC and ST
is well established on the basis of quantifiable data.
(Section 11.5).”
5. On 11.09.2011 a notification was issued in the Gazette amending
the Rajasthan Administrative Service Rules, 1954 as under:-
“DEPARTMENT OF PERSONNEL
(A-Gr.-II)
NOTIFICATIONS
Jaipur, September 11, 2011
G.S.R. 67.- In exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India, the
Governor of Rajasthan hereby makes the following
rules further to amend in the Rajasthan Administrative
Service Rules, 1954, namely:-
1. Short title and commencement.- (1) These rules
may be called the Rajasthan Administrative
Service (Amendment) Rules, 2011.
(2) They shall be deemed to have come into force
w.e.f. 1-4-1997.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
14
2. Amendment of rule 33.- In sub-rule (1) of rule 33
of the Rajasthan Administrative Service Rules, 1954
after the existing last proviso, the following new
proviso at the next serial number shall be added,
namely:-
“that reservation for Scheduled Castes and
Scheduled Tribes employees, with
consequential seniority, shall continue till
the roster points are exhausted; and
adequacy of promotion is achieved.
Once the roster points are complete the
theory of replacement shall thereafter be
exercised in promotion whenever vacancies
earmarked for Scheduled Castes/Scheduled
Tribes employees occur.
If on the application of these provisions
Scheduled Castes/Scheduled Tribes
employees who had been promoted earlier
and are found in excess of adequacy level,
shall not be reverted and shall continue on
ad-hoc basis, and also any employee who
had been promoted in pursuance to
Notification No. F7(1)DOP/A-II/96 dated
1-4-1997 shall not be reverted.
Notification No. F.7(1)DOP/A-II/96 dated
1-4-1997 shall be deemed to have been
repealed w.e.f. 1-4-1997.
Explanation:- Adequate representation
means 16% representation of the Scheduled
Castes and 12% representation of the
Scheduled Tribes in accordance with the
roster point.”
6. In DB Civil Contempt Petition No. 941 of 2010 which was filed
earlier in the High Court seeking implementation of the directions issued
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
15
by the High Court in its judgment and order dated 05.02.2010 in DB Civil
Writ Petition No.8104 of 2008, the High Court by its judgment and order
dated 23.02.2012 found the alleged contemnors to be guilty of violation
of the judgment and order dated 05.02.2010. The High Court held the
notification dated 11.09.2011 to be void holding that the same did not
amount to valid compliance.
7. The matter again reached this Court in the form of challenge to said
decision of the High Court and was dealt with by this Court in its decision
in Salauddin2
.
7.1. The submissions in respect of the notification dated 11.09.2011
were noted as under:-
“18. Appearing for the appellants, the learned Attorney
General pointed out that the Notification issued by the
State Government on 11-9-2011, had been declared
void by the High Court by holding that the same did
not amount to valid compliance and the Notification
dated 1-4-1997 should be given effect to. The learned
Attorney General submitted that since by the
Notification dated 11-9-2011, the earlier Notification
dated 1-4-1997 had been withdrawn, the same could
not be given effect to without first declaring the
Notification dated 11-9-2011 to be ultra vires.
19. The learned Attorney General submitted that the
Notification dated 11-9-2011 could not have been
declared ultra vires in the absence of a substantive writ
petition challenging the same, and, in any event, it
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
16
could not be questioned in a contempt proceeding or be
declared ultra vires therein, particularly, when the
Bhatnagar Committee had been appointed in terms of
the order passed by this Court in M. Nagaraj case7
and
the Notification dated 11-9-2011 was issued in
pursuance of the report of the said Committee.
… … …
38. Dr Dhavan fairly conceded that an order may be
violated without any wilful intent to disobey the same.
Referring to Para 459 of Halsbury’s Laws of England,
dealing with “unintentional disabilities”, Dr Dhavan
pointed out that sometimes it may so happen that an
order of court is breached without any intention on the
part of the offender to do so. Dr Dhavan submitted that
this could be such a case and, accordingly, the
contemnors could be directed to purge themselves of
the contempt by withdrawing all the notifications,
including the Notification dated 11-9-2011, and
implementing the order dated 5-2-20104, and also to
punish the contemnors without sentence.”
7.2. The issue whether the State and its authorities were guilty of willful
and deliberate violation of binding directions was considered by this Court
as under:-
“41. Inasmuch as no further action was taken by the
State and its authorities after the said notifications were
quashed, the contempt petition was filed mainly on the
ground that the State and its authorities had by their
inaction in complying with the requirements set out in
M. Nagaraj case7
, committed contempt of court and
the same was accepted and the appellants herein were
found guilty of having committed contempt of court by
such inaction.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
17
42. The next thing that we are required to consider is
whether such inaction was on account of any
circumstances which prevented the State Government
and its authorities from taking action in terms of the
observations made by the Division Bench of the High
Court in its judgment dated 5-2-20104
, or whether such
inaction was on account of the deliberate intention of
the State and its authorities not to give effect to the
same.
43. The learned Attorney General, who had appeared
for the State of Rajasthan and its authorities, had
submitted that the order dated 5-2-20104
, was in two
parts. While one part dealt with the quashing of the two
notifications, the other was with regard to the
observations made in the said order with regard to the
directions given in M. Nagaraj case7
for collection of
the quantifiable data before giving effect to the
provisions of Article 16(4-A) of the Constitution. The
learned Attorney General has also emphasised that in
order to give effect to the second part of the judgment
and order of the Division Bench of the Rajasthan High
Court and the directions given in para 68 of the
judgment in Suraj Bhan Meena case1
, the Government
of Rajasthan had appointed the Bhatnagar Committee
to obtain the quantifiable data to comply with the
directions given in the two aforesaid judgments. The
learned Attorney General has also pointed out that
directions have been given to all the different
departments on 14-2-2011, to ensure compliance with
the directions contained in Suraj Bhan Meena case1
.
44. Although, it has been urged on behalf of the
respondents that there was a restraint order on the State
and its authorities from giving effect to the
observations made in the order passed by the Division
Bench of the High Court on 5-2-20104
, or even in the
order passed in Suraj Bhan Meena case1
, the State and
its authorities remained inactive on the plea that it had
appointed the Bhatnagar Committee to collect the data
necessary in terms of the judgment and order passed in
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
18
M. Nagaraj case7
, which had been reiterated by this
Court in Suraj Bhan Meena case1
.
45. The explanation given on behalf of the State and its
authorities cannot be discounted, since in order to act
in terms of the sentiments expressed by the High Court
and this Court, it was necessary to collect the
quantifiable data in respect of the Scheduled Caste and
Scheduled Tribe candidates. For collection of such
data, the State appointed the Bhatnagar Committee
which was entrusted with the work of obtaining such
quantifiable data so that the provisions of the amended
clause (4-A) included in Article 16 of the Constitution
could be given effect to in terms of the directions given
in M. Nagaraj case7
, subsequently reiterated in Suraj
Bhan Meena case1
.
46. The various submissions advanced by Mr Salve, Dr
Dhavan and Mr Sanjeev Prakash Sharma in support of
the decision of the Division Bench of the High Court,
holding the appellants guilty of contempt of court and,
in particular, the alleged inaction to implement the
judgment and orders in M. Nagaraj case
7
and Suraj
Bhan Meena case1
are not very convincing, since in
order to comply with the findings in M. Nagaraj case7
and Suraj Bhan Meena case1
, necessary data was
required to be collected, in the absence of which it was
not possible for the State and its authorities to act in
terms of the observations made in M. Nagaraj case7
and in Suraj Bhan Meena case1
.
47. Accordingly, we are of the view that despite the
fact that there has been delay on the part of the State
and its authorities in giving effect to the observations
made in the two aforesaid cases, there was no wilful or
deliberate intention on their part to defy the orders of
this Court. The very fact that the Bhatnagar Committee
was appointed indicates that the State and its
authorities had every intention to implement the
aforesaid observations, though the progress of such
implementation has been tardy. Accordingly, we are
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
19
unable to sustain the impugned judgment11 and order
of the Division Bench of the High Court holding the
appellants guilty of contempt of court for purported
violation of the order passed by the Division Bench of
the Jaipur Bench of the Rajasthan High Court on 5-2-
20104
, while disposing of Civil Writ Petition No. 8410
of 2008. Consequently, the judgment and order under
appeal has to be set aside.
48. We accordingly allow the appeals and set aside the
aforesaid judgment, but with the further direction that
the State and its authorities act in terms of the Report
of the Bhatnagar Committee, in accordance with the
decision rendered in M. Nagaraj case7
and in Suraj
Bhan Meena case1
, within two months from the date of
communication of this judgment and order. There will
be no order as to costs.”
7.3. It was thus found by this Court in paragraphs 46 and 47 that there
was no willful and deliberate violation; that the State Government had
appointed the Bhatnagar Committee to collect the data necessary in terms
of the Judgment and Order passed by this Court in M. Nagaraj7
case
which principles were reiterated in the decision in Suraj Bhan1
. The
directions issued by this Court in paragraph 48 were clear that the State
Government and its authorities were to act in terms of the Report of the
Bhatnagar Committee in accordance with the decision rendered in M.
11 Bajrang Lal Sharma vs. Salauddin Ahmed, Civil Contempt Petitions Nos. 359 and 941 of
2010 in WP(C)No.8104 of 2008, order dated 23-2-2012 (Raj)
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
20
Nagaraj7
case and in the decision in Suraj Bhan1within two months from
the date of decision of this Court.
8. The aforesaid decision was rendered by this Court on 29.08.2012
and the instant Contempt Petitions were filed in November, 2012 setting
out the grievance as under:-
“13. That State of Rajasthan despite the judgment
dated 29.8.2012 passed by this Hon’ble Court, wherein
notification dated 11.9.2011 was not accepted as
compliance to judgment dated 5.2.2010 & 7.12.2010,
had issued a order dated 12.9.2012: whereby direction
was issued to all the departments to publish the
seniority lists and make promotions on the basis of the
notification dated 11.9.2011.
… … …
14. That the action of the State of Rajasthan of making
promotions on the basis of the Notification dated
11.9.2011 is in blatant contempt to the directions given
by this Hon’ble Court in judgment dated 29.8.2012
despite of the understanding / conceding of the State of
Rajasthan that after quashing of the Notifications dated
25.4.2008 and 28.12.2002, the Notification dated
1.4.1997 revives. In order to make compliance of the
judgment dated 5.2.2010, as also required by this
Hon’ble Court vide judgment dated 29.8.2012, the
General Category employees are entitled for their
vested and accrued rights of regained seniority.
… … …
15. That this Hon’ble Court in directions dated
29.8.2012 had clearly directed the State of Rajasthan to
make the compliance of the judgment in terms of the
report of the Bhatnagar Committee, in accordance with
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
21
M. Nagraj7
and Suraj Bhan Meena1
. It is relevant to
mention that Bhatnagar Committee has no where
recommended giving of consequential Seniority to
SC/ST w.e.f. 1.4.1997. It is also to be noted that
Bhatnagar Committee conducted study of only 17
services out of 117 services and out of those 17
services in 16 services there is excessive representation
of the SC/ST employees on promotional posts. In M.
Nagraj7
this Hon’ble Court observed that study is to be
conducted in each case and where there is adequate or
excessive representation that powers under Article
16(4A) cannot be excercised. … …”
9. Notice was issued by this Court on 09.01.2013 whereafter pleadings
have been exchanged and certain additional documents have also been
placed on record.
9.1. In the meantime, the notification dated 11.09.2011 and the
Bhatnagar Committee Report were challenged in the High Court in DB
Civil Writ Petition No. 13476 of 2012 and in other connected matters and
the challenge is still pending. By order dated 20.09.2016 it was observed:-
“Looking at the facts of the case we are of the view that
the writ petitions, i.e., Civil Writ Nos. 14176, 20799,
13476, 16694 of 2012, pending in the High Court of
Rajasthan should be decided finally at an early date,
preferably within three months from the date of
intimation of this order to the High Court.
Parties to the litigation shall appear before the High
Court on 30th September, 2016, so that the date for final
hearing can be fixed by the High Court on that day.”
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
22
9.2. To similar effect was the Order dated 05.12.2017 by which it was
observed:-
“We are informed that pursuant to our order dated
20.09.2016, Writ Petitions are listed before the
Rajasthan High Court after two weeks.
We request the High Court of Rajasthan to dispose of
the Civil Writ Nos.14176, 20799, 13476, 16694 of
2012 without further delay.”
9.3. In view of the fact that by Order dated 15.11.201712 a Bench of
three Judges of this Court had referred the matter to a larger Bench to
consider whether the law declared by this Court in M. Nagaraj7 needed to
be revisited, the Writ Petitions were deferred by the High Court.
9.4. The present Contempt Petitions were, therefore, adjourned vide
Order dated 03.04.2018 with following observations:-
“Post the contempt petitions after the report is received
from the High Court of Rajasthan on the disposal of
Writ Petition(C)No.20119 of 2012 and other connected
matters.
The parties are free to bring to the notice of this Court
once the matters are disposed of by the High Court.”
12 (2018) 17 SCC 261
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
23
10. A Constitution Bench of this Court, in Jarnail Singh and others
vs. Lachhmi Narain Gupta and others13 dealt with the matter while
answering the reference as aforesaid and observed:-
“23. This brings us to whether the judgment in
Nagaraj7 needs to be revisited on the other grounds that
have been argued before us. Insofar as the State having
to show quantifiable data as far as backwardness of the
class is concerned, we are afraid that we must reject
Shri Shanti Bhushan’s argument. The reference to
“class” is to the Scheduled Castes and the Scheduled
Tribes, and their inadequacy of representation in public
employment. It is clear, therefore, that Nagaraj7 has, in
unmistakable terms, stated that the State has to collect
quantifiable data showing backwardness of the
Scheduled Castes and the Scheduled Tribes. We are
afraid that this portion of the judgment is directly
contrary to the nine-Judge Bench in Indra Sawhney
(1)8
Jeevan Reddy, J., speaking for himself and three
other learned Judges, had clearly held:
“[t]he test or requirement of social and
educational backwardness cannot be applied
to the Scheduled Castes and the Scheduled
Tribes, who indubitably fall within the
expression “backward class of citizens”.”
(See SCC p. 727, paras 796 to 797.)
Equally, Dr Justice Thommen, in his
conclusion at para 323(4), had held as
follows: (SCC pp. 461-62)
“323. Summary
* * *
(4) Only such classes of citizens who are
socially and educationally backward are
qualified to be identified as Backward
Classes. To be accepted as Backward Classes
for the purpose of reservation under Article
13 (2018) 10 SCC 396
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
24
15 or Article 16, their backwardness must
have been either recognised by means of a
notification by the President under Article
341 or Article 342 declaring them to be
Scheduled Castes or Scheduled Tribes, or, on
an objective consideration, identified by the
State to be socially and educationally so
backward by reason of identified prior
discrimination and its continuing ill effects
as to be comparable to the Scheduled Castes
or the Scheduled Tribes. In the case of the
Scheduled Castes or the Scheduled Tribes,
these conditions are, in view of the
notifications, presumed to be satisfied.””
24. In fact, Chinnaiah14 has referred to the Scheduled
Castes as being the most backward among the
Backward Classes (see para 43). This is for the reason
that the Presidential List contains only those castes or
groups or parts thereof, which have been regarded as
untouchables. Similarly, the Presidential List of
Scheduled Tribes only refers to those tribes in remote
backward areas who are socially extremely backward.
Thus, it is clear that when Nagaraj7
requires the States
to collect quantifiable data on backwardness, insofar as
Scheduled Castes and Scheduled Tribes are concerned,
this would clearly be contrary to Indra Sawhney (1)8
and would have to be declared to be bad on this ground.
25. However, when it comes to the creamy layer
principle, it is important to note that this principle
sounds in Articles 14 and 16(1), as unequals within the
same class are being treated equally with other
members of that class. The genesis of this principle is
to be found in State of Kerala v. N.M. Thomas15. This
case was concerned with a test-relaxation rule in
promotions from lower division clerks to upper
division clerks. By a 5:2 majority judgment, the said
rule was upheld as a rule that could be justified on the
basis that it became necessary as a means of generally
14 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329
15 (1976) 2 SCC 310 : 1976 SCC (L&S) 227
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
25
giving a leg-up to Backward Classes. In para 124,
Krishna Iyer, J. opined: (SCC p. 363)
“124. A word of sociological caution. In the
light of experience, here and elsewhere, the
danger of “reservation”, it seems to me, is
threefold. Its benefits, by and large, are
snatched away by the top creamy layer of
the “backward” caste or class, thus keeping
the weakest among the weak always weak
and leaving the fortunate layers to consume
the whole cake. Secondly, this claim is
overplayed extravagantly in democracy by
large and vocal groups whose burden of
backwardness has been substantially
lightened by the march of time and
measures of better education and more
opportunities of employment, but wish to
wear the “weaker section” label as a means
to score over their near-equals formally
categorised as the upper brackets. Lastly, a
lasting solution to the problem comes only
from improvement of social environment,
added educational facilities and crossfertilisation of castes by inter-caste and
inter-class marriages sponsored as a
massive State programme, and this solution
is calculatedly hidden from view by the
higher “backward” groups with a vested
interest in the plums of backwardism. But
social science research, not judicial
impressionism, will alone tell the whole
truth and a constant process of objective reevaluation of progress registered by the
“underdog” categories is essential lest a
once deserving “reservation” should be
degraded into “reverse discrimination”.
Innovations in administrative strategy to
help the really untouched, most backward
classes also emerge from such socio-legal
studies and audit exercises, if
dispassionately made. In fact, research
conducted by the A.N. Sinha Institute of
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
26
Social Studies, Patna, has revealed a dual
society among harijans, a tiny elite gobbling
up the benefits and the darker layers
sleeping distances away from the special
concessions. For them, Articles 46 and 335
remain a “noble romance” [As Huxley
called it in “Administrative Nihilism”
(Methods and Results, Vol. 4 of Collected
Essays).], the bonanza going to the “higher”
Harijans. I mention this in the present case
because lower division clerks are likely to
be drawn from the lowest levels of Harijan
humanity and promotion prospects being
accelerated by withdrawing, for a time,
“test” qualifications for this category may
perhaps delve deeper. An equalitarian
breakthrough in a hierarchical structure has
to use many weapons and Rule 13-AA
perhaps is one.”
(emphasis in original)
26. The whole object of reservation is to see that
Backward Classes of citizens move forward so that
they may march hand in hand with other citizens of
India on an equal basis. This will not be possible if only
the creamy layer within that class bag all the coveted
jobs in the public sector and perpetuate themselves,
leaving the rest of the class as backward as they always
were. This being the case, it is clear that when a court
applies the creamy layer principle to Scheduled Castes
and Scheduled Tribes, it does not in any manner tinker
with the Presidential List under Articles 341 or 342 of
the Constitution of India. The caste or group or subgroup named in the said List continues exactly as
before. It is only those persons within that group or
sub-group, who have come out of untouchability or
backwardness by virtue of belonging to the creamy
layer, who are excluded from the benefit of reservation.
Even these persons who are contained within the group
or sub-group in the Presidential Lists continue to be
within those Lists. It is only when it comes to the
application of the reservation principle under Articles
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
27
14 and 16 that the creamy layer within that sub-group
is not given the benefit of such reservation.
27. We do not think it necessary to go into whether
Parliament may or may not exclude the creamy layer
from the Presidential Lists contained under Articles
341 and 342. Even on the assumption that Articles 341
and 342 empower Parliament to exclude the creamy
layer from the groups or sub-groups contained within
these Lists, it is clear that constitutional courts,
applying Articles 14 and 16 of the Constitution to
exclude the creamy layer cannot be said to be thwarted
in this exercise by the fact that persons stated to be
within a particular group or sub-group in the
Presidential List may be kept out by Parliament on
application of the creamy layer principle. One of the
most important principles that has been frequently
applied in constitutional law is the doctrine of
harmonious interpretation. When Articles 14 and 16
are harmoniously interpreted along with other Articles
341 and 342, it is clear that Parliament will have
complete freedom to include or exclude persons from
the Presidential Lists based on relevant factors.
Similarly, constitutional courts, when applying the
principle of reservation, will be well within their
jurisdiction to exclude the creamy layer from such
groups or sub-groups when applying the principles of
equality under Articles 14 and 16 of the Constitution of
India. We do not agree with Balakrishnan, C.J.’s
statement in Ashoka Kumar Thakur16 that the creamy
layer principle is merely a principle of identification
and not a principle of equality.
28. Therefore, when Nagaraj7
applied the creamy layer
test to Scheduled Castes and Scheduled Tribes in
exercise of application of the basic structure test to
uphold the constitutional amendments leading to
Articles 16(4-A) and 16(4-B), it did not in any manner
interfere with Parliament’s power under Article 341 or
Article 342. We are, therefore, clearly of the opinion
that this part of the judgment does not need to be
16 Ashoka Kumar Thakur v. union of India, (2008) 6 SCC 1 : 3 SCEC 35
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
28
revisited, and consequently, there is no need to refer
Nagaraj7
to a seven-Judge Bench. We may also add at
this juncture that Nagaraj7
is a unanimous judgment of
five learned Judges of this Court which has held sway
since the year 2006. This judgment has been repeatedly
followed and applied by a number of judgments of this
Court, namely:
28.1. Anil Chandra v. Radha Krishna Gaur17 (twoJudge Bench) (see paras 17 and 18).
28.2. Suraj Bhan Meena v. State of Rajasthan1
(twoJudge Bench) (see paras 10, 50, and 67).
28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar18 (twoJudge Bench) [see paras 61, 81(ix), and 86].
28.4. S. Panneer Selvam v. State of T.N.19 (two-Judge
Bench) (see paras 18, 19, and 36).
28.5. Central Bank of India v. SC/ST Employees
Welfare Assn.20 (two-Judge Bench) (see paras 9 and
26).
28.6. Suresh Chand Gautam v. State of U.P.21 (twoJudge Bench) (see paras 2 and 45).
28.7. B.K. Pavitra v. Union of India22 (two-Judge
Bench) (see paras 17 to 22).”
10.1 The conclusion arrived at in para 36 of the decision was:-
36. Thus, we conclude that the judgment in Nagaraj7
does not need to be referred to a seven-Judge Bench.
However, the conclusion in Nagaraj7
that the State has
to collect quantifiable data showing backwardness of
the Scheduled Castes and the Scheduled Tribes, being
17
 (2009) 9 SCC 454
18 (2012) 7 SCC 1
19 (2015) 10 SCC 292
20 (2015) 12 SCC 308
21 (2016) 11 SCC 113
22 (2017) 4 SCC 620
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
29
contrary to the nine-Judge Bench in Indra Sawhney
(1)8
is held to be invalid to this extent.”
11. Thereafter, by way of Interlocutory Application No.17130 of 2019
a copy of order dated 05.10.2018 issued by the Government of Rajasthan
was placed on record. The relevant portion of said order was as under:-
“As per the opinion of Law Department in reference to
the judgment dated 09.02.2017 delivered by Hon’ble
Supreme Court in SLP No.2368/2011 B.K. Pavitra
V/s. Govt. of India, the notification dated 11.09.2011
is hereby clarified as under:-
As per the provisions of notification dated
11.09.2011 of Personnel Department, the
benefits of consequential seniority in
reservation in promotion for public servants
of SC/ST categories, can only be extended till
the achievement of the condition of adequacy
in promotion or till roster point is completed.
Once the fulfillment of roster point,
replacement theory will be applicable.
As per the principle laid down by Hon’ble
Supreme Court in above judgment dated
09.02.2017 and above provision provided in
notification dated 11.09.2011, in the matter
of promotion of public servants of Scheduled
Castes/Scheduled Tribes categories, where
adequacy of representation has been
achieved, the consequential seniority cannot
be given and the public servants of General
& OBC categories will regain their
consequential seniority and seniority lists
will be issued accordingly.
Hence all Recruiting Officers/HODs hereby
instructed to implement the above order word
by word.”
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
30
12. In affidavit dated 17.02.2019 filed on behalf of the State
Government following stand was taken in para 3 of the affidavit:-
“3. A clarification was sought to be issued by the State
Government vide Circular dated 05.10.2018.
However, the Circular dated 05.10.2018 was made
inoperative/stayed by the State Government
immediately after the issuance of the Circular dated
05.10.2018 in the month of October, 2018 itself. Thus
the circular of 05.10.2018 has never been acted upon.
The present government is seeking re-examine the
efficacy of the Circular dated 05.10.2018. It is
reiterated that the Circular of 05.10.2018 is
inoperative.”
13. We heard Mr. M. L. Lahoti, learned Advocate for the contempt
petitioner and Dr. Manish Singhvi, learned Senior Advocate for the alleged
contemnors.
It was submitted by Mr. Lahoti, learned Advocate that the directions
issued by this Court in Suraj Bhan Meena1 were not complied with; that the
Notification dated 11.09.2011 was in contempt of the directions issued by
this Court; that the stand taken in the affidavit dated 17.02.2019 was
completely incorrect and more than 50 inter-departmental orders had been
passed implementing Circular dated 05.10.2018; that in the light of Circular
dated 05.10.2018 adequacy level in RAC Cadre having been achieved the
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
31
contempt petitioner ought to be extended the benefit of regaining of seniority
along with all consequential benefits of reservation in promotion from
RAS23 to IAS24
.
In response, Dr. Singhvi, learned Senior Advocate submitted that
Notification dated 11.09.2011 was found to be in contempt of binding
directions and was specifically held by the High Court to be inoperative;
however, the view taken by the High Court was set aside by this Court; and
that the Notification dated 11.09.2011 cannot therefore be held to be in
contempt of the directions issued by this Court; that challenge to such
Notification and to the recommendations of the Bhatnagar Committee was
still pending in the High Court; and that one of the pending writ petitions
was that of the contempt petitioner himself.
14. The law declared by this Court in M. Nagraj7
, which was followed
in Suraj Bhan Meena1
is clear that in the absence of any quantifiable data
relating to the issue of backwardness and inadequacy of representation of
the concerned classes in public employment, no benefit of consequential
seniority could be extended. Therefore, in Suraj Bhan Meena1
, the
23 Rajasthan Administrative Service
24 Indian Administrative Service
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
32
Notifications dated 28.12.2002 and 25.08.2008 providing for consequential
seniority in promotion to the Members of the SC/ST communities were set
aside.
15. Since the decision in Suraj Bhan Meena1 was on the premise that
no such exercise was undertaken to acquire quantifiable data, the State
Government constituted the Bhatnagar Committee. The Committee went
into the issues and made certain recommendations based on which a
Notification was issued by the State Government on 11.09.2011. Whether
that amounted to contempt or not was a subject matter of discussion before
the High Court which, by its judgment and order dated 23.02.2012 found
said Notification to be not in compliance of binding directions and to be
invalid. The challenge in Salauddin2 was inter alia to the finding arrived at
by the High Court in its contempt jurisdiction and the submission advanced
by the learned Attorney General as recorded in paras 18 and 19 of the
decision in Salauddin2 was that in the absence of any substantive writ
petition challenging the same, said Notification could not have been
questioned in contempt jurisdiction. The decision in Salauddin2
set aside
the view taken by the High Court. Thus, the issuance of Notification dated
11.09.2011 was not found to be in contempt nor was it invalidated for being
non-compliant of any binding directions.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
33
16. As a matter of fact, the directions issued by this Court in para 48
were clear that the State and its authorities were to act in terms of the report
of the Bhatnagar Committee in accordance with the decisions in M. Nagraj7
and Suraj Bhan Meena1
. The basic foundation of the present contempt
petitions projecting the issuance of Notification dated 11.09.2011 to be in
contempt of the directions issued by this Court, thus, does not survive. In
any case, challenge to said Notification and the report of the Bhatnagar
Committee is still pending consideration before the High Court where the
correctness and validity thereof will be gone into in accordance with law.
17. With the decision of this Court in Jarnail Singh13 the matter also
stands on a slightly modified footing. As concluded by this Court in Jarnail
Singh13 the conclusion in M. Nagraj7
that the State has to collect
quantifiable data showing backwardness of SC/ST, being contrary to the 9
Judges Bench decision in Indra Sawhney8
, was held to be invalid. The
challenge to the recommendations given by the Bhatnagar Committee and
the quantifiable data adverted to by the Committee will therefore have to be
seen by the High Court in the light of the directions issued by this Court in
Jarnail Singh13
.
18. It is, thus, clear that all these issues need to be gone into in a
substantive challenge and will be beyond the scope of contempt jurisdiction.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
34
The issuance of Notification dated 11.09.2011 was in exercise of powers
vested in the concerned authorities and if the approach and the exercise is
otherwise incorrect or wrong, the same can be tested and considered while
dealing with the substantive challenge but such issuance cannot be said to
be contumacious to invite any action in contempt jurisdiction.
19. In the circumstances, we see no reason to entertain these contempt
petitions any longer. These contempt petitions are directed to be closed.
We, however, request the High Court to consider taking up all the matters
where challenge has been made to the issuance of Notification dated
11.09.2011 and to the recommendations of the Bhatnagar Committee and
such allied issues as early as possible and dispose of the same preferably
within a period of six months from the date of this order.
………………………………J.
[Uday Umesh Lalit]
………………………………J.
[Indira Banerjee]
………………………………J.
[M.R. Shah]
New Delhi;

January 23, 2020.