1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/INHERENT/ORIGINAL JURISDICTION
M A No. 1151 of 2018
In
Civil Appeal No. 2368 of 2011
B K Pavitra and Ors ...Appellants
Versus
The Union of India and Ors ...Respondents
With
Review Petition (c) Diary No. 7833 of 2017
With
Review Petition (c) Diary No.10240 of 2017
With
Review Petition (c) Diary No.10258 of 2017
With
2
Review Petition (c) Diary No.10859 of 2017
With
Review Petition (c) Diary No.12622 of 2017
With
Review Petition (c) Diary No.12674 of 2017
With
Review Petition (c) Diary No.13047 of 2017
With
Review Petition (c) Diary No.14563 of 2017
With
Review Petition (c) Diary No.16896 of 2017
With
M A No. 1152 of 2018
In
Civil Appeal No. 2369 of 2011
With
Writ Petition (c) No. 764 of 2018
With
Writ Petition (c) No. 769 of 2018
With
3
Writ Petition No.791 of 2018
With
Writ Petition (c) No.823 of 2018
With
Writ Petition (c) No. 827 of 2018
With
Writ Petition (c) No. 850 of 2018
With
Writ Petition (c) No.875 of 2018
With
Writ Petition (c) No. 872 of 2018
With
Writ Petition (c) No. 901 of 2018
With
Writ Petition (c) No. 879 of 2018
And
With
Writ Petition (c) No. 1209 of 2018
4
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J.
This judgment has been divided into sections to facilitate analysis. They are
A The constitutional challenge
B The constitutional backdrop to reservations in Karnataka
C Submissions
C.I Petitioners
C.2 Submissions for the respondents and intervenors
D Assent to the Bill
E Does the Reservation Act 2018 overrule or nullify B K Pavitra I
E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act
2018
E.2 The Ratna Prabha Committee report
F Substantive versus formal equality
F.I The Constituent Assembly‘s understanding of Article 16 (4)
F.2 The Constitution as a transformative instrument
G Efficiency in administration
H The issue of creamy layer
I Retrospectivity
J Over representation in KPTCL and PWD
K Conclusion
PART A
5
A The constitutional challenge
1 The principal challenge in this batch of cases is to the validity of the
Karnataka Extension of Consequential Seniority to Government Servants
Promoted on the Basis of Reservation (to the Posts in the Civil Services of the
State) Act 2018
1
. The enactment provides, among other things, for consequential
seniority to persons belonging to the Scheduled Castes2
and Scheduled Tribes3
promoted under the reservation policy of the State of Karnataka. The law protects
consequential seniority from 24 April 1978.
2 The Reservation Act 2018 was preceded in time by the Karnataka
Determination of Seniority of the Government Servants Promoted on the Basis of
the Reservation (to the Posts in the Civil Services of the State) Act 20024
. The
constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra
v Union of India5
, (―B K Pavitra I‖). A two judge Bench of this Court (consisting
of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and 4 of the
Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on
the ground that an exercise for determining ―inadequacy of representation‖,
―backwardness‖ and the impact on ―overall efficiency‖ had not preceded the
enactment of the law. Such an exercise was held to be mandated by the decision
of a Constitution Bench of this Court in M Nagaraj v Union of India6
(―Nagaraj‖).
1 Reservation Act 2018
2
SCs
3
STs
4 Reservation Act 2002
5
(2017) 4 SCC 620
6
(2006) 8 SCC 212
PART B
6
In the absence of the State of Karnataka having collected quantifiable data on
the above three parameters, the Reservation Act 2002 was held to be invalid.
3 The legislature in the State of Karnataka enacted the Reservation Act 2018
after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The
grievance of the petitioners is that the state legislature has virtually re-enacted
the earlier legislation without curing its defects. According to the petitioners, it is
not open to a legislative body governed by the parameters of a written
constitution to override a judicial decision, without taking away its basis. On the
other hand, the State government has asserted that an exercise for collecting
―quantifiable data‖ was in fact carried out, consistent with the parameters required
by the decision in Nagaraj. The petitioners question both the process and the
outcome of the exercise carried out by the state for collecting quantifiable data.
B The constitutional backdrop to reservations in Karnataka
4 The present case necessitates that this Court weave through the body of
precedent which forms a part of our constitutional jurisprudence on the issue of
reservations. In many ways, the issues before the Court are unique. For, in the
post Nagaraj world which governs this body of law, the State government
defends its legislation on the ground that it has fulfilled the constitutional
requirement of collecting quantifiable data before it enacted the law. If such an
exercise has been carried out, the Court will need to address itself to the
standard of judicial review by a constitutional court of a legislation enacted by a
competent legislature. The extent to which a data collection exercise by the
PART B
7
government, which precedes the enactment of the law, may be reviewed by the
Court is a seminal issue. B K Pavitra I involved a situation where this Court
invalidated a law on the ground that no exercise of data collection was carried out
by the State of Karnataka. In the present batch of cases, (herein referred to as B
K Pavitra II), there is a constitutional challenge to the validity of a law enacted
after the State had undertaken the exercise of collecting quantifiable data.
Whether that exercise of data collection and the enactment of the new law which
has emerged on its foundation takes away the basis of or the cause for the
invalidation of the Reservation Act 2002 in B K Pavitra I is an essential question
for our consideration.
In this background, we set out the significant facts, in the chequered history of the
present case.
5 In exercise of the power conferred by the proviso to Article 309 of the
Constitution, the Governor of Karnataka framed the Karnataka Government
Servant (Seniority Rules) 19577
. Rules 2 and 4 provide for seniority on the basis
of the period of service in a given cadre. There was no specific rule governing
seniority in respect of roster promotions.
Rule 2 inter alia, provides as follows:
―2. Subject to the provisions hereinafter contained the
seniority of a person in a particular cadre of service or class
of post shall be determined as follows:-
(a) Officers appointed substantively in clear vacancies shall
be senior to all persons appointed on officiating or any
other basis in the same cadre of service or class of post;
7
The Rules 1957
PART B
8
(b) The seniority inter se of officers who are confirmed shall
be determined according to dates of confirmation, but
where the date of confirmation of any two officers is the
same, their relative seniority will be determined by their
seniority inter se while officiating in the same post and if
not, by their seniority inter se in the lower grade.
(c) Seniority inter se of persons appointed on temporary
basis will be determined by the dates of their continuous
officiation in that grade and where the period of officiation
is the same the seniority inter se in the lower grade shall
prevail.‖
Rule 4 provides for the determination of seniority where promotions are made at
the same time on the basis of seniority-cum-merit to a class of posts or cadre:
―4. When promotions to a class of post or cadre are made on
the basis of seniority-cum-merit at the same time, the relative
seniority shall be determined.-
(i) if promotions are made from any one cadre or class of
post, by their seniority inter se in the lower cadre or class
of post;
(ii) if promotions are made from several cadres or classes of
posts of the same grade, by the period of service in those
grades;
(iii) if promotions are made from several cadres or classes of
posts, the grades of which are not the same, by the order
in which the candidates are arranged by the authority
making the promotion, in consultation with Public Service
Commission where such consultation is necessary, taking
into consideration the order in which promotions are to be
made from those several cadres or classes of post.‖
Rule 4-A provides for the determination of the seniority where promotion is made
by selection:
―4-A When promotions to a class of post or cadre are
made by selection at the same time either from several
cadres or classes of post or from same cadre or class of post
by the order in which the candidates are arranged in order of
merit by the Appointing Authority making the selection, in
consultation with Public Service Commission where such
consultation is necessary.
PART B
9
[Explanation – For purposes of this rule, ―several cadres or
classes of post‖ shall be deemed to include cadres or classes
of post of different grades from which recruitment is made in
any specified order of priority in accordance with any special
rules of recruitment.].‖
6 Reservation for persons belonging to SCs and STs in specified categories
of promotional posts was introduced by a Government Order8
dated 27 April 1978
of the Government of Karnataka. Reservation in promotional posts for SCs was
set at 15 per cent and for STs at 3 per cent in all cadres up to and inclusive of the
lowest category of Class I posts in which there is no element of direct recruitment
or where the direct recruitment does not exceed 662/3 per cent. A 33 point roster
was applicable to each cadre of posts under appointing authorities. Inter-se
seniority amongst persons promoted on any occasion was to be determined in
accordance with Rules 4 and 4-A, as the case may be, of the Rules 1957. It also
stipulated that vacancies would not be carried forward.
7 On 1 June 1978, the State government issued an Official Memorandum9
providing guidelines and clarifications for implementing the Government Order
dated 27 April 1978. The Official Memorandum stipulated that after promotion,
seniority among candidates promoted on the basis of seniority-cum-merit shall,
on each occasion, be fixed in accordance with Rule 4 of the Rules 1957. In other
words, seniority would be governed by the inter se seniority in the cadre from
which candidates were promoted. For candidates promoted by selection,
seniority would be governed by Rule 4-A : the ranking would be as assigned in
8 G.O. No. DPAR 29 SBC 77
9 O.M. No. DPAR 29 SBC 77
PART B
10
the list of selected candidates by the appointing authority. The Official
Memorandum dated 1 June 1978 thus provided, what can be described as the
principle of consequential seniority to reserved category candidates.
8 By a notification10 dated 1 April 1992, a proviso was inserted to Rule 8 of
the Karnataka Civil Services (General Recruitment) Rules 197711 which provided
that vacancies not filled by SCs and STs would be treated as a backlog and
would be made good in the future. This provision was upheld by a two judge
Bench of this Court in Bhakta Ramegowda v State of Karnataka12 (―Bhakta
Ramegowda‖).
9 On 16 November 1992, a nine judge Bench of this Court delivered
judgment in Indra Sawhney v Union of India13 (―Indra Sawhney‖). The issue as
to whether reservations of promotional posts were contemplated by Article 16
(4)14
- when it used the expression ‗appointment‘ was among the issues dealt
with. Justice B P Jeevan Reddy speaking for a plurality of four judges held that:
(i) Reservations contemplated by Article 16 (4) of the Constitution should not
exceed 50 per cent15. While 50 per cent shall be the rule, ―it is necessary
not to put out of consideration certain extraordinary situations inherent in
10 No. DPAR 13 SRR 92
11 The Rules 1977
12 (1997) 2 SCC 661
13 1992 Supp (3) SCC 217
14 Clauses (1) and (4) of Article 16 provide:
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
…
(4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
15 Supra 13, paragraph 809 at page 735
PART B
11
the great diversity of this country and the people‖16. But, any relaxation of
the strict rule must be with extreme caution and on a special case being
made out17;
(ii) Reservations under Article 16 (4) could only be provided at the time of
entry into government service but not in matters of promotion. However,
this principle would operate only prospectively and not affect promotions
already made. Moreover, reservations already provided in promotions shall
continue in operation for a period of five years from the date of the
judgment18;
(iii) The creamy layer can be and must be excluded. Justice B P Jeevan
Reddy held :
―792…While we agree that clause (4) aims at group
backwardness, we feel that exclusion of such socially
advanced members will make the ‗class‘ a truly backward
class and would more appropriately serve the purpose and
object of clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case of
Scheduled Tribes and Scheduled Castes).‖19
(iv) The adequacy of the representation of a backward class of citizens in
services ―is a matter within the subjective satisfaction of the State‖20, since
the requirement in Article 16 (4) is preceded by the words ―in the opinion of
the State‖. The basis of the standard of judicial review was formulated
thus:
―798…This opinion can be formed by the State on its own,
i.e., on the basis of the material it has in its possession
already or it may gather such material through a
Commission/Committee, person or authority. All that is
16 Ibid, paragraph 810 at page 735
17 Ibid, paragraph 810 at page 735
18 Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771
19 Ibid at page 725
20 Ibid, paragraph 798 at page 728
PART B
12
required is, there must be some material upon which the
opinion is formed. Indeed, in this matter the court should
show due deference to the opinion of the State, which in the
present context means the executive. The executive is
supposed to know the existing conditions in the society,
drawn as it is from among the representatives of the people in
Parliament/Legislature. It does not, however, mean that the
opinion formed is beyond judicial scrutiny altogether. The
scope and reach of judicial scrutiny in matters within
subjective satisfaction of the executive are well and
extensively stated in Barium Chemicals v. Company Law
Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need
not be repeated here. Suffice it to mention that the said
principles apply equally in the case of a constitutional
provision like Article 16(4) which expressly places the
particular fact (inadequate representation) within the
subjective judgment of the State/executive.‖21
(v) The backward class of citizens cannot be identified only and exclusively
with reference to an economic criterion22. It is permissible to identify a
backward class of citizens with reference to occupation, income as well
caste.
10 In view of the decision of this Court in Indra Sawhney, the provisions for
reservation in matters of promotion under the Government Order of 1978, as
clarified by the Official Memorandum dated 1 June 1978 were saved for a period
of five years from 16 November 1992. Promotions already made were saved.
11 On 17 June 1995, Parliament acting in its constituent capacity adopted the
seventy-seventh amendment by which clause (4A) was inserted into Article 16 to
enable reservations to be made in promotion in favour of the SCs and STs23. The
21 Ibid at page 728
22 Ibid, paragraph 799 at page 728
23 Clause 16 (4A) : Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled
PART B
13
amendment came into force on 17 June 1995, before the expiry of five years from
16 November 1992 (the date on which the decision in Indra Sawhney was
pronounced). As a result of the decision in Indra Sawhney and the seventyseventh amendment to the Constitution, the provision for reservations made by
the Government of Karnataka under the Government Order of 1978 stood saved
and continued to operate.
12 On 10 February 1995, a Constitution Bench of this Court rendered a
judgment in R K Sabharwal v State of Punjab24 (―Sabharwal‖) and held that:
(i) Once the prescribed percentage of posts is filled by reserved category
candidates by the operation of the roster, the numerical test of adequacy is
satisfied and the roster would cease to operate25;
(ii) The percentage of reservation has to be worked out in relation to the
number of posts which form the cadre strength. The concept of vacancy
has no relevance in operating the percentage of reservation26; and
(iii) The interpretation placed on the working of the roster shall operate
prospectively27 from 10 February 1995.
13 On 1 October 1995, a two judge Bench of this Court held in Union of India
v Virpal Singh Chauhan28 (―Virpal Singh‖) that the state could provide that even
if a candidate belonging to the SC or ST is promoted earlier on the basis of
Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the
services under the State.
24 (1995) 2 SCC 745
25 Ibid, paragraph 5 at page 750
26 Ibid, paragraph 6 at page 751
27 Ibid, paragraph 11 at page753
28 (1995) 6 SCC 684
PART B
14
reservation and on the application of the roster, this would entitle such a person
to seniority over a senior belonging to the general category in the feeder cadre.
However, a senior belonging to the general category who is promoted to a higher
post subsequently would regain seniority over the reserved candidate who was
promoted earlier. This rule came to be known as the catch-up rule. The two judge
Bench directed that the above principle would be followed with effect from the
date in the judgment in Sabharwal29
.
14 Six months after the decision in Virpal Singh, on 1 March 1996, a three
judge Bench of this Court in Ajit Singh Januja v State of Punjab30 (―Ajit Singh
I‖), adopted the catch-up rule propounded in Virpal Singh, to the effect that the
seniority between reserved category candidates and general candidates in the
promoted category shall continue to be governed by their inter se seniority in the
lower grades. This Court held that a balance has to be maintained so as to avoid
―reverse discrimination‖ and, a rule or circular which gives seniority to a candidate
belonging to the reserved category promoted on the basis of roster points would
violate Articles 14 and 16 of the Constitution.
15 On 24 June 1997, the Government of Karnataka issued a Government
Order31 formulating guidelines in regard to the manner in which backlog
vacancies were required to be filled. On 3 February 1999, the Government of
29 10 February 1995
30 (1996) 2 SCC 715
31 G.O. No. DPAR 10 SCBC 97
PART B
15
Karnataka issued another Government Order32 pursuant to Article 16 (4A)
stipulating a modified policy of reservation in matters of promotion. The 1999
Order provides for reservation in promotion to the extent of 15 per cent for SCs
and 3 per cent for STs of the posts in a cadre up to and inclusive of the lowest
category of group A posts in each service for which there is no element of direct
recruitment or, where the proportionate of direct recruitment does not exceed
662/3 per cent. While providing for the continuance of reservations in promotion,
the Government Order stipulated that reservation in favour of persons belonging
to the SCs shall continue to operate until their representation in a cadre reaches
15 per cent. Reservations in promotion for the STs would continue to operate
until their representation in a cadre reaches 3 per cent. Thereafter, reservation in
promotion shall continue only to maintain the representation to the extent of the
above percentages for the respective categories. On 13 April 1999, the
Government of Karnataka issued another Government Order33 modifying the
1999 Order to provide that reservations in promotions in favour of the SCs and
STs shall continue to operate by applying the existing roster to the vacancies till
the representation of persons belonging to these categories reached 15 per cent
or 3 per cent as the case may be, respectively. Moreover, after the existing
backlog was cleared, the representation of persons belonging to SCs and STs
would be maintained to the extent of 15 per cent and 3 per cent of the total
working strength.
32 G.O. No. DPAR 21 SBC 97
33 Ibid
PART B
16
16 In Jagdish Lal v State of Haryana34
, (―Jagdish Lal‖) a three judge Bench
of this Court took a view contrary to the decision in Ajit Singh I. The decision in
Jagdish Lal held that by virtue of the principle of continuous officiation, a
candidate belonging to a reserved category who is promoted earlier than a
general category candidate due to an accelerated promotion would not lose
seniority in the higher cadre. This conflict of decisions was resolved by a
Constitution Bench in Ajit Singh v State of Punjab35 (―Ajit Singh II‖). The
Constitution Bench held that Article 16 (4A) is only an enabling provision for
reservation in promotion. In consequence, roster point promotees belonging to
the reserved categories could not count their seniority in the promoted category
from the date of continuance officiation in the promoted post in relation to general
category candidates who were senior to them in the lower category and who
were promoted later. Where a senior general candidate at the lower level is
promoted later than a reserved category candidate, but before the further
promotion of the latter, such a person will have to be treated as senior at the
promotional level in relation to the reserved candidate who was promoted earlier.
The Constitution Bench accordingly applied the catch-up rule for determining the
seniority of roster point promotees vis-à-vis general category candidates. The
Court held that any circular, order or rule that was issued to confer seniority to
roster point promotees would be invalid. However, the Constitution Bench
directed that candidates who were promoted contrary to the above principles of
law before 1 March 1999 (the date of the decision in Ajit Singh I) need not be
reverted.
34 (1997) 6 SCC 538
35 (1999) 7 SCC 209
PART B
17
17 Contending that there was no provision permitting seniority to be granted
in respect of roster point promotees belonging to the reserved categories, the
reservation policy of the State of Karnataka came to be challenged before this
Court in M G Badappanavar v State of Karnataka36 (―Badappanavar‖). A three
judge Bench, relying on the decisions in Ajit Singh I, Ajit Singh II and
Sabharwal reiterated the principle that Article 16 (4A) does not permit the
conferment of seniority to roster point promotees. This Court held that there was
no specific rule in the State of Karnataka permitting seniority to be counted in
respect of a roster promotion. It held thus:
―12…The roster promotions were, it was held, meant only for
the limited purpose of due representation of backward
classes at various levels of service. If the rules are to be
interpreted in a manner conferring seniority to the roster-point
promotees, who have not gone through the normal channel
where basic seniority or selection process is involved, then
the rules, it was held will be ultra vires Article 14 and Article
16 of the Constitution of India. Article 16(4-A) cannot also
help. Such seniority, if given, would amount to treating
unequals equally, rather, more than equals.‖37
18 The conferment of seniority to roster point promotees of the reserved
categories would, in view of the court in Badappanavar, violate the equality
principle which was part of the basic structure of the Constitution. The Court
directed that the seniority lists and promotions be reviewed in accordance with its
directions but those who were promoted before 1 March 1996 on principles
contrary to Ajit Singh II and those who were promoted contrary to Sabharwal
before 10 February 1995 need not be reverted.
36 (2001) 2 SCC 666
37 Ibid at page 672
PART B
18
19 The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with
effect from 17 June 1995. Article 16 (4A), as amended, reads thus:
―Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in
the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the services under
the State.‖ (Emphasis supplied)
The purpose of the amendment was to enable the grant of consequential
seniority to reserved categories promotees. The significance of the date on which
the eighty-fifth amendment came into force – 17 June 1995 – is that it coincides
with the coming into force of the seventy-seventh amendment which enabled
reservations in promotions to be made for the SCs and STs.
20 In 2002, the Karnataka State Legislature enacted the Reservation Act
2002. The law came into force on 17 June 1995. It provided for consequential
seniority to roster point promotees based on the length of service in a cadre,
making the catch-up rule propounded in Ajit Singh II inapplicable. The earlier
decision of this Court in Badappanavar had held that there was no specific rule
for the conferment of seniority to roster point promotees. By the enactment of the
Reservation Act 2002 with effect from 17 June 1995, the principle of
consequential seniority was statutorily incorporated as a legislative mandate.
21 The validity of the seventy-seventh and eighty-fifth amendments to the
Constitution and of the legislation enacted in pursuance of those amendments
PART B
19
was challenged before a Constitution Bench of this Court in Nagaraj. The
Constitution Bench analysed whether the replacement of the catch-up rule with
consequential seniority violated the basic structure and equality principle under
the Constitution. Upholding the constitutional validity of the amendments, this
Court held that the catch-up rule and consequential seniority are judicially
evolved concepts based on service jurisprudence. Hence, the exercise of the
enabling power under Article 16 (4A) was held not to violate the basic features of
the Constitution:
―79. Reading the above judgments, we are of the view that
the concept of ―catch-up‖ rule and ―consequential seniority‖
are judicially evolved concepts to control the extent of
reservation. The source of these concepts is in service
jurisprudence. These concepts cannot be elevated to the
status of an axiom like secularism, constitutional sovereignty,
etc. It cannot be said that by insertion of the concept of
―consequential seniority‖ the structure of Article 16(1) stands
destroyed or abrogated. It cannot be said that ―equality code‖
under Articles 14, 15 and 16 is violated by deletion of the
―catch-up‖ rule. These concepts are based on practices.
However, such practices cannot be elevated to the status of a
constitutional principle so as to be beyond the amending
power of Parliament. Principles of service jurisprudence are
different from constitutional limitations. Therefore, in our view
neither the ―catch-up‖ rule nor the concept of ―consequential
seniority‖ is implicit in clauses (1) and (4) of Article 16 as
correctly held in Virpal Singh Chauhan.‖
38
22 The Constitution Bench held that Article 16 (4A) is an enabling provision.
The state is not bound to make reservations for the SCs and STs in promotions.
But, if it seeks to do so, it must collect quantifiable data on three facets:
(i) The backwardness of the class;
38 Supra 6 at page 259
PART B
20
(ii) The inadequacy of the representation of that class in public employment;
and
(iii) The general efficiency of service as mandated by Article 335 would not be
effected.
23 The principles governing this approach emerge from the following extracts
from the decision:
―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…39
…
117… 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.
40
…
123. … In this regard the State concerned will have to show
in each case the existence of the compelling reasons,
namely, backwardness, inadequacy of representation and
overall administrative efficiency before making provision for
reservation. As stated above, the impugned provision is an
enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions. However, if
they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation
39 Ibid at pages 270-271
40 Ibid at pages 276-277
PART B
21
of that class in public employment in addition to compliance
with Article 335. It is 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.‖
41
The Constitution Bench held that the constitutional amendments do not abrogate
the fundamentals of equality:
―110…the boundaries of the width of the power, namely, the
ceiling limit of 50% (the numerical benchmark), the principle
of creamy layer, the compelling reasons, namely,
backwardness, inadequacy of representation and the overall
administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider
the law as enacted by various States providing for reservation
if challenged. At that time we have to see whether limitations
on the exercise of power are violated. The State is free to
exercise its discretion of providing for reservation subject to
limitation, namely, that there must exist compelling reasons of
backwardness, inadequacy of representation in a class of
post(s) keeping in mind the overall administrative efficiency. It
is made clear that even if the State has reasons to make
reservation, as stated above, if the impugned law violates any
of the above substantive limits on the width of the power the
same would be liable to be set aside.‖42
These observations emphasise the parameters which must be applied where a
law has been enacted to give effect to the provisions of Article 16 (4A). The
legislative power of the state to enact such a law is preserved. The exercise of
the power to legislate is conditioned by the existence of ―compelling reasons‖
namely; the existence of backwardness, the inadequacy of representation and
overall administrative efficiency. Elsewhere in the decision, the Constitution
Bench treated these three parameters as ―controlling factors‖ for making
41 Ibid at page 278
42 Ibid at page 272
PART B
22
reservations in promotions for SCs and STs. They were held to be constitutional
requirements crucial to the preservation of ―the structure of equality of
opportunity‖ in Article 16. The Constitution Bench left the validity of the individual
enactments of the states to be adjudicated upon separately by Benches of this
Court.
24 In B K Pavitra I, a two judge Bench of this Court considered a challenge to
the Reservation Act 2002 providing for consequential seniority on the ground that
the exercise which was required to be carried out in Nagaraj had not been
undertaken by the State and there was no provision for the exclusion of the
creamy layer. The validity of the Reservation Act 2002 had been upheld by a
Division Bench of the Karnataka High Court. In B K Pavitra I, this Court struck
down Sections 3 and 4 of the Reservation Act 2002 as ultra vires Articles 14 and
16. The petitioner contended that the law laid down by this Court in
Badappanavar, Ajit Singh II and Virpal Singh remained applicable despite the
Constitution (Eighty-fifth Amendment) Act 2001. Moreover, it was contended that
the Government of Karnataka had not complied with the tests laid down in
Nagaraj and had failed to provide any material or data to show inadequacy of
representation. Moreover, no consideration was given to the issue of overall
administrative efficiency. The principal challenge was that an exercise for
determining ―backwardness‖, ―inadequacy of representation‖, and ―overall
efficiency‖ in terms of the decision in Nagaraj had not been carried out.
PART B
23
25 Relying on the decisions of this Court in Suraj Bhan Meena v State of
Rajasthan43
, Uttar Pradesh Power Corporation Ltd v Rajesh Kumar44 and S
Panneer Selvam v State of Tamil Nadu45 (―Panneer Selvam‖), a two judge
Bench of this Court affirmed that the exercise laid down in Nagaraj for
determining ―inadequacy of representation‖, ―backwardness‖ and ―overall
efficiency‖ is necessary for recourse to the enabling power under Article 16 (4A)
of the Constitution. The Court held that the Government of Karnataka had failed
to place material on record showing that there was a compelling necessity for the
exercise of the power under Article 16 (4A). Hence, the directions laid down by
this Court in Nagaraj were not followed. Striking down Sections 3 and 4 of the
Reservation Act 2002, this Court held thus:
―29. It is clear from the above discussion in S. Panneer
Selvam case that exercise for determining ―inadequacy of
representation‖, ―backwardness‖ and ―overall efficiency‖, is a
must for exercise of power under Article 16(4-A). 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 the
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
43 (2011) 1 SCC 467
44 (2012) 7 SCC 1
45 (2015) 10 SCC 292
PART B
24
equally without any merit in the present context. In absence of
exercise under Article 16(4-A), it is the ―catch-up‖ rule which
fully applies. It is not necessary to go into the question
whether the Corporation concerned had adopted the rule of
consequential seniority.‖46
The Court clarified that the decision will not affect those who have already retired
and availed of financial benefits. It was further directed that promotions granted to
existing employees based on consequential seniority are liable to be reviewed
and that the seniority list be revised in terms of the decision. Three months were
granted to take further consequential action. Petitions seeking a review of the
decision have been tagged with the present proceedings.
26 After the decision of this Court in B K Pavitra I, on 22 March 2017, the
Government of Karnataka constituted the Ratna Prabha Committee47 headed by
the Additional Chief Secretary to the State of Karnataka to submit a report on the
backwardness and inadequacy of representation of SCs and STs in the State
Civil Services and the impact of reservation on overall administrative efficiency in
the State of Karnataka. The tasks entrusted to the Committee were to:
―1) Collect information on the cadre-wise representation of
Scheduled Castes and Scheduled Tribes in all the
Government Departments;
2) Collect information regarding backwardness of Scheduled
Castes and Scheduled Tribes; and
3) Study the effect on the administration due to the provision
of reservation in promotion to the Scheduled Castes and
Scheduled Tribes.‖
46 Supra 6 at page 641
47 G.O. No. DPAR 182 SeneNi 2011
PART B
25
27 On 5 May 2017, the Ratna Prabha Committee submitted a report, titled as
the ‗Report on Backwardness, Inadequacy of Representation and
Administrative Efficiency in Karnataka‘
48. The Government of Karnataka,
through its Department of Personnel and Administrative Reforms, submitted the
Ratna Prabha Committee report to the Law Commission of Karnataka on 8 June
2017. The Law Commission sought to opine on ‗whether the data collected and
reasons assigned by the Ratna Prabha Committee constitute a valid basis for
validating the law‘ and submitted its report on 27 July 2017.
28 In the meantime, the petitioners filed contempt petitions contending that
the directions of this Court in B K Pavitra I to the State of Karnataka to review
the seniority list were not complied with. The State of Karnataka filed applications
for extension of time for compliance. On 20 March 2018, this Court disposed of
the petitions rejecting the applications for extension of time for compliance with
the decision in B K Pavitra I and granted one month time to take any
consequential action. The State of Karnataka subsequently filed compliance
affidavits before this Court stating that the exercise directed by the decision in B
K Pavitra I had been carried out.
29 On the basis of the Ratna Prabha Committee report, the Government of
Karnataka introduced the Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the Posts in the
Civil Services of the State) Bill 2017. The Bill was passed by the Legislative
48 Ratna Prabha Committee report
PART B
26
Assembly on 17 November 2017 and by the Legislative Council on 23 November
2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for
the consideration of the President of India under Article 200 of the Constitution.
The Bill received the assent of the President on 14 June 2018 and was published
in the official Gazette on 23 June 2018.
30 Sections 3, 4 and 5 of the Reservation Act 2018 provides as follows :
―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 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
PART B
27
inter-se seniority shall be determined by their seniority interse 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.
5. Provision for review.- All promotions to the posts
belonging to the State Civil Services shall be within the extent
and in accordance with the provisions of the reservation
orders and other rules pertaining to method of recruitment
and seniority. The Appointing Authority shall revise and
redraw the existing seniority lists to ensure that the
promotions are made accordingly:
Provided that subsequent to such a review, wherever it is
found that Government Servants belonging to the Scheduled
Castes and Scheduled Tribes were promoted against
reservation and backlog vacancies in excess or contrary to
extent of reservation provided in the reservation orders shall
be adjusted and fitted with reference to the roster points in
accordance with the reservation orders issued from time to
time by assigning appropriate dates of eligibility. In case, if
persons belonging to the Scheduled Castes and the
Scheduled Tribes who have already been promoted against
reservation or backlog vacancies in excess or contrary to the
extent of reservation provisions cannot get adjusted and fitted
against the roster points they shall be continued against
supernumerary posts, to be created by the concerned
administrative department presuming concurrence of Finance
Department, in the cadres in which they are currently working,
till they get the date of eligibility for promotion in that cadre.‖
Section 9 provides for the validation of action taken in respect of promotions
since 27 April 1978:
―9. Validation of action taken under the provisions of
this Act.- Notwithstanding anything contained in any
PART B
28
Judgment, Decree or Order of any court, tribunal or other
authority contrary to section 3 and 4 of this Act any action
taken or done in respect of any promotions made or
purporting to have been made and any action or thing taken
or done, all proceedings held and any actions purported to
have been done since 27th April, 1978 in relation to
promotions as per sections 3 and 4 of this Act, before the
publication of this Act shall be deemed to be valid and
effective as if such promotions or action or thing has been
made, taken or done under this Act and accordingly:- (a) no
suit or other proceedings shall be maintained or continued in
any court or any tribunal or before any authority for the review
of any such promotions contrary to the provisions of this Act;
and (b) no court shall enforce any decree or order to direct
the review of any such cases contrary to the provisions of this
Act.‖
Section 1 (2) provides that the Reservation Act 2018 came into force with effect
from 17 June 1995 (the effective date of the seventy-seventh and eighty-fifth
constitutional amendments).
31 These proceedings were instituted to assail the vires of the Reservation
Act 2018. The principal contention which has been urged is that the Reservation
Act 2018 does not take away basis of the decision of this Court in B K Pavitra I
and is ultra vires. All matters have been admitted for hearing and tagged
together.
32 On 27 July 2018, when the batch of cases was listed for hearing, it was
suggested by this Court that the status quo may not be altered pending
consideration of the matter. The Advocate General for the State of Karnataka
orally agreed and accepted an order of status quo. The Government of Karnataka
issued a circular on 3 August 2018 with a direction to maintain status quo and not
PART B
29
affect the process of promotion/demotion till further orders from the government.
These directions were issued to all autonomous bodies, universities, public
enterprises, commissions, corporations, boards and to institutions availing aid
from the government under their administrative control.
33 In Jarnail Singh v Lachhmi Narain Gupta49
, (―Jarnail‖) a Constitution
Bench of this Court considered whether the decision in Nagaraj requires to be
referred to a larger Bench since:
(i) It requires the state to collect quantifiable data showing backwardness of
the SCs and STs contrary to the nine judge Bench decision in Indra
Sawhney;
(ii) The creamy layer principle was not applied to SCs and STs in Indra
Sawhney; and
(iii) In applying the creamy layer principle, Nagaraj conflicts with the decision
in E V Chinnaiah v State of AP50 (―Chinnaiah‖).
34 In Jarnail, the Constitution Bench held that :
(i) The decision in Chinnaiah holds, in essence, that a state law51 cannot
further sub-divide the SCs into sub categories. Such an exercise would be
violative of Article 341(2) since only an Act of Parliament and not the state
legislatures can make changes in the Presidential list. Chinnaiah did not
dwell on any aspect on which the constitutional amendments were upheld
49 2018 (10) SCC 396
50 (2005) 1 SCC 394
51 The court was considering the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of
Reservations) Act 2000
PART B
30
in Nagaraj. Hence, it was not necessary for Nagaraj to advert to the
decision in Chinnaiah. Chinnaiah dealt with a completely different
problem and not with the constitutional amendments, which were dealt with
in Nagaraj52;
(ii) The decision of the Constitution Bench in Nagaraj, insofar as it requires
the state to collect quantifiable data on backwardness in relation to the
SCs and STs is contrary to Indra Sawhney and would have to be declared
to be bad on this ground53; and
(iii) Constitutional courts, when applying the principle of reservation will be
within their jurisdiction to exclude the creamy layer on a harmonious
construction on Articles 14 and 16 along with Articles 341 and 34254
. The
creamy layer principle is an essential aspect of the equality code.
35 On 12 October 2018, the State of Karnataka submitted before this Court
that since a legislation has been enacted by the state legislature and in view of
the judgment of the Constitution Bench in Jarnail, the State would no longer
proceed on the oral assurance of the Advocate General and would not be bound
to it. On the other hand, it was urged by learned Counsel appearing for the
petitioners that the intent of the Reservation Act 2018 was only to nullify the effect
of the judgment in B K Pavitra I. Counsel urged that in view of the decisions of
this Court including those in Shri Prithvi Cotton Mills Ltd v Broach Borough
Municipality55 (―Prithvi Cotton Mills Ltd‖) and Madan Mohan Pathak v Union
52 Supra 49, paragraph 22 at page 422-423
53 Ibid, paragraph 24 at page 424
54 Ibid, paragraph 26 at page 425-426
55 (1969) 2 SCC 283
PART B
31
of India (―Madan Mohan Pathak‖)
56, it was not open to the legislature to render
a judgment of this Court ineffective without taking away its basis or foundation.
Since the case was of an urgent nature, the proceedings were listed on 23
October 2018 for commencement of final hearing.
36 On 27 February 2019, the State of Karnataka issued a Government
Order57 directing that:
―In the circumstances explained in the preamble, the following
instructions are hereby issued subject to the conditions that
the officers/officials, who have been reverted, shall be
reposted to the cadres held by them immediately prior to their
reversion and if vacant posts are not available in those
cadres, supernumerary posts shall be created to
accommodate them. It is also ordered that the
officers/officials working at present in those cadres, belonging
to any category, shall not be reverted.‖
The Government Order was made subject to the outcome of these proceedings.
On 1 March 2019, this Court granted a stay on the operation of the Government
Order dated 27 February 2019. This Court observed that since the case was in
the concluding stages of the hearing, it would not be appropriate to alter the
present status when the matter was in seisin of the Court.
56 (1978) 2 SCC 50
57 G.O. No. DPAR 186 SRS 2018
PART C
32
C Submissions
C.I Petitioners
37 In adjudicating upon the challenge to the constitutional validity of the
Reservation Act 2018, we have heard the erudite submissions of Dr Rajeev
Dhavan, learned Senior Counsel appearing on behalf of the Petitioners.
Prefacing his submissions, Dr Rajeev Dhavan has adverted to the following
issues which arise for the determination of this Court:
A Is the Reservation Act 2018 valid?
(a) Does it not peremptorily overrule the decision of this Court in B K
Pavitra I without altering the basis of the decision?
(b) Does it violate the law laid down by this Court in Badappanavar on
seniority?
(c) Does the background to the enactment to the Reservation Act 2018
reveal a manifest intent to overrule the decision in B K Pavitra I?
(d) Was the reference of the Bill by the Governor of Karnataka to the
President under Article 200 of the Constitution and the subsequent
events which took place constitutionally valid? In this context, could
the Bill have been brought into force without the assent of the
Governor?
PART C
33
B Is the Reservation Act 2018 compliant with the principles enunciated
in the Constitution Bench decisions in Nagaraj and Jarnail? Does the
report of the Ratna Prabha Committee dated 5 May 2017 constituted
an adequate and appropriate basis to support the validity of the Act
and its implementation?
C Does the Reservation Act 2018 apply in the present writ petitions
(instituted by B K Pavitra and Shivakumar) to those departments
where there is over representation or in public corporations not
covered by the Ratna Prabha report or the legislation?
38 While we will be dealing with the submissions urged by Dr Dhavan in the
course of our analysis, it would be appropriate at this stage to advert to the
salient aspects of the submissions under the following heads:
A Usurpation of judicial power
39 Dr Dhavan has urged that the Reservation Act 2018 was enacted in a
hurry with no purpose other than to overrule the decision in B K Pavitra I, while
the issue of implementation was still pending. The decision in B K Pavitra I was
rendered on 19 February 2017. On 22 March 2017, a Government Order was
issued appointing the Additional Chief Secretary to submit a report on
backwardness, inadequacy of representation and the impact of reservation on
efficiency. The report was submitted on 5 May 2017. On 26 July 2017, the report
PART C
34
was accepted by the State Cabinet which constituted a sub-committee to
examine the matter and submit a draft Bill. The State Law Commission
recommended the State to pass a legislation with retrospective effect by curing
the infirmities and factors noticed in the decision in B K Pavitra I. On 4 August
2017, the Cabinet Sub-Committee submitted its decision based on the report. On
7 August 2017, the Cabinet approved the proposed Bill. The Bill was introduced
in the Karnataka State Legislative Assembly on 14 November 2017 and was
passed on 17 November 2017. The Bill was passed by the State Legislative
Council on 23 November 2017 and was submitted to the Governor on 6
December 2017. The Bill was reserved by the Governor for the consideration of
the President. On 15 February 2018, 9 March 2018 and 18 April 2018, the Union
Government in the Ministry of Home Affairs sought clarifications from the State
government which were provided on 16 March 2018 and 23 April 2018. The Bill
received the assent of the President on 14 June 2018, and was published in the
official Gazette and came into force on 23 June 2018.
40 On the basis of the above facts, Dr Dhavan submitted that:
(i) There was no compelling necessity to overrule B K Pavitra I ―except
political necessities‖;
(ii) A comparison of the provisions of the Reservation Act 2002 with the
Reservation Act 2018 indicates that:
(a) The Reservation Act 2018 is substantively the same as the Reservation
Act 2002;
PART C
35
(b) The change in the basis of the decision in B K Pavitra I is on the
factum of the Ratna Prabha Committee report;
(c) ―Compelling necessities‖ are mentioned but their existence is not
demonstrated;
(d) The title of the Reservation Act 2018 is limited to consequential
seniority which is not mentioned in the law;
(e) Section 5 allows for an unlimited backlog and the creation of
supernumerary posts for SCs and STs;
(f) Section 5 presumes the permission of the Finance Department and
visualizes an ―excess‖, which will invalidate the law; and
(g) Section 9 brazenly overrules and goes beyond the date of 17 June
1995 and postulates that in future a review of the cases is forbidden.
B Violation of the separation of powers
41 Separation of powers postulates a constitutional division between
legislative and judicial functions. In this context, the submission is:
(a) The legislative power is distinct from the judicial power;
(b) The legislature cannot lawfully usurp judicial power by sitting in appeal
over any judicial decision by attempting to overturn it;
(c) Any statute which seeks to overturn a judicial decision must be within the
legislative competence of the legislature under the Seventh Schedule to
the Constitution;
(d) Any such statute must change the basis of the law;
PART C
36
(e) The decision of a court will always be binding unless the law or conditions
underlying the legislation which was held to be invalid are so
fundamentally altered so that a different result would enure;
(f) While a legislation may be retroactive, an interim or final direction must be
obeyed especially when rights are conferred;
(g) A new legislation can be challenged on the basis that it violates the
fundamental rights; and
(h) Unless the basis of a legislation which is found to be ultra vires has been
altered, the mere enactment of a new legislation would constitute a brazen
overruling of the law, which is impermissible.
42 Dr Dhavan urges that Reservation Act 2018 will not pass muster, when it is
assessed in the context of the principles enunciated by the decisions of this Court
in (i) Prithvi Cotton Mills Ltd, (ii) Madan Mohan Pathak, (iii) S R Bhagwat v
State of Mysore58
, (iv) Bakhtawar Trust v M D Narayan59
, (v) Delhi Cloth &
General Mills Co. Ltd v State of Rajasthan60
, (vi) Re Cauvery61
, (vii) S T Sadiq
v State of Kerala62 and (viii) Medical Council of India v State of Kerala63
.
43 Explaining the applicability of the above principles on facts, Dr Dhavan
urged that after the decision of this Court in B K Pavitra I, the State Government
filed applications for extension of time on 9 May 2017 and 8 September 201764
.
58 (1995) 6 SCC 16
59 (2003) 5 SCC 298
60 (1996) 2 SCC 449
61 (1993) Supp (1) SCC 96
62 (2015) 4 SCC 400
63 (2018) 11 SCALE 141
64 M.A. Nos. 730-756 of 2017
PART C
37
This Court extended time to revise the seniority lists till 30 November 2017 and
for consequential actions by 15 January 2018. On 15 January 2018, the State
Government moved before this Court seeking extension of time for implementing
the decision in B K Pavitra I. On 29 January 2018, this Court finally granted time
until 15 March 2018. On 17 March 2018, the State moved before this Court for
extension of time and on 20 March 2018, while disposing of certain contempt
petitions and other applications, one month‘s time was granted to take
consequential action. On 25 April 2018, this Court directed the State to file a
further affidavit (by 1 May 2018) indicating that promotions and demotions have
been duly effected. On 9 May 2018, this Court directed the State to file an
affidavit to the effect that the judgment in B K Pavitra I had been fully complied
with and the hearing was posted for 4 July 2018. On 28 June 2018, the State of
Karnataka informed this Court that the ―further process have been stalled
because of the enactment of the new legislation and its publication in the Gazette
on 23 June 2018‖. On 7 August 2018, the State of Karnataka filed an interim
application seeking permission of this Court to implement the Reservation Act
2018. It has been urged that contrary to what was stated by the state
Government, there was no compliance of the decision in B K Pavitra I. In this
background, it has been submitted that the state has undertaken an exercise to
overrule B K Pavitra I which constitutes a clear usurpation of judicial power.
PART C
38
C Lack of compliance with Nagaraj and Jarnail
44 Dr Dhavan assails the report of the Ratna Prabha Committee on the
ground that is was not in compliance with Nagaraj and Jarnail. Nagaraj
postulates that:
(i) The backlog should not extend beyond three years;
(ii) Excessive reservation would invalidate the exercise of power; and
(iii) There is a theory of guided power under which a failure to follow the above
conditionalities would result in reverse discrimination.
45 According to the submission, the decision in Nagaraj:
(a) Deploys the methodology that the seventy-seventh, eighty-first, eightysecond and eighty-sixth amendments were only enabling and were valid.
The conditionalities for a valid exercise of the enabling power are two-fold:
(i) The existence of compelling reasons namely, backwardness,
inadequacy of representation and overall administrative efficiency
requiring quantifiable data; and
(ii) Excessiveness, which postulates that the ceiling limit of fifty per cent
is not transgressed, the creamy layer is not obliterated and
reservation is not extended indefinitely.
(b) The methodology of Nagaraj was approved both in I R Coelho v State of
TN65 and Jarnail; and
65 (2007) 2 SCC 1
PART C
39
(c) The decision in Jarnail, while upholding the methodology adopted in
Nagaraj held that there is a constitutional presumption which obviates the
need for quantifiable data on the backwardness of SCs and STs and
hence that part of Nagaraj was held to be contrary to the decision in Indra
Sawhney. The application of the creamy layer test was held to be a
requirement for SCs and STs and other principles or applications
enunciated in Nagaraj were held to be valid.
46 In this background, the Ratna Prabha Committee report is assailed on the
following grounds:
(i) The chapter on backwardness is not necessary;
(ii) Inadequacy of representation is examined over 30 pages;
(iii) The data collected is over 32 years in thirty one government departments;
(iv) No data exists in 1986;
(v) The data indicates that STs are adequately represented from 1999 to 2015
but the average of 31 years is 2.70;
(vi) No data has been collected from public sector undertakings, boards,
corporations, local bodies, grant-in-aid institutions, among others, and it is
assumed that the data is representative in nature;
(vii) The representation in Public Works Department (―PWD‖) and Karnataka
Power Transport Corporation Limited (―KPTCL‖) is adequate;
(viii) The data collected is with respect to the availability of vacancies and not
posts, contrary to the requirements laid out in Sabharwal‟s case;
PART C
40
(ix) The data is on sanctioned posts and not posts which have been filled;
(x) The data is not cadre based but based on grades A, B, C and D even
though Jarnail requires the data to be on the basis of cadre;
(xi) The report erroneously assumed that grades A, B, C and D correspond to
cadres;
(xii) The report candidly admits that ―in some departments, corporations like
PWD and KPTCL there may be over representation of the percentage
mandated‖;
(xiii) On administrative efficiency:
(a) The data is based on general considerations such as economic
development;
(b) The efficiencies adverted to in matters of administrative, policy and
service are general; and
(c) Reliance which has been placed is on performance reports.
(xiv) The state has followed a strange method of back door entry by filling up
vacancies not by selection but through toppers from universities in various
departments for gazetted grade A and B posts.
D Reservation of the Bill to the President
47 Dr Dhavan urged that from the counter affidavit filed by the State
Government, it is evident that:
(i) The view of the State government was that given the legislative
competence of the state legislature, the ―Bill was not required to be
reserved‖ for the assent of the President;
PART C
41
(ii) On 6 December 2017, the Governor of Karnataka considered it appropriate
to refer the Bill to the President in view of the decision in B K Pavitra I and
the ―importance of the issue and the constitutional interpretation involved in
the matter‖ under Article 200;
(iv) The State government on the Bill being forwarded to the President
continued to maintain that the Bill neither attracted the second proviso to
Article 200 nor did it deal with a matter which was repugnant to a Union
law on an entry falling in List III of the Seventh Schedule. Hence, the State
government opined that there did not appear to be any situation warranting
the reservation of the Bill for the consideration of the President. Hence, it
has been urged that it may be:
(a) The reference by the Governor on 6 December 2017 to the
President simply stated that since a constitutional interpretation was
required, the Bill was reserved for the President; however no
specific issues were referred; and
(b) The State government forwarded the Bill to the President, recording
at the same time that there was no reason to refer.
(v) The Union Government invited reasons for the reference to which
responses were made by the State Government in its clarification;
(vi) The Governor was altogether by-passed in this process; and
(vii) The Governor has the exclusive authority under Article 200 on the
reference and must formulate a specific reference, which was not done.
The Central Government, it was urged, cannot create a reference which
has not been made by the state.
PART C
42
48 In order to buttress his submissions, Dr Dhavan relied upon the decisions
in Kaiser-I-Hind Pvt Ltd v National Textile Corporation Ltd66
, Gram
Panchayat of Village Jamalpur v Malwinder Singh67 (―Gram Panchayat of
Village Jamalpur‖), Hoechst Pharmaceuticals Ltd v State of Bihar68
(―Hoechst Pharmaceuticals Ltd‖) and Nabam Rebia and Bamang Felix v
Deputy Speaker Arunachal Pradesh Legislative Assembly69 (―Nabam
Rebia‖).
Dr Dhavan urged that:
(i) There was no valid reference by the Governor in the absence of specificity
on the matter of reference;
(ii) The State government consistently indicated that there was no reason to
refer the Bill to the President;
(iii) The Union Government could not have created a reference where none
existed; and
(iv) The reference was unconstitutional and the assent of the Governor was
not obtained.
E Seniority including consequential seniority
49 The submissions of Dr Dhavan are:
(i) Seniority is determined by the Seniority Rules 1957;
66 (2002) 8 SCC 182
67 (1985) 3 SCC 661
68 (1983) 4 SCC 45
69 (2016) 8 SSC 1
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(ii) The decision in Badappanavar held that there was no specific rule
providing for consequential seniority in the Seniority Rules 1957;
(iii) The amendments in the Seniority Rules 1957 on 18 August 2006 did not
effect any change to unsettle the decision in Badappanavar;
(iv) The Reservation Act 2002 attempted to overrule Badappanavar and was
eventually invalidated in B K Pavitra I;
(v) The Reservation Act 2018 mentions consequential seniority in its title yet
Section 5 makes no reference of it and in fact reinforces the Seniority
Rules 1957 by implication. The reference to the Rules in Section 5 can
only be in the context of the Seniority Rules 1957 as amended. The
Seniority Rules 1957 will override the administrative orders of 27 April
1978;
(vi) The Government Order dated 27 April 1978 specifically adverts to Rules 4
or 4-A (as the case may be) of the Seniority Rules 1957;
(vii) No seniority can be conveyed by filling up of backlog and creating excess
or supernumerary posts; and
(viii) The proviso to Section 5 would be liable to be struck down for its
excessiveness.
50 In substance, Dr Dhavan‘s are as follows:
(i) Every administrative action or legislation has to be Nagaraj compliant as
explained in Jarnail;
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(ii) After the decision in B K Pavitra I, the State of Karnataka hurriedly
enacted the Reservation Act 2018 without demonstrating any compelling
necessity;
(iii) The Governor of Karnataka reserved the Bill for the President without
delineating the exact reasons for doing so. Even while forwarding the Bill,
the State government maintained that there was no reason to make a
reference to the President. The queries exchanged subsequently would
not constitute a valid reference;
(iv) The Ratna Prabha Committee report is flawed and does not establish
inadequacy of representation and impact on administrative efficiency;
(v) The Reservation Act 2018 is similar to the Reservation Act 2002 except for
(i) Section 5 while mandates reservations; and (ii) Section 9 which
overrules all decisions of the past and pre-empts challenges in the future;
(vi) The Seniority Rules 1957 continue not to cover consequential seniority and
by the repeal of the Reservation Act 2002, the decision in Badappanavar
continues to be good law;
(vii) The uncontrolled backlog is not valid;
(viii) A proper exercise must be post and not vacancy based, it must be based
on cadres and not on groups A to D;
(ix) The counter affidavit of the State admits the flaws of the process denying
curative effect to the exercise; and
(x) The Reservation Act 2018 has failed to pass muster and its non-compliant
with the decisions in Nagaraj and Jarnail.
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51 Mr Shekhar Naphade, learned Senior Counsel submitted that:
(i) The decision in B K Pavitra I has attained finality and a subsequent
change in law cannot abrogate the principle of res judicata;
(ii) As held in the decision of this Court in Pandit M S M Sharma v Dr
Krishna Sinha70, whether an earlier judgment is right or wrong is not
material to the applicability of the doctrine of res judicata;
(iii) The subsequent decision in Jarnail is not a ground for review and, in
any event, a review of B K Pavitra I by the state will not lie;
(iv) In view of the explanation to Order XLVII of the CPC, a reversal on a
question of law in a subsequent decision of a superior court is not a
ground for review;
(v) An error of law is no ground for review (State of West Bengal v Kamal
Sengupta71);
(vi) The Reservation Act 2018 is based on a report which furnishes factual
data: this could have been furnished in the earlier round. The
legislature has taken recourse to exercise of judicial power;
(vii) The provisions of the Reservation Act 2018 are virtually the same as
those of the Reservation Act 2002;
(viii) The basis of legislative intervention was the collection of data: the
attempt is to place fresh material before the Court to review its decision
in B K Pavitra I. There is no change in law;
(ix) Retrospectivity of the Reservation Act 2018 from 1978 is arbitrary;
70 AIR 1960 SC 1186
71 (2008) 8 SCC 612
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46
(x) There is no change in the basis of the law. The basis is a change in the
factual matrix which is not available as a ground for review;
(xi) The Ratna Prabha Committee report has collected no substantive
material on the impact of reservation in promotion on the efficiency of
administration;
(xii) The second proviso to Article 200 and Article 254 (2) of the Constitution
are exhaustive of the constitutional power of the Governor to reserve a
Bill for the assent of the President;
(xiii) The Ratna Prabha Committee report does not deal with the aspect of
creamy layer which had been duly considered in Jarnail;
(xiv) The Ratna Prabha Committee dwelt on groups and not on cadres. The
data includes direct recruits as well as promotees, whereas the present
case is only about promotion; and
(xv) Data was collected only from thirty one government departments and
not from public sector undertakings.
52 Supplementing the submissions of Dr Dhavan, Mr Puneet Jain, learned
Counsel appearing on the behalf of the petitioners has adverted to the following
issues which arise for the consideration of this Court:
(i) Section 3 of the Reservation Act 2018 only seeks to extend consequential
seniority retrospectively to vacancy based roster point promotees and is
not concerned with the state exercising its enabling power to provide for
reservation in promotions. The Government Order72 dated 27 April 1978 by
72 G.O. No. DPAR 29 SBC 77
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47
which reservation for persons belonging to SCs and STs in specified
categories of promotional posts was introduced cannot be ―justified‖ by a
satisfaction on the basis of the Ratna Prabha Committee report;
(ii) Article 16 (4A) confers a discretion upon the state to provide for
reservations in promotion with or without consequential seniority. Nagaraj
mandates that there have to exist compelling reasons and the satisfaction
of the state before exercise of its powers under Article 16 (4A). In view of
the decision in Panneer Selvam, automatic conferment of consequential
seniority can no longer be sustained; and
(iii) The fact that the eighty-fifth amendment has been made retrospective from
17 June 1995 cannot enable the state to make a provision for the first time
by exercising powers retrospectively and consequently taking away vested
rights which legitimately accrued upon the general category employees.
C.2 Submissions for the respondents and intervenors
53 Appearing for the State of Karnataka, Mr Basava Prabhu S Patil, learned
Senior Counsel submitted thus:
A The basis of B K Pavitra I has been altered
(i) The Reservation Act 2018 has taken away the basis of the judgment in B
K Pavitra I and the protection of seniority with retrospective effect which is
permissible in law:
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(a) The Reservation Act 2018 does not seek to overrule or nullify
simpliciter the decision in B K Pavitra I. The law was enacted to
provide consequential seniority for roster point promotees after
collecting data showing the existence of the compelling reasons of :
(i) backwardness; (ii) inadequacy of representation; and (iii) overall
efficiency. Hence, the Reservation Act 2018 removes the basis of
the decision in B K Pavitra I;
(b) The state legislature is competent to enact a law with retrospective
or retroactive operation. The legislative competence of the State
Legislature to enact law is traceable to Article 16 (4A). Merely
because the legislation confers seniority with effect from 1978, will
not lead to its invalidation (Cheviti Venkanna Yadav v State of
Telangana73 (―Cheviti Venkanna Yadav‖), Utkal Contractors &
Joinery (P) Ltd v State of Orissa74 (―Utkal Contractors and
Joinery (P) Ltd‖) and State of Himachal Pradesh v Narain
Singh75 (―Narain Singh‖);
(c) Sections 3 and 4 of the Reservation Act 2018 came into operation
on 17 June 1995, on which date the seventy-seventh and eighty-fifth
amendments to the Constitution came into effect, thereby enabling
reservations to be made in promotion together with consequential
seniority. The Reservation Act 2018 protects consequential seniority
accorded from 27 April 1978 (the date of the reservation order) in
73 (2017) 1 SCC 283
74 (1987) Supp. SCC 751
75 (2009) 13 SCC 165
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49
light of the data collected which shows the inadequacy of
representation;
(d) In terms of the decision in Virpal Singh, the catch-up rule was to be
applied with effect from 10 February 1995 (i.e. the date of the
judgment in Sabharwal). According to the decision in Ajit Singh II,
promotions granted prior to 1 March 1996 without following the
catch-up rule are protected. Badappanavar protects the promotions
of reserved candidates based on consequential seniority which took
place before 1 March 1996;
(e) While judicial review allows courts to declare a statute as
unconstitutional if it transgresses constitutional limits, courts are
precluded from inquiring into the propriety or wisdom underlying the
exercise of the legislative power. The motives of the legislature in
enacting a law are incapable of being judicially evaluated; and
(f) Seniority is not a vested or an accrued right and hence it is open for
the legislature to enact a law for dealing with it.
(ii) The Reservation Act 2018 is not of the same genre of legislation dealt with
in the decision of Madan Mohan Pathak:
(a) Madan Mohan Pathak involved a challenge by the employees of
the Life Insurance Corporation to the constitutional validity of a
Parliamentary law which attempted to render ineffective a settlement
with employees for the payment of bonus. The judgment does not
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deal with a case where the basis of the invalidity of a legislation
noticed in a judicial decision is taken away by a subsequent law;
and
(b) Madan Mohan Pathak in fact, notices that in the case of a
declaratory judgment holding an action to be invalid, validating
legislation to remove the defect is permissible.
(iii) The collection of data by the State must demonstrate the presence of
compelling reasons namely, (a) inadequacy of representation; (b)
backwardness; and (c) overall administrative efficiency as enunciated in
Nagaraj and B K Pavitra I;
(iv) The decision in Indra Sawhney holds that the question as to whether a
backward class of citizens is not adequately represented in the services
under the state is a matter of subjective satisfaction;
(v) Nagaraj also notices the position that there is a presumption that the state
is in the best position to define and measure merit and that there is no
fixed yardstick to identify and measure the three factors on which
quantifiable data has to be collected;
(vi) The decision in Jarnail also holds that the test of determining the
adequacy of representation in promotional posts is left wisely to the states;
and
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(vii) The Reservation Act 2018 was enacted after the State was satisfied about
the existence of the three compelling reasons.
B The Ratna Prabha Committee has dealt with all the three facets
constituting the „compelling reasons‟:
1 Backwardness
(i) The decision in Jarnail has clarified that there is no requirement of collecting
quantifiable data on the backwardness of SCs and STs. The observation in
Nagaraj is contrary to the larger Bench decision in Indra Sawhney.
(ii) Yet, in any event, the Ratna Prabha Committee considered the
backwardness of SCs and STs in view of the dictum in Nagaraj which then
held the field. The Committee after carrying out the exercise came to the
conclusion that the requirement of backwardness is satisfied.
2 Inadequacy of representation
(i) Chapter II of the Ratna Prabha Committee report considered the
inadequacy of representation and records a summary of its conclusions in
paragraphs 2.5 and 2.6;
(ii) It is misleading to assert that the State did not collect cadre wise data.
Para 2.4.1 indicates that the government took into account the data for
groups A, B, C and D to draw a conclusion about the inadequacy of
representation;
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(iii) The decisions in Indra Sawhney and Sabharwal are clear in postulating
that persons belonging to the SCs and STs who are appointed against
general category posts/vacancies are not to be reckoned for ascertaining
over representation; and
(iv) It is a matter of common experience that for most of the group D posts
such as municipal sweepers, only persons belonging to SCs and STs
apply. Over representation in group D posts which results from general
category candidates keeping away from them is no ground to deny
promotion to group D employees recruited against the reserved category.
3 Administrative efficiency
(i) Para 3.12 of Chapter III of the Ratna Prabha Committee report has
considered all relevant aspects before coming to the conclusion that
reservations in promotion do not affect administrative efficiency;
(ii) Promotions are made on the basis of seniority-cum-merit. [Rule 19(3)(a) of
the Rules 1977] Only those candidates who fulfil the criteria of
merit/suitability are promoted based on seniority. Since this criterion is
applicable even in respect of roster promotions, the efficiency of
administration is not adversely impacted; and
(iii) On promotion, a candidate is required to serve a statutory period of
officiation before being confirmed in service. This applies to all candidates
including roster point promotees and ensures that the efficiency of
administration is not adversely affected.
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C The challenge on the ground that the Reservation Act 2018 does not
exclude the benefit of consequential seniority in respect of the creamy
layer in terms of the decision in Jarnail is baseless:
(i) Creamy layer as a concept can be applied only at the entry level or at
appointment and has no application while granting reservations in
promotion and allowing for consequential seniority. The Reservation Act
2018 provides only for consequential seniority and the extent of
reservation granted to SCs and STs at the entry level/ in appointment is
not under challenge;
(ii) Even assuming that the concept of creamy layer can be applied at the
stage of promotion, it is inapplicable to the conferment of consequential
seniority. Consequential seniority is not an additional benefit but a
consequence of promotion;
(iii) Appointment to a post or progression in career based on promotion cannot
be treated as acquisition of creamy layer status. In fact, the decision in
Jarnail makes it clear that the concept of creamy layer applies only to the
entry stage;
(iv) Nagaraj does not hold that the exclusion of the creamy layer is a precondition for the exercise of the enabling power under Article 16 (4A) for
providing promotion or consequential seniority;
(v) In the decision in B K Pavitra I, the challenge to the Reservation Act 2002
was accepted on the ground that the State had not carried out an exercise
for determining inadequacy of representation, backwardness and overall
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efficiency of administration. B K Pavitra I did not accept the plea of the
applicability of creamy lawyer principle to consequential seniority; and
(vi) Under the Reservation Order 1978, reservations in promotion are
restricted up to the lowest category of class I post.
D There is no basis in the challenge that the Reservation Act 2018 does
not meet the proportionality test and results in over representation.
(i) In view of the Reservation Order 1999 providing that reservation in
promotion in favour of SCs and STs shall continue only till their
representation reaches 15 per cent and 3 per cent respectively, it is
ensured that there is no over representation; and
(ii) Since the Reservation Act 2018 provides only for consequential seniority
and not for reservation in appointment or promotion, it cannot be asserted
that reservation for the purpose of seniority is vacancy-based and not postbased, contrary to the decision in Sabharwal. Reservations in promotion
are provided by the Government Order 1978 which provides for roster
point promotion and not roster point seniority. The Government Order
dated 13 April 1999 provides for making promotions (after the existing
backlog is filled) in favour of SCs and STs by maintaining their
representation to the extent of 15 per cent and 3 per cent of the total
working strength (and not vacancies).
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E There was no constitutional infirmity in the Governor of Karnataka
having reserved the Reservation Act 2018 for the consideration of the
President.
The Governor in reserving the Bill for consideration of the President acted in
pursuance of the provisions of Article 200 of the Constitution. The Governor may
under Article 200 (i) declare assent to a Bill; or (ii) declare the withholding of
assent; or (iii) reserve a Bill for consideration of the President. The power of the
Governor to reserve a Bill for consideration of the President is not subject to the
existence of a repugnancy under Article 254 (2). The action of the Governor is
non-justiciable. (Hoechst Pharmaceuticals Ltd)
F The assent of the Governor is not contemplated once the President has
given assent to a Bill.
Neither Article 200 nor Article 201 contemplates that the Bill should be presented
again before the Governor after it has been assented to by the President. Section
5(1)(iv) of the Karnataka General Clauses Act 1899 postulates that an Act
passed by the Karnataka legislature shall come into operation on the day on
which the assent of the Governor or, as the case may be, of the President is
granted and is first published in the Official Gazette. Hence, once the assent of
the President is granted, the necessity of a further assent by the Governor is
obviated.
G The submission that in Karnataka Power Transport Corporation Limited,
as a consequence of the reservation in seniority in the cadre of
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Superintending Engineer and Engineer-in-Chief, there was over
representation for SCs and ST between 2005 and 2016 is erroneous.
(i) There is no reservation for promotion to the posts of Superintending
Engineer and Engineer-in-Chief in KPTCL. Reservation in promotion and
consequential seniority is available only up to the post of Assistant
Executive Engineer. In fact, if consequential seniority were not to be
granted on promotion up to the post of Assistant Executive Engineer, there
would be excessive under-representation of reserved category candidates.
The Ratna Prabha Committee report, in paragraph 2.4, took note of the
total number of officials/employees working in thirty one government
departments of the State Government. It noted that 80.35 per cent of the
sanctioned posts are concentrated in six major Government departments
namely; Education, Home, Health, Revenue, Judicial and Finance. The
data pertaining to thirty one government departments was taken in the
totality to analyse and assess the adequacy of representation. The data of
smaller departments may not be representative of the State Civil Services
as a whole.
On the above grounds, it was urged that the challenge to the Reservation Act
2018 must fail.
54 Ms Indira Jaising76
, learned Senior Counsel appearing on behalf of the
intervenors (Karnataka SC/ST Engineer‘s Welfare Association) contended that
76 In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018
PART C
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the Reservation Act 2018 is constitutionally valid. Ms Jaising urged the following
submissions:
(i) The decisions of this Court in State of Kerala v N M Thomas77 (―N M
Thomas‖) and Nagaraj affirmed that Article 16 (4) is an emphatic
declaration of Article 16 (1). The principle of ‗proportional equality‘ entails
substantive equality which is reflected in affirmative action to remedy
injustice to SCs, STs and Other Backward Classes78
. Social justice is
concerned with the distribution of benefits and burdens. The Reservation
Act 2018, in providing for consequential seniority, furthers the vision of
substantive equality and is valid;
(ii) Affirmative action under Article 15 (4) and reservation under Article 16 (4)
of the Constitution are intended to ensure that all sections of the society
are represented equally in services under the state. The Reservation Act
2018 underlies this salient objective and furthers the promotion of the
interests of the SCs, STs and other weaker sections as stipulated in Article
46 of the Constitution;
(iii) Article 16 (4A) is an enabling provision which empowers the State to frame
rules or enact a legislation granting reservations in promotions with
consequential seniority subject to the fulfilment of the conditions laid down
in Nagaraj and modified by Jarnail. Following the decision in Jarnail, the
state is required to show data only on the inadequacy of representation
and efficiency of administration. The State of Karnataka, in exercise of the
enabling power under Article 16 (4A) enacted the Reservation Act 2018 in
77 (1976) 2 SCC 310
78 OBCs
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compliance with the conditions precedent to the exercise of the power
stipulated in that Article;
(iv) The decision in Sabharwal lays down that in determining the inadequacy
of representation of SCs and STs in promotional posts, the state may take
the total population of a particular class and its representation in the
service. The State has studied the extent of reservation in posts for SCs
and STs in a ‗group‘ which is a collection of cadres. Hence, it cannot be
said that the state failed to collect quantifiable data on the representation
of SCs and STs in promotional posts. Without the grant of consequential
seniority, the percentage of reservation will not reach the prescribed
percentage;
(v) No statistical studies have been provided to show that the grant of
consequential seniority has led to the lowering of efficiency in
administration. It cannot be presumed that the appointment of SCs and
STs will lead to a lowering of efficiency as at the individual level, all
individuals belonging to SCs and STs must also achieve the minimum
benchmark of ‗good‘;
(vi) The Reservation Act 2002 was struck down on the basis of the failure of
the state to collect quantifiable data. The Reservation Act 2018 has been
enacted on the basis of data collected and studied in the Ratna Prabha
Committee report. Hence, the basis of the decision in B K Pavitra I has
been removed. Additionally, no mandamus was issued in B K Pavitra I;
(vii) The collection of data required to be carried out by the State is a matter of
social science and is carried out by experts. Data collection is both
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qualitative and quantitative. As long as the methodology adopted by the
state is scientifically sound, the assessment of the data collected is the
prerogative of the state. The court may intervene in judicial review only
when there is a complete absence of data or if the data relied on is
irrelevant; and
(viii) The principles laid down by this Court in Indra Sawhney on the exclusion
of the creamy layer apply only to OBCs and cannot extend to SCs and
STs. No question arose in Nagaraj on the exclusion of the creamy layer in
respect of SCs and STs. Hence, the decision is not an authority for the
principle that the states are bound to exclude the creamy layer in respect
of SCs and STs. The decision of this Court in Jarnail dealt with the
competence of Parliament to enact a law in relation to the creamy layer
and did not lay down a general proposition on its exclusion. The concept of
creamy layer, if applicable, can only be applied at the entry level and not in
promotions.
55 Mr Dinesh Dwivedi79
, learned Senior Counsel appearing on behalf of the
intervenor (Karnataka SC/ST Engineers‘ Welfare Association), urged the
following submissions:
(i) The decision in Nagaraj was concerned with whether reservation in
promotion as inserted in Article 16 (4A) by the Constitution (Seventyseventh Amendment) Act 1995 and the enabling provision for the grant of
consequential seniority under Article 16 (4A) inserted by the Constitution
(Eighty-fifth Amendment) Act 2001 violated the basic structure of the
79 In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018
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Constitution. The decision in Nagaraj was concerned with reservations in
promotion and did not equate reservation in promotion with the grant of
consequential seniority. In this view, the four controlling factors, namely (i)
backwardness; (ii) adequacy of representation; (iii) elimination of the
creamy layer; and (iv) efficiency of administration have relevance only to
the exercise of the enabling power under Article 16 (4A) for making
reservation in promotion and not the exercise of the enabling power to
grant consequential seniority;
(ii) Reservation in promotion was introduced in the State of Karnataka by the
Government Order dated 27 April 1978 and continues to be in operation.
The Reservation Act 2018 stipulates the grant of consequential seniority
which is premised on the prior existence and operation of reservation in
promotion. Absent a challenge to the Government Order dated 27 April
1978 in the present proceedings, the petitioner is precluded from
challenging the grant of consequential seniority in the Reservation Act
2018;
(iii) Consequential seniority is nothing but the normal rule of seniority which
accords seniority to roster point promotees from the date of their
substantive promotion. The catch-up rule is an exception to the normal rule
of seniority. Prior to the decision in Indra Sawhney, accelerated seniority
to roster point promotees existed in the State of Karnataka with the
application of the continuous officiation rule. This is supported by Rule 2(b)
of the 1957 Rules. Para III (d) of the Government Order dated 27 April
1978 provided for the application of the catch-up rule only in a limited
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manner. Rule 4 is restricted in its application to appointments made on the
same day which implies that in the absence of its application to a given
case, consequential seniority must be granted;
(iv) The decision in Virpal Singh concerned a rule that specifically provided for
the application of the catch-up rule in a departure from the normal rule of
seniority. This Court held that a state may prescribe either consequential
seniority based on continuous officiation or the catch-up rule of seniority in
case of roster point promotions. A harmonious reading of Articles 14 and
16(1) of the Constitution does not stipulate that the catch-up rule must
apply in the case of roster point promotions. Thus, a balancing of Articles
14, 16(1) and 16(4) of the Constitution denotes that the catch-up rule is not
mandatory. The decisions of this Court in Ajit Singh I, Ajit Singh II and
Badappanavar, in holding to the contrary, have been expressly overruled
by the seventy-seventh and the eighty-fifth amendments to the
Constitution, following which the principles enunciated in Virpal Singh
continue to govern the field. The eighty-fifth amendment was intended to
make consequential seniority a constitutional principle and revive
consequential seniority as the normal rule of seniority;
(v) The principles enunciated in Virpal Singh are fortified by the decision in
Nagaraj which held that the catch-up rule and consequential seniority are
principles of service jurisprudence and cannot be elevated to a
constitutional status. The discretion to choose between consequential
seniority and catch-up vests with the state. The Reservation Act 2018, in
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stipulating for consequential seniority, is a valid exercise of discretion by
the State; and
(vi) In the alternative, the tests laid down by the four controlling factors in
Nagaraj and Jarnail have been satisfied prior to the enactment of the
Reservation Act 2018. The satisfaction of the state in this regard cannot be
subjected to review by this Court.
56 Mr Lakshminarayana, learned Senior Counsel has submitted thus:
(i) The issue as to whether reservation under Article 16 (4A) can be provided
by an executive order was answered in the affirmative in the judgment of
Justice BP Jeevan Ready speaking for a plurality of judges in Indra
Sawhney. The word ‗provision‘ in Article 16 (4) was interpreted in contrast
with the word ‗law‘ in clauses (3) and (5) of Article 16. The word ‗any‘ and
the word ‗provision‘ in Article 16 (4) must be given their due meaning.
Article 16 (4) is exhaustive as a special provision in favour of the backward
class of citizens. Backward classes having been classified by the
Constitution as a class deserving special treatment and the Constitution
itself having specified the nature of the special treatment, it should be
presumed that no further classification or special treatment is permissible
in their favour outside Article 16 (4). In light of the decision in Indra
Sawhney, it is now a settled principle that a provision for reservation can
be made by the legislature, by statutory rules and by executive orders;
(ii) Provisions for reservation in promotions were introduced in Karnataka by
the Government Order dated 27 April 1978 on the basis of the inadequacy
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of representation of SCs and STs in public services under Article 16 (4).
After the report on the inadequacy of representation dated 30 August
1979, first and second roster points were reserved for SCs and STs. The
principle of consequential seniority is adopted by clause (vii) of the
Government Order dated 27 April 1978 and clause (d) of the Government
Order dated 1 June 1978;
(iii) Clause (vii) of the Government Order dated 27 April 1978 as it originally
stood provided that inter se seniority amongst persons promoted ―on any
occasion‖ shall be determined under Rules 4 and 4 (A) of the Seniority
Rules 1957;
(iv) The words ―on any occasion‖ in clause (vii) were amended by clause (d) of
the Government Order dated 1 June 1978 so that the determination of
seniority among reserved promotees and general candidates on the basis
of seniority-cum-merit shall ―on each occasion‖ be fixed under Rule 4 of
the Seniority Rules 1957;
(v) The substitution of the expression ―on any occasion‖ with the expression
―on each occasion‖ denotes the intention of the government to provide
consequential seniority to reserved category candidates promoted on the
basis of roster;
(vi) The legislature enacted provisions pertaining to the policy of reservation in
promotion in the State Civil Services and Public Sector Undertakings as
follows :
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(a) The Rules 1977 including the proviso to Rule 8, upheld by this Court
in Bhakta Ramegowda;
(b) The Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.,) Act 1990;
(c) The Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.,) Rules 1992;
and
(d) The Karnataka State Civil Services (Unfilled Vacancies Reserved for
the persons belonging to the Scheduled Castes and the Scheduled
Tribes) (Special Recruitment) Rules 2001.
The above provisions were followed by the Reservation Acts of 2002 and 2017.
(vii) With effect from 1 April 1992, the State of Karnataka inserted the proviso
to Rule 8 in the Rules 1977 which reads as follows:
―8. Provision for reservation of appointments or posts.-
Appointments or posts shall be reserved for the members of
the Scheduled Castes, Scheduled Tribes, and Other
Backward Classes to such extent and in such manner as may
be specified by the government under clause (4) of Article 16
of the Constitution of India.
Proviso to Rule 8
80[Provided that, notwithstanding anything in the rules of
Recruitment specially made in respect of any Service or Post,
the backlog vacancies in the promotional quota shall be
determined and implemented with effect from 27th April,1978.
Note.– The backlog vacancy means the extent of the number
of vacancies available under the roster system up to the level
of lowest category in Group-A post calculated from 27th April,
1978.].‖
80 Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992
PART C
65
The above Rule was upheld in Bhakta Ramegowda;
(viii) The Government Order dated 24 June 1997 provided additional roster
points to cover up backlog promotional roster points, both in promotion and
direct recruitment. Clauses (iv) and (v) of para 8 of the Government Order
dated 24 June 1997 reads as follows :
―Clause (IV).
After effecting review of promotion and adjustment and
fitment as indicated in item (iii) above, if some more persons
belonging to scheduled castes and scheduled tribes who
have already been promoted against backlog cannot get
adjusted due to want of adequate number of vacancies as per
the aforesaid roster points, such persons shall be adjusted
and fitted in accordance with the procedure specified in item
(iii) while effecting promotion in respect of future vacancies.
Until such time, shall be continued against supernumerary
posts to be created by the concerned Administrative
Department. For this purpose, the Secretaries to Government
are hereby delegated the power to create supernumerary
posts presuming the concurrence of Finance Department and
to that extent the Government Order No. FD 1 TFP 96, dated
10.07.1996, shall be deemed to have been modified
accordingly.
Clause (V)
While adjusting and fitting promote[e]s as indicated in item (iii)
and (iv) above, the inter-se seniority among the General
category, the scheduled caste category and the scheduled
tribe category shall be determined in accordance with rule 4
or rule 4 A as the case may be, of the Karnataka Government
Servants Seniority Rules 1957. The roster points are meant
only for calculating the number of vacancies that become
available for the different categories on each occasion and
they do not determine the seniority.‖
The above clauses reiterated the purpose of assessing inter se seniority
after promotion of roster promotees in reckoning consequential seniority
among two groups.
PART C
66
(ix) The State Government is entitled to prescribe the percentage of
reservation based on the total population of a particular backward class
and its representation in the services of the State under Article 16 (4).
Once the prescribed percentage of reservations is determined, the
numerical test of adequacy is satisfied. The percentage of reservation is
the desired representation of the backward classes in the state services
and is consistent with the demographic estimate, based on the proportion
worked out in relation to their population;
(x) The operation of the roster points and filling of the cadre strength ensures
that the reservation remains within the limit of 50 per cent;
(xi) Reserved candidates who have been appointed or promoted on merit as
general candidates cannot be included in calculating adequacy of
representation of backward classes in operating the roster points. Only
reserved candidates promoted against roster points are to be taken into
account in considering the adequacy of representation;
(xii) A cadre includes different grades and reservation can be provided in
different grades within the cadre. The reservation policy contained in the
Government Order dated 27 April 1978 has been re-issued on 17 April
1993 and 11 May 1993 after the decision in Indra Sawhney;
(xiii) Both clauses (1) and (4) of Article 16 operate in the same field. Both are
directed towards achieving equality of opportunity in services under the
State. The formation of opinion by the State on the adequacy of
representation is a matter of subjective satisfaction and the test is whether
PART C
67
there was some material before the State to justify its opinion. In the
exercise of judicial review, the court would extend due deference to the
judgment and discretion of the executive. Even if there are some errors on
the part of the State Government, that would not in any way result in the
invalidation of the entire exercise;
(xiv) Efficiency of administration means governance which provides responsive
service to the people. Merit alone is not a component of efficiency. Once
an employee is promoted, efficiency is judged on the basis of the annual
confidential reports;
(xv) A curative legislation does not constitute an encroachment on judicial
power by the State Legislature. Similarly, it is open to the legislature to
enact a legislation both with retrospective and prospective effect;
(xvi) Judicial review cannot extend to examine the adequacy of the material
available before the President and unless, there is a situation involving a
fraud on power or conduct actuated by oblique motive, the court would not
intervene;
(xvii) The principle of creamy layer has no application to in-service candidates;
and
(xviii) The State having rectified the lacuna which was pointed out in B K Pavitra
I, by carrying out the exercise of data collection, the opinion formed by the
State after analysing the data lies in its subjective satisfaction. The
reservation policy dated 27 April 1978 which introduced provisions for
PART C
68
reservations in promotions for SCs and STs in public services has
continued until date without interruption.
57 Mr Nidhesh Gupta, learned Senior Counsel urged the following
submissions:
(i) The phrase ‗in the opinion of the state‘ in Article 16(4) of the Constitution
indicates that the issue with regard to adequacy of representation is within
the subjective satisfaction of the state. The role of the court is limited to
examining whether the opinion formed by the government was on the
basis of data available with it. While the existence of circumstances
requiring state action may be reviewed, the opinion formed is outside the
purview of judicial review. These propositions have been accepted in the
decisions of this Court in Indra Sawhney, Barium Chemicals Ltd. v
Company Law Board81 (―Barium Chemicals Ltd.‖), Rohtas Industries v
S D Agarwal82 and Rustom Cavasjee Cooper v Union of India83;
(ii) The expression ‗to any class or classes of posts‘ in Article 16(4) makes it
abundantly clear that the phrase refers to a ‗class‘ or ‗group‘ and not a
cadre. The use of the word ‗services‘ in the phrase ‗services under the
state‘ in Article 16 (4A) supports this contention. The decisions in
Sabharwal and Nagaraj clarify that cadre strength is to be applied in the
operation of the roster. The reference to ‗entire cadre strength‘ in
Sabharwal adverted to the fact that the entire cadre strength should be
taken into account in determining whether reservation up to the quota limit
81 AIR 1967 SC 295
82 (1969) 1 SCC 325
83 (1970) 1 SCC 248
PART C
69
has been reached. In this view, ‗entire cadre strength‘ is the reference
point to (i) ascertain the position of representation in the entire service; (ii)
determine whether reservation up to the quota limit has been reached in
the application of the roster; and (iii) the cadre strength has been applied in
the operation of the roster. It was urged that if the percentages were
calculated on the basis of vacancies, the actual appointments made may
exceed the prescribed quota. Reliance has been placed on the decisions
of this Court in Indra Sawhney, Nagaraj, and Jarnail;
(iii) The decision in Indra Sawhney does not deal with SCs and STs in regard
to the creamy layer principle. In any case, even if the principle applies to
SCs and STs, it would only be applicable at the stage of appointments and
not for promotional posts; and
(iv) The percentages in the PWD which are marginally above the stipulated
quota are by way of including those reserved category candidates who
were selected on general merit. This is contrary to the law laid down by
this Court in Sabharwal, Indra Sawhney and Ritesh Sah v Y L Yamul84
.
58 The rival submissions now fall for consideration.
59 Other Counsel, who argued and submitted their written submissions, have
with certain nuances, reiterated similar arguments.
84 (1996) 3 SCC 253
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70
D Assent to the Bill
60 Besides the Governor, the legislatures of the States consist of a bicameral
legislature for some States and a unicameral legislature for others.
85
61 Article 200 is the provision which enunciates the power of the Governor to
assent to a Bill, withhold assent or reserve a Bill for considering of the President:
―200. When a Bill has been passed by the Legislative
Assembly of a State or, in the case of a State having a
Legislative Council, has been passed by both Houses of the
Legislature of the State, it shall be presented to the Governor
and the Governor shall declare either that he assents to the
Bill or that he withholds assent therefrom or that he reserves
the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after
the presentation to him of the Bill for assent, return the Bill if it
is not a Money Bill together with a message requesting that
the House or Houses will reconsider the Bill or any specified
provisions thereof and, in particular, will consider the
desirability of introducing any such amendments as he may
recommend in his message and, when a Bill is so returned,
the House or Houses shall reconsider the Bill accordingly,
and if the Bill is passed again by the House or Houses with or
without amendment and presented to the Governor for
assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but
shall reserve for the consideration of the President, any Bill
which in the opinion of the Governor would, if it became law,
so derogate from the powers of the High Court as to
endanger the position which that Court is by this Constitution
designed to fill.‖
85 Article 168. (1) For every State there shall be a Legislature which shall consist of the Governor, and—
(a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra], [Karnataka], [[Tamil Nadu,
Telangana]] [and Uttar Pradesh], two Houses;
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council
and the other as the Legislative Assembly, and where there is only one House, it shall be known as the
Legislative Assembly.
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71
Article 201 deals with what is to happen when the Governor reserves a Bill for the
consideration of the President.
―201. When a Bill is reserved by a Governor for the
consideration of the President, the President shall declare
either that he assents to the Bill or that he withholds assent
therefrom:
Provided that, where the Bill is not a Money Bill, the President
may direct the Governor to return the Bill to the House or, as
the case may be, the Houses of the Legislature of the State
together with such a message as is mentioned in the first
proviso to article 200 and, when a Bill is so returned, the
House or Houses shall reconsider it accordingly within a
period of six months from the date of receipt of such message
and, if it is again passed by the House or Houses with or
without amendment, it shall be presented again to the
President for his consideration.‖
Upon a Bill being passed by the Houses of the legislature (or by the sole House
where there is only a legislative assembly), it has to be presented to the
Governor. The Governor can (i) assent to the Bill; (ii) withhold assent; or (iii)
reserve the Bill for the consideration of the President.
62 Where a Bill is not a Money Bill, the Governor may return the Bill for
reconsideration upon which the House or Houses, as the case may be, will
reconsider the desirability of introducing the amendments which the Governor
has recommended. If the Bill is passed again by the House (or Houses as the
case may be), the Governor cannot thereafter withhold assent. The second
proviso to Article 200 stipulates that the Governor must not assent to a Bill but
necessarily reserve it for the consideration of the President if the Bill upon being
enacted would derogate from the powers of the High Court in a manner that
PART D
72
endangers its position under the Constitution. Save and except for Bills falling
within the description contained in the second proviso (where the Governor must
reserve the Bill for consideration of the President), a discretion is conferred upon
the Governor to follow one of the courses of action enunciated in the substantive
part of Article 200. Aside from Bills which are covered by the second proviso,
where the Governor is obliged to reserve the Bill for the consideration of the
President, the substantive part of Article 200 does not indicate specifically, the
circumstances in which the Governor may reserve a Bill for the consideration of
the President. The Constitution has entrusted this discretion to the Governor. The
nature and scope of the discretionary power of the Governor to act independent
of, or, contrary to aid and advice of Council of Ministers under Article 163 was
discussed in Nabam Rebia, Justice J S Khehar (as the learned Chief Justice
then was) held thus:
―154. We are, therefore, of the considered view that insofar as
the exercise of discretionary powers vested with the Governor
is concerned, the same is limited to situations, wherein a
constitutional provision expressly so provides that the
Governor should act in his own discretion. Additionally, a
Governor can exercise his functions in his own discretion, in
situations where an interpretation of the constitutional
provision concerned, could not be construed otherwise…‖86
Justice Dipak Misra (as the learned judge then was), observed thus:
―375. …The Governor is expected to function in accordance
with the provisions of the Constitution (and the history behind
the enactment of its provisions), the law and the rules
regulating his functions. It is easy to forget that the Governor
is a constitutional or formal head—nevertheless like
everybody else, he has to play the game in accordance with
the rules of the game—whether it is in relation to the
86 Supra 69 at page 159
PART D
73
Executive (aid and advice of the Council of Ministers) or the
Legislature (Rules of Procedure and Conduct of Business of
the Arunachal Pradesh Legislative Assembly). This is not to
say that the Governor has no powers—he does, but these too
are delineated by the Constitution either specifically or by
necessary implication…‖87
63 The framers carefully eschewed defining the circumstances in which the
Governor may reserve a Bill for the consideration of the President. By its very
nature the conferment of the power cannot be confined to specific categories.
Exigencies may arise in the working of the Constitution which justify a recourse
to the power of reserving a Bill for the consideration of the President. They
cannot be foreseen with the vision of a soothsayer. The power having been
conferred upon a constitutional functionary, it is conditioned by the expectation
that it would be exercised upon careful reflection and for resolving legitimate
concerns in regard to the validity of the legislation. The entrustment of a
constitutional discretion to the Governor is premised on the trust that the exercise
of authority would be governed by constitutional statesmanship. In a federal
structure, the conferment of this constitutional discretion is not intended to thwart
democratic federalism. The state legislatures represent the popular will of those
who elect their representatives. They are the collective embodiments of that will.
The act of reserving a Bill for the assent of the President must be undertaken
upon careful reflection, upon a doubt being entertained by the Governor about
the constitutional legitimacy of the Bill which has been passed.
87 Ibid at page 244
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64 Dr Dhavan in the course of his submissions, has dwelt at length on the
power which is entrusted to the Governor to reserve a Bill for the consideration of
the President under Article 254 (2). Article 254 (2) deals with a situation where a
law which has been enacted by the legislature of a state on a matter which is
enumerated in the Concurrent List of the Seventh Schedule contains any
provision which is repugnant either to an earlier law made by Parliament or an
existing law with respect to that matter. In such an eventuality, the law made by
the legislature of the state can prevail in that state only if it has received the
assent of the President on being reserved for consideration.
65 When the reservation of a Bill for the assent of the President has been
occasioned on the ground of a repugnancy with an existing law or a law enacted
by the Parliament, there are decisions of this Court which hold that the President
has to be apprised of the reason why the assent was sought. In Gram
Panchayat of Village Jamalpur, a law enacted by the Punjab legislature in
1953, extinguished all private interests in Shamlat-deh lands and vested them in
the village Panchayats as a matter of agrarian reform. This Court held that the
Punjab enactment had not been reserved for the assent of the President on the
ground that it was repugnant to an earlier Act enacted by Parliament in 1950 but
the assent was sought for a different and a specific purpose. In this background,
the Constitution Bench held that the assent of the President would not avail the
state government to accord precedence to the law enacted by the state
legislature over the law made by Parliament. The Constitution Bench held:
PART D
75
―12…The assent of the President under Article 254(2) of the
Constitution is not a matter of idle formality. The President
has, at least, to be apprised of the reason why his assent is
sought if, there is any special reason for doing so. If the
assent is sought and given in general terms so as to be
effective for all purposes, different considerations may
legitimately arise. But if, as in the instant case, the assent of
the President is sought to the Law for a specific purpose, the
efficacy of the assent would be limited to that purpose and
cannot be extended beyond it.‖88
66 A similar principle was adopted in Kaiser-I-Hind Pvt Ltd. The case
concerned rent legislation in Maharashtra and the Public Premises (Eviction of
Unauthorized Occupants) Act 1971 enacted by Parliament. This Court held that
where the assent was given after considering the repugnancy between the
Bombay Rent Act, the Transfer of Property Act and the Presidency Small Cause
Courts Act, it was not correct to hold that the state law would prevail over another
parliamentary enactment for which no assent had been sought. In that context,
the Court held:
―65… 2. (a) Article 254(2) contemplates ―reservation for
consideration of the President‖ and also ―assent‖. Reservation
for consideration is not an empty formality. Pointed attention
of the President is required to be drawn to the repugnancy
between the earlier law made by Parliament and the
contemplated State legislation and the reasons for having
such law despite the enactment by Parliament.
(b) The word ―assent‖ used in clause (2) of Article 254 would
in context mean express agreement of mind to what is
proposed by the State.‖89
67 These decisions are specifically in the context of Article 254. Article 254(1)
postulates inter alia, that in a matter which is governed by the Concurrent List, a
88 Supra 67 at pages 668-669
89 Supra 66 at pages 215-216
PART D
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law which has been enacted by the legislature of a state shall be void to the
extent of its repugnancy with a law enacted by the Parliament. Clause (2) of
Article 254 obviates that consequence where the law has been reserved for the
consideration of the President and has received assent. Article 254(1) is made
subject to Clause (2), thereby emphasizing that the assent of the President will
cure a repugnancy of the state law with a law enacted by the Parliament in a
matter falling in the Concurrent List. It is in this context, that the decisions of this
Court hold that the assent of the President should be sought in relation to a
repugnancy with a specific provision contained in a Parliamentary legislation so
as to enable due consideration by the President of the ground on which assent
has been sought. Article 200 contains the source of the constitutional power
which is conferred upon the Governor to reserve a Bill for the consideration of the
President. Article 254 (2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the state legislature for consideration of the
President in a specified situation - where it is repugnant to an existing law or to a
Parliamentary legislation on a matter falling in the Concurrent List. The
eventuality which is specified in Article 254 (2) does not exhaust the ambit of the
power entrusted to the Governor under Article 200 to reserve a Bill for the
consideration of the President. Apart from a repugnancy in matters falling in the
Concurrent List between state and Parliamentary legislation, a Governor may
have sound constitutional reasons to reserve a Bill for the consideration of the
President. Article 200, in its second proviso mandates that a Bill which derogates
from the powers of the High Court must be reserved for the consideration of the
President. Apart from Bills which fall within the description set out in the second
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77
proviso, the Governor may legitimately refer a Bill for consideration of the
President upon entertaining a legitimate doubt about the validity of the law. By its
very nature, it would not be possible for this Court to reflect upon the situations in
which the power under Article 200 can be exercised. This was noticed in the
judgment of this Court in Hoechst. Excluding it from judicial scrutiny, the Court
held:
―86…There may also be a Bill passed by the State
Legislature where there may be a genuine doubt about the
applicability of any of the provisions of the Constitution which
require the assent of the President to be given to it in order
that it may be effective as an Act. In such a case, it is for the
Governor to exercise his discretion and to decide whether he
should assent to the Bill or should reserve it for consideration
of the President to avoid any future complication. Even if it
ultimately turns out that there was no necessity for the
Governor to have reserved a Bill for the consideration of the
President, still he having done so and obtained the assent of
the President, the Act so passed cannot be held to be
unconstitutional on the ground of want of proper assent. This
aspect of the matter, as the law now stands, is not open to
scrutiny by the courts. In the instant case, the Finance Bill
which ultimately became the Act in question was a
consolidating Act relating to different subjects and perhaps
the Governor felt that it was necessary to reserve it for the
assent of the President. We have no hesitation in holding that
the assent of the President is not justiciable, and we cannot
spell out any infirmity arising out of his decision to give such
assent.‖90
68 Hoechst is an authority for the proposition that the assent of the President
is non - justiciable. Hoechst also lays down that even if, as it turns out, it was not
necessary for the Governor to reserve a Bill for the consideration of the
President, yet if it was reserved for and received the assent of the President, the
90 Supra 68 at pages 100-101
PART D
78
law as enacted cannot be regarded as unconstitutional for want of ‗proper‘
assent.
69 The above decisions essentially answer the submissions which were urged
by Dr Dhavan. The law as propounded in the line of precedents adverted to
above must negate the submissions which were urged on behalf of the
petitioners. Once the Bill (which led to the Reservation Act 2018) was reserved
by the Governor for the consideration of the President, it was for the President to
either grant or withhold assent to the Bill. The President having assented to the
Bill, the requirements of Article 201 were fulfilled. The validity of the assent by the
President is non-justiciable. The Governor, while reserving the Bill in the present
case for the consideration of the President on 6 December 2017 observed thus:
―The Supreme Court in the case of BK Pavitra Case, while
considering the issue of grant of promotion to persons
belonging to SC and STs has observed the necessity of
applying the test of inadequacy of representation,
backwardness and overall efficiency, for exercise of power
under Article 16 (4A) of the Constitution and has directed the
State Government to revise the seniority list within the time
frame.
The State Government to overcome the situation which was
found fault with by the Supreme Court in the aforesaid
judgment has come out with a Bill, which is now sent for my
assent.
Having regard to the judgment of the Supreme Court in the
aforesaid case and importance of the issue and the
Constitutional interpretation involved in the matter, I deem it
appropriate to reserve the matter for the consideration of the
President. Accordingly, the Bill is reserved for the
consideration of the President under Article 200 of the
Constitution of India.‖
PART E
79
70 The state government, in the course of its clarifications, was of the view
that there was no necessity of reserving the Bill for the consideration of the
President, since in its view, the Governor had not recorded a finding that it was
unconstitutional, or fell afoul of existing central legislation on the subject or that it
was beyond legislative competence or derogated from the fundamental rights. All
procedural requirements under the Constitution were according to the
government duly complied with. This objection of the state government cannot
cast doubt upon the grant of assent by the President. The law having received
the assent of the President, the submissions which were urged on behalf of the
petitioners cannot be countenanced.
E Does the Reservation Act 2018 overrule or nullify B K Pavitra I
71 The foundation of the decision in B K Pavitra I is the principle enunciated
in Nagaraj that in order to sustain the exercise of the enabling power contained in
Article 16 (4A), the state is required to demonstrate a ―compelling necessity‖ by
collecting quantifiable data on: (i) inadequacy of representation; (ii)
backwardness; and (iii) overall efficiency. The judgment in B K Pavitra I held
that no such exercise was undertaken by the State of Karnataka before providing
for reservation in promotion and providing for consequential seniority. On the
ground that the state had not collected quantifiable data on the three parameters
enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional.
The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the
basis that before taking recourse to the enabling power the state has to carry out
PART E
80
the exercise of collecting quantifiable data and fulfilling the three parameters
noted above. B K Pavitra I essentially held that there was a failure on the part of
the state to undertake this exercise, which was a pre-condition for the exercise of
the enabling power to make reservations in promotions and to provide for
consequential seniority.
72 The decision in B K Pavitra I did not restrain the state from carrying out
the exercise of collecting quantifiable data so as to fulfil the conditionalities for the
exercise of the enabling power under Article 16 (4A). The legislature has the
plenary power to enact a law. That power extends to enacting a legislation both
with prospective and retrospective effect. Where a law has been invalidated by
the decision of a constitutional court, the legislature can amend the law
retrospectively or enact a law which removes the cause for invalidation. A
legislature cannot overrule a decision of the court on the ground that it is
erroneous or is nullity. But, it is certainly open to the legislature either to amend
an existing law or to enact a law which removes the basis on which a declaration
of invalidity was issued in the exercise of judicial review. Curative legislation is
constitutionally permissible. It is not an encroachment on judicial power. In the
present case, state legislature of Karnataka, by enacting the Reservation Act
2018, has not nullified the judicial decision in B K Pavitra I, but taken care to
remedy the underlying cause which led to a declaration of invalidity in the first
place. Such a law is valid because it removes the basis of the decision.
PART E
81
73 These principles have consistently been reiterated in a line of precedents
emerging from this Court. In Utkal Contractors and Joinery (P) Ltd, this Court
held:
―15. …The legislature may, at any time, in exercise of the
plenary power conferred on it by Articles 245 and 246 of the
Constitution render a judicial decision ineffective by enacting
a valid law. There is no prohibition against retrospective
legislation. The power of the legislature to pass a law
postulates the power to pass it prospectively as well as
retrospectively. That of course, is subject to the legislative
competence and subject to other constitutional limitations.
The rendering ineffective of judgments or orders of competent
courts by changing their basis by legislative enactment is a
well-known pattern of all validating acts. Such validating
legislation which removes the causes of ineffectiveness or
invalidity of action or proceedings cannot be considered as
encroachment on judicial power. The legislature, however,
cannot by a bare declaration, without more, directly overrule,
reverse or set aside any judicial decision…‖
91
(See also in this context : Bhubaneshwar Singh v Union of India92
, Indian
Aluminium Co v State of Kerala93 (―Indian Aluminium Co‖), Narain Singh94
and Cheviti Venkanna Yadav).
74 The legislature has the power to validate a law which is found to be invalid
by curing the infirmity. As an incident of the exercise of this power, the legislature
may enact a validating law to make the provisions of the earlier law effective from
the date on which it was enacted (The United Provinces v Mst Atiqa Begum95
91 Supra 74 at page 759
92 (1994) 6 SCC 77
93 (1996) 7 SCC 637
94 (2009) 13 SCC 165
95 AIR 1941 FC 16
PART E
82
and Rai Ramkrishna v State of Bihar96). These principles were elucidated in the
decision of this Court in Prithvi Cotton Mills Ltd. The judgment makes a
distinction between a law which simply declares that a decision of the court will
not bind (which is impermissible for the legislature) and a law which
fundamentally alters the basis of an earlier legislation so that the decision would
not have been given in the altered circumstances. This distinction is elaborated in
the following extract:
―4. … Granted legislative competence, it is not sufficient to
declare merely that the decision of the Court shall not bind for
that is tantamount to reversing the decision in exercise of
judicial power which the Legislature does not possess or
exercise. A court's decision must always bind unless the
conditions on which it is based are so fundamentally altered
that the decision could not have been given in the altered
circumstances. Ordinarily, a court holds a tax to be invalidly
imposed because the power to tax is wanting or the statute or
the rules or both are invalid or do not sufficiently create the
jurisdiction. Validation of a tax so declared illegal may be
done only if the grounds of illegality or invalidity are capable
of being removed and are in fact removed and the tax thus
made legal.‖97
75 In State of T N v Arooran Sugars Ltd98
, a Constitution Bench of this
Court recognized the power of the legislature to enact a law retrospectively to
cure a defect found by the Court. It was held that in doing so, the legislature did
not nullify a writ or encroach upon judicial power. The legislature in remedying a
deficiency in the law acted within the scope of its authority. This Court held:
―16…It is open to the legislature to remove the defect pointed
out by the court or to amend the definition or any other
provision of the Act in question retrospectively. In this process
it cannot be said that there has been an encroachment by the
96 (1964) 1 SCR 897
97 Supra 55 at pages 286-287
98 (1997) 1 SCC 326
PART E
83
legislature over the power of the judiciary. A court‘s directive
must always bind unless the conditions on which it is based
are so fundamentally altered that under altered circumstances
such decisions could not have been given. This will include
removal of the defect in a statute pointed out in the judgment
in question, as well as alteration or substitution of provisions
of the enactment on which such judgment is based, with
retrospective effect.‖99
The same principle was formulated in the decision of this Court in Virender
Singh Hooda v State of Haryana100:
―59. …vested rights can be taken away by retrospective
legislation by removing the basis of a judgment so long as the
amendment does not violate the fundamental rights. We are
unable to accept the broad proposition… that the effect of the
writs issued by the courts cannot be nullified by the legislature
by enacting a law with retrospective effect. The question, in
fact, is not of nullifying the effect of writs which may be issued
by the High Court or this Court. The question is of removing
the basis which resulted in issue of such a writ. If the basis is
nullified by enactment of a valid legislation which has the
effect of depriving a person of the benefit accrued under a
writ, the denial of such benefit is incidental to the power to
enact a legislation with retrospective effect. Such an exercise
of power cannot be held to be usurpation of judicial
power…‖
101
76 A declaration by a court that a law is constitutionally invalid does not fetter
the authority of the legislature to remedy the basis on which the declaration was
issued by curing the grounds for invalidity. While curing the defect, it is essential
to understand the reasons underlying the declaration of invalidity. The reasons
constitute the basis of the declaration. The legislature cannot simply override the
declaration of invalidity without remedying the basis on which the law was held to
be ultra vires. A law may have been held to be invalid on the ground that the
99 Ibid at page 340
100 (2004) 12 SCC 588
101 Ibid at page 616
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84
legislature which enacted the law had no legislative competence on the subject
matter of the legislation. Obviously, in such a case, a legislature which has been
held to lack legislative competence cannot arrogate to itself competence over a
subject matter over which it has been held to lack legislative competence.
However, a legislature which has the legislative competence to enact a law on
the subject can certainly step in and enact a legislation on a field over which it
possesses legislative competence. For instance, where a law has been
invalidated on the ground that the state legislature lacks legislative competence
to enact a law on a particular subject – Parliament being conferred with legislative
competence over the same subject – it is open for the Parliament, following a
declaration of the invalidity of the state law, to enact a new law and to regulate
the area. As an incident of its validating exercise, Parliament may validate the
collection of a levy under the earlier law. The collection of a levy under a law
which has been held to be invalid is validated by the enactment of legislation by a
legislative body – Parliament in the above example – which has competence over
the subject matter. Apart from legislative competence, a law may have been
declared invalid on the ground that there was a breach of the fundamental rights
contained in Part III of the Constitution. In that situation, if the legislature
proceeds to enact a new law on the subject, the issue in essence is whether the
re-enacted law has taken care to remove the infractions of the fundamental rights
on the basis of which the earlier law was held to be invalid. The true test
therefore is whether the legislature has acted within the bounds of its authority to
remedy the basis on which the earlier law was held to suffer from a constitutional
infirmity.
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77 The petitioners have placed a considerable degree of reliance on the
decision in Madan Mohan Pathak, where a law – The Life Insurance Corporation
(Modification of Settlements) Act 1976 was enacted by Parliament to render
ineffective a settlement which was arrived at between LIC and its employees for
the payment of bonus. The law was challenged by the employees. In that case,
there was a judgment of the Calcutta High Court which had given effect to the
right of the employees to an annual cash bonus under an industrial settlement, by
the issuance of a writ of mandamus. The mandamus bound the parties to the
dispute. It was in this backdrop that the Constitution Bench observed that the
effect of the mandamus issued by the High Court could not simply be nullified by
enacting a law overriding the industrial settlement. This Court held:
―9...Here the judgment given by the Calcutta High Court,
which is relied upon by the petitioners, is not a mere
declaratory judgment holding an impost or tax to be invalid,
so that a validation statute can remove the defect pointed out
by the judgment amending the law with retrospective effect
and validate such impost or tax. But it is a judgment giving
effect to the right of the petitioners to annual cash bonus
under the Settlement by issuing a writ of mandamus directing
the Life Insurance Corporation to pay the amount of such
bonus. If by reason of retrospective alteration of the factual or
legal situation, the judgment is rendered erroneous, the
remedy may be by way of appeal or review, but so long as
the judgment stands, it cannot be disregarded or ignored and
it must be obeyed by the Life Insurance Corporation. We are,
therefore, of the view that, in any event, irrespective of
whether the impugned Act is constitutionally valid or not, the
Life Insurance Corporation is bound to obey the writ of
mandamus issued by the Calcutta High Court and to pay
annual cash bonus for the year April 1, 1975 to March 31,
1976 to Class III and Class IV employees.‖102
102 Supra 56 at page 67
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78 The decision in Madan Mohan Pathak is hence distinguishable from the
facts of the present case. The above observations recognized the constitutional
position that in the case of a declaratory judgment holding an action to be invalid,
a validating legislation to remove the defect is permissible. Applying this principle,
it is evident that the decision in B K Pavitra I declared the Reservation Act 2002
to be invalid and consequent upon the declaration of invalidity, certain directions
were issued. If the basis on which Reservation Act 2002 was held to be invalid is
cured by a validating legislation, in this case the Reservation Act 2018, this would
constitute a permissible legislative exercise. The grounds which weighed in
Madan Mohan Pathak would hence not be available in the present case.
79 The decision in Madan Mohan Pathak has been adverted to and clarified
in several decisions of this Court rendered subsequently. These include:
(i) Sri Ranga Match Industries v Union of India103
, where it was held that:
―14. While appreciating the ratio of the said opinions, it is
necessary to bear in mind the basic fact that the settlement
between the Corporation and its employees was not based
upon any statute or statutory provision. Sub-sections (1) and
(3) of Section 18 of the Industrial Disputes Act provide merely
the binding nature of such settlements; they do not constitute
the basis of the settlements. The settlement between the
parties was directed to be implemented by the High
Court. In other words, it was not a case where the High
Court either struck down a statutory provision nor was it
a case where a statutory provision was interpreted in a
particular manner or directed to be implemented. It was
also not a case where the statutory provision, on which
the judgment was based, was amended or altered to
remove/rectify the defect.‖
104
(Emphasis supplied)
103 1994 Supp. (2) SCC 726
104 Ibid at pages 736-737
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(ii) Indian Aluminium Co, where it was held that:
―49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC
50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]…
From the observations made by Bhagwati, J. per majority, it is
clear that this Court did not intend to lay down that
Parliament, under no circumstance, has power to amend
the law removing the vice pointed out by the court.
Equally, the observation of Chief Justice Beg is to be
understood in the context that as long as the effect of
mandamus issued by the court is not legally and
constitutionally made ineffective, the State is bound to
obey the directions. Thus understood, it is unexceptionable.
But it does not mean that the learned Chief Justice intended
to lay down the law that mandamus issued by court cannot at
all be made ineffective by a valid law made by the legislature,
removing the defect pointed out by the court.‖105 (Emphasis
supplied)
(iii) Agricultural Income Tax Officer v Goodricke Group Ltd106
, where it was
held:
―14. We are of the view that Madan Mohan Pathak case
[(1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]
would not apply to the facts in the present case for the simple
reason that what has been undone by Section 4-B and
Section 78-C is not a mandamus issued by a superior
court. What is undone is the very basis of the judgment
in Buxa Dooars Tea Co. Ltd. case[(1989) 3 SCC 211 : 1989
SCC (Tax) 394] by retrospectively changing the levy of rural
employment cess and education cess.‖107 (Emphasis
supplied)
80 Madan Mohan Pathak involved a situation where a parliamentary law was
enacted to override a mandamus which was issued by the High Court for the
105 Supra 93 at page 660
106 (2015) 8 SCC 399
107 Ibid at page 407
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payment of bonus under an industrial settlement. The case did not involve a
situation where a law was held to be ultra vires and the basis of the declaration of
invalidity of the law was sought to be cured.
81 Dr Dhavan adverted to the legal basis of B K Pavitra I as set out in the
following extract from the conclusion:
―30. 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.‖108
Dr Dhavan is entirely correct, if we may say so with respect, in submitting ―that
what has to be shown is whether the Reservation Act 2018 is, in law Articles 14
and 16 compliant‖. This necessitates an examination of the constitutionality of the
Reservation Act 2018. That would require this Court to examine the challenge on
the ground that there has been a violation of the equality code contained in
Articles 14 and 16.
E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act
2018
82 The Statement of Objects and Reasons of the Reservation Act 2018 refers
to the legislative history preceding its enactment. The Ratna Prabha Committee
108 Supra 5 at page 641
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was constituted after the Reservation Act 2002 was held to be invalid in B K
Pavitra I on the ground that no compelling necessity had been shown by the
state to provide for reservation in matters of promotion for SCs and STs by
collecting and analysing relevant data to satisfy the requirements laid out in
Nagaraj. The constitution of the Ratna Prabha Committee was consequent upon
the Reservation Act 2002 having been held to be invalid in B K Pavitra I.
83 The Statement of Objects and Reasons is extracted below, insofar as it is
material:
―The Hon‘ble Supreme Court of India in its judgment dated:
09.02.2017 in the case of BK Pavitra and others Vs Union of
India and others in Civil Appeal No. 2368 of 2011 and
connected matters while dealing with the issue of
consequential seniority provided to the Scheduled Castes and
Scheduled Tribes, having regard to the ratio of the decision of
the Constitution Bench in M.Nagaraj in Writ Petition No. 61 of
2002 has observed that a proper exercise for determining
‗inadequacy of representation‘ ‗backwardness‘ and ‗overall
efficiency‘ is a must for exercise of power under Article 16
(4A). The court held that in the absence of this exercise under
Article 16 (4A) it is the ―catch-up‖ rule that shall be applicable.
Having observed this the Court declared the provisions of
Sections 3 and 4 of the Karnataka Act 10 of 2002 to be ultra
vires of Articles 14 and 16 of the Constitution. The Hon‘ble
Supreme Court directed that revision of the Seniority lists be
undertaken and completed within three months and further
consequential action be taken within the next three months;
In order to comply with the directions of the Hon‘ble Supreme
Court in BK Pavitra and others vs Union of India and others in
Civil Appeal No. 2368 of 2011 the Government has issued
order vide Government order No. DPAR 182 SRR 2011 dated
06.05.2017 to all appointing authorities to revise the seniority
lists;
While in compliance of the Supreme Court order, the
Government considering the need and taking note of the
decision of the Constitution Bench in M Nagaraj, in Writ
Petition No. 61 of 2002, has entrusted the task of conducting
study and submitting a report on the backwardness of the
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90
Scheduled Castes and Scheduled Tribes in the state,
inadequacy of their representation in the State Civil Services
and the effect of reservation in promotion on the State
administration, to the Additional Chief Secretary to
Government in Government order No. DPAR 182 SRR 2011
dated 22.03.2017;
The Additional Chief Secretary to Government with the
assistance of officers from various departments has collated
the scientific, quantifiable and relevant data collected and
having made a detailed study of quantifiable data has
submitted a report on backwardness of Scheduled Castes
and Scheduled Tribes in the state, inadequacy of their
representation in the State Civil Services and the effect of
reservation in promotion on the State administration to the
State Government;
The report confirms the backwardness of the Scheduled
Castes and Scheduled Tribes in the state, inadequacy of their
representation in the State Civil Services and that the overall
efficiency of administration has not been affected or
hampered by extending reservation in promotion to the
Scheduled Castes and Scheduled Tribes in the state and
continuance of reservation in promotion within the limits will
not affect or hamper overall efficiency of administration;‖
84 The first principle of statutory interpretation guides us towards the view that
undoubtedly, the Statement of Objects and Reasons:
(i) Cannot be used for restricting the plain meaning of a legislation109;
(ii) Cannot determine whether a provision is valid110; and
(iii) May not be definitive of the circumstances in which it was passed111
.
[See in this context Welfare Association v Ranjit112].
109 Bhaiji v Sub-Divisional Officer, Thandla : (2003) 1 SCC 692 at page 700, A Manjula Bhashini v A P Monen‘s
Coor. Finance Corp. Ltd. : (2009) 8 SCC 431 at paras 34, 40
110 Kerala State (Electricity) Board v Indian Aluminum : (1976) 1 SCC 466
111 K S Paripoornan v State of Kerala : (1994) 5 SCC 593
112 (2003) 9 SCC 358
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85 The preamble to a law may be a statutory aid to consider the mischief
which the law seeks to address. While it cannot prevail over the provisions of the
statute, it can be an aid to resolve an ambiguity113
.
86 In the course of his submissions, Dr Dhavan has emphasized the ―new
provisions‖ contained in the Reservation Act 2018. These according to him, are:
(i) Section 2 (d) which defines ‗backlog‘;
(ii) Section 5 under which the appointing authority is to revise and redraw the
existing seniority lists;
(iii) Section 7 which deals with the power to remove difficulties;
(iv) Section 8 which provides for the repeal of the Reservation Act 2002; and
(v) Section 9 which is a validating provision.
87 The essential issue which now needs to be addressed by this Court is
whether the basis of the decision in B K Pavitra I has been cured. The decision
of the Constitution Bench in Nagaraj mandates that before the State can take
recourse to the enabling power contained in Clauses (4A) and (4B) of Article 16,
it must demonstrate the existence of ―compelling reasons‖ on three facets: (i)
backwardness; (ii) inadequacy of representation; and (iii) overall administrative
efficiency. In Jarnail, the Constitution Bench clarified that the first of the above
factors – ―backwardness‖ has no application in the case of reservations for the
SCs and STs. Nagaraj to that extent was held to be contrary to the decision of
the larger Bench in Indra Sawhney.
113 Burrakur Coal Co. Ltd. v Union of India : AIR 1961 SC 954 at pages 956-957
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92
E.2 The Ratna Prabha Committee report
88 The decision in B K Pavitra I was rendered on 9 February 2017. The
Ratna Prabha Committee was established on 22 March 2017. Its report was
examined by a Cabinet Sub-Committee on 4 August 2017 and was eventually
approved by the Cabinet on 7 August 2017. The Ratna Prabha Committee report
was commissioned to : (i) collect information on cadre wise representation of SC
and ST employees in all government departments; (ii) collect information on
backwardness of SCs and STs; and (iii) study the effect on the administration due
to the promotion of SCs and STs.
89 Dr Dhavan‘s challenge to the report is basically founded on the following
features:
(i) Only thirty one out of sixty two government departments were examined;
(ii) No data was collected for public sector undertakings, boards, corporations,
local bodies, grant-in-aid institutions and autonomous bodies;
(iii) In PWD and KPTCL, the representation is excessive;
(iv) The data is vacancy based and not post based as required by Sabharwal;
(v) The data is on sanctioned posts and not of filled posts;
(vi) The data is based on grades A, B, C and D and not cadre based; and
(vii) On efficiency, there is only a general reference to the economic
development of the State of Karnataka.
90 Based on the above features, the petitioners have invoked the power of
judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the
constitutional validity of successive constitutional amendments to Article 16
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93
conditional upon the existence of compelling reasons which must be
demonstrated by the State by collecting and analysing relevant data. It is
submitted that the flaws in the report of the Ratna Prabha Committee would
indicate that the compelling reasons which constitute the foundation for the
exercise of the enabling power contained in Article 16 are absent, which must
result in the invalidation of the Reservation Act 2018.
91 Before we deal with the merits of the attack on the Ratna Prabha
Committee report, it is necessary to set down the parameters on which judicial
review can be exercised. Essentially, the exercise which the petitioners require
this Court to undertake is to scrutinize the underlying collection of data by the
State on two facets laid out in Nagaraj, as now clarified by Jarnail: (i) the
adequacy of representation; and (ii) impact on efficiency in administration.
Clause (4) of Article 16 contains an enabling provision to empower the State to
make reservations in appointments or posts in favour of any backward class of
citizens ―which, in the opinion of the State, is not adequately represented in the
services under the State‖. Clause (4A) contains an enabling provision that allows
the state to provide for reservations in promotion with consequential seniority in
posts or classes of posts in services under the State in favour of SCs and STs.
Clause (4A) also uses the expression ―which, in the opinion of the State, are not
adequately represented in the services under the State‖. In Indra Sawhney,
while construing the nature of the satisfaction which has to be arrived at by the
State, this Court held:
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―798….The language of clause (4) makes it clear that the
question whether a backward class of citizens is not
adequately represented in the services under the State is a
matter within the subjective satisfaction of the State. This is
evident from the fact that the said requirement is preceded by
the words ―in the opinion of the State‖. This opinion can be
formed by the State on its own, i.e., on the basis of the
material it has in its possession already or it may gather such
material through a Commission/Committee, person or
authority. All that is required is, there must be some material
upon which the opinion is formed. Indeed, in this matter the
court should show due deference to the opinion of the State,
which in the present context means the executive. The
executive is supposed to know the existing conditions in the
society, drawn as it is from among the representatives of the
people in Parliament/Legislature. It does not, however, mean
that the opinion formed is beyond judicial scrutiny altogether.
The scope and reach of judicial scrutiny in matters within
subjective satisfaction of the executive are well and
extensively stated in Barium Chemicals v. Company Law
Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need
not be repeated here. Suffice it to mention that the said
principles apply equally in the case of a constitutional
provision like Article 16 (4) which expressly places the
particular fact (inadequate representation) within the
subjective judgment of the State/executive.‖
114 (Emphasis
supplied)
The above extract from the decision in Indra Sawhney presents two mutually
complementary and reinforcing principles. The first principle is that the executive
arm of the state is aware of prevailing conditions. The legislature represents the
collective will of the people through their elected representatives. The
presumption of constitutionality of a law enacted by a competent legislature
traces itself to the fundamental doctrine of constitutional jurisprudence that the
legislature is accountable to those who elect their representatives. Collectively,
the executive and the legislature are entrusted with the constitutional duty to
114 Supra 13 at page 728
PART E
95
protect social welfare. This Court explained in Amalgamated Tea Estates Co
Ltd v State of Kerala115, the rationale for the principles of constitutionality:
―11.The reason why a statute is presumed to be constitutional
is that the Legislature is the best judge of the local conditions
and circumstances and special needs of various classes of
persons. ―(T)he Legislature is the best judge of the needs of
particular classes and to estimate the degree of evil so as to
adjust its legislation according to the exigency found to
exist.‖116
This principle was reiterated in V C Shukla v State (Delhi Administration)117:
―11…Furthermore, the legislature which is in the best position
to understand the needs and requirements of the people must
be given sufficient latitude for making selection or
differentiation and so long as such a selection is not arbitrary
and has a rational basis having regard to the object of the
Act, Article 14 would not be attracted. That is why this Court
has laid down that presumption is always in favour of the
constitutionality of an enactment and the onus lies upon the
person who attacks the statute to show that there has been
an infraction of the constitutional concept of equality.‖118
92 More recently, this was emphasized in State of Himachal Pradesh v
Satpal Saini119:
―12…The duty to formulate policies is entrusted to the
executive whose accountability is to the legislature and,
through it, to the people. The peril of adopting an incorrect
policy lies in democratic accountability to the people…‖120
115 (1974) 4 SCC 415
116 Ibid at page 420
117 (1980) Supp SCC 249
118 Ibid at page 259
119 (2017) 11 SCC 42
120 Ibid at page 47
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96
93 The second of the reinforcing principles which emerges from Indra
Sawhney is that the opinion of the government on the adequacy of
representation of the SCs and STs in the public services of the state is a matter
which forms a part of the subjective satisfaction of the state. Significantly, the
extract from Indra Sawhney reproduced earlier adverts to the decision in Barium
Chemicals Ltd, which emphasises that when an authority is vested with the
power to form an opinion, it is not open for the court to substitute its own opinion
for that of the authority, nor can the opinion of the authority be challenged on
grounds of propriety or sufficiency. In Nagaraj, while dealing with the parameters
governing the assessment of the adequacy of representation or of the impact on
efficiency, the Constitution Bench held:
―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.
…
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. Equality
in Article 16(1) is individual-specific whereas reservation in
Article 16 (4) and Article 16(4A) is enabling. The discretion of
the State is, however, subject to the existence of
―backwardness‖ and ―inadequacy of representation‖ in public
employment. Backwardness has to be based on objective
factors whereas inadequacy has to factually exist. This is
where judicial review comes in. However, whether
reservation in a given case is desirable or not, as a
policy, is not for us to decide as long as the parameters
mentioned in Articles 16 (4) and 16 (4A) are maintained. As
stated above, equity, justice and merit (Article
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97
335)/efficiency are variables which can only be identified
and measured by the State.
…
102…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.‖
121
(Emphasis supplied)
94 The element of discretion vested in the state governments to determine
adequacy of representation in promotional posts is once again emphasized in the
following extract from the decision in Jarnail:
―35…According to us, Nagaraj has wisely left the test for
determining adequacy of representation in promotional
posts to the States for the simple reason that as the post
gets higher, it may be necessary, even if a proportionality test
to the population as a whole is taken into account, to reduce
the number of Scheduled Castes and Scheduled Tribes in
promotional pots, as one goes upwards. This is for the simple
reason that efficiency of administration has to be looked at
every time promotions are made. As has been pointed out by
B P Jeevan Reddy, J.‘s judgment in Indra Sawhney, there
may be certain posts right at the top, where reservation is
impermissible altogether. For this reason, we make it clear
that Article 16 (4A) has been couched in language which
would leave it to the States to determine adequate
representation depending upon the promotional post that
is in question.‖122
(Emphasis supplied)
95 In dealing with the submissions of the petitioners on this aspect, it is
relevant for this Court to recognize the circumspection with which judicial power
must be exercised on matters which pertain to propriety and sufficiency, in the
context of scrutinizing the underlying collection of data by the State on the
adequacy of representation and impact on efficiency. The Court, is above all,
121 Supra 6 at pages 249-250
122 Supra 49 at page 430
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considering the validity of a law which was enacted by the State legislature for
enforcing the substantive right to equality for the SCs and STs. Judicial review
must hence traverse conventional categories by determining as to whether the
Ratna Prabha Committee report considered material which was irrelevant or
extraneous or had drawn a conclusion which no reasonable body of persons
could have adopted. In this area, the fact that an alternate line of approach was
possible or may even appear to be desirable cannot furnish a foundation for the
assumption by the court of a decision making authority which in the legislative
sphere is entrusted to the legislating body and in the administrative sphere to the
executive arm of the government.
96 On the inadequacy of representation, the summary which emerges from
the Ratna Prabha Committee report is as follows:
―2.5: Summary:
1) The analysis of time series data collected for the last 32
years (1984-2016 except for 1986) across 31 Departments of
the State Government provides the rich information on the
inadequacy of representation of SCs and STs employees in
various cadres of Karnataka Civil Services.
2) The total number of sanctioned posts as per the data of
2016 is 7,45,593 of which 70.22 percent or 5,23,574 are filled
up across 31 Departments.
3) The vacancies or posts are filled up through Direct
Recruitment (DR) and Promotions including consequential
promotion.
4) The overall representation of the SC and ST employees of
all 31 Departments in comparison with total sanctioned posts
comprises of 10.65 per cent and 2.92 per cent respectively.
This proves inadequacy of representation of SCs and STs.
5) On an average the representation in Cadre A for SCs is at
12.07 per cent and STs 2.70 per cent which sufficiently
proves the inadequacy of representation.
6) The extent of representation in Cadre B is on an average
of 9.79 per cent and 2.34 per cent for ST for all the years of
the study period.
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7) It is observed that on an average 3.05 per cent of SC
representation is inadequate in the Cadre ‗C‘ whereas, 0.05
per cent excess representation is seen for ST.
8) On an average of 2 per cent and 1 per cent over
representation of employees of SCs and STs is found in
Cadre D respectively. However, in the last 5 years,
inadequacy of representation of SCs by 3 per cent is found in
this cadre.
9) The representation of Scheduled Caste in Cadre A, B and
C is on an average 12, 9.79 and 12.04 per cent respectively
whereas in Cadre D it is 16.91.
10) In case of STs in the cadres A and B the representation is
2.70 and 2.34 per cent. However, excess representation of
0.04 and 0.93 per cent is found in case of Group C and Group
D respectively.
11) Over representation in some years and departments is
attributed to either Direct Recruitment or retirement of
employees or filling up of backlog vacancies as the later does
not fall under 50 per cent limitation of reservation.
2.6: Conclusion:
The data clearly shows the inadequacy of representation of
SCs and STs in the civil services in Groups A, B and C and
adequate representation in Group D.‖
97 Collection of data and its analysis are governed by varying and often
divergent approaches in the social sciences. An informative treatise on the
subject titled Empirical Political Analysis – Quantitative and Qualitative
Research Methods123 distinguishes between obtaining knowledge and using
knowledge. The text seeks to explain empirical analysis on the one hand and
normative analysis on the other hand:
―Social Scientists distinguish between obtaining knowledge
and using knowledge. Dealing with factual realities is termed
empirical analysis. Dealing with how we should use our
knowledge of the world is termed normative analysis.
Empirical analysis is concerned with developing and
using a common, objective language to describe and explain
reality. It can be quantitative or qualitative. Quantitative
analyses are based on math-based comparisons of the
123 Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B Willnat, Longman
Publishers
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characteristics of the various objects or events that we study.
Qualitative analyses are based on the researcher‘s informed
and contextual understanding of objects or events.
Normative analysis is concerned with developing and
examining subjective values and ethical rules to guide us in
judging and applying what we have learned about reality.
Although the emphasis in this book is on empirical analysis, it
seeks to develop an appreciation of the larger, normative
perspective within which knowledge is acquired, interpreted,
and applied through a discussion of the ethics of research.
Normative analysis without an empirical foundation
can lead to value judgments that are out of touch with reality.
Empirical analysis in the absence of sensitivity to normative
concerns, on the other hand, can lead to the collection of
observations whose significance we are not prepared to
understand fully. The objective in undertaking political inquiry
is to draw upon both types of analysis – empirical and
normative – so as to maximize not only our factual
knowledge, but also our ability to use the facts we discover
wisely.‖
98 In supporting the methodology which has been adopted by the Ratna
Prabha Committee, Ms Indira Jaising, learned Senior Counsel emphasized that:
(i) Save and except where a national census is proposed to be conducted,
data collection is based on valid sampling methods on which conclusions
are drawn;
(ii) Research methodology can be qualitative as well as quantitative – the
present case deals with the collection of quantitative data;
(iii) Quantitative data is also collected on the basis of sample surveys. In this
case, the purpose of the study was to collect data on the adequacy of
representation in promotional posts and the sample which was chosen was
a representative sample from which conclusions were drawn; and
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(iv) In the study conducted by the State of Karnataka, statistics of a number of
persons belonging to the SCs and STs in promotional posts were collected
group wise. The groups include cadres. Hence, it stands to reason that if
the data is collected in relation to a group, it will include data pertaining to
cadres as well since, every cadre within the group has been statistically
enquired.
99 We find merit in the above submissions. The methodology which was
adopted by the Ratna Prabha Committee has not been demonstrated to be alien
to conventional social science methodologies. We are unable to find that the
Committee has based its conclusions on any extraneous or irrelevant material. In
adopting recourse to sampling methodologies, the Committee cannot be held to
have acted arbitrarily. If, as we have held above, sampling is a valid methodology
for collection of data, the necessary consequence is that the exercise cannot be
invalidated only on the ground that data pertaining to a particular department or
of some entities was not analysed. The data which was collected pertained to
thirty one departments which are representative in character. The State has
analysed the data which is both relevant and representative, before drawing its
conclusions. As we have noted earlier, there are limitations on the power of
judicial review in entering upon a factual arena involving the gathering, collation
and analysis of data.
100 Dr Dhavan has painstakingly compiled charts for the purpose of his
argument. We may also note at this stage that Ms Jaising in response to the
charts relied upon by Dr Dhavan, also placed on records charts indicating:
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(i) Current representation after demotion of SC and ST employees in the
PWD of Karnataka;
(ii) Percentage of SCs and STs in the post of Executive Engineer without
consequential seniority in the PWD; and
(iii) Corresponding figures in the post of Executive Engineer without
consequential seniority in the PWD.
101 We are of the view that once an opinion has been formed by the State
government on the basis of the report submitted by an expert committee which
collected, collated and analysed relevant data, it is impossible for the Court to
hold that the compelling reasons which Nagaraj requires the State to
demonstrate have not been established. Even if there were to be some errors in
data collection, that will not justify the invalidation of a law which the competent
legislature was within its power to enact. After the decision in B K Pavitra I, the
Ratna Prabha Committee was correctly appointed to carry out the required
exercise. Once that exercise has been carried out, the Court must be
circumspect in exercising the power of judicial review to re-evaluate the factual
material on record.
102 The adequacy of representation has to be assessed with reference to a
benchmark on adequacy. Conventionally, the State and the Central governments
have linked the percentage of reservation for the SCs and STs to their
percentage of population, as a measure of adequacy. The Constitution Bench
noticed this in Sabharwal, where it observed:
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―4. When a percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserve points, it
has to be taken that the posts shown at the reserve points are
to be filled from amongst the members of reserve categories
and the candidates belonging to the general category are not
entitled to be considered for the reserved posts. On the other
hand the reserve category candidates can compete for the
non-reserve posts and in the event of their appointment to the
said posts their number cannot be added and taken into
consideration for working out the percentage of reservation.
Article 16 (4) of the Constitution of India permits the State
Government to make any provision for the reservation of
appointments or posts in favour of any Backward Class of
citizens which, in the opinion of the State is not adequately
represented in the Services under the State. It is, therefore,
incumbent on the State Government to reach a conclusion
that the Backward Class/Classes for which the reservation is
made is not adequately represented in the State Services.
While doing so the State Government may take the total
population of a particular Backward Class and its
representation in the State Services. When the State
Government after doing the necessary exercise makes the
reservation and provides the extent of percentage of posts to
be reserved for the said Backward Class then the percentage
has to be followed strictly. The prescribed percentage cannot
be varied or changed simply because some of the members
of the Backward Class have already been
appointed/promoted against the general seats. As mentioned
above the roster point which is reserved for a Backward Class
has to be filled by way of appointment/promotion of the
member of the said class. No general category candidate can
be appointed against a slot in the roster which is reserved for
the Backward Class…‖124
Explaining this further, the Constitution Bench held:
―5...Once the prescribed percentage of posts is filled the
numerical test of adequacy is satisfied and thereafter the
roster does not survive. The percentage of reservation is the
desired representation of the Backward Classes in the State
Services and is consistent with the demographic estimate
based on the proportion worked out in relation to their
population. The numerical quota of posts is not a shifting
boundary but represents a figure with due application of mind.
Therefore, the only way to assure equality of opportunity to
the Backward Classes and the general category is to permit
124 Supra 24 at page 750
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the roster to operate till the time the respective
appointees/promotees occupy the posts meant for them in the
roster…‖125
Consequently, it is open to the State to make reservation in promotion for SCs
and STs proportionate to their representation in the general population.
103 One of the submissions which has been urged on behalf of the petitioners
is that the quota has to be reckoned with reference to posts which are actually
filled up or the working strength and not with reference to sanctioned posts. This
submission is answered by the decision in Sabharwal, which holds that the
percentage of reservation has to be worked out in relation to the number of posts
which form part of the cadre strength. The Constitution Bench held:
―6. The expressions ‗posts‘ and ‗vacancies‘, often used in the
executive instructions providing for reservations, are rather
problematical. The word ‗post‘ means an appointment, job,
office or employment. A position to which a person is
appointed. ‗Vacancy‘ means an unoccupied post or office.
The plain meaning of the two expressions make it clear that
there must be a ‗post‘ in existence to enable the ‗vacancy‘ to
occur. The cadre-strength is always measured by the
number of posts comprising the cadre. Right to be
considered for appointment can only be claimed in
respect of a post in a cadre. As a consequence the
percentage of reservation has to be worked out in
relation to the number of posts which form the cadrestrength. The concept of „vacancy‟ has no relevance in
operating the percentage of reservation.‖126 (Emphasis
supplied)
125 Ibid at page 751
126 Ibid at pages 751-752
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Similarly, in Nagaraj, the Constitution Bench held:
―83. In our view, 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 upper ceiling limit of 50% is not violated. Further,
roster has to be post-specific and not vacancy based.‖127
Hence, the submission that the quota must be reckoned on the basis of the posts
which are actually filled up and not the sanctioned posts cannot be accepted.
104 We find no merit in the challenge to the Ratna Prabha Committee report on
the ground that the collection of data was on the basis of groups A, B, C and D as
opposed to cadres. For one thing, the expression ‗cadre‘ has no fixed meaning
ascribed to it in service jurisprudence. But that apart, Nagaraj requires the
collection of quantifiable data inter alia, on the inadequacy of representation in
services under the state. Clause 4A of Article 16 specifically refers to the
inadequacy of representation in the services under the state. The collection of
data on the basis of groups A to D does not by its very nature exclude data
pertaining to cadres. The state has studied in the present case the extent of
reservation for SCs and STs in groups A to D, consisting of several cadres.
Since, the group includes posts in all the cadres in that group, it can logically be
presumed that the state has collected quantifiable data on the representation of
SCs and STs in promotional posts in the cadres as well.
127 Supra 6 at page 261
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105 Another facet of the matter is that in the judgment of Justice Jeevan Reddy
in Indra Sawhney, it was observed that reservation under Article 16 (4) does not
operate on communal grounds. Hence, if a member belonging to a reserved
category is selected in the general category, the selection would not count
against the quota prescribed for the reserved category. The decision in
Sabharwal also noted that while candidates belonging to the general category
are not entitled to fill reserved posts, reserved category candidates are entitled to
compete for posts in the general category. In several group D posts, such as
municipal sweepers, the sobering experience of administration is that the
overwhelmingly large segment of applicants consists of persons belonging to the
SCs and STs. Over representation in group D posts as a result of candidates
belonging to the general category staying away from those posts cannot be a
valid or logical basis to deny promotion to group D employees recruited from the
reserved category.
F Substantive versus formal equality
106 The core of the present case is based on the constitutional content of
equality.
107 For equality to be truly effective or substantive, the principle must
recognise existing inequalities in society to overcome them. Reservations
are thus not an exception to the rule of equality of opportunity. They are rather
the true fulfilment of effective and substantive equality by accounting for the
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107
structural conditions into which people are born. If Article 16(1) merely postulates
the principle of formal equality of opportunity, then Article 16(4) (by enabling
reservations due to existing inequalities) becomes an exception to the strict rule
of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the
principle of substantive equality (including the recognition of existing inequalities)
then Article 16 (4) becomes the enunciation of one particular facet of the rule
of substantive equality set out in Article 16 (1).
F.I The Constituent Assembly‟s understanding of Article 16 (4)
(I) Reservations to overcome existing inequalities in society
(a) There is substantial evidence that the members of the Constituent
Assembly recognised that (i) Indian society suffered from deep structural
inequalities; and (ii) the Constitution would serve as a transformative document to
overcome them. One method of overcoming these inequalities is reservations for
the SCs and STs in the legislatures and state services. Therefore, for the
members of the Constituent Assembly who supported reservations, a key
rationale for incorporating reservations for SCs and STs in the Constitution
was the existence of inequalities in society based on discrimination and
prejudice within the caste structure. This is evidenced by the statements in
support of reservations for minorities by members. For example, in the context of
legislative reservations for minorities Monomohan Das noted:
―… Therefore, it is evident from the Report of the Minorities
Committee that it is on account of the extremely low
educational and economic conditions of the scheduled castes
and the grievous social disabilities from which they suffer that
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the political safeguard of reservation of seats had been
granted to them...‖128
(b) Prof. Yashwant Rai used similar statements to support reservations for
backward communities in employment:
―… Therefore, if you want to give equal status to those
communities which are backward and depressed and on
whom injustice has been perpetrated for thousands of
years and if you want to establish Indian unity, so that the
country may progress and so that many parties in the country
may not mislead the poor, I would say that there should be
a provision in the constitution under which the educated
Harijans may be provided with employment….‖129
(Emphasis supplied)
(II) Recognition of the insufficiency of formal equality by the Constituent
Assembly
108 During the debates on the principles of equality underlying Article 16 (then
draft Article 10), certain members of the Assembly recognised that in order to
give true effect to the principle of equality of opportunity, the Constitution had to
expressly recognise the existing inequalities. For example, Shri Phool Singh
noted:
―… Much has been made of merit in this case; but equal
merit pre-supposes equal opportunity, and I think it goes
without saying that the toiling masses are denied all those
opportunities which a few literate people living in big cities
enjoy. To ask the people from the villages to compete
with those city people is asking a man on bicycle to
compete with another on a motorcycle, which in itself is
128 (Volume XI) Debate on 25 August 1949.
129 (Volume XI) Debate on 23 August 1949.
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109
absurd. Then again, merit should also have some reference
to the task to be discharged…‖
130
(Emphasis supplied)
Similarly, P Kakkam stated,
―… If you take merit alone into account, the Harijans
cannot come forward. I say in this house, that the
Government must take special steps for the reservation of
appointment for the Harijans for same years. I expect the
government will take the necessary steps to give more
appointments in police and military services also...‖131
(Emphasis supplied)
109 By recognising that formal equality of opportunity will be insufficient in
fulfilling the transformative goal of the Constitution, these members recognised
that the conception of equality of opportunity must recognise and account for
existing societal inequalities. The most revealing debates as to how the
Constituent Assembly understood equality of opportunity under the Constitution
took place on 30 November 1948. Members debated draft article 10 (which
would go on to become Article 16 of the Constitution). In these debates, some
members understood sub-clause (4) (providing for reservations) as an exception
to the general rule of formal equality enunciated in sub-clause (1). Illustratively,
an articulation of this position was made by Mohammad Ismail Khan, who stated,
―… There can be only one of these two things--either
there can be clear equal opportunity or special
consideration. Article 10 says there shall be equality of
opportunity, then it emphasises the fact by a negative clause
that no citizen shall be discriminated on account of religion or
race. It is quite good, but when no indication is given whether
this would override article 296 or article 296 is independent of
it, we are certainly left in the lurch. What would be the fate of
the minorities? [Article 296 stated that special
130 (Volume XI) Debate on 23 August 1949.
131 (Volume VII) Debate on 30 May 1948.
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considerations shall be shown to minorities to ensure
representation in the services]…‖
132
(Emphasis supplied)
110 Dr B R Ambedkar‘s response summarises the different conceptions of
equality of opportunity that the members of the assembly put forward. Dr
Ambedkar argued that the inclusion of sub-clause (4) was a method of
recognising the demand that mere formal equality in sub-clause (1) would be
insufficient, and a balance between formal equality of opportunity and the needs
of the disadvantaged classes of society was needed. Dr Ambedkar presciently
observed:
―… If members were to try and exchange their views on this
subject, they will find that there are three points of view which
it is necessary for us to reconcile if we are to produce a
workable proposition which will be accepted by all…
The first is that there shall be equality of opportunity for all
citizens. It is the desire of many Members of this House that
every individual who is qualified for a particular post should be
free to apply for that post, to sit for examinations and to have
his qualifications tested so as to determine whether he is fit for
the post or not and that there ought to be no limitations…
Another view mostly shared by a section of the House is that, if
this principle is to be operative--and it ought to be operative in
their judgment to its fullest extent--there ought to be no
reservations of any sort for any class or community at all…
Then we have quite a massive opinion which insists that,
although theoretically it is good to have the principle that
there shall be equality of opportunity, there must at the
same time be a provision made for the entry of certain
communities which have so far been outside the
administration. As I said, the Drafting Committee had to
produce a formula which would reconcile these three points of
view, firstly, that there shall be equality of opportunity,
secondly that there shall be reservations in favour of certain
communities which have not so far had a `proper look-in' so to
say into the administration…
132 (Volume VII) Debate on 30 May 1948.
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The view of those who believe and hold that there shall be
equality of opportunity, has been embodied in sub-clause
(1) of Article 10. It is a generic principle. At the same time,
as I said, we had to reconcile this formula with the
demand made by certain communities that the
administration which has now--for historical reasons--
been controlled by one community or a few communities,
that situation should disappear and that the others also
must have an opportunity of getting into the public
services…‖
133
(Emphasis supplied)
F.2 The Constitution as a transformative instrument
111 The Constitution is a transformative document. The realization of its
transformative potential rests ultimately in its ability to breathe life and meaning
into its abstract concepts. For, above all, the Constitution was intended by its
draftspersons to be a significant instrument of bringing about social change in a
caste based feudal society witnessed by centuries of oppression of and
discrimination against the marginalised. As our constitutional jurisprudence has
evolved, the realisation of the transformative potential of the Constitution has
been founded on the evolution of equality away from its formal underpinnings to
its substantive potential.
112 In the context of reservations, the decision in T Devadasan v The Union
of India134 construed Article 16 (4) to be a proviso or an exception to Article 16
(1). In a dissent which embodied a vision statement of the Constitution, Justice
Subba Rao held:
―26. Article 14 lays down the general rule of equality. Article
16 is an instance of the application of the general rule with
133 (Volume VII) Debate on 30 May 1948.
134AIR 1964 SC 179
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special reference to opportunity of appointments under the
State. It says that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the State… Centuries of calculated
oppression and habitual submission reduced a considerable
section of our community to a life of serfdom. It would be well
nigh impossible to raise their standards if the doctrine of
equal opportunity was strictly enforced in their case. They
would not have any chance if they were made to enter the
open field of competition without adventitious aids till such
time when they could stand on their own legs. That is why the
makers of the Constitution introduced clause (4) in Article 16.
The expression ―nothing in this article‖ is a legislative device
to express its intention in a most emphatic way that the power
conferred thereunder is not limited in any way by the main
provision but falls outside it. It has not really carved out an
exception, but has preserved a power untrammelled by the
other provisions of the article.‖
113 Subsequently, in N M Thomas, the Constitution Bench adopted an
interpretation of Articles 15 and 16 which recognized these provisions as but a
facet of the doctrine of equality under Article 14. Justice K K Mathew observed:
―78…Article 16(4) is capable of being interpreted as an
exception to Article 16(1) if the equality of opportunity
visualized in Article 16(1) is a sterile one, geared to the
concept of numerical equality which takes no account of the
social, economic, educational background of the members of
Scheduled Castes and Scheduled Tribes. If equality of
opportunity guaranteed under Article 16 (1) means effective
material equality, then Article 16(4) is not an exception to
Article 16(1). It is only an emphatic way of putting the extent
to which equality of opportunity could be carried viz., even up
to the point of making reservation.‖135
In his own distinctive style, Justice Krishna Iyer observed:
―139. It is platitudinous constitutional law that Articles 14 to 16
are a common code of guaranteed equality, the first laying
down the broad doctrine, the other two applying it to sensitive
135 Supra 77 at page 347
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113
areas historically important and politically polemical in a
climate of communalism and jobbery.‖136
This court has set out this latter understanding in several cases including ABS
Sangh (Railways) v Union of India137
.
114 Ultimately, a Bench of nine judges of this Court in Indra Sawhney
recognized that Article 16 (4) is not an exception to but a facet of equality in
Article 16 (1). Justice Jeevan Reddy delivering the judgment of a plurality of four
judges observed:
―741…Article 16(4) is not an exception to Article 16(1) but that
it is only an emphatic way of stating the principle inherent in
the main provision itself...
In our respectful opinion, the view taken by the majority
in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 :
(1976) 1 SCR 906] is the correct one. We too believe that
Article 16(1) does permit reasonable classification for
ensuring attainment of the equality of opportunity assured by
it.‖138
115 Justice Mathew in N M Thomas spoke of the need for proportional equality
as a means of achieving justice. Highlighting the notion that equality under the
Constitution is based on the substantive idea of providing equal access to
resources and opportunities, learned judge observed:
―73. There is no reason why this Court should not also require
the State to adopt a standard of proportional equality which
takes account of the differing conditions and circumstances of
a class of citizens whenever those conditions and
136 Ibid at page 369
137 (1981) 1 SCC 246
138 Supra 13 at page 691
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114
circumstances stand in the way of their equal access to the
enjoyment of basic rights or claims.‖139
Carrying these precepts further Justice S H Kapadia (as the learned judge then
was) speaking for the Constitution Bench in Nagaraj observed:
―51…Therefore, there are three criteria to judge the basis of
distribution, namely, rights, deserts or need. These three
criteria can be put under two concepts of equality— ―formal
equality‖ and ―proportional equality‖. ―Formal equality‖ means
that law treats everyone equal and does not favour anyone
either because he belongs to the advantaged section of the
society or to the disadvantaged section of the society.
Concept of ―proportional equality‖ expects the States to take
affirmative action in favour of disadvantaged sections of the
society within the framework of liberal democracy.‖
140
Social justice, in other words, is a matter involving the distribution of benefits and
burdens.
G Efficiency in administration
116 Critics of affirmative action programs in government services argue that
such programs adversely impact the overall competence or ―efficiency‖ of
government administration. Critics contend that the only method to ensure
―efficiency‖ in the administration of government is to use a ―merit‖ based
approach – whereby candidates that fulfil more, seemingly ―neutral‖, criteria than
others are given opportunities in government services. The constitutional
justification for this ―efficiency‖ argument is centred around Article 335.
139 Supra 77 at page 346
140 Supra 6 at page 250
PART G
115
―335. The claims of the members of the Scheduled Castes
and the Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of
administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State:
[Provided that nothing in this article shall prevent in making of
any provision in favour of the members of the Scheduled
Castes and the Scheduled Tribes for relaxation in qualifying
marks in any examination or lowering the standards of
evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the
affairs of the Union or of a State.].‖
The proviso was inserted by the Constitution (Eighty-second Amendment) Act
2000.
117 The substantive part of Article 335 contains a mandate : a requirement to
take into consideration the claims of SCs and STs in making appointments to
services and posts in connection with the affairs of the Union or of a State.
Consideration is much broader in its ambit than reservation. The consideration of
their claims to appointment is to be in a manner consistent with maintaining the
efficiency of administration. The proviso specifically protects provisions in favour
of the SCs and STs for: (i) relaxing qualifying marks in an examination; (ii)
lowering the standards of evaluation; or (iii) reservation in matters of promotion.
Reservation is encompassed within the special provision but the universe of the
latter is wider.
118 The proviso recognises that special measures need to be adopted for
considering the claims of SCs and STs in order to bring them to a level playing
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116
field. Centuries of discrimination and prejudice suffered by the SCs and STs in a
feudal, caste oriented societal structure poses real barriers of access to
opportunity. The proviso contains a realistic recognition that unless special
measures are adopted for the SCs and STs, the mandate of the Constitution for
the consideration of their claim to appointment will remain illusory. The proviso, in
other words, is an aid of fostering the real and substantive right to equality to the
SCs and STs. It protects the authority of the Union and the States to adopt any of
these special measures, to effectuate a realistic (as opposed to a formal)
consideration of their claims to appointment in services and posts under the
Union and the states. The proviso is not a qualification to the substantive part of
Article 335 but it embodies a substantive effort to realise substantive equality.
The proviso also emphasises that the need to maintain the efficiency of
administration cannot be construed as a fetter on adopting these special
measures designed to uplift and protect the welfare of the SCs and STs.
119 The Constitution does not define what the framers meant by the phrase
―efficiency of administration‖. Article 335 cannot be construed on the basis of a
stereotypical assumption that roster point promotees drawn from the SCs and
STs are not efficient or that efficiency is reduced by appointing them. This is
stereotypical because it masks deep rooted social prejudice. The benchmark for
the efficiency of administration is not some disembodied, abstract ideal measured
by the performance of a qualified open category candidate. Efficiency of
administration in the affairs of the Union or of a State must be defined in an
inclusive sense, where diverse segments of society find representation as a true
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aspiration of governance by and for the people. If, as we hold, the Constitution
mandates realisation of substantive equality in the engagement of the
fundamental rights with the directive principles, inclusion together with the
recognition of the plurality and diversity of the nation constitutes a valid
constitutional basis for defining efficiency. Our benchmarks will define our
outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce
a pattern of governance which is skewed against the marginalised. If this
benchmark of efficiency is grounded in equal access, our outcomes will reflect
the commitment of the Constitution to produce a just social order. Otherwise, our
past will haunt the inability of our society to move away from being deeply
unequal to one which is founded on liberty and fraternity. Hence, while
interpreting Article 335, it is necessary to liberate the concept of efficiency from a
one sided approach which ignores the need for and the positive effects of the
inclusion of diverse segments of society on the efficiency of administration of the
Union or of a State. Establishing the position of the SCs and STs as worthy
participants in affairs of governance is intrinsic to an equal citizenship. Equal
citizenship recognizes governance which is inclusive but also ensures that those
segments of our society which have suffered a history of prejudice, discrimination
and oppression have a real voice in governance. Since inclusion is inseparable
from a well governed society, there is, in our view, no antithesis between
maintaining the efficiency of administration and considering the claims of the SCs
and STs to appointments to services and posts in connection with the affairs of
the Union or of a State.
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118
120 This part of the philosophy of the Constitution was emphasized in a
powerful exposition contained in the judgment of Justice O Chinnappa Reddy in
K C Vasanth Kumar v State of Karnataka141 (―K C Vasanth Kumar‖). The
learned Judge held:
―35. One of the results of the superior, elitist approach is that
the question of reservation is invariably viewed as the conflict
between the meritarian principle and the compensatory
principle. No, it is not so. The real conflict is between the
class of people, who have never been in or who have already
moved out of the desert of poverty, illiteracy and
backwardness and are entrenched in the oasis of convenient
living and those who are still in the desert and want to reach
the oasis. There is not enough fruit in the garden and so
those who are in, want to keep out those who are out. The
disastrous consequences of the so-called meritarian principle
to the vast majority of the under-nourished, poverty-stricken,
barely literate and vulnerable people of our country are too
obvious to be stated. And, what is merit? There is no merit in
a system which brings about such consequences…‖
142
Speaking of efficiency, the learned Judge held:
―36. Efficiency is very much on the lips of the privileged
whenever reservation is mentioned…
One would think that the civil service is a Heavenly Paradise
into which only the archangels, the chosen of the elite, the
very best may enter and may be allowed to go higher up the
ladder. But the truth is otherwise. The truth is that the civil
service is no paradise and the upper echelons belonging to
the chosen classes are not necessarily models of efficiency.
The underlying assumption that those belonging to the upper
castes and classes, who are appointed to the non-reserved
posts will, because of their presumed merit, ―naturally‖
perform better than those who have been appointed to the
reserved posts and that the clear stream of efficiency will be
polluted by the infiltration of the latter into the sacred
precincts is a vicious assumption, typical of the superior
approach of the elitist classes…‖
143
141 (1985) Supp. SCC 714
142 Ibid at pages 737-738
143 Ibid at page 738
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121 The substantive right to equality is for all segments of society. Articles 15
(4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions
of the SCs and STs. While, we are conscious of the fact that the decision in Indra
Sawhney did not accept K C Vasanth Kumar144 on certain aspects, the
observations have been cited by us to explain the substantive relationship
between equal opportunity and merit. It embodies the fundamental philosophy of
the Constitution towards advancing substantive equality.
122 An assumption implicit in the critique of reservations is that awarding
opportunities in government services based on “merit” results in an
increase in administrative efficiency. Firstly, it must be noted that
administrative efficiency is an outcome of the actions taken by officials after they
have been appointed or promoted and is not tied to the selection method itself.
The argument that one selection method produces officials capable of taking
better actions than a second method must be empirically proven based on an
evaluation of the outcomes produced by officials selected through both methods.
Secondly, arguments that attack reservations on the grounds of efficiency equate
―merit‖ with candidates who perform better than other candidates on seemingly
―neutral‖ criteria, e.g. standardised examinations. Thus, candidates who score
beyond a particular ―cut-off point‖ are considered ―meritorious‖ and others are
―non-meritorious‖. However, this is a distorted understanding of the function
―merit‖ plays in society.
144 Supra 139 at paragraph 613
PART G
120
123 As Amartya Sen notes in his chapter on ―Merit and Justice‖,145 the idea of
merit is fundamentally derivative of our views of a good society. Sen notes,
―Actions may be rewarded for the good they do, and a
system of remunerating the activities that generate good
consequences would, it is presumed, tend to produce a better
society. The rationale of incentive structures may be more
complex than this simple statement suggests, but the idea of
merit in this instrumental perspective relates to the motivation
of producing better results. In this view, actions are
meritorious in a derivative and contingent way,
depending on the good they do, and more particularly,
the good that can be brought about by rewarding them….
…The concept of merit is deeply contingent on our views of a
good society. Indeed, the notion of merit is fundamentally
derivative, and thus cannot be qualified and contingent. There
is some elementary tension between (1) the inclination to
see merit in fixed and absolute terms, and (2) the
ultimately instrumental character of merit – its
dependence on the concept of “the good” in the relevant
society.
This basic contrast is made more intense by the tendency, in
practice, to characterise ―merit‖ in inflexible forms reflecting
values and priorities of the past, often in sharp conflict with
conceptions that would be needed for seeing merit in the
context of contemporary objectives and concerns…
Even though the typical “objective functions” that are
implicitly invoked in most countries to define and assess
what is to count as merit tend to be indifferent to (or
negligent of) distributive aspects of outcomes, there is
no necessity to accept that ad hoc characterisation. This
is not a matter of a “natural order” of “merit” that is
independent of our value system….‖ (Emphasis supplied)
124 Once we understand ―merit‖ as instrumental in achieving goods that we as
a society value, we see that the equation of ―merit‖ with performance at a few
narrowly defined criteria is incomplete. A meritocratic system is one that rewards
actions that result in the outcomes that we as a society value.
145 Sen A, Merit and Justice, in Arrow, KJ, MERITOCRACY AND ECONOMIC INEQUALITY (Princeton University Press
2000) (Amartya Sen, Merit and Justice).
PART G
121
125 For example, performance in standardised examinations (distinguished
from administrative efficiency) now becomes one among many of the actions that
the process of appointments in government services seeks to achieve. Based on
the text of Articles 335, Articles 16 (4), and 46, it is evident that the uplifting of the
SCs and STs through employment in government services, and having an
inclusive government are other outcomes that the process of appointments in
government services seeks to achieve. Sen gives exactly such an example.
―If, for example, the conceptualisation of a good society
includes the absence of serious economic inequalities, then
in the characterisation of instrumental goodness,
including the assessment of what counts as merit, note
would have to be taken of the propensity of putative
merit to lessen – or to generate – economic inequality. In
this case, the rewarding of merit cannot be done independent
of its distributive consequences.
…
A system of rewarding of merit may well generate inequalities
of well-being and of other advantages. But, as was argued
earlier, much would depend on the nature of the
consequences that are sought, on the basis of which merits
are to be characterised. If the results desired have a strong
distributive component, with a preference for equality,
then in assessing merits (through judging the generating
results, including its distributive aspects), concerns
about distribution and inequality would enter the
evaluation.‖146
(Emphasis supplied)
Thus, the providing of reservations for SCs and the STs is not at odds with the
principle of meritocracy. ―Merit‖ must not be limited to narrow and inflexible
criteria such as one‘s rank in a standardised exam, but rather must flow from the
actions a society seeks to reward, including the promotion of equality in society
146 Ibid
PART G
122
and diversity in public administration. In fact, Sen argues that there is a risk to
excluding equality from the outcomes.
―In most versions of modern meritocracy, however, the
selected objectives tend to be almost exclusively
oriented towards aggregate achievements (without any
preference against inequality), and sometimes the
objectives chosen are even biased (often implicitly) towards
the interests of more fortunate groups (favouring the
outcomes that are more preferred by ―talented‖ and
―successful‖ sections of the population. This can reinforce
and augment the tendency towards inequality that might
be present even with an objective function that inter alia,
attaches some weight to lower inequality levels.‖
147
(Emphasis supplied)
126 The Proviso to Article 335 of the Constitution seeks to mitigate this risk by
allowing for provisions to be made for relaxing the marks in qualifying exams in
the case of candidates from the SCs and the STs. If the government‘s sole
consideration in appointments was to appoint individuals who were considered
―talented‖ or ―successful‖ in standardised examinations, by virtue of the inequality
in access to resources and previous educational training (existing inequalities in
society), the stated constitutional goal of uplifting these sections of society and
having a diverse administration would be undermined. Thus, a ―meritorious‖
candidate is not merely one who is ―talented‖ or ―successful‖ but also one whose
appointment fulfils the constitutional goals of uplifting members of the SCs and
STs and ensuring a diverse and representative administration.
147 Ibid
PART G
123
127 It is well settled that existing inequalities in society can lead to a seemingly
―neutral‖ system discriminating in favour of privileged candidates. As Marc
Galanter notes, three broad kinds of resources are necessary to produce the
results in competitive exams that qualify as indicators of ―merit‖. These are:
―… (a) economic resources (for prior education, training,
materials, freedom from work etc.); (b) social and cultural
resources (networks of contacts, confidence, guidance and
advice, information, etc.); and (c) intrinsic ability and hard
work...‖ 148
128 The first two criteria are evidently not the products of a candidate‘s own
efforts but rather the structural conditions into which they are born. By the
addition of upliftment of SCs and STs in the moral compass of merit in
government appointments and promotions, the Constitution mitigates the risk that
the lack of the first two criteria will perpetuate the structural inequalities existing in
society.
129 The Ratna Prabha Committee report considers in Chapter III, the
relationship between reservation in promotion and maintenance of efficiency in
administration. Finally, it concludes:
―3.12: Conclusion:
Karnataka has been showing high performance in all the
sectors of development viz., finance, health, education,
industry, services, etc., to support sustainable economic
growth. The analysis on performance of the state in economic
development clearly indicates that reservation in promotions
has not affected the overall efficiency of administration.
148 Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New
Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in
Indian higher education, 40:1 South African Review of Sociology 127-147.
PART H
124
130 Moreover, even in a formal legal sense, promotions, including those in
respect of roster points, are made on the basis of seniority-cum-merit and a
candidate to be promoted has to meet this criteria [See in this context Rule 19(3)
A and D of the Karnataka Civil Services General Recruitment Rules 1977 which
states that subject to other provisions all appointments by promotion shall be on
an officiating basis for a period of one year and at the end of the period of
officiation, if appointing authority considers the person not suitable for promotion,
she/he may be reverted back to the post held prior to the promotion]. A candidate
on promotion has to serve a statutory period of officiation before being confirmed.
This rule applies across the board including to roster point promotees. This
ensures that the efficiency of administration is, in any event, not adversely
affected.
H The issue of creamy layer
131 At the outset, we analyse the submission of Ms Indira Jaising, learned
Senior Counsel that the concept of creamy layer is inapplicable to the SCs and
STs. This submission which has been urged by the learned Counsel is founded
on two hypotheses which we have extracted below from the written submissions:
―(i) This Court in Indra Sawhney seems to suggest that the
creamy layer should be excluded, however there was no
unanimity for determining what is creamy layer. Some judges
took the view that the criteria for creamy layer exclusion is
social advancement (i.e. based on social basis, educational,
and economical basis) and others took the view that it will be
economic basis alone. It is submitted that it must be kept in
mind that the said judgment related only to OBCs; and
(ii) Jarnail is not an authority for the proposition that the
creamy layer principle applies to SCs and STs. It dealt only
PART H
125
with the competence of the Parliament to enact a law in
relation to creamy layer without affecting Articles 341 and
342.‖
132 Dr Dhavan, learned Senior Counsel in his response has urged that the
above submissions are incorrect because:
(i) Indra Sawhney decided the issue of creamy layer as a principle of equality;
and
(ii) Jarnail affirmed that if Nagaraj is rightly applied, creamy layer is a principle
of equality and of the basic structure.
133 Ms Jaising‘s argument is based on the decision in Chinnaiah that the SCs
and STs cannot be split or bifurcated and the adoption of the creamy layer
principle would amount to a spilt in the homogenous groups of the SCs and STs.
This argument according to Dr Dhavan, was rejected in Jarnail by the
Constitution Bench.
134 As a Bench of two judges we are bound by the decision in Indra Sawhney
as indeed, we are by the construction placed on that decision by the Constitution
Benches in Nagaraj and Jarnail. Construing the decision in Indra Sawhney.
Nagaraj held:
―120…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 [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1
: (1992) 22 ATC 385] all the Judges except Pandian, J. held
that the ―means test‖ should be adopted to exclude the
PART H
126
creamy layer from the protected group earmarked for
reservation. In Indra Sawhney [1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] 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 [1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] . 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 [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1
: (1992) 22 ATC 385] 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.‖149
Then again, in paragraphs 121, 122 and 123, the Constitution Bench held:
―121. The impugned constitutional amendments by which
Articles 16 (4A) and 16 (4B) have been inserted flow from
Article 16(4). They do not alter the structure of Article 16(4).
They retain the controlling factors or the compelling reasons,
namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in
mind the overall efficiency of the State administration under
Article 335. These impugned amendments are confined only
to SCs and STs. They do not obliterate any of the
constitutional requirements, namely, ceiling limit of 50%
(quantitative limitation), the concept of creamy layer
(qualitative exclusion), the sub-classification between OBCs
on one hand and SCs and STs on the other hand as held
in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] , the concept of post-based
roster with inbuilt concept of replacement as held in R.K.
Sabharwa [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995)
29 ATC 481] .
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
149 Supra 6 at pages 277-278
PART H
127
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in Article
16 would collapse.
123. However, in this case, as stated above, the main issue
concerns the ―extent of reservation‖. In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before
making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not
bound to make reservation for SCs/STs in matters of
promotions. However, if they wish to exercise their discretion
and make such provision, the State has 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 is 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.‖150
135 The reference before the Constitution Bench in Jarnail arose out of an
initial reference by a two judge Bench in State of Tripura v Jayanta
Chakraborty (―State of Tripura‖)151 and then by a three judge Bench in State of
Maharashtra v Vijay Ghogre152
. The order in State of Tripura states:
―2…However, apart from the clamour for revisit, further
questions were also raised about application of the principle
of creamy layer in situations of competing claims within the
same races, communities, groups or parts thereof of SC/STs
notified by the President under Articles 341 and 342 of the
Constitution of India.‖153
136 Before the Constitution Bench in Jarnail, the learned Attorney General
specifically raised the following arguments:
150 Ibid at pages 278 -280
151 (2018) 1 SCC 146
152 (2018) 15 SCC 64
153 Supra 149 at pages 147-148
PART H
128
―3…according to the learned Attorney General, the creamy
layer concept has not been applied in Indra Sawhney
(1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
: 1992 SCC (L&S) Supp 1] to the Scheduled Castes and the
Scheduled Tribes and Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has misread
the aforesaid judgment to apply this concept to the Scheduled
Castes and the Scheduled Tribes. According to the learned
Attorney General, once the Scheduled Castes and the
Scheduled Tribes have been set out in the Presidential List,
they shall be deemed to be Scheduled Castes and Scheduled
Tribes, and the said List cannot be altered by anybody except
Parliament under Articles 341 and 342. The learned Attorney
General also argued that Nagaraj [M. Nagaraj v. Union of
India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does
not indicate any test for determining adequacy of
representation in service. According to him, it is important that
we lay down that the test be the test of proportion of
Scheduled Castes and Scheduled Tribes to the population in
India at all stages of promotion, and for this purpose, the
roster that has been referred to in R.K. Sabharwal v. State of
Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745
: 1995 SCC (L&S) 548] can be utilised. Other counsel who
argued, apart from the learned Attorney General, have, with
certain nuances, reiterated the same arguments.‖154
The decision in Jarnail specifically addressed the issue of creamy layer:
―28. Therefore, when Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] 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 (4A) and
16 (4B), 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 revisited, and consequently, there is no need to
refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212
: (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We
may also add at this juncture that Nagaraj [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC
(L&S) 1013] 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…‖
155
154 Supra 49 at pages 407-408
155 Ibid at page 426
PART H
129
Justice Rohinton Nariman speaking for the Constitution Bench in Jarnail
explained the reason for applying the creamy layer principle:
―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.‖
137 We are thus unable to subscribe to the submission that Jarnail is not per
curium on the issue of creamy layer. For one thing, Jarnail specifically examined
the decision in Indra Sawhney, noticing that eight of the nine learned Judges
applied the creamy layer principle as a facet of the larger equality principle. In
fact, the decision in Indra Sawhney II v Union of India156 (―Indra Sawhney II‖)
summarised the judgments in Indra Sawhney I on the aspect of creamy layer.
The judgment in Jarnail approved Indra Sawhney II when it held that the creamy
layer principle sounds in Articles 14 and 16 (1):
―12. In para 27 of the said judgment, the three-Judge Bench
of this Court clearly held that the creamy layer principle
sounds in Articles 14 and 16(1) as follows: [Indra Sawhney
(2) case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC
168 : 2000 SCC (L&S) 1] , SCC p. 190, para 27]
―(i) Equals and unequals, twin aspects
27. As the ―creamy layer‖ in the backward class is to
be treated ―on a par‖ with the forward classes and is
not entitled to benefits of reservation, it is obvious that
if the ―creamy layer‖ is not excluded, there will be
discrimination and violation of Articles 14 and 16(1)
inasmuch as equals (forwards and creamy layer of
Backward Classes) cannot be treated unequally.
Again, non-exclusion of creamy layer will also be
violative of Articles 14, 16(1) and 16(4) of the
Constitution of India since unequals (the creamy
layer) cannot be treated as equals, that is to say,
equal to the rest of the backward class…
156 (2000)1 SCC 168
PART H
130
Thus, any executive or legislative action refusing to exclude
the creamy layer from the benefits of reservation will be
violative of Articles 14 and 16(1) and also of Article 16(4). We
shall examine the validity of Sections 3, 4 and 6 in the light of
the above principle. (emphasis in original)‖
157
Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of
legislative competence on the part of the State legislatures to create subcategories among the Presidential lists under Articles 341 and 342. The decision
in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on
which the constitutional amendments were upheld in Nagaraj and hence it was
not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter,
we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds
that the creamy layer principle is a principle of equality.
138 Though, we have not accepted the above submission which was urged by
Ms Jaising on behalf of the intervenors, we will have to decide as to whether the
Reservation Act 2018 is unconstitutional. The challenge in the present case is to
the validity of the Reservation Act 2018 which provides for consequential
seniority. In other words, the nature or extent of reservation granted to the SCs
and STs at the entry level in appointment is not under challenge. The
Reservation Act 2018 adopts the principle that consequential seniority is not an
additional benefit but a consequence of the promotion which is granted to the
SCs and STs. In protecting consequential seniority as an incident of promotion,
the Reservation Act 2018 constitutes an exercise of the enabling power conferred
by Article 16 (4A). The concept of creamy layer has no relevance to the grant of
157 Supra 49 at page 415
PART H
131
consequential seniority. There is merit in the submission of the State of
Karnataka that progression in a cadre based on promotion cannot be treated as
the acquisition of creamy layer status. The decision in Jarnail rejected the
submission that a member of an SC or ST who reaches a higher post no longer
has a taint of untouchability or backwardness. The Constitution Bench declined to
accept the submission on the ground that it related to the validity of Article 16
(4A) and held thus:
―34…We may hasten to add that Shri Dwivedi‘s argument
cannot be confused with the concept of ―creamy layer‖ which,
as has been pointed out by us hereinabove, applies to
persons within the Scheduled Castes or the Scheduled Tribes
who no longer require reservation, as opposed to posts
beyond the entry stage, which may be occupied by
members of the Scheduled Castes or the Scheduled
Tribes.‖
158
(Emphasis supplied)
139 In sustaining the validity of Articles 16 (4A) and 16 (4B) against a
challenge of violating the basic structure, Nagaraj applied the test of width and
the test of identity. The Constitution Bench ruled that the catch-up rule and
consequential seniority are not constitutional requirements. They were held not to
be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not
constitutional limitations or principles but are concepts derived from service
jurisprudence. Hence, neither the obliteration of those concepts nor their insertion
would violate the equality code contained in Articles 14, 15 and 16. The principle
postulated in Nagaraj is that consequential seniority is a concept purely based in
service jurisprudence. The incorporation of consequential seniority would hence
not violate the constitutional mandate of equality. This being the true
158 Supra 49 at page 430
PART I
132
constitutional position, the protection of consequential seniority as an incident of
promotion does not require the application of the creamy layer test. Articles 16
(4A) and 16 (4B) were held to not obliterate any of the constitutional limitations
and to fulfil the width test. In the above view of the matter, it is evident that the
concept of creamy layer has no application in assessing the validity of the
Reservation Act 2018 which is designed to protect consequential seniority upon
promotion of persons belonging to the SCs and STs.
I Retrospectivity
140 Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June
1995. The other provisions came into force ―at once‖ as provided in Section 1(2).
Section 4 stipulates that the consequential seniority already granted to
government servants belonging to the SCs and STs in accordance with the
reservation order with effect from 27 April 1978 shall be valid and shall be
protected. In this context, we must note from the earlier decisions of this Court
that:
(i) The decision in Virpal Singh held that the catch-up rule would be applied
only from 10 February 1995 which was the date of the judgment in
Sabharwal;
(ii) The decision in Ajit Singh II specifically protected the promotions which were
granted before 1 March 1996 without following the catch-up rule; and
PART J
133
(iii) In Badappanavar, promotions of reserved candidates based on
consequential seniority which took place before 1 March 1996 were
specifically protected.
141 Since promotions granted prior to 1 March 1996 were protected, it was
logical for the legislature to protect consequential seniority. The object of the
Reservation Act 2018 is to accord consequential seniority to promotees against
roster points. In this view of the matter, we find no reason to hold that the
provisions in regard to retrospectivity in the Ratna Prabha Committee report are
either arbitrary or unconstitutional.
142 The benefit of consequential seniority has been extended from the date of
the Reservation Order 1978 under which promotions based on reservation were
accorded.
J Over representation in KPTCL and PWD
143 The Ratna Prabha Committee collected data from thirty one departments
of the State Government of Karnataka. It has been pointed out on behalf of the
State that corporations such as KPTCL and other public sector undertakings fall
within the administrative control of one of the departments of the State
government. The position in thirty one departments was taken as representative
of the position in public employment under the State. The over representation in
KPTCL and PWD has been projected by the petitioners with reference to the total
number of posts which have been filled. On the other hand, the quota is fixed and
the roster applies as regards the total sanctioned posts as held in Sabharwal and
PART K
134
Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates
that if consequential seniority is not allowed, there would be under representation
of the reserved categories. Finally, it may also be noted that under the
Government Order dated 13 April 1999, reservation in promotion in favour of SC‘s
and ST‘s has been provided until the representation for these categories reaches
15 per cent and 3 per cent, respectively. The State has informed the Court that
the above Government Order is applicable to KPTCL and PWD, as well.
K Conclusion
144 For the above reasons, we have come to the conclusion that the challenge
to the constitutional validity of the Reservation Act 2018 is lacking in substance.
Following the decision in B K Pavitra I, the State government duly carried out the
exercise of collating and analysing data on the compelling factors adverted to by
the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the
deficiency which was noticed by B K Pavitra I in respect of the Reservation Act
2002. The Reservation Act 2018 does not amount to a usurpation of judicial
power by the state legislature. It is Nagaraj and Jarnail compliant. The
Reservation Act 2018 is a valid exercise of the enabling power conferred by
Article 16 (4A) of the Constitution.
145 We therefore find no merit in the batch of writ petitions as the constitutional
validity of the Reservation Act 2018 has been upheld. They shall stand
dismissed. Accordingly, the review petitions and miscellaneous applications shall
PART K
135
also stand dismissed in view of the judgment in the present case. There shall be
no order as to costs. All pending applications are disposed of.
146 Before concluding, the Court records its appreciation of the erudite
submissions of the learned Counsel who have ably assisted the Court. We
deeply value the assistance rendered by Dr Rajeev Dhavan and Mr Shekhar
Naphade, learned Senior Counsel and Mr Puneet Jain, learned Counsel who led
the arguments on behalf of the Petitioners. We acknowledge the valuable
assistance rendered to the Court by Ms Indira Jaising, Mr Basava Prabhu S Patil,
Mr Dinesh Dwivedi, Mr Nidhesh Gupta and Mr V Lakshminarayana, learned
Senior Counsel.
…...…..…....…........……………….…........J.
[Uday Umesh Lalit]
.…….……...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
New Delhi;
May 10, 2019.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/INHERENT/ORIGINAL JURISDICTION
M A No. 1151 of 2018
In
Civil Appeal No. 2368 of 2011
B K Pavitra and Ors ...Appellants
Versus
The Union of India and Ors ...Respondents
With
Review Petition (c) Diary No. 7833 of 2017
With
Review Petition (c) Diary No.10240 of 2017
With
Review Petition (c) Diary No.10258 of 2017
With
2
Review Petition (c) Diary No.10859 of 2017
With
Review Petition (c) Diary No.12622 of 2017
With
Review Petition (c) Diary No.12674 of 2017
With
Review Petition (c) Diary No.13047 of 2017
With
Review Petition (c) Diary No.14563 of 2017
With
Review Petition (c) Diary No.16896 of 2017
With
M A No. 1152 of 2018
In
Civil Appeal No. 2369 of 2011
With
Writ Petition (c) No. 764 of 2018
With
Writ Petition (c) No. 769 of 2018
With
3
Writ Petition No.791 of 2018
With
Writ Petition (c) No.823 of 2018
With
Writ Petition (c) No. 827 of 2018
With
Writ Petition (c) No. 850 of 2018
With
Writ Petition (c) No.875 of 2018
With
Writ Petition (c) No. 872 of 2018
With
Writ Petition (c) No. 901 of 2018
With
Writ Petition (c) No. 879 of 2018
And
With
Writ Petition (c) No. 1209 of 2018
4
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J.
This judgment has been divided into sections to facilitate analysis. They are
A The constitutional challenge
B The constitutional backdrop to reservations in Karnataka
C Submissions
C.I Petitioners
C.2 Submissions for the respondents and intervenors
D Assent to the Bill
E Does the Reservation Act 2018 overrule or nullify B K Pavitra I
E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act
2018
E.2 The Ratna Prabha Committee report
F Substantive versus formal equality
F.I The Constituent Assembly‘s understanding of Article 16 (4)
F.2 The Constitution as a transformative instrument
G Efficiency in administration
H The issue of creamy layer
I Retrospectivity
J Over representation in KPTCL and PWD
K Conclusion
PART A
5
A The constitutional challenge
1 The principal challenge in this batch of cases is to the validity of the
Karnataka Extension of Consequential Seniority to Government Servants
Promoted on the Basis of Reservation (to the Posts in the Civil Services of the
State) Act 2018
1
. The enactment provides, among other things, for consequential
seniority to persons belonging to the Scheduled Castes2
and Scheduled Tribes3
promoted under the reservation policy of the State of Karnataka. The law protects
consequential seniority from 24 April 1978.
2 The Reservation Act 2018 was preceded in time by the Karnataka
Determination of Seniority of the Government Servants Promoted on the Basis of
the Reservation (to the Posts in the Civil Services of the State) Act 20024
. The
constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra
v Union of India5
, (―B K Pavitra I‖). A two judge Bench of this Court (consisting
of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and 4 of the
Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on
the ground that an exercise for determining ―inadequacy of representation‖,
―backwardness‖ and the impact on ―overall efficiency‖ had not preceded the
enactment of the law. Such an exercise was held to be mandated by the decision
of a Constitution Bench of this Court in M Nagaraj v Union of India6
(―Nagaraj‖).
1 Reservation Act 2018
2
SCs
3
STs
4 Reservation Act 2002
5
(2017) 4 SCC 620
6
(2006) 8 SCC 212
PART B
6
In the absence of the State of Karnataka having collected quantifiable data on
the above three parameters, the Reservation Act 2002 was held to be invalid.
3 The legislature in the State of Karnataka enacted the Reservation Act 2018
after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The
grievance of the petitioners is that the state legislature has virtually re-enacted
the earlier legislation without curing its defects. According to the petitioners, it is
not open to a legislative body governed by the parameters of a written
constitution to override a judicial decision, without taking away its basis. On the
other hand, the State government has asserted that an exercise for collecting
―quantifiable data‖ was in fact carried out, consistent with the parameters required
by the decision in Nagaraj. The petitioners question both the process and the
outcome of the exercise carried out by the state for collecting quantifiable data.
B The constitutional backdrop to reservations in Karnataka
4 The present case necessitates that this Court weave through the body of
precedent which forms a part of our constitutional jurisprudence on the issue of
reservations. In many ways, the issues before the Court are unique. For, in the
post Nagaraj world which governs this body of law, the State government
defends its legislation on the ground that it has fulfilled the constitutional
requirement of collecting quantifiable data before it enacted the law. If such an
exercise has been carried out, the Court will need to address itself to the
standard of judicial review by a constitutional court of a legislation enacted by a
competent legislature. The extent to which a data collection exercise by the
PART B
7
government, which precedes the enactment of the law, may be reviewed by the
Court is a seminal issue. B K Pavitra I involved a situation where this Court
invalidated a law on the ground that no exercise of data collection was carried out
by the State of Karnataka. In the present batch of cases, (herein referred to as B
K Pavitra II), there is a constitutional challenge to the validity of a law enacted
after the State had undertaken the exercise of collecting quantifiable data.
Whether that exercise of data collection and the enactment of the new law which
has emerged on its foundation takes away the basis of or the cause for the
invalidation of the Reservation Act 2002 in B K Pavitra I is an essential question
for our consideration.
In this background, we set out the significant facts, in the chequered history of the
present case.
5 In exercise of the power conferred by the proviso to Article 309 of the
Constitution, the Governor of Karnataka framed the Karnataka Government
Servant (Seniority Rules) 19577
. Rules 2 and 4 provide for seniority on the basis
of the period of service in a given cadre. There was no specific rule governing
seniority in respect of roster promotions.
Rule 2 inter alia, provides as follows:
―2. Subject to the provisions hereinafter contained the
seniority of a person in a particular cadre of service or class
of post shall be determined as follows:-
(a) Officers appointed substantively in clear vacancies shall
be senior to all persons appointed on officiating or any
other basis in the same cadre of service or class of post;
7
The Rules 1957
PART B
8
(b) The seniority inter se of officers who are confirmed shall
be determined according to dates of confirmation, but
where the date of confirmation of any two officers is the
same, their relative seniority will be determined by their
seniority inter se while officiating in the same post and if
not, by their seniority inter se in the lower grade.
(c) Seniority inter se of persons appointed on temporary
basis will be determined by the dates of their continuous
officiation in that grade and where the period of officiation
is the same the seniority inter se in the lower grade shall
prevail.‖
Rule 4 provides for the determination of seniority where promotions are made at
the same time on the basis of seniority-cum-merit to a class of posts or cadre:
―4. When promotions to a class of post or cadre are made on
the basis of seniority-cum-merit at the same time, the relative
seniority shall be determined.-
(i) if promotions are made from any one cadre or class of
post, by their seniority inter se in the lower cadre or class
of post;
(ii) if promotions are made from several cadres or classes of
posts of the same grade, by the period of service in those
grades;
(iii) if promotions are made from several cadres or classes of
posts, the grades of which are not the same, by the order
in which the candidates are arranged by the authority
making the promotion, in consultation with Public Service
Commission where such consultation is necessary, taking
into consideration the order in which promotions are to be
made from those several cadres or classes of post.‖
Rule 4-A provides for the determination of the seniority where promotion is made
by selection:
―4-A When promotions to a class of post or cadre are
made by selection at the same time either from several
cadres or classes of post or from same cadre or class of post
by the order in which the candidates are arranged in order of
merit by the Appointing Authority making the selection, in
consultation with Public Service Commission where such
consultation is necessary.
PART B
9
[Explanation – For purposes of this rule, ―several cadres or
classes of post‖ shall be deemed to include cadres or classes
of post of different grades from which recruitment is made in
any specified order of priority in accordance with any special
rules of recruitment.].‖
6 Reservation for persons belonging to SCs and STs in specified categories
of promotional posts was introduced by a Government Order8
dated 27 April 1978
of the Government of Karnataka. Reservation in promotional posts for SCs was
set at 15 per cent and for STs at 3 per cent in all cadres up to and inclusive of the
lowest category of Class I posts in which there is no element of direct recruitment
or where the direct recruitment does not exceed 662/3 per cent. A 33 point roster
was applicable to each cadre of posts under appointing authorities. Inter-se
seniority amongst persons promoted on any occasion was to be determined in
accordance with Rules 4 and 4-A, as the case may be, of the Rules 1957. It also
stipulated that vacancies would not be carried forward.
7 On 1 June 1978, the State government issued an Official Memorandum9
providing guidelines and clarifications for implementing the Government Order
dated 27 April 1978. The Official Memorandum stipulated that after promotion,
seniority among candidates promoted on the basis of seniority-cum-merit shall,
on each occasion, be fixed in accordance with Rule 4 of the Rules 1957. In other
words, seniority would be governed by the inter se seniority in the cadre from
which candidates were promoted. For candidates promoted by selection,
seniority would be governed by Rule 4-A : the ranking would be as assigned in
8 G.O. No. DPAR 29 SBC 77
9 O.M. No. DPAR 29 SBC 77
PART B
10
the list of selected candidates by the appointing authority. The Official
Memorandum dated 1 June 1978 thus provided, what can be described as the
principle of consequential seniority to reserved category candidates.
8 By a notification10 dated 1 April 1992, a proviso was inserted to Rule 8 of
the Karnataka Civil Services (General Recruitment) Rules 197711 which provided
that vacancies not filled by SCs and STs would be treated as a backlog and
would be made good in the future. This provision was upheld by a two judge
Bench of this Court in Bhakta Ramegowda v State of Karnataka12 (―Bhakta
Ramegowda‖).
9 On 16 November 1992, a nine judge Bench of this Court delivered
judgment in Indra Sawhney v Union of India13 (―Indra Sawhney‖). The issue as
to whether reservations of promotional posts were contemplated by Article 16
(4)14
- when it used the expression ‗appointment‘ was among the issues dealt
with. Justice B P Jeevan Reddy speaking for a plurality of four judges held that:
(i) Reservations contemplated by Article 16 (4) of the Constitution should not
exceed 50 per cent15. While 50 per cent shall be the rule, ―it is necessary
not to put out of consideration certain extraordinary situations inherent in
10 No. DPAR 13 SRR 92
11 The Rules 1977
12 (1997) 2 SCC 661
13 1992 Supp (3) SCC 217
14 Clauses (1) and (4) of Article 16 provide:
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
…
(4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
15 Supra 13, paragraph 809 at page 735
PART B
11
the great diversity of this country and the people‖16. But, any relaxation of
the strict rule must be with extreme caution and on a special case being
made out17;
(ii) Reservations under Article 16 (4) could only be provided at the time of
entry into government service but not in matters of promotion. However,
this principle would operate only prospectively and not affect promotions
already made. Moreover, reservations already provided in promotions shall
continue in operation for a period of five years from the date of the
judgment18;
(iii) The creamy layer can be and must be excluded. Justice B P Jeevan
Reddy held :
―792…While we agree that clause (4) aims at group
backwardness, we feel that exclusion of such socially
advanced members will make the ‗class‘ a truly backward
class and would more appropriately serve the purpose and
object of clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case of
Scheduled Tribes and Scheduled Castes).‖19
(iv) The adequacy of the representation of a backward class of citizens in
services ―is a matter within the subjective satisfaction of the State‖20, since
the requirement in Article 16 (4) is preceded by the words ―in the opinion of
the State‖. The basis of the standard of judicial review was formulated
thus:
―798…This opinion can be formed by the State on its own,
i.e., on the basis of the material it has in its possession
already or it may gather such material through a
Commission/Committee, person or authority. All that is
16 Ibid, paragraph 810 at page 735
17 Ibid, paragraph 810 at page 735
18 Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771
19 Ibid at page 725
20 Ibid, paragraph 798 at page 728
PART B
12
required is, there must be some material upon which the
opinion is formed. Indeed, in this matter the court should
show due deference to the opinion of the State, which in the
present context means the executive. The executive is
supposed to know the existing conditions in the society,
drawn as it is from among the representatives of the people in
Parliament/Legislature. It does not, however, mean that the
opinion formed is beyond judicial scrutiny altogether. The
scope and reach of judicial scrutiny in matters within
subjective satisfaction of the executive are well and
extensively stated in Barium Chemicals v. Company Law
Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need
not be repeated here. Suffice it to mention that the said
principles apply equally in the case of a constitutional
provision like Article 16(4) which expressly places the
particular fact (inadequate representation) within the
subjective judgment of the State/executive.‖21
(v) The backward class of citizens cannot be identified only and exclusively
with reference to an economic criterion22. It is permissible to identify a
backward class of citizens with reference to occupation, income as well
caste.
10 In view of the decision of this Court in Indra Sawhney, the provisions for
reservation in matters of promotion under the Government Order of 1978, as
clarified by the Official Memorandum dated 1 June 1978 were saved for a period
of five years from 16 November 1992. Promotions already made were saved.
11 On 17 June 1995, Parliament acting in its constituent capacity adopted the
seventy-seventh amendment by which clause (4A) was inserted into Article 16 to
enable reservations to be made in promotion in favour of the SCs and STs23. The
21 Ibid at page 728
22 Ibid, paragraph 799 at page 728
23 Clause 16 (4A) : Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled
PART B
13
amendment came into force on 17 June 1995, before the expiry of five years from
16 November 1992 (the date on which the decision in Indra Sawhney was
pronounced). As a result of the decision in Indra Sawhney and the seventyseventh amendment to the Constitution, the provision for reservations made by
the Government of Karnataka under the Government Order of 1978 stood saved
and continued to operate.
12 On 10 February 1995, a Constitution Bench of this Court rendered a
judgment in R K Sabharwal v State of Punjab24 (―Sabharwal‖) and held that:
(i) Once the prescribed percentage of posts is filled by reserved category
candidates by the operation of the roster, the numerical test of adequacy is
satisfied and the roster would cease to operate25;
(ii) The percentage of reservation has to be worked out in relation to the
number of posts which form the cadre strength. The concept of vacancy
has no relevance in operating the percentage of reservation26; and
(iii) The interpretation placed on the working of the roster shall operate
prospectively27 from 10 February 1995.
13 On 1 October 1995, a two judge Bench of this Court held in Union of India
v Virpal Singh Chauhan28 (―Virpal Singh‖) that the state could provide that even
if a candidate belonging to the SC or ST is promoted earlier on the basis of
Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the
services under the State.
24 (1995) 2 SCC 745
25 Ibid, paragraph 5 at page 750
26 Ibid, paragraph 6 at page 751
27 Ibid, paragraph 11 at page753
28 (1995) 6 SCC 684
PART B
14
reservation and on the application of the roster, this would entitle such a person
to seniority over a senior belonging to the general category in the feeder cadre.
However, a senior belonging to the general category who is promoted to a higher
post subsequently would regain seniority over the reserved candidate who was
promoted earlier. This rule came to be known as the catch-up rule. The two judge
Bench directed that the above principle would be followed with effect from the
date in the judgment in Sabharwal29
.
14 Six months after the decision in Virpal Singh, on 1 March 1996, a three
judge Bench of this Court in Ajit Singh Januja v State of Punjab30 (―Ajit Singh
I‖), adopted the catch-up rule propounded in Virpal Singh, to the effect that the
seniority between reserved category candidates and general candidates in the
promoted category shall continue to be governed by their inter se seniority in the
lower grades. This Court held that a balance has to be maintained so as to avoid
―reverse discrimination‖ and, a rule or circular which gives seniority to a candidate
belonging to the reserved category promoted on the basis of roster points would
violate Articles 14 and 16 of the Constitution.
15 On 24 June 1997, the Government of Karnataka issued a Government
Order31 formulating guidelines in regard to the manner in which backlog
vacancies were required to be filled. On 3 February 1999, the Government of
29 10 February 1995
30 (1996) 2 SCC 715
31 G.O. No. DPAR 10 SCBC 97
PART B
15
Karnataka issued another Government Order32 pursuant to Article 16 (4A)
stipulating a modified policy of reservation in matters of promotion. The 1999
Order provides for reservation in promotion to the extent of 15 per cent for SCs
and 3 per cent for STs of the posts in a cadre up to and inclusive of the lowest
category of group A posts in each service for which there is no element of direct
recruitment or, where the proportionate of direct recruitment does not exceed
662/3 per cent. While providing for the continuance of reservations in promotion,
the Government Order stipulated that reservation in favour of persons belonging
to the SCs shall continue to operate until their representation in a cadre reaches
15 per cent. Reservations in promotion for the STs would continue to operate
until their representation in a cadre reaches 3 per cent. Thereafter, reservation in
promotion shall continue only to maintain the representation to the extent of the
above percentages for the respective categories. On 13 April 1999, the
Government of Karnataka issued another Government Order33 modifying the
1999 Order to provide that reservations in promotions in favour of the SCs and
STs shall continue to operate by applying the existing roster to the vacancies till
the representation of persons belonging to these categories reached 15 per cent
or 3 per cent as the case may be, respectively. Moreover, after the existing
backlog was cleared, the representation of persons belonging to SCs and STs
would be maintained to the extent of 15 per cent and 3 per cent of the total
working strength.
32 G.O. No. DPAR 21 SBC 97
33 Ibid
PART B
16
16 In Jagdish Lal v State of Haryana34
, (―Jagdish Lal‖) a three judge Bench
of this Court took a view contrary to the decision in Ajit Singh I. The decision in
Jagdish Lal held that by virtue of the principle of continuous officiation, a
candidate belonging to a reserved category who is promoted earlier than a
general category candidate due to an accelerated promotion would not lose
seniority in the higher cadre. This conflict of decisions was resolved by a
Constitution Bench in Ajit Singh v State of Punjab35 (―Ajit Singh II‖). The
Constitution Bench held that Article 16 (4A) is only an enabling provision for
reservation in promotion. In consequence, roster point promotees belonging to
the reserved categories could not count their seniority in the promoted category
from the date of continuance officiation in the promoted post in relation to general
category candidates who were senior to them in the lower category and who
were promoted later. Where a senior general candidate at the lower level is
promoted later than a reserved category candidate, but before the further
promotion of the latter, such a person will have to be treated as senior at the
promotional level in relation to the reserved candidate who was promoted earlier.
The Constitution Bench accordingly applied the catch-up rule for determining the
seniority of roster point promotees vis-à-vis general category candidates. The
Court held that any circular, order or rule that was issued to confer seniority to
roster point promotees would be invalid. However, the Constitution Bench
directed that candidates who were promoted contrary to the above principles of
law before 1 March 1999 (the date of the decision in Ajit Singh I) need not be
reverted.
34 (1997) 6 SCC 538
35 (1999) 7 SCC 209
PART B
17
17 Contending that there was no provision permitting seniority to be granted
in respect of roster point promotees belonging to the reserved categories, the
reservation policy of the State of Karnataka came to be challenged before this
Court in M G Badappanavar v State of Karnataka36 (―Badappanavar‖). A three
judge Bench, relying on the decisions in Ajit Singh I, Ajit Singh II and
Sabharwal reiterated the principle that Article 16 (4A) does not permit the
conferment of seniority to roster point promotees. This Court held that there was
no specific rule in the State of Karnataka permitting seniority to be counted in
respect of a roster promotion. It held thus:
―12…The roster promotions were, it was held, meant only for
the limited purpose of due representation of backward
classes at various levels of service. If the rules are to be
interpreted in a manner conferring seniority to the roster-point
promotees, who have not gone through the normal channel
where basic seniority or selection process is involved, then
the rules, it was held will be ultra vires Article 14 and Article
16 of the Constitution of India. Article 16(4-A) cannot also
help. Such seniority, if given, would amount to treating
unequals equally, rather, more than equals.‖37
18 The conferment of seniority to roster point promotees of the reserved
categories would, in view of the court in Badappanavar, violate the equality
principle which was part of the basic structure of the Constitution. The Court
directed that the seniority lists and promotions be reviewed in accordance with its
directions but those who were promoted before 1 March 1996 on principles
contrary to Ajit Singh II and those who were promoted contrary to Sabharwal
before 10 February 1995 need not be reverted.
36 (2001) 2 SCC 666
37 Ibid at page 672
PART B
18
19 The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with
effect from 17 June 1995. Article 16 (4A), as amended, reads thus:
―Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in
the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the services under
the State.‖ (Emphasis supplied)
The purpose of the amendment was to enable the grant of consequential
seniority to reserved categories promotees. The significance of the date on which
the eighty-fifth amendment came into force – 17 June 1995 – is that it coincides
with the coming into force of the seventy-seventh amendment which enabled
reservations in promotions to be made for the SCs and STs.
20 In 2002, the Karnataka State Legislature enacted the Reservation Act
2002. The law came into force on 17 June 1995. It provided for consequential
seniority to roster point promotees based on the length of service in a cadre,
making the catch-up rule propounded in Ajit Singh II inapplicable. The earlier
decision of this Court in Badappanavar had held that there was no specific rule
for the conferment of seniority to roster point promotees. By the enactment of the
Reservation Act 2002 with effect from 17 June 1995, the principle of
consequential seniority was statutorily incorporated as a legislative mandate.
21 The validity of the seventy-seventh and eighty-fifth amendments to the
Constitution and of the legislation enacted in pursuance of those amendments
PART B
19
was challenged before a Constitution Bench of this Court in Nagaraj. The
Constitution Bench analysed whether the replacement of the catch-up rule with
consequential seniority violated the basic structure and equality principle under
the Constitution. Upholding the constitutional validity of the amendments, this
Court held that the catch-up rule and consequential seniority are judicially
evolved concepts based on service jurisprudence. Hence, the exercise of the
enabling power under Article 16 (4A) was held not to violate the basic features of
the Constitution:
―79. Reading the above judgments, we are of the view that
the concept of ―catch-up‖ rule and ―consequential seniority‖
are judicially evolved concepts to control the extent of
reservation. The source of these concepts is in service
jurisprudence. These concepts cannot be elevated to the
status of an axiom like secularism, constitutional sovereignty,
etc. It cannot be said that by insertion of the concept of
―consequential seniority‖ the structure of Article 16(1) stands
destroyed or abrogated. It cannot be said that ―equality code‖
under Articles 14, 15 and 16 is violated by deletion of the
―catch-up‖ rule. These concepts are based on practices.
However, such practices cannot be elevated to the status of a
constitutional principle so as to be beyond the amending
power of Parliament. Principles of service jurisprudence are
different from constitutional limitations. Therefore, in our view
neither the ―catch-up‖ rule nor the concept of ―consequential
seniority‖ is implicit in clauses (1) and (4) of Article 16 as
correctly held in Virpal Singh Chauhan.‖
38
22 The Constitution Bench held that Article 16 (4A) is an enabling provision.
The state is not bound to make reservations for the SCs and STs in promotions.
But, if it seeks to do so, it must collect quantifiable data on three facets:
(i) The backwardness of the class;
38 Supra 6 at page 259
PART B
20
(ii) The inadequacy of the representation of that class in public employment;
and
(iii) The general efficiency of service as mandated by Article 335 would not be
effected.
23 The principles governing this approach emerge from the following extracts
from the decision:
―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…39
…
117… 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.
40
…
123. … In this regard the State concerned will have to show
in each case the existence of the compelling reasons,
namely, backwardness, inadequacy of representation and
overall administrative efficiency before making provision for
reservation. As stated above, the impugned provision is an
enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions. However, if
they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation
39 Ibid at pages 270-271
40 Ibid at pages 276-277
PART B
21
of that class in public employment in addition to compliance
with Article 335. It is 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.‖
41
The Constitution Bench held that the constitutional amendments do not abrogate
the fundamentals of equality:
―110…the boundaries of the width of the power, namely, the
ceiling limit of 50% (the numerical benchmark), the principle
of creamy layer, the compelling reasons, namely,
backwardness, inadequacy of representation and the overall
administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider
the law as enacted by various States providing for reservation
if challenged. At that time we have to see whether limitations
on the exercise of power are violated. The State is free to
exercise its discretion of providing for reservation subject to
limitation, namely, that there must exist compelling reasons of
backwardness, inadequacy of representation in a class of
post(s) keeping in mind the overall administrative efficiency. It
is made clear that even if the State has reasons to make
reservation, as stated above, if the impugned law violates any
of the above substantive limits on the width of the power the
same would be liable to be set aside.‖42
These observations emphasise the parameters which must be applied where a
law has been enacted to give effect to the provisions of Article 16 (4A). The
legislative power of the state to enact such a law is preserved. The exercise of
the power to legislate is conditioned by the existence of ―compelling reasons‖
namely; the existence of backwardness, the inadequacy of representation and
overall administrative efficiency. Elsewhere in the decision, the Constitution
Bench treated these three parameters as ―controlling factors‖ for making
41 Ibid at page 278
42 Ibid at page 272
PART B
22
reservations in promotions for SCs and STs. They were held to be constitutional
requirements crucial to the preservation of ―the structure of equality of
opportunity‖ in Article 16. The Constitution Bench left the validity of the individual
enactments of the states to be adjudicated upon separately by Benches of this
Court.
24 In B K Pavitra I, a two judge Bench of this Court considered a challenge to
the Reservation Act 2002 providing for consequential seniority on the ground that
the exercise which was required to be carried out in Nagaraj had not been
undertaken by the State and there was no provision for the exclusion of the
creamy layer. The validity of the Reservation Act 2002 had been upheld by a
Division Bench of the Karnataka High Court. In B K Pavitra I, this Court struck
down Sections 3 and 4 of the Reservation Act 2002 as ultra vires Articles 14 and
16. The petitioner contended that the law laid down by this Court in
Badappanavar, Ajit Singh II and Virpal Singh remained applicable despite the
Constitution (Eighty-fifth Amendment) Act 2001. Moreover, it was contended that
the Government of Karnataka had not complied with the tests laid down in
Nagaraj and had failed to provide any material or data to show inadequacy of
representation. Moreover, no consideration was given to the issue of overall
administrative efficiency. The principal challenge was that an exercise for
determining ―backwardness‖, ―inadequacy of representation‖, and ―overall
efficiency‖ in terms of the decision in Nagaraj had not been carried out.
PART B
23
25 Relying on the decisions of this Court in Suraj Bhan Meena v State of
Rajasthan43
, Uttar Pradesh Power Corporation Ltd v Rajesh Kumar44 and S
Panneer Selvam v State of Tamil Nadu45 (―Panneer Selvam‖), a two judge
Bench of this Court affirmed that the exercise laid down in Nagaraj for
determining ―inadequacy of representation‖, ―backwardness‖ and ―overall
efficiency‖ is necessary for recourse to the enabling power under Article 16 (4A)
of the Constitution. The Court held that the Government of Karnataka had failed
to place material on record showing that there was a compelling necessity for the
exercise of the power under Article 16 (4A). Hence, the directions laid down by
this Court in Nagaraj were not followed. Striking down Sections 3 and 4 of the
Reservation Act 2002, this Court held thus:
―29. It is clear from the above discussion in S. Panneer
Selvam case that exercise for determining ―inadequacy of
representation‖, ―backwardness‖ and ―overall efficiency‖, is a
must for exercise of power under Article 16(4-A). 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 the
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
43 (2011) 1 SCC 467
44 (2012) 7 SCC 1
45 (2015) 10 SCC 292
PART B
24
equally without any merit in the present context. In absence of
exercise under Article 16(4-A), it is the ―catch-up‖ rule which
fully applies. It is not necessary to go into the question
whether the Corporation concerned had adopted the rule of
consequential seniority.‖46
The Court clarified that the decision will not affect those who have already retired
and availed of financial benefits. It was further directed that promotions granted to
existing employees based on consequential seniority are liable to be reviewed
and that the seniority list be revised in terms of the decision. Three months were
granted to take further consequential action. Petitions seeking a review of the
decision have been tagged with the present proceedings.
26 After the decision of this Court in B K Pavitra I, on 22 March 2017, the
Government of Karnataka constituted the Ratna Prabha Committee47 headed by
the Additional Chief Secretary to the State of Karnataka to submit a report on the
backwardness and inadequacy of representation of SCs and STs in the State
Civil Services and the impact of reservation on overall administrative efficiency in
the State of Karnataka. The tasks entrusted to the Committee were to:
―1) Collect information on the cadre-wise representation of
Scheduled Castes and Scheduled Tribes in all the
Government Departments;
2) Collect information regarding backwardness of Scheduled
Castes and Scheduled Tribes; and
3) Study the effect on the administration due to the provision
of reservation in promotion to the Scheduled Castes and
Scheduled Tribes.‖
46 Supra 6 at page 641
47 G.O. No. DPAR 182 SeneNi 2011
PART B
25
27 On 5 May 2017, the Ratna Prabha Committee submitted a report, titled as
the ‗Report on Backwardness, Inadequacy of Representation and
Administrative Efficiency in Karnataka‘
48. The Government of Karnataka,
through its Department of Personnel and Administrative Reforms, submitted the
Ratna Prabha Committee report to the Law Commission of Karnataka on 8 June
2017. The Law Commission sought to opine on ‗whether the data collected and
reasons assigned by the Ratna Prabha Committee constitute a valid basis for
validating the law‘ and submitted its report on 27 July 2017.
28 In the meantime, the petitioners filed contempt petitions contending that
the directions of this Court in B K Pavitra I to the State of Karnataka to review
the seniority list were not complied with. The State of Karnataka filed applications
for extension of time for compliance. On 20 March 2018, this Court disposed of
the petitions rejecting the applications for extension of time for compliance with
the decision in B K Pavitra I and granted one month time to take any
consequential action. The State of Karnataka subsequently filed compliance
affidavits before this Court stating that the exercise directed by the decision in B
K Pavitra I had been carried out.
29 On the basis of the Ratna Prabha Committee report, the Government of
Karnataka introduced the Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the Posts in the
Civil Services of the State) Bill 2017. The Bill was passed by the Legislative
48 Ratna Prabha Committee report
PART B
26
Assembly on 17 November 2017 and by the Legislative Council on 23 November
2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for
the consideration of the President of India under Article 200 of the Constitution.
The Bill received the assent of the President on 14 June 2018 and was published
in the official Gazette on 23 June 2018.
30 Sections 3, 4 and 5 of the Reservation Act 2018 provides as follows :
―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 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
PART B
27
inter-se seniority shall be determined by their seniority interse 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.
5. Provision for review.- All promotions to the posts
belonging to the State Civil Services shall be within the extent
and in accordance with the provisions of the reservation
orders and other rules pertaining to method of recruitment
and seniority. The Appointing Authority shall revise and
redraw the existing seniority lists to ensure that the
promotions are made accordingly:
Provided that subsequent to such a review, wherever it is
found that Government Servants belonging to the Scheduled
Castes and Scheduled Tribes were promoted against
reservation and backlog vacancies in excess or contrary to
extent of reservation provided in the reservation orders shall
be adjusted and fitted with reference to the roster points in
accordance with the reservation orders issued from time to
time by assigning appropriate dates of eligibility. In case, if
persons belonging to the Scheduled Castes and the
Scheduled Tribes who have already been promoted against
reservation or backlog vacancies in excess or contrary to the
extent of reservation provisions cannot get adjusted and fitted
against the roster points they shall be continued against
supernumerary posts, to be created by the concerned
administrative department presuming concurrence of Finance
Department, in the cadres in which they are currently working,
till they get the date of eligibility for promotion in that cadre.‖
Section 9 provides for the validation of action taken in respect of promotions
since 27 April 1978:
―9. Validation of action taken under the provisions of
this Act.- Notwithstanding anything contained in any
PART B
28
Judgment, Decree or Order of any court, tribunal or other
authority contrary to section 3 and 4 of this Act any action
taken or done in respect of any promotions made or
purporting to have been made and any action or thing taken
or done, all proceedings held and any actions purported to
have been done since 27th April, 1978 in relation to
promotions as per sections 3 and 4 of this Act, before the
publication of this Act shall be deemed to be valid and
effective as if such promotions or action or thing has been
made, taken or done under this Act and accordingly:- (a) no
suit or other proceedings shall be maintained or continued in
any court or any tribunal or before any authority for the review
of any such promotions contrary to the provisions of this Act;
and (b) no court shall enforce any decree or order to direct
the review of any such cases contrary to the provisions of this
Act.‖
Section 1 (2) provides that the Reservation Act 2018 came into force with effect
from 17 June 1995 (the effective date of the seventy-seventh and eighty-fifth
constitutional amendments).
31 These proceedings were instituted to assail the vires of the Reservation
Act 2018. The principal contention which has been urged is that the Reservation
Act 2018 does not take away basis of the decision of this Court in B K Pavitra I
and is ultra vires. All matters have been admitted for hearing and tagged
together.
32 On 27 July 2018, when the batch of cases was listed for hearing, it was
suggested by this Court that the status quo may not be altered pending
consideration of the matter. The Advocate General for the State of Karnataka
orally agreed and accepted an order of status quo. The Government of Karnataka
issued a circular on 3 August 2018 with a direction to maintain status quo and not
PART B
29
affect the process of promotion/demotion till further orders from the government.
These directions were issued to all autonomous bodies, universities, public
enterprises, commissions, corporations, boards and to institutions availing aid
from the government under their administrative control.
33 In Jarnail Singh v Lachhmi Narain Gupta49
, (―Jarnail‖) a Constitution
Bench of this Court considered whether the decision in Nagaraj requires to be
referred to a larger Bench since:
(i) It requires the state to collect quantifiable data showing backwardness of
the SCs and STs contrary to the nine judge Bench decision in Indra
Sawhney;
(ii) The creamy layer principle was not applied to SCs and STs in Indra
Sawhney; and
(iii) In applying the creamy layer principle, Nagaraj conflicts with the decision
in E V Chinnaiah v State of AP50 (―Chinnaiah‖).
34 In Jarnail, the Constitution Bench held that :
(i) The decision in Chinnaiah holds, in essence, that a state law51 cannot
further sub-divide the SCs into sub categories. Such an exercise would be
violative of Article 341(2) since only an Act of Parliament and not the state
legislatures can make changes in the Presidential list. Chinnaiah did not
dwell on any aspect on which the constitutional amendments were upheld
49 2018 (10) SCC 396
50 (2005) 1 SCC 394
51 The court was considering the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of
Reservations) Act 2000
PART B
30
in Nagaraj. Hence, it was not necessary for Nagaraj to advert to the
decision in Chinnaiah. Chinnaiah dealt with a completely different
problem and not with the constitutional amendments, which were dealt with
in Nagaraj52;
(ii) The decision of the Constitution Bench in Nagaraj, insofar as it requires
the state to collect quantifiable data on backwardness in relation to the
SCs and STs is contrary to Indra Sawhney and would have to be declared
to be bad on this ground53; and
(iii) Constitutional courts, when applying the principle of reservation will be
within their jurisdiction to exclude the creamy layer on a harmonious
construction on Articles 14 and 16 along with Articles 341 and 34254
. The
creamy layer principle is an essential aspect of the equality code.
35 On 12 October 2018, the State of Karnataka submitted before this Court
that since a legislation has been enacted by the state legislature and in view of
the judgment of the Constitution Bench in Jarnail, the State would no longer
proceed on the oral assurance of the Advocate General and would not be bound
to it. On the other hand, it was urged by learned Counsel appearing for the
petitioners that the intent of the Reservation Act 2018 was only to nullify the effect
of the judgment in B K Pavitra I. Counsel urged that in view of the decisions of
this Court including those in Shri Prithvi Cotton Mills Ltd v Broach Borough
Municipality55 (―Prithvi Cotton Mills Ltd‖) and Madan Mohan Pathak v Union
52 Supra 49, paragraph 22 at page 422-423
53 Ibid, paragraph 24 at page 424
54 Ibid, paragraph 26 at page 425-426
55 (1969) 2 SCC 283
PART B
31
of India (―Madan Mohan Pathak‖)
56, it was not open to the legislature to render
a judgment of this Court ineffective without taking away its basis or foundation.
Since the case was of an urgent nature, the proceedings were listed on 23
October 2018 for commencement of final hearing.
36 On 27 February 2019, the State of Karnataka issued a Government
Order57 directing that:
―In the circumstances explained in the preamble, the following
instructions are hereby issued subject to the conditions that
the officers/officials, who have been reverted, shall be
reposted to the cadres held by them immediately prior to their
reversion and if vacant posts are not available in those
cadres, supernumerary posts shall be created to
accommodate them. It is also ordered that the
officers/officials working at present in those cadres, belonging
to any category, shall not be reverted.‖
The Government Order was made subject to the outcome of these proceedings.
On 1 March 2019, this Court granted a stay on the operation of the Government
Order dated 27 February 2019. This Court observed that since the case was in
the concluding stages of the hearing, it would not be appropriate to alter the
present status when the matter was in seisin of the Court.
56 (1978) 2 SCC 50
57 G.O. No. DPAR 186 SRS 2018
PART C
32
C Submissions
C.I Petitioners
37 In adjudicating upon the challenge to the constitutional validity of the
Reservation Act 2018, we have heard the erudite submissions of Dr Rajeev
Dhavan, learned Senior Counsel appearing on behalf of the Petitioners.
Prefacing his submissions, Dr Rajeev Dhavan has adverted to the following
issues which arise for the determination of this Court:
A Is the Reservation Act 2018 valid?
(a) Does it not peremptorily overrule the decision of this Court in B K
Pavitra I without altering the basis of the decision?
(b) Does it violate the law laid down by this Court in Badappanavar on
seniority?
(c) Does the background to the enactment to the Reservation Act 2018
reveal a manifest intent to overrule the decision in B K Pavitra I?
(d) Was the reference of the Bill by the Governor of Karnataka to the
President under Article 200 of the Constitution and the subsequent
events which took place constitutionally valid? In this context, could
the Bill have been brought into force without the assent of the
Governor?
PART C
33
B Is the Reservation Act 2018 compliant with the principles enunciated
in the Constitution Bench decisions in Nagaraj and Jarnail? Does the
report of the Ratna Prabha Committee dated 5 May 2017 constituted
an adequate and appropriate basis to support the validity of the Act
and its implementation?
C Does the Reservation Act 2018 apply in the present writ petitions
(instituted by B K Pavitra and Shivakumar) to those departments
where there is over representation or in public corporations not
covered by the Ratna Prabha report or the legislation?
38 While we will be dealing with the submissions urged by Dr Dhavan in the
course of our analysis, it would be appropriate at this stage to advert to the
salient aspects of the submissions under the following heads:
A Usurpation of judicial power
39 Dr Dhavan has urged that the Reservation Act 2018 was enacted in a
hurry with no purpose other than to overrule the decision in B K Pavitra I, while
the issue of implementation was still pending. The decision in B K Pavitra I was
rendered on 19 February 2017. On 22 March 2017, a Government Order was
issued appointing the Additional Chief Secretary to submit a report on
backwardness, inadequacy of representation and the impact of reservation on
efficiency. The report was submitted on 5 May 2017. On 26 July 2017, the report
PART C
34
was accepted by the State Cabinet which constituted a sub-committee to
examine the matter and submit a draft Bill. The State Law Commission
recommended the State to pass a legislation with retrospective effect by curing
the infirmities and factors noticed in the decision in B K Pavitra I. On 4 August
2017, the Cabinet Sub-Committee submitted its decision based on the report. On
7 August 2017, the Cabinet approved the proposed Bill. The Bill was introduced
in the Karnataka State Legislative Assembly on 14 November 2017 and was
passed on 17 November 2017. The Bill was passed by the State Legislative
Council on 23 November 2017 and was submitted to the Governor on 6
December 2017. The Bill was reserved by the Governor for the consideration of
the President. On 15 February 2018, 9 March 2018 and 18 April 2018, the Union
Government in the Ministry of Home Affairs sought clarifications from the State
government which were provided on 16 March 2018 and 23 April 2018. The Bill
received the assent of the President on 14 June 2018, and was published in the
official Gazette and came into force on 23 June 2018.
40 On the basis of the above facts, Dr Dhavan submitted that:
(i) There was no compelling necessity to overrule B K Pavitra I ―except
political necessities‖;
(ii) A comparison of the provisions of the Reservation Act 2002 with the
Reservation Act 2018 indicates that:
(a) The Reservation Act 2018 is substantively the same as the Reservation
Act 2002;
PART C
35
(b) The change in the basis of the decision in B K Pavitra I is on the
factum of the Ratna Prabha Committee report;
(c) ―Compelling necessities‖ are mentioned but their existence is not
demonstrated;
(d) The title of the Reservation Act 2018 is limited to consequential
seniority which is not mentioned in the law;
(e) Section 5 allows for an unlimited backlog and the creation of
supernumerary posts for SCs and STs;
(f) Section 5 presumes the permission of the Finance Department and
visualizes an ―excess‖, which will invalidate the law; and
(g) Section 9 brazenly overrules and goes beyond the date of 17 June
1995 and postulates that in future a review of the cases is forbidden.
B Violation of the separation of powers
41 Separation of powers postulates a constitutional division between
legislative and judicial functions. In this context, the submission is:
(a) The legislative power is distinct from the judicial power;
(b) The legislature cannot lawfully usurp judicial power by sitting in appeal
over any judicial decision by attempting to overturn it;
(c) Any statute which seeks to overturn a judicial decision must be within the
legislative competence of the legislature under the Seventh Schedule to
the Constitution;
(d) Any such statute must change the basis of the law;
PART C
36
(e) The decision of a court will always be binding unless the law or conditions
underlying the legislation which was held to be invalid are so
fundamentally altered so that a different result would enure;
(f) While a legislation may be retroactive, an interim or final direction must be
obeyed especially when rights are conferred;
(g) A new legislation can be challenged on the basis that it violates the
fundamental rights; and
(h) Unless the basis of a legislation which is found to be ultra vires has been
altered, the mere enactment of a new legislation would constitute a brazen
overruling of the law, which is impermissible.
42 Dr Dhavan urges that Reservation Act 2018 will not pass muster, when it is
assessed in the context of the principles enunciated by the decisions of this Court
in (i) Prithvi Cotton Mills Ltd, (ii) Madan Mohan Pathak, (iii) S R Bhagwat v
State of Mysore58
, (iv) Bakhtawar Trust v M D Narayan59
, (v) Delhi Cloth &
General Mills Co. Ltd v State of Rajasthan60
, (vi) Re Cauvery61
, (vii) S T Sadiq
v State of Kerala62 and (viii) Medical Council of India v State of Kerala63
.
43 Explaining the applicability of the above principles on facts, Dr Dhavan
urged that after the decision of this Court in B K Pavitra I, the State Government
filed applications for extension of time on 9 May 2017 and 8 September 201764
.
58 (1995) 6 SCC 16
59 (2003) 5 SCC 298
60 (1996) 2 SCC 449
61 (1993) Supp (1) SCC 96
62 (2015) 4 SCC 400
63 (2018) 11 SCALE 141
64 M.A. Nos. 730-756 of 2017
PART C
37
This Court extended time to revise the seniority lists till 30 November 2017 and
for consequential actions by 15 January 2018. On 15 January 2018, the State
Government moved before this Court seeking extension of time for implementing
the decision in B K Pavitra I. On 29 January 2018, this Court finally granted time
until 15 March 2018. On 17 March 2018, the State moved before this Court for
extension of time and on 20 March 2018, while disposing of certain contempt
petitions and other applications, one month‘s time was granted to take
consequential action. On 25 April 2018, this Court directed the State to file a
further affidavit (by 1 May 2018) indicating that promotions and demotions have
been duly effected. On 9 May 2018, this Court directed the State to file an
affidavit to the effect that the judgment in B K Pavitra I had been fully complied
with and the hearing was posted for 4 July 2018. On 28 June 2018, the State of
Karnataka informed this Court that the ―further process have been stalled
because of the enactment of the new legislation and its publication in the Gazette
on 23 June 2018‖. On 7 August 2018, the State of Karnataka filed an interim
application seeking permission of this Court to implement the Reservation Act
2018. It has been urged that contrary to what was stated by the state
Government, there was no compliance of the decision in B K Pavitra I. In this
background, it has been submitted that the state has undertaken an exercise to
overrule B K Pavitra I which constitutes a clear usurpation of judicial power.
PART C
38
C Lack of compliance with Nagaraj and Jarnail
44 Dr Dhavan assails the report of the Ratna Prabha Committee on the
ground that is was not in compliance with Nagaraj and Jarnail. Nagaraj
postulates that:
(i) The backlog should not extend beyond three years;
(ii) Excessive reservation would invalidate the exercise of power; and
(iii) There is a theory of guided power under which a failure to follow the above
conditionalities would result in reverse discrimination.
45 According to the submission, the decision in Nagaraj:
(a) Deploys the methodology that the seventy-seventh, eighty-first, eightysecond and eighty-sixth amendments were only enabling and were valid.
The conditionalities for a valid exercise of the enabling power are two-fold:
(i) The existence of compelling reasons namely, backwardness,
inadequacy of representation and overall administrative efficiency
requiring quantifiable data; and
(ii) Excessiveness, which postulates that the ceiling limit of fifty per cent
is not transgressed, the creamy layer is not obliterated and
reservation is not extended indefinitely.
(b) The methodology of Nagaraj was approved both in I R Coelho v State of
TN65 and Jarnail; and
65 (2007) 2 SCC 1
PART C
39
(c) The decision in Jarnail, while upholding the methodology adopted in
Nagaraj held that there is a constitutional presumption which obviates the
need for quantifiable data on the backwardness of SCs and STs and
hence that part of Nagaraj was held to be contrary to the decision in Indra
Sawhney. The application of the creamy layer test was held to be a
requirement for SCs and STs and other principles or applications
enunciated in Nagaraj were held to be valid.
46 In this background, the Ratna Prabha Committee report is assailed on the
following grounds:
(i) The chapter on backwardness is not necessary;
(ii) Inadequacy of representation is examined over 30 pages;
(iii) The data collected is over 32 years in thirty one government departments;
(iv) No data exists in 1986;
(v) The data indicates that STs are adequately represented from 1999 to 2015
but the average of 31 years is 2.70;
(vi) No data has been collected from public sector undertakings, boards,
corporations, local bodies, grant-in-aid institutions, among others, and it is
assumed that the data is representative in nature;
(vii) The representation in Public Works Department (―PWD‖) and Karnataka
Power Transport Corporation Limited (―KPTCL‖) is adequate;
(viii) The data collected is with respect to the availability of vacancies and not
posts, contrary to the requirements laid out in Sabharwal‟s case;
PART C
40
(ix) The data is on sanctioned posts and not posts which have been filled;
(x) The data is not cadre based but based on grades A, B, C and D even
though Jarnail requires the data to be on the basis of cadre;
(xi) The report erroneously assumed that grades A, B, C and D correspond to
cadres;
(xii) The report candidly admits that ―in some departments, corporations like
PWD and KPTCL there may be over representation of the percentage
mandated‖;
(xiii) On administrative efficiency:
(a) The data is based on general considerations such as economic
development;
(b) The efficiencies adverted to in matters of administrative, policy and
service are general; and
(c) Reliance which has been placed is on performance reports.
(xiv) The state has followed a strange method of back door entry by filling up
vacancies not by selection but through toppers from universities in various
departments for gazetted grade A and B posts.
D Reservation of the Bill to the President
47 Dr Dhavan urged that from the counter affidavit filed by the State
Government, it is evident that:
(i) The view of the State government was that given the legislative
competence of the state legislature, the ―Bill was not required to be
reserved‖ for the assent of the President;
PART C
41
(ii) On 6 December 2017, the Governor of Karnataka considered it appropriate
to refer the Bill to the President in view of the decision in B K Pavitra I and
the ―importance of the issue and the constitutional interpretation involved in
the matter‖ under Article 200;
(iv) The State government on the Bill being forwarded to the President
continued to maintain that the Bill neither attracted the second proviso to
Article 200 nor did it deal with a matter which was repugnant to a Union
law on an entry falling in List III of the Seventh Schedule. Hence, the State
government opined that there did not appear to be any situation warranting
the reservation of the Bill for the consideration of the President. Hence, it
has been urged that it may be:
(a) The reference by the Governor on 6 December 2017 to the
President simply stated that since a constitutional interpretation was
required, the Bill was reserved for the President; however no
specific issues were referred; and
(b) The State government forwarded the Bill to the President, recording
at the same time that there was no reason to refer.
(v) The Union Government invited reasons for the reference to which
responses were made by the State Government in its clarification;
(vi) The Governor was altogether by-passed in this process; and
(vii) The Governor has the exclusive authority under Article 200 on the
reference and must formulate a specific reference, which was not done.
The Central Government, it was urged, cannot create a reference which
has not been made by the state.
PART C
42
48 In order to buttress his submissions, Dr Dhavan relied upon the decisions
in Kaiser-I-Hind Pvt Ltd v National Textile Corporation Ltd66
, Gram
Panchayat of Village Jamalpur v Malwinder Singh67 (―Gram Panchayat of
Village Jamalpur‖), Hoechst Pharmaceuticals Ltd v State of Bihar68
(―Hoechst Pharmaceuticals Ltd‖) and Nabam Rebia and Bamang Felix v
Deputy Speaker Arunachal Pradesh Legislative Assembly69 (―Nabam
Rebia‖).
Dr Dhavan urged that:
(i) There was no valid reference by the Governor in the absence of specificity
on the matter of reference;
(ii) The State government consistently indicated that there was no reason to
refer the Bill to the President;
(iii) The Union Government could not have created a reference where none
existed; and
(iv) The reference was unconstitutional and the assent of the Governor was
not obtained.
E Seniority including consequential seniority
49 The submissions of Dr Dhavan are:
(i) Seniority is determined by the Seniority Rules 1957;
66 (2002) 8 SCC 182
67 (1985) 3 SCC 661
68 (1983) 4 SCC 45
69 (2016) 8 SSC 1
PART C
43
(ii) The decision in Badappanavar held that there was no specific rule
providing for consequential seniority in the Seniority Rules 1957;
(iii) The amendments in the Seniority Rules 1957 on 18 August 2006 did not
effect any change to unsettle the decision in Badappanavar;
(iv) The Reservation Act 2002 attempted to overrule Badappanavar and was
eventually invalidated in B K Pavitra I;
(v) The Reservation Act 2018 mentions consequential seniority in its title yet
Section 5 makes no reference of it and in fact reinforces the Seniority
Rules 1957 by implication. The reference to the Rules in Section 5 can
only be in the context of the Seniority Rules 1957 as amended. The
Seniority Rules 1957 will override the administrative orders of 27 April
1978;
(vi) The Government Order dated 27 April 1978 specifically adverts to Rules 4
or 4-A (as the case may be) of the Seniority Rules 1957;
(vii) No seniority can be conveyed by filling up of backlog and creating excess
or supernumerary posts; and
(viii) The proviso to Section 5 would be liable to be struck down for its
excessiveness.
50 In substance, Dr Dhavan‘s are as follows:
(i) Every administrative action or legislation has to be Nagaraj compliant as
explained in Jarnail;
PART C
44
(ii) After the decision in B K Pavitra I, the State of Karnataka hurriedly
enacted the Reservation Act 2018 without demonstrating any compelling
necessity;
(iii) The Governor of Karnataka reserved the Bill for the President without
delineating the exact reasons for doing so. Even while forwarding the Bill,
the State government maintained that there was no reason to make a
reference to the President. The queries exchanged subsequently would
not constitute a valid reference;
(iv) The Ratna Prabha Committee report is flawed and does not establish
inadequacy of representation and impact on administrative efficiency;
(v) The Reservation Act 2018 is similar to the Reservation Act 2002 except for
(i) Section 5 while mandates reservations; and (ii) Section 9 which
overrules all decisions of the past and pre-empts challenges in the future;
(vi) The Seniority Rules 1957 continue not to cover consequential seniority and
by the repeal of the Reservation Act 2002, the decision in Badappanavar
continues to be good law;
(vii) The uncontrolled backlog is not valid;
(viii) A proper exercise must be post and not vacancy based, it must be based
on cadres and not on groups A to D;
(ix) The counter affidavit of the State admits the flaws of the process denying
curative effect to the exercise; and
(x) The Reservation Act 2018 has failed to pass muster and its non-compliant
with the decisions in Nagaraj and Jarnail.
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51 Mr Shekhar Naphade, learned Senior Counsel submitted that:
(i) The decision in B K Pavitra I has attained finality and a subsequent
change in law cannot abrogate the principle of res judicata;
(ii) As held in the decision of this Court in Pandit M S M Sharma v Dr
Krishna Sinha70, whether an earlier judgment is right or wrong is not
material to the applicability of the doctrine of res judicata;
(iii) The subsequent decision in Jarnail is not a ground for review and, in
any event, a review of B K Pavitra I by the state will not lie;
(iv) In view of the explanation to Order XLVII of the CPC, a reversal on a
question of law in a subsequent decision of a superior court is not a
ground for review;
(v) An error of law is no ground for review (State of West Bengal v Kamal
Sengupta71);
(vi) The Reservation Act 2018 is based on a report which furnishes factual
data: this could have been furnished in the earlier round. The
legislature has taken recourse to exercise of judicial power;
(vii) The provisions of the Reservation Act 2018 are virtually the same as
those of the Reservation Act 2002;
(viii) The basis of legislative intervention was the collection of data: the
attempt is to place fresh material before the Court to review its decision
in B K Pavitra I. There is no change in law;
(ix) Retrospectivity of the Reservation Act 2018 from 1978 is arbitrary;
70 AIR 1960 SC 1186
71 (2008) 8 SCC 612
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46
(x) There is no change in the basis of the law. The basis is a change in the
factual matrix which is not available as a ground for review;
(xi) The Ratna Prabha Committee report has collected no substantive
material on the impact of reservation in promotion on the efficiency of
administration;
(xii) The second proviso to Article 200 and Article 254 (2) of the Constitution
are exhaustive of the constitutional power of the Governor to reserve a
Bill for the assent of the President;
(xiii) The Ratna Prabha Committee report does not deal with the aspect of
creamy layer which had been duly considered in Jarnail;
(xiv) The Ratna Prabha Committee dwelt on groups and not on cadres. The
data includes direct recruits as well as promotees, whereas the present
case is only about promotion; and
(xv) Data was collected only from thirty one government departments and
not from public sector undertakings.
52 Supplementing the submissions of Dr Dhavan, Mr Puneet Jain, learned
Counsel appearing on the behalf of the petitioners has adverted to the following
issues which arise for the consideration of this Court:
(i) Section 3 of the Reservation Act 2018 only seeks to extend consequential
seniority retrospectively to vacancy based roster point promotees and is
not concerned with the state exercising its enabling power to provide for
reservation in promotions. The Government Order72 dated 27 April 1978 by
72 G.O. No. DPAR 29 SBC 77
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47
which reservation for persons belonging to SCs and STs in specified
categories of promotional posts was introduced cannot be ―justified‖ by a
satisfaction on the basis of the Ratna Prabha Committee report;
(ii) Article 16 (4A) confers a discretion upon the state to provide for
reservations in promotion with or without consequential seniority. Nagaraj
mandates that there have to exist compelling reasons and the satisfaction
of the state before exercise of its powers under Article 16 (4A). In view of
the decision in Panneer Selvam, automatic conferment of consequential
seniority can no longer be sustained; and
(iii) The fact that the eighty-fifth amendment has been made retrospective from
17 June 1995 cannot enable the state to make a provision for the first time
by exercising powers retrospectively and consequently taking away vested
rights which legitimately accrued upon the general category employees.
C.2 Submissions for the respondents and intervenors
53 Appearing for the State of Karnataka, Mr Basava Prabhu S Patil, learned
Senior Counsel submitted thus:
A The basis of B K Pavitra I has been altered
(i) The Reservation Act 2018 has taken away the basis of the judgment in B
K Pavitra I and the protection of seniority with retrospective effect which is
permissible in law:
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(a) The Reservation Act 2018 does not seek to overrule or nullify
simpliciter the decision in B K Pavitra I. The law was enacted to
provide consequential seniority for roster point promotees after
collecting data showing the existence of the compelling reasons of :
(i) backwardness; (ii) inadequacy of representation; and (iii) overall
efficiency. Hence, the Reservation Act 2018 removes the basis of
the decision in B K Pavitra I;
(b) The state legislature is competent to enact a law with retrospective
or retroactive operation. The legislative competence of the State
Legislature to enact law is traceable to Article 16 (4A). Merely
because the legislation confers seniority with effect from 1978, will
not lead to its invalidation (Cheviti Venkanna Yadav v State of
Telangana73 (―Cheviti Venkanna Yadav‖), Utkal Contractors &
Joinery (P) Ltd v State of Orissa74 (―Utkal Contractors and
Joinery (P) Ltd‖) and State of Himachal Pradesh v Narain
Singh75 (―Narain Singh‖);
(c) Sections 3 and 4 of the Reservation Act 2018 came into operation
on 17 June 1995, on which date the seventy-seventh and eighty-fifth
amendments to the Constitution came into effect, thereby enabling
reservations to be made in promotion together with consequential
seniority. The Reservation Act 2018 protects consequential seniority
accorded from 27 April 1978 (the date of the reservation order) in
73 (2017) 1 SCC 283
74 (1987) Supp. SCC 751
75 (2009) 13 SCC 165
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49
light of the data collected which shows the inadequacy of
representation;
(d) In terms of the decision in Virpal Singh, the catch-up rule was to be
applied with effect from 10 February 1995 (i.e. the date of the
judgment in Sabharwal). According to the decision in Ajit Singh II,
promotions granted prior to 1 March 1996 without following the
catch-up rule are protected. Badappanavar protects the promotions
of reserved candidates based on consequential seniority which took
place before 1 March 1996;
(e) While judicial review allows courts to declare a statute as
unconstitutional if it transgresses constitutional limits, courts are
precluded from inquiring into the propriety or wisdom underlying the
exercise of the legislative power. The motives of the legislature in
enacting a law are incapable of being judicially evaluated; and
(f) Seniority is not a vested or an accrued right and hence it is open for
the legislature to enact a law for dealing with it.
(ii) The Reservation Act 2018 is not of the same genre of legislation dealt with
in the decision of Madan Mohan Pathak:
(a) Madan Mohan Pathak involved a challenge by the employees of
the Life Insurance Corporation to the constitutional validity of a
Parliamentary law which attempted to render ineffective a settlement
with employees for the payment of bonus. The judgment does not
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50
deal with a case where the basis of the invalidity of a legislation
noticed in a judicial decision is taken away by a subsequent law;
and
(b) Madan Mohan Pathak in fact, notices that in the case of a
declaratory judgment holding an action to be invalid, validating
legislation to remove the defect is permissible.
(iii) The collection of data by the State must demonstrate the presence of
compelling reasons namely, (a) inadequacy of representation; (b)
backwardness; and (c) overall administrative efficiency as enunciated in
Nagaraj and B K Pavitra I;
(iv) The decision in Indra Sawhney holds that the question as to whether a
backward class of citizens is not adequately represented in the services
under the state is a matter of subjective satisfaction;
(v) Nagaraj also notices the position that there is a presumption that the state
is in the best position to define and measure merit and that there is no
fixed yardstick to identify and measure the three factors on which
quantifiable data has to be collected;
(vi) The decision in Jarnail also holds that the test of determining the
adequacy of representation in promotional posts is left wisely to the states;
and
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(vii) The Reservation Act 2018 was enacted after the State was satisfied about
the existence of the three compelling reasons.
B The Ratna Prabha Committee has dealt with all the three facets
constituting the „compelling reasons‟:
1 Backwardness
(i) The decision in Jarnail has clarified that there is no requirement of collecting
quantifiable data on the backwardness of SCs and STs. The observation in
Nagaraj is contrary to the larger Bench decision in Indra Sawhney.
(ii) Yet, in any event, the Ratna Prabha Committee considered the
backwardness of SCs and STs in view of the dictum in Nagaraj which then
held the field. The Committee after carrying out the exercise came to the
conclusion that the requirement of backwardness is satisfied.
2 Inadequacy of representation
(i) Chapter II of the Ratna Prabha Committee report considered the
inadequacy of representation and records a summary of its conclusions in
paragraphs 2.5 and 2.6;
(ii) It is misleading to assert that the State did not collect cadre wise data.
Para 2.4.1 indicates that the government took into account the data for
groups A, B, C and D to draw a conclusion about the inadequacy of
representation;
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(iii) The decisions in Indra Sawhney and Sabharwal are clear in postulating
that persons belonging to the SCs and STs who are appointed against
general category posts/vacancies are not to be reckoned for ascertaining
over representation; and
(iv) It is a matter of common experience that for most of the group D posts
such as municipal sweepers, only persons belonging to SCs and STs
apply. Over representation in group D posts which results from general
category candidates keeping away from them is no ground to deny
promotion to group D employees recruited against the reserved category.
3 Administrative efficiency
(i) Para 3.12 of Chapter III of the Ratna Prabha Committee report has
considered all relevant aspects before coming to the conclusion that
reservations in promotion do not affect administrative efficiency;
(ii) Promotions are made on the basis of seniority-cum-merit. [Rule 19(3)(a) of
the Rules 1977] Only those candidates who fulfil the criteria of
merit/suitability are promoted based on seniority. Since this criterion is
applicable even in respect of roster promotions, the efficiency of
administration is not adversely impacted; and
(iii) On promotion, a candidate is required to serve a statutory period of
officiation before being confirmed in service. This applies to all candidates
including roster point promotees and ensures that the efficiency of
administration is not adversely affected.
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C The challenge on the ground that the Reservation Act 2018 does not
exclude the benefit of consequential seniority in respect of the creamy
layer in terms of the decision in Jarnail is baseless:
(i) Creamy layer as a concept can be applied only at the entry level or at
appointment and has no application while granting reservations in
promotion and allowing for consequential seniority. The Reservation Act
2018 provides only for consequential seniority and the extent of
reservation granted to SCs and STs at the entry level/ in appointment is
not under challenge;
(ii) Even assuming that the concept of creamy layer can be applied at the
stage of promotion, it is inapplicable to the conferment of consequential
seniority. Consequential seniority is not an additional benefit but a
consequence of promotion;
(iii) Appointment to a post or progression in career based on promotion cannot
be treated as acquisition of creamy layer status. In fact, the decision in
Jarnail makes it clear that the concept of creamy layer applies only to the
entry stage;
(iv) Nagaraj does not hold that the exclusion of the creamy layer is a precondition for the exercise of the enabling power under Article 16 (4A) for
providing promotion or consequential seniority;
(v) In the decision in B K Pavitra I, the challenge to the Reservation Act 2002
was accepted on the ground that the State had not carried out an exercise
for determining inadequacy of representation, backwardness and overall
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efficiency of administration. B K Pavitra I did not accept the plea of the
applicability of creamy lawyer principle to consequential seniority; and
(vi) Under the Reservation Order 1978, reservations in promotion are
restricted up to the lowest category of class I post.
D There is no basis in the challenge that the Reservation Act 2018 does
not meet the proportionality test and results in over representation.
(i) In view of the Reservation Order 1999 providing that reservation in
promotion in favour of SCs and STs shall continue only till their
representation reaches 15 per cent and 3 per cent respectively, it is
ensured that there is no over representation; and
(ii) Since the Reservation Act 2018 provides only for consequential seniority
and not for reservation in appointment or promotion, it cannot be asserted
that reservation for the purpose of seniority is vacancy-based and not postbased, contrary to the decision in Sabharwal. Reservations in promotion
are provided by the Government Order 1978 which provides for roster
point promotion and not roster point seniority. The Government Order
dated 13 April 1999 provides for making promotions (after the existing
backlog is filled) in favour of SCs and STs by maintaining their
representation to the extent of 15 per cent and 3 per cent of the total
working strength (and not vacancies).
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E There was no constitutional infirmity in the Governor of Karnataka
having reserved the Reservation Act 2018 for the consideration of the
President.
The Governor in reserving the Bill for consideration of the President acted in
pursuance of the provisions of Article 200 of the Constitution. The Governor may
under Article 200 (i) declare assent to a Bill; or (ii) declare the withholding of
assent; or (iii) reserve a Bill for consideration of the President. The power of the
Governor to reserve a Bill for consideration of the President is not subject to the
existence of a repugnancy under Article 254 (2). The action of the Governor is
non-justiciable. (Hoechst Pharmaceuticals Ltd)
F The assent of the Governor is not contemplated once the President has
given assent to a Bill.
Neither Article 200 nor Article 201 contemplates that the Bill should be presented
again before the Governor after it has been assented to by the President. Section
5(1)(iv) of the Karnataka General Clauses Act 1899 postulates that an Act
passed by the Karnataka legislature shall come into operation on the day on
which the assent of the Governor or, as the case may be, of the President is
granted and is first published in the Official Gazette. Hence, once the assent of
the President is granted, the necessity of a further assent by the Governor is
obviated.
G The submission that in Karnataka Power Transport Corporation Limited,
as a consequence of the reservation in seniority in the cadre of
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Superintending Engineer and Engineer-in-Chief, there was over
representation for SCs and ST between 2005 and 2016 is erroneous.
(i) There is no reservation for promotion to the posts of Superintending
Engineer and Engineer-in-Chief in KPTCL. Reservation in promotion and
consequential seniority is available only up to the post of Assistant
Executive Engineer. In fact, if consequential seniority were not to be
granted on promotion up to the post of Assistant Executive Engineer, there
would be excessive under-representation of reserved category candidates.
The Ratna Prabha Committee report, in paragraph 2.4, took note of the
total number of officials/employees working in thirty one government
departments of the State Government. It noted that 80.35 per cent of the
sanctioned posts are concentrated in six major Government departments
namely; Education, Home, Health, Revenue, Judicial and Finance. The
data pertaining to thirty one government departments was taken in the
totality to analyse and assess the adequacy of representation. The data of
smaller departments may not be representative of the State Civil Services
as a whole.
On the above grounds, it was urged that the challenge to the Reservation Act
2018 must fail.
54 Ms Indira Jaising76
, learned Senior Counsel appearing on behalf of the
intervenors (Karnataka SC/ST Engineer‘s Welfare Association) contended that
76 In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018
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the Reservation Act 2018 is constitutionally valid. Ms Jaising urged the following
submissions:
(i) The decisions of this Court in State of Kerala v N M Thomas77 (―N M
Thomas‖) and Nagaraj affirmed that Article 16 (4) is an emphatic
declaration of Article 16 (1). The principle of ‗proportional equality‘ entails
substantive equality which is reflected in affirmative action to remedy
injustice to SCs, STs and Other Backward Classes78
. Social justice is
concerned with the distribution of benefits and burdens. The Reservation
Act 2018, in providing for consequential seniority, furthers the vision of
substantive equality and is valid;
(ii) Affirmative action under Article 15 (4) and reservation under Article 16 (4)
of the Constitution are intended to ensure that all sections of the society
are represented equally in services under the state. The Reservation Act
2018 underlies this salient objective and furthers the promotion of the
interests of the SCs, STs and other weaker sections as stipulated in Article
46 of the Constitution;
(iii) Article 16 (4A) is an enabling provision which empowers the State to frame
rules or enact a legislation granting reservations in promotions with
consequential seniority subject to the fulfilment of the conditions laid down
in Nagaraj and modified by Jarnail. Following the decision in Jarnail, the
state is required to show data only on the inadequacy of representation
and efficiency of administration. The State of Karnataka, in exercise of the
enabling power under Article 16 (4A) enacted the Reservation Act 2018 in
77 (1976) 2 SCC 310
78 OBCs
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compliance with the conditions precedent to the exercise of the power
stipulated in that Article;
(iv) The decision in Sabharwal lays down that in determining the inadequacy
of representation of SCs and STs in promotional posts, the state may take
the total population of a particular class and its representation in the
service. The State has studied the extent of reservation in posts for SCs
and STs in a ‗group‘ which is a collection of cadres. Hence, it cannot be
said that the state failed to collect quantifiable data on the representation
of SCs and STs in promotional posts. Without the grant of consequential
seniority, the percentage of reservation will not reach the prescribed
percentage;
(v) No statistical studies have been provided to show that the grant of
consequential seniority has led to the lowering of efficiency in
administration. It cannot be presumed that the appointment of SCs and
STs will lead to a lowering of efficiency as at the individual level, all
individuals belonging to SCs and STs must also achieve the minimum
benchmark of ‗good‘;
(vi) The Reservation Act 2002 was struck down on the basis of the failure of
the state to collect quantifiable data. The Reservation Act 2018 has been
enacted on the basis of data collected and studied in the Ratna Prabha
Committee report. Hence, the basis of the decision in B K Pavitra I has
been removed. Additionally, no mandamus was issued in B K Pavitra I;
(vii) The collection of data required to be carried out by the State is a matter of
social science and is carried out by experts. Data collection is both
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qualitative and quantitative. As long as the methodology adopted by the
state is scientifically sound, the assessment of the data collected is the
prerogative of the state. The court may intervene in judicial review only
when there is a complete absence of data or if the data relied on is
irrelevant; and
(viii) The principles laid down by this Court in Indra Sawhney on the exclusion
of the creamy layer apply only to OBCs and cannot extend to SCs and
STs. No question arose in Nagaraj on the exclusion of the creamy layer in
respect of SCs and STs. Hence, the decision is not an authority for the
principle that the states are bound to exclude the creamy layer in respect
of SCs and STs. The decision of this Court in Jarnail dealt with the
competence of Parliament to enact a law in relation to the creamy layer
and did not lay down a general proposition on its exclusion. The concept of
creamy layer, if applicable, can only be applied at the entry level and not in
promotions.
55 Mr Dinesh Dwivedi79
, learned Senior Counsel appearing on behalf of the
intervenor (Karnataka SC/ST Engineers‘ Welfare Association), urged the
following submissions:
(i) The decision in Nagaraj was concerned with whether reservation in
promotion as inserted in Article 16 (4A) by the Constitution (Seventyseventh Amendment) Act 1995 and the enabling provision for the grant of
consequential seniority under Article 16 (4A) inserted by the Constitution
(Eighty-fifth Amendment) Act 2001 violated the basic structure of the
79 In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018
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Constitution. The decision in Nagaraj was concerned with reservations in
promotion and did not equate reservation in promotion with the grant of
consequential seniority. In this view, the four controlling factors, namely (i)
backwardness; (ii) adequacy of representation; (iii) elimination of the
creamy layer; and (iv) efficiency of administration have relevance only to
the exercise of the enabling power under Article 16 (4A) for making
reservation in promotion and not the exercise of the enabling power to
grant consequential seniority;
(ii) Reservation in promotion was introduced in the State of Karnataka by the
Government Order dated 27 April 1978 and continues to be in operation.
The Reservation Act 2018 stipulates the grant of consequential seniority
which is premised on the prior existence and operation of reservation in
promotion. Absent a challenge to the Government Order dated 27 April
1978 in the present proceedings, the petitioner is precluded from
challenging the grant of consequential seniority in the Reservation Act
2018;
(iii) Consequential seniority is nothing but the normal rule of seniority which
accords seniority to roster point promotees from the date of their
substantive promotion. The catch-up rule is an exception to the normal rule
of seniority. Prior to the decision in Indra Sawhney, accelerated seniority
to roster point promotees existed in the State of Karnataka with the
application of the continuous officiation rule. This is supported by Rule 2(b)
of the 1957 Rules. Para III (d) of the Government Order dated 27 April
1978 provided for the application of the catch-up rule only in a limited
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manner. Rule 4 is restricted in its application to appointments made on the
same day which implies that in the absence of its application to a given
case, consequential seniority must be granted;
(iv) The decision in Virpal Singh concerned a rule that specifically provided for
the application of the catch-up rule in a departure from the normal rule of
seniority. This Court held that a state may prescribe either consequential
seniority based on continuous officiation or the catch-up rule of seniority in
case of roster point promotions. A harmonious reading of Articles 14 and
16(1) of the Constitution does not stipulate that the catch-up rule must
apply in the case of roster point promotions. Thus, a balancing of Articles
14, 16(1) and 16(4) of the Constitution denotes that the catch-up rule is not
mandatory. The decisions of this Court in Ajit Singh I, Ajit Singh II and
Badappanavar, in holding to the contrary, have been expressly overruled
by the seventy-seventh and the eighty-fifth amendments to the
Constitution, following which the principles enunciated in Virpal Singh
continue to govern the field. The eighty-fifth amendment was intended to
make consequential seniority a constitutional principle and revive
consequential seniority as the normal rule of seniority;
(v) The principles enunciated in Virpal Singh are fortified by the decision in
Nagaraj which held that the catch-up rule and consequential seniority are
principles of service jurisprudence and cannot be elevated to a
constitutional status. The discretion to choose between consequential
seniority and catch-up vests with the state. The Reservation Act 2018, in
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stipulating for consequential seniority, is a valid exercise of discretion by
the State; and
(vi) In the alternative, the tests laid down by the four controlling factors in
Nagaraj and Jarnail have been satisfied prior to the enactment of the
Reservation Act 2018. The satisfaction of the state in this regard cannot be
subjected to review by this Court.
56 Mr Lakshminarayana, learned Senior Counsel has submitted thus:
(i) The issue as to whether reservation under Article 16 (4A) can be provided
by an executive order was answered in the affirmative in the judgment of
Justice BP Jeevan Ready speaking for a plurality of judges in Indra
Sawhney. The word ‗provision‘ in Article 16 (4) was interpreted in contrast
with the word ‗law‘ in clauses (3) and (5) of Article 16. The word ‗any‘ and
the word ‗provision‘ in Article 16 (4) must be given their due meaning.
Article 16 (4) is exhaustive as a special provision in favour of the backward
class of citizens. Backward classes having been classified by the
Constitution as a class deserving special treatment and the Constitution
itself having specified the nature of the special treatment, it should be
presumed that no further classification or special treatment is permissible
in their favour outside Article 16 (4). In light of the decision in Indra
Sawhney, it is now a settled principle that a provision for reservation can
be made by the legislature, by statutory rules and by executive orders;
(ii) Provisions for reservation in promotions were introduced in Karnataka by
the Government Order dated 27 April 1978 on the basis of the inadequacy
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of representation of SCs and STs in public services under Article 16 (4).
After the report on the inadequacy of representation dated 30 August
1979, first and second roster points were reserved for SCs and STs. The
principle of consequential seniority is adopted by clause (vii) of the
Government Order dated 27 April 1978 and clause (d) of the Government
Order dated 1 June 1978;
(iii) Clause (vii) of the Government Order dated 27 April 1978 as it originally
stood provided that inter se seniority amongst persons promoted ―on any
occasion‖ shall be determined under Rules 4 and 4 (A) of the Seniority
Rules 1957;
(iv) The words ―on any occasion‖ in clause (vii) were amended by clause (d) of
the Government Order dated 1 June 1978 so that the determination of
seniority among reserved promotees and general candidates on the basis
of seniority-cum-merit shall ―on each occasion‖ be fixed under Rule 4 of
the Seniority Rules 1957;
(v) The substitution of the expression ―on any occasion‖ with the expression
―on each occasion‖ denotes the intention of the government to provide
consequential seniority to reserved category candidates promoted on the
basis of roster;
(vi) The legislature enacted provisions pertaining to the policy of reservation in
promotion in the State Civil Services and Public Sector Undertakings as
follows :
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(a) The Rules 1977 including the proviso to Rule 8, upheld by this Court
in Bhakta Ramegowda;
(b) The Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.,) Act 1990;
(c) The Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.,) Rules 1992;
and
(d) The Karnataka State Civil Services (Unfilled Vacancies Reserved for
the persons belonging to the Scheduled Castes and the Scheduled
Tribes) (Special Recruitment) Rules 2001.
The above provisions were followed by the Reservation Acts of 2002 and 2017.
(vii) With effect from 1 April 1992, the State of Karnataka inserted the proviso
to Rule 8 in the Rules 1977 which reads as follows:
―8. Provision for reservation of appointments or posts.-
Appointments or posts shall be reserved for the members of
the Scheduled Castes, Scheduled Tribes, and Other
Backward Classes to such extent and in such manner as may
be specified by the government under clause (4) of Article 16
of the Constitution of India.
Proviso to Rule 8
80[Provided that, notwithstanding anything in the rules of
Recruitment specially made in respect of any Service or Post,
the backlog vacancies in the promotional quota shall be
determined and implemented with effect from 27th April,1978.
Note.– The backlog vacancy means the extent of the number
of vacancies available under the roster system up to the level
of lowest category in Group-A post calculated from 27th April,
1978.].‖
80 Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992
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The above Rule was upheld in Bhakta Ramegowda;
(viii) The Government Order dated 24 June 1997 provided additional roster
points to cover up backlog promotional roster points, both in promotion and
direct recruitment. Clauses (iv) and (v) of para 8 of the Government Order
dated 24 June 1997 reads as follows :
―Clause (IV).
After effecting review of promotion and adjustment and
fitment as indicated in item (iii) above, if some more persons
belonging to scheduled castes and scheduled tribes who
have already been promoted against backlog cannot get
adjusted due to want of adequate number of vacancies as per
the aforesaid roster points, such persons shall be adjusted
and fitted in accordance with the procedure specified in item
(iii) while effecting promotion in respect of future vacancies.
Until such time, shall be continued against supernumerary
posts to be created by the concerned Administrative
Department. For this purpose, the Secretaries to Government
are hereby delegated the power to create supernumerary
posts presuming the concurrence of Finance Department and
to that extent the Government Order No. FD 1 TFP 96, dated
10.07.1996, shall be deemed to have been modified
accordingly.
Clause (V)
While adjusting and fitting promote[e]s as indicated in item (iii)
and (iv) above, the inter-se seniority among the General
category, the scheduled caste category and the scheduled
tribe category shall be determined in accordance with rule 4
or rule 4 A as the case may be, of the Karnataka Government
Servants Seniority Rules 1957. The roster points are meant
only for calculating the number of vacancies that become
available for the different categories on each occasion and
they do not determine the seniority.‖
The above clauses reiterated the purpose of assessing inter se seniority
after promotion of roster promotees in reckoning consequential seniority
among two groups.
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66
(ix) The State Government is entitled to prescribe the percentage of
reservation based on the total population of a particular backward class
and its representation in the services of the State under Article 16 (4).
Once the prescribed percentage of reservations is determined, the
numerical test of adequacy is satisfied. The percentage of reservation is
the desired representation of the backward classes in the state services
and is consistent with the demographic estimate, based on the proportion
worked out in relation to their population;
(x) The operation of the roster points and filling of the cadre strength ensures
that the reservation remains within the limit of 50 per cent;
(xi) Reserved candidates who have been appointed or promoted on merit as
general candidates cannot be included in calculating adequacy of
representation of backward classes in operating the roster points. Only
reserved candidates promoted against roster points are to be taken into
account in considering the adequacy of representation;
(xii) A cadre includes different grades and reservation can be provided in
different grades within the cadre. The reservation policy contained in the
Government Order dated 27 April 1978 has been re-issued on 17 April
1993 and 11 May 1993 after the decision in Indra Sawhney;
(xiii) Both clauses (1) and (4) of Article 16 operate in the same field. Both are
directed towards achieving equality of opportunity in services under the
State. The formation of opinion by the State on the adequacy of
representation is a matter of subjective satisfaction and the test is whether
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there was some material before the State to justify its opinion. In the
exercise of judicial review, the court would extend due deference to the
judgment and discretion of the executive. Even if there are some errors on
the part of the State Government, that would not in any way result in the
invalidation of the entire exercise;
(xiv) Efficiency of administration means governance which provides responsive
service to the people. Merit alone is not a component of efficiency. Once
an employee is promoted, efficiency is judged on the basis of the annual
confidential reports;
(xv) A curative legislation does not constitute an encroachment on judicial
power by the State Legislature. Similarly, it is open to the legislature to
enact a legislation both with retrospective and prospective effect;
(xvi) Judicial review cannot extend to examine the adequacy of the material
available before the President and unless, there is a situation involving a
fraud on power or conduct actuated by oblique motive, the court would not
intervene;
(xvii) The principle of creamy layer has no application to in-service candidates;
and
(xviii) The State having rectified the lacuna which was pointed out in B K Pavitra
I, by carrying out the exercise of data collection, the opinion formed by the
State after analysing the data lies in its subjective satisfaction. The
reservation policy dated 27 April 1978 which introduced provisions for
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reservations in promotions for SCs and STs in public services has
continued until date without interruption.
57 Mr Nidhesh Gupta, learned Senior Counsel urged the following
submissions:
(i) The phrase ‗in the opinion of the state‘ in Article 16(4) of the Constitution
indicates that the issue with regard to adequacy of representation is within
the subjective satisfaction of the state. The role of the court is limited to
examining whether the opinion formed by the government was on the
basis of data available with it. While the existence of circumstances
requiring state action may be reviewed, the opinion formed is outside the
purview of judicial review. These propositions have been accepted in the
decisions of this Court in Indra Sawhney, Barium Chemicals Ltd. v
Company Law Board81 (―Barium Chemicals Ltd.‖), Rohtas Industries v
S D Agarwal82 and Rustom Cavasjee Cooper v Union of India83;
(ii) The expression ‗to any class or classes of posts‘ in Article 16(4) makes it
abundantly clear that the phrase refers to a ‗class‘ or ‗group‘ and not a
cadre. The use of the word ‗services‘ in the phrase ‗services under the
state‘ in Article 16 (4A) supports this contention. The decisions in
Sabharwal and Nagaraj clarify that cadre strength is to be applied in the
operation of the roster. The reference to ‗entire cadre strength‘ in
Sabharwal adverted to the fact that the entire cadre strength should be
taken into account in determining whether reservation up to the quota limit
81 AIR 1967 SC 295
82 (1969) 1 SCC 325
83 (1970) 1 SCC 248
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has been reached. In this view, ‗entire cadre strength‘ is the reference
point to (i) ascertain the position of representation in the entire service; (ii)
determine whether reservation up to the quota limit has been reached in
the application of the roster; and (iii) the cadre strength has been applied in
the operation of the roster. It was urged that if the percentages were
calculated on the basis of vacancies, the actual appointments made may
exceed the prescribed quota. Reliance has been placed on the decisions
of this Court in Indra Sawhney, Nagaraj, and Jarnail;
(iii) The decision in Indra Sawhney does not deal with SCs and STs in regard
to the creamy layer principle. In any case, even if the principle applies to
SCs and STs, it would only be applicable at the stage of appointments and
not for promotional posts; and
(iv) The percentages in the PWD which are marginally above the stipulated
quota are by way of including those reserved category candidates who
were selected on general merit. This is contrary to the law laid down by
this Court in Sabharwal, Indra Sawhney and Ritesh Sah v Y L Yamul84
.
58 The rival submissions now fall for consideration.
59 Other Counsel, who argued and submitted their written submissions, have
with certain nuances, reiterated similar arguments.
84 (1996) 3 SCC 253
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D Assent to the Bill
60 Besides the Governor, the legislatures of the States consist of a bicameral
legislature for some States and a unicameral legislature for others.
85
61 Article 200 is the provision which enunciates the power of the Governor to
assent to a Bill, withhold assent or reserve a Bill for considering of the President:
―200. When a Bill has been passed by the Legislative
Assembly of a State or, in the case of a State having a
Legislative Council, has been passed by both Houses of the
Legislature of the State, it shall be presented to the Governor
and the Governor shall declare either that he assents to the
Bill or that he withholds assent therefrom or that he reserves
the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after
the presentation to him of the Bill for assent, return the Bill if it
is not a Money Bill together with a message requesting that
the House or Houses will reconsider the Bill or any specified
provisions thereof and, in particular, will consider the
desirability of introducing any such amendments as he may
recommend in his message and, when a Bill is so returned,
the House or Houses shall reconsider the Bill accordingly,
and if the Bill is passed again by the House or Houses with or
without amendment and presented to the Governor for
assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but
shall reserve for the consideration of the President, any Bill
which in the opinion of the Governor would, if it became law,
so derogate from the powers of the High Court as to
endanger the position which that Court is by this Constitution
designed to fill.‖
85 Article 168. (1) For every State there shall be a Legislature which shall consist of the Governor, and—
(a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra], [Karnataka], [[Tamil Nadu,
Telangana]] [and Uttar Pradesh], two Houses;
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council
and the other as the Legislative Assembly, and where there is only one House, it shall be known as the
Legislative Assembly.
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Article 201 deals with what is to happen when the Governor reserves a Bill for the
consideration of the President.
―201. When a Bill is reserved by a Governor for the
consideration of the President, the President shall declare
either that he assents to the Bill or that he withholds assent
therefrom:
Provided that, where the Bill is not a Money Bill, the President
may direct the Governor to return the Bill to the House or, as
the case may be, the Houses of the Legislature of the State
together with such a message as is mentioned in the first
proviso to article 200 and, when a Bill is so returned, the
House or Houses shall reconsider it accordingly within a
period of six months from the date of receipt of such message
and, if it is again passed by the House or Houses with or
without amendment, it shall be presented again to the
President for his consideration.‖
Upon a Bill being passed by the Houses of the legislature (or by the sole House
where there is only a legislative assembly), it has to be presented to the
Governor. The Governor can (i) assent to the Bill; (ii) withhold assent; or (iii)
reserve the Bill for the consideration of the President.
62 Where a Bill is not a Money Bill, the Governor may return the Bill for
reconsideration upon which the House or Houses, as the case may be, will
reconsider the desirability of introducing the amendments which the Governor
has recommended. If the Bill is passed again by the House (or Houses as the
case may be), the Governor cannot thereafter withhold assent. The second
proviso to Article 200 stipulates that the Governor must not assent to a Bill but
necessarily reserve it for the consideration of the President if the Bill upon being
enacted would derogate from the powers of the High Court in a manner that
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endangers its position under the Constitution. Save and except for Bills falling
within the description contained in the second proviso (where the Governor must
reserve the Bill for consideration of the President), a discretion is conferred upon
the Governor to follow one of the courses of action enunciated in the substantive
part of Article 200. Aside from Bills which are covered by the second proviso,
where the Governor is obliged to reserve the Bill for the consideration of the
President, the substantive part of Article 200 does not indicate specifically, the
circumstances in which the Governor may reserve a Bill for the consideration of
the President. The Constitution has entrusted this discretion to the Governor. The
nature and scope of the discretionary power of the Governor to act independent
of, or, contrary to aid and advice of Council of Ministers under Article 163 was
discussed in Nabam Rebia, Justice J S Khehar (as the learned Chief Justice
then was) held thus:
―154. We are, therefore, of the considered view that insofar as
the exercise of discretionary powers vested with the Governor
is concerned, the same is limited to situations, wherein a
constitutional provision expressly so provides that the
Governor should act in his own discretion. Additionally, a
Governor can exercise his functions in his own discretion, in
situations where an interpretation of the constitutional
provision concerned, could not be construed otherwise…‖86
Justice Dipak Misra (as the learned judge then was), observed thus:
―375. …The Governor is expected to function in accordance
with the provisions of the Constitution (and the history behind
the enactment of its provisions), the law and the rules
regulating his functions. It is easy to forget that the Governor
is a constitutional or formal head—nevertheless like
everybody else, he has to play the game in accordance with
the rules of the game—whether it is in relation to the
86 Supra 69 at page 159
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Executive (aid and advice of the Council of Ministers) or the
Legislature (Rules of Procedure and Conduct of Business of
the Arunachal Pradesh Legislative Assembly). This is not to
say that the Governor has no powers—he does, but these too
are delineated by the Constitution either specifically or by
necessary implication…‖87
63 The framers carefully eschewed defining the circumstances in which the
Governor may reserve a Bill for the consideration of the President. By its very
nature the conferment of the power cannot be confined to specific categories.
Exigencies may arise in the working of the Constitution which justify a recourse
to the power of reserving a Bill for the consideration of the President. They
cannot be foreseen with the vision of a soothsayer. The power having been
conferred upon a constitutional functionary, it is conditioned by the expectation
that it would be exercised upon careful reflection and for resolving legitimate
concerns in regard to the validity of the legislation. The entrustment of a
constitutional discretion to the Governor is premised on the trust that the exercise
of authority would be governed by constitutional statesmanship. In a federal
structure, the conferment of this constitutional discretion is not intended to thwart
democratic federalism. The state legislatures represent the popular will of those
who elect their representatives. They are the collective embodiments of that will.
The act of reserving a Bill for the assent of the President must be undertaken
upon careful reflection, upon a doubt being entertained by the Governor about
the constitutional legitimacy of the Bill which has been passed.
87 Ibid at page 244
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64 Dr Dhavan in the course of his submissions, has dwelt at length on the
power which is entrusted to the Governor to reserve a Bill for the consideration of
the President under Article 254 (2). Article 254 (2) deals with a situation where a
law which has been enacted by the legislature of a state on a matter which is
enumerated in the Concurrent List of the Seventh Schedule contains any
provision which is repugnant either to an earlier law made by Parliament or an
existing law with respect to that matter. In such an eventuality, the law made by
the legislature of the state can prevail in that state only if it has received the
assent of the President on being reserved for consideration.
65 When the reservation of a Bill for the assent of the President has been
occasioned on the ground of a repugnancy with an existing law or a law enacted
by the Parliament, there are decisions of this Court which hold that the President
has to be apprised of the reason why the assent was sought. In Gram
Panchayat of Village Jamalpur, a law enacted by the Punjab legislature in
1953, extinguished all private interests in Shamlat-deh lands and vested them in
the village Panchayats as a matter of agrarian reform. This Court held that the
Punjab enactment had not been reserved for the assent of the President on the
ground that it was repugnant to an earlier Act enacted by Parliament in 1950 but
the assent was sought for a different and a specific purpose. In this background,
the Constitution Bench held that the assent of the President would not avail the
state government to accord precedence to the law enacted by the state
legislature over the law made by Parliament. The Constitution Bench held:
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―12…The assent of the President under Article 254(2) of the
Constitution is not a matter of idle formality. The President
has, at least, to be apprised of the reason why his assent is
sought if, there is any special reason for doing so. If the
assent is sought and given in general terms so as to be
effective for all purposes, different considerations may
legitimately arise. But if, as in the instant case, the assent of
the President is sought to the Law for a specific purpose, the
efficacy of the assent would be limited to that purpose and
cannot be extended beyond it.‖88
66 A similar principle was adopted in Kaiser-I-Hind Pvt Ltd. The case
concerned rent legislation in Maharashtra and the Public Premises (Eviction of
Unauthorized Occupants) Act 1971 enacted by Parliament. This Court held that
where the assent was given after considering the repugnancy between the
Bombay Rent Act, the Transfer of Property Act and the Presidency Small Cause
Courts Act, it was not correct to hold that the state law would prevail over another
parliamentary enactment for which no assent had been sought. In that context,
the Court held:
―65… 2. (a) Article 254(2) contemplates ―reservation for
consideration of the President‖ and also ―assent‖. Reservation
for consideration is not an empty formality. Pointed attention
of the President is required to be drawn to the repugnancy
between the earlier law made by Parliament and the
contemplated State legislation and the reasons for having
such law despite the enactment by Parliament.
(b) The word ―assent‖ used in clause (2) of Article 254 would
in context mean express agreement of mind to what is
proposed by the State.‖89
67 These decisions are specifically in the context of Article 254. Article 254(1)
postulates inter alia, that in a matter which is governed by the Concurrent List, a
88 Supra 67 at pages 668-669
89 Supra 66 at pages 215-216
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law which has been enacted by the legislature of a state shall be void to the
extent of its repugnancy with a law enacted by the Parliament. Clause (2) of
Article 254 obviates that consequence where the law has been reserved for the
consideration of the President and has received assent. Article 254(1) is made
subject to Clause (2), thereby emphasizing that the assent of the President will
cure a repugnancy of the state law with a law enacted by the Parliament in a
matter falling in the Concurrent List. It is in this context, that the decisions of this
Court hold that the assent of the President should be sought in relation to a
repugnancy with a specific provision contained in a Parliamentary legislation so
as to enable due consideration by the President of the ground on which assent
has been sought. Article 200 contains the source of the constitutional power
which is conferred upon the Governor to reserve a Bill for the consideration of the
President. Article 254 (2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the state legislature for consideration of the
President in a specified situation - where it is repugnant to an existing law or to a
Parliamentary legislation on a matter falling in the Concurrent List. The
eventuality which is specified in Article 254 (2) does not exhaust the ambit of the
power entrusted to the Governor under Article 200 to reserve a Bill for the
consideration of the President. Apart from a repugnancy in matters falling in the
Concurrent List between state and Parliamentary legislation, a Governor may
have sound constitutional reasons to reserve a Bill for the consideration of the
President. Article 200, in its second proviso mandates that a Bill which derogates
from the powers of the High Court must be reserved for the consideration of the
President. Apart from Bills which fall within the description set out in the second
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77
proviso, the Governor may legitimately refer a Bill for consideration of the
President upon entertaining a legitimate doubt about the validity of the law. By its
very nature, it would not be possible for this Court to reflect upon the situations in
which the power under Article 200 can be exercised. This was noticed in the
judgment of this Court in Hoechst. Excluding it from judicial scrutiny, the Court
held:
―86…There may also be a Bill passed by the State
Legislature where there may be a genuine doubt about the
applicability of any of the provisions of the Constitution which
require the assent of the President to be given to it in order
that it may be effective as an Act. In such a case, it is for the
Governor to exercise his discretion and to decide whether he
should assent to the Bill or should reserve it for consideration
of the President to avoid any future complication. Even if it
ultimately turns out that there was no necessity for the
Governor to have reserved a Bill for the consideration of the
President, still he having done so and obtained the assent of
the President, the Act so passed cannot be held to be
unconstitutional on the ground of want of proper assent. This
aspect of the matter, as the law now stands, is not open to
scrutiny by the courts. In the instant case, the Finance Bill
which ultimately became the Act in question was a
consolidating Act relating to different subjects and perhaps
the Governor felt that it was necessary to reserve it for the
assent of the President. We have no hesitation in holding that
the assent of the President is not justiciable, and we cannot
spell out any infirmity arising out of his decision to give such
assent.‖90
68 Hoechst is an authority for the proposition that the assent of the President
is non - justiciable. Hoechst also lays down that even if, as it turns out, it was not
necessary for the Governor to reserve a Bill for the consideration of the
President, yet if it was reserved for and received the assent of the President, the
90 Supra 68 at pages 100-101
PART D
78
law as enacted cannot be regarded as unconstitutional for want of ‗proper‘
assent.
69 The above decisions essentially answer the submissions which were urged
by Dr Dhavan. The law as propounded in the line of precedents adverted to
above must negate the submissions which were urged on behalf of the
petitioners. Once the Bill (which led to the Reservation Act 2018) was reserved
by the Governor for the consideration of the President, it was for the President to
either grant or withhold assent to the Bill. The President having assented to the
Bill, the requirements of Article 201 were fulfilled. The validity of the assent by the
President is non-justiciable. The Governor, while reserving the Bill in the present
case for the consideration of the President on 6 December 2017 observed thus:
―The Supreme Court in the case of BK Pavitra Case, while
considering the issue of grant of promotion to persons
belonging to SC and STs has observed the necessity of
applying the test of inadequacy of representation,
backwardness and overall efficiency, for exercise of power
under Article 16 (4A) of the Constitution and has directed the
State Government to revise the seniority list within the time
frame.
The State Government to overcome the situation which was
found fault with by the Supreme Court in the aforesaid
judgment has come out with a Bill, which is now sent for my
assent.
Having regard to the judgment of the Supreme Court in the
aforesaid case and importance of the issue and the
Constitutional interpretation involved in the matter, I deem it
appropriate to reserve the matter for the consideration of the
President. Accordingly, the Bill is reserved for the
consideration of the President under Article 200 of the
Constitution of India.‖
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79
70 The state government, in the course of its clarifications, was of the view
that there was no necessity of reserving the Bill for the consideration of the
President, since in its view, the Governor had not recorded a finding that it was
unconstitutional, or fell afoul of existing central legislation on the subject or that it
was beyond legislative competence or derogated from the fundamental rights. All
procedural requirements under the Constitution were according to the
government duly complied with. This objection of the state government cannot
cast doubt upon the grant of assent by the President. The law having received
the assent of the President, the submissions which were urged on behalf of the
petitioners cannot be countenanced.
E Does the Reservation Act 2018 overrule or nullify B K Pavitra I
71 The foundation of the decision in B K Pavitra I is the principle enunciated
in Nagaraj that in order to sustain the exercise of the enabling power contained in
Article 16 (4A), the state is required to demonstrate a ―compelling necessity‖ by
collecting quantifiable data on: (i) inadequacy of representation; (ii)
backwardness; and (iii) overall efficiency. The judgment in B K Pavitra I held
that no such exercise was undertaken by the State of Karnataka before providing
for reservation in promotion and providing for consequential seniority. On the
ground that the state had not collected quantifiable data on the three parameters
enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional.
The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the
basis that before taking recourse to the enabling power the state has to carry out
PART E
80
the exercise of collecting quantifiable data and fulfilling the three parameters
noted above. B K Pavitra I essentially held that there was a failure on the part of
the state to undertake this exercise, which was a pre-condition for the exercise of
the enabling power to make reservations in promotions and to provide for
consequential seniority.
72 The decision in B K Pavitra I did not restrain the state from carrying out
the exercise of collecting quantifiable data so as to fulfil the conditionalities for the
exercise of the enabling power under Article 16 (4A). The legislature has the
plenary power to enact a law. That power extends to enacting a legislation both
with prospective and retrospective effect. Where a law has been invalidated by
the decision of a constitutional court, the legislature can amend the law
retrospectively or enact a law which removes the cause for invalidation. A
legislature cannot overrule a decision of the court on the ground that it is
erroneous or is nullity. But, it is certainly open to the legislature either to amend
an existing law or to enact a law which removes the basis on which a declaration
of invalidity was issued in the exercise of judicial review. Curative legislation is
constitutionally permissible. It is not an encroachment on judicial power. In the
present case, state legislature of Karnataka, by enacting the Reservation Act
2018, has not nullified the judicial decision in B K Pavitra I, but taken care to
remedy the underlying cause which led to a declaration of invalidity in the first
place. Such a law is valid because it removes the basis of the decision.
PART E
81
73 These principles have consistently been reiterated in a line of precedents
emerging from this Court. In Utkal Contractors and Joinery (P) Ltd, this Court
held:
―15. …The legislature may, at any time, in exercise of the
plenary power conferred on it by Articles 245 and 246 of the
Constitution render a judicial decision ineffective by enacting
a valid law. There is no prohibition against retrospective
legislation. The power of the legislature to pass a law
postulates the power to pass it prospectively as well as
retrospectively. That of course, is subject to the legislative
competence and subject to other constitutional limitations.
The rendering ineffective of judgments or orders of competent
courts by changing their basis by legislative enactment is a
well-known pattern of all validating acts. Such validating
legislation which removes the causes of ineffectiveness or
invalidity of action or proceedings cannot be considered as
encroachment on judicial power. The legislature, however,
cannot by a bare declaration, without more, directly overrule,
reverse or set aside any judicial decision…‖
91
(See also in this context : Bhubaneshwar Singh v Union of India92
, Indian
Aluminium Co v State of Kerala93 (―Indian Aluminium Co‖), Narain Singh94
and Cheviti Venkanna Yadav).
74 The legislature has the power to validate a law which is found to be invalid
by curing the infirmity. As an incident of the exercise of this power, the legislature
may enact a validating law to make the provisions of the earlier law effective from
the date on which it was enacted (The United Provinces v Mst Atiqa Begum95
91 Supra 74 at page 759
92 (1994) 6 SCC 77
93 (1996) 7 SCC 637
94 (2009) 13 SCC 165
95 AIR 1941 FC 16
PART E
82
and Rai Ramkrishna v State of Bihar96). These principles were elucidated in the
decision of this Court in Prithvi Cotton Mills Ltd. The judgment makes a
distinction between a law which simply declares that a decision of the court will
not bind (which is impermissible for the legislature) and a law which
fundamentally alters the basis of an earlier legislation so that the decision would
not have been given in the altered circumstances. This distinction is elaborated in
the following extract:
―4. … Granted legislative competence, it is not sufficient to
declare merely that the decision of the Court shall not bind for
that is tantamount to reversing the decision in exercise of
judicial power which the Legislature does not possess or
exercise. A court's decision must always bind unless the
conditions on which it is based are so fundamentally altered
that the decision could not have been given in the altered
circumstances. Ordinarily, a court holds a tax to be invalidly
imposed because the power to tax is wanting or the statute or
the rules or both are invalid or do not sufficiently create the
jurisdiction. Validation of a tax so declared illegal may be
done only if the grounds of illegality or invalidity are capable
of being removed and are in fact removed and the tax thus
made legal.‖97
75 In State of T N v Arooran Sugars Ltd98
, a Constitution Bench of this
Court recognized the power of the legislature to enact a law retrospectively to
cure a defect found by the Court. It was held that in doing so, the legislature did
not nullify a writ or encroach upon judicial power. The legislature in remedying a
deficiency in the law acted within the scope of its authority. This Court held:
―16…It is open to the legislature to remove the defect pointed
out by the court or to amend the definition or any other
provision of the Act in question retrospectively. In this process
it cannot be said that there has been an encroachment by the
96 (1964) 1 SCR 897
97 Supra 55 at pages 286-287
98 (1997) 1 SCC 326
PART E
83
legislature over the power of the judiciary. A court‘s directive
must always bind unless the conditions on which it is based
are so fundamentally altered that under altered circumstances
such decisions could not have been given. This will include
removal of the defect in a statute pointed out in the judgment
in question, as well as alteration or substitution of provisions
of the enactment on which such judgment is based, with
retrospective effect.‖99
The same principle was formulated in the decision of this Court in Virender
Singh Hooda v State of Haryana100:
―59. …vested rights can be taken away by retrospective
legislation by removing the basis of a judgment so long as the
amendment does not violate the fundamental rights. We are
unable to accept the broad proposition… that the effect of the
writs issued by the courts cannot be nullified by the legislature
by enacting a law with retrospective effect. The question, in
fact, is not of nullifying the effect of writs which may be issued
by the High Court or this Court. The question is of removing
the basis which resulted in issue of such a writ. If the basis is
nullified by enactment of a valid legislation which has the
effect of depriving a person of the benefit accrued under a
writ, the denial of such benefit is incidental to the power to
enact a legislation with retrospective effect. Such an exercise
of power cannot be held to be usurpation of judicial
power…‖
101
76 A declaration by a court that a law is constitutionally invalid does not fetter
the authority of the legislature to remedy the basis on which the declaration was
issued by curing the grounds for invalidity. While curing the defect, it is essential
to understand the reasons underlying the declaration of invalidity. The reasons
constitute the basis of the declaration. The legislature cannot simply override the
declaration of invalidity without remedying the basis on which the law was held to
be ultra vires. A law may have been held to be invalid on the ground that the
99 Ibid at page 340
100 (2004) 12 SCC 588
101 Ibid at page 616
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84
legislature which enacted the law had no legislative competence on the subject
matter of the legislation. Obviously, in such a case, a legislature which has been
held to lack legislative competence cannot arrogate to itself competence over a
subject matter over which it has been held to lack legislative competence.
However, a legislature which has the legislative competence to enact a law on
the subject can certainly step in and enact a legislation on a field over which it
possesses legislative competence. For instance, where a law has been
invalidated on the ground that the state legislature lacks legislative competence
to enact a law on a particular subject – Parliament being conferred with legislative
competence over the same subject – it is open for the Parliament, following a
declaration of the invalidity of the state law, to enact a new law and to regulate
the area. As an incident of its validating exercise, Parliament may validate the
collection of a levy under the earlier law. The collection of a levy under a law
which has been held to be invalid is validated by the enactment of legislation by a
legislative body – Parliament in the above example – which has competence over
the subject matter. Apart from legislative competence, a law may have been
declared invalid on the ground that there was a breach of the fundamental rights
contained in Part III of the Constitution. In that situation, if the legislature
proceeds to enact a new law on the subject, the issue in essence is whether the
re-enacted law has taken care to remove the infractions of the fundamental rights
on the basis of which the earlier law was held to be invalid. The true test
therefore is whether the legislature has acted within the bounds of its authority to
remedy the basis on which the earlier law was held to suffer from a constitutional
infirmity.
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77 The petitioners have placed a considerable degree of reliance on the
decision in Madan Mohan Pathak, where a law – The Life Insurance Corporation
(Modification of Settlements) Act 1976 was enacted by Parliament to render
ineffective a settlement which was arrived at between LIC and its employees for
the payment of bonus. The law was challenged by the employees. In that case,
there was a judgment of the Calcutta High Court which had given effect to the
right of the employees to an annual cash bonus under an industrial settlement, by
the issuance of a writ of mandamus. The mandamus bound the parties to the
dispute. It was in this backdrop that the Constitution Bench observed that the
effect of the mandamus issued by the High Court could not simply be nullified by
enacting a law overriding the industrial settlement. This Court held:
―9...Here the judgment given by the Calcutta High Court,
which is relied upon by the petitioners, is not a mere
declaratory judgment holding an impost or tax to be invalid,
so that a validation statute can remove the defect pointed out
by the judgment amending the law with retrospective effect
and validate such impost or tax. But it is a judgment giving
effect to the right of the petitioners to annual cash bonus
under the Settlement by issuing a writ of mandamus directing
the Life Insurance Corporation to pay the amount of such
bonus. If by reason of retrospective alteration of the factual or
legal situation, the judgment is rendered erroneous, the
remedy may be by way of appeal or review, but so long as
the judgment stands, it cannot be disregarded or ignored and
it must be obeyed by the Life Insurance Corporation. We are,
therefore, of the view that, in any event, irrespective of
whether the impugned Act is constitutionally valid or not, the
Life Insurance Corporation is bound to obey the writ of
mandamus issued by the Calcutta High Court and to pay
annual cash bonus for the year April 1, 1975 to March 31,
1976 to Class III and Class IV employees.‖102
102 Supra 56 at page 67
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78 The decision in Madan Mohan Pathak is hence distinguishable from the
facts of the present case. The above observations recognized the constitutional
position that in the case of a declaratory judgment holding an action to be invalid,
a validating legislation to remove the defect is permissible. Applying this principle,
it is evident that the decision in B K Pavitra I declared the Reservation Act 2002
to be invalid and consequent upon the declaration of invalidity, certain directions
were issued. If the basis on which Reservation Act 2002 was held to be invalid is
cured by a validating legislation, in this case the Reservation Act 2018, this would
constitute a permissible legislative exercise. The grounds which weighed in
Madan Mohan Pathak would hence not be available in the present case.
79 The decision in Madan Mohan Pathak has been adverted to and clarified
in several decisions of this Court rendered subsequently. These include:
(i) Sri Ranga Match Industries v Union of India103
, where it was held that:
―14. While appreciating the ratio of the said opinions, it is
necessary to bear in mind the basic fact that the settlement
between the Corporation and its employees was not based
upon any statute or statutory provision. Sub-sections (1) and
(3) of Section 18 of the Industrial Disputes Act provide merely
the binding nature of such settlements; they do not constitute
the basis of the settlements. The settlement between the
parties was directed to be implemented by the High
Court. In other words, it was not a case where the High
Court either struck down a statutory provision nor was it
a case where a statutory provision was interpreted in a
particular manner or directed to be implemented. It was
also not a case where the statutory provision, on which
the judgment was based, was amended or altered to
remove/rectify the defect.‖
104
(Emphasis supplied)
103 1994 Supp. (2) SCC 726
104 Ibid at pages 736-737
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(ii) Indian Aluminium Co, where it was held that:
―49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC
50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]…
From the observations made by Bhagwati, J. per majority, it is
clear that this Court did not intend to lay down that
Parliament, under no circumstance, has power to amend
the law removing the vice pointed out by the court.
Equally, the observation of Chief Justice Beg is to be
understood in the context that as long as the effect of
mandamus issued by the court is not legally and
constitutionally made ineffective, the State is bound to
obey the directions. Thus understood, it is unexceptionable.
But it does not mean that the learned Chief Justice intended
to lay down the law that mandamus issued by court cannot at
all be made ineffective by a valid law made by the legislature,
removing the defect pointed out by the court.‖105 (Emphasis
supplied)
(iii) Agricultural Income Tax Officer v Goodricke Group Ltd106
, where it was
held:
―14. We are of the view that Madan Mohan Pathak case
[(1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]
would not apply to the facts in the present case for the simple
reason that what has been undone by Section 4-B and
Section 78-C is not a mandamus issued by a superior
court. What is undone is the very basis of the judgment
in Buxa Dooars Tea Co. Ltd. case[(1989) 3 SCC 211 : 1989
SCC (Tax) 394] by retrospectively changing the levy of rural
employment cess and education cess.‖107 (Emphasis
supplied)
80 Madan Mohan Pathak involved a situation where a parliamentary law was
enacted to override a mandamus which was issued by the High Court for the
105 Supra 93 at page 660
106 (2015) 8 SCC 399
107 Ibid at page 407
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payment of bonus under an industrial settlement. The case did not involve a
situation where a law was held to be ultra vires and the basis of the declaration of
invalidity of the law was sought to be cured.
81 Dr Dhavan adverted to the legal basis of B K Pavitra I as set out in the
following extract from the conclusion:
―30. 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.‖108
Dr Dhavan is entirely correct, if we may say so with respect, in submitting ―that
what has to be shown is whether the Reservation Act 2018 is, in law Articles 14
and 16 compliant‖. This necessitates an examination of the constitutionality of the
Reservation Act 2018. That would require this Court to examine the challenge on
the ground that there has been a violation of the equality code contained in
Articles 14 and 16.
E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act
2018
82 The Statement of Objects and Reasons of the Reservation Act 2018 refers
to the legislative history preceding its enactment. The Ratna Prabha Committee
108 Supra 5 at page 641
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was constituted after the Reservation Act 2002 was held to be invalid in B K
Pavitra I on the ground that no compelling necessity had been shown by the
state to provide for reservation in matters of promotion for SCs and STs by
collecting and analysing relevant data to satisfy the requirements laid out in
Nagaraj. The constitution of the Ratna Prabha Committee was consequent upon
the Reservation Act 2002 having been held to be invalid in B K Pavitra I.
83 The Statement of Objects and Reasons is extracted below, insofar as it is
material:
―The Hon‘ble Supreme Court of India in its judgment dated:
09.02.2017 in the case of BK Pavitra and others Vs Union of
India and others in Civil Appeal No. 2368 of 2011 and
connected matters while dealing with the issue of
consequential seniority provided to the Scheduled Castes and
Scheduled Tribes, having regard to the ratio of the decision of
the Constitution Bench in M.Nagaraj in Writ Petition No. 61 of
2002 has observed that a proper exercise for determining
‗inadequacy of representation‘ ‗backwardness‘ and ‗overall
efficiency‘ is a must for exercise of power under Article 16
(4A). The court held that in the absence of this exercise under
Article 16 (4A) it is the ―catch-up‖ rule that shall be applicable.
Having observed this the Court declared the provisions of
Sections 3 and 4 of the Karnataka Act 10 of 2002 to be ultra
vires of Articles 14 and 16 of the Constitution. The Hon‘ble
Supreme Court directed that revision of the Seniority lists be
undertaken and completed within three months and further
consequential action be taken within the next three months;
In order to comply with the directions of the Hon‘ble Supreme
Court in BK Pavitra and others vs Union of India and others in
Civil Appeal No. 2368 of 2011 the Government has issued
order vide Government order No. DPAR 182 SRR 2011 dated
06.05.2017 to all appointing authorities to revise the seniority
lists;
While in compliance of the Supreme Court order, the
Government considering the need and taking note of the
decision of the Constitution Bench in M Nagaraj, in Writ
Petition No. 61 of 2002, has entrusted the task of conducting
study and submitting a report on the backwardness of the
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90
Scheduled Castes and Scheduled Tribes in the state,
inadequacy of their representation in the State Civil Services
and the effect of reservation in promotion on the State
administration, to the Additional Chief Secretary to
Government in Government order No. DPAR 182 SRR 2011
dated 22.03.2017;
The Additional Chief Secretary to Government with the
assistance of officers from various departments has collated
the scientific, quantifiable and relevant data collected and
having made a detailed study of quantifiable data has
submitted a report on backwardness of Scheduled Castes
and Scheduled Tribes in the state, inadequacy of their
representation in the State Civil Services and the effect of
reservation in promotion on the State administration to the
State Government;
The report confirms the backwardness of the Scheduled
Castes and Scheduled Tribes in the state, inadequacy of their
representation in the State Civil Services and that the overall
efficiency of administration has not been affected or
hampered by extending reservation in promotion to the
Scheduled Castes and Scheduled Tribes in the state and
continuance of reservation in promotion within the limits will
not affect or hamper overall efficiency of administration;‖
84 The first principle of statutory interpretation guides us towards the view that
undoubtedly, the Statement of Objects and Reasons:
(i) Cannot be used for restricting the plain meaning of a legislation109;
(ii) Cannot determine whether a provision is valid110; and
(iii) May not be definitive of the circumstances in which it was passed111
.
[See in this context Welfare Association v Ranjit112].
109 Bhaiji v Sub-Divisional Officer, Thandla : (2003) 1 SCC 692 at page 700, A Manjula Bhashini v A P Monen‘s
Coor. Finance Corp. Ltd. : (2009) 8 SCC 431 at paras 34, 40
110 Kerala State (Electricity) Board v Indian Aluminum : (1976) 1 SCC 466
111 K S Paripoornan v State of Kerala : (1994) 5 SCC 593
112 (2003) 9 SCC 358
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85 The preamble to a law may be a statutory aid to consider the mischief
which the law seeks to address. While it cannot prevail over the provisions of the
statute, it can be an aid to resolve an ambiguity113
.
86 In the course of his submissions, Dr Dhavan has emphasized the ―new
provisions‖ contained in the Reservation Act 2018. These according to him, are:
(i) Section 2 (d) which defines ‗backlog‘;
(ii) Section 5 under which the appointing authority is to revise and redraw the
existing seniority lists;
(iii) Section 7 which deals with the power to remove difficulties;
(iv) Section 8 which provides for the repeal of the Reservation Act 2002; and
(v) Section 9 which is a validating provision.
87 The essential issue which now needs to be addressed by this Court is
whether the basis of the decision in B K Pavitra I has been cured. The decision
of the Constitution Bench in Nagaraj mandates that before the State can take
recourse to the enabling power contained in Clauses (4A) and (4B) of Article 16,
it must demonstrate the existence of ―compelling reasons‖ on three facets: (i)
backwardness; (ii) inadequacy of representation; and (iii) overall administrative
efficiency. In Jarnail, the Constitution Bench clarified that the first of the above
factors – ―backwardness‖ has no application in the case of reservations for the
SCs and STs. Nagaraj to that extent was held to be contrary to the decision of
the larger Bench in Indra Sawhney.
113 Burrakur Coal Co. Ltd. v Union of India : AIR 1961 SC 954 at pages 956-957
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92
E.2 The Ratna Prabha Committee report
88 The decision in B K Pavitra I was rendered on 9 February 2017. The
Ratna Prabha Committee was established on 22 March 2017. Its report was
examined by a Cabinet Sub-Committee on 4 August 2017 and was eventually
approved by the Cabinet on 7 August 2017. The Ratna Prabha Committee report
was commissioned to : (i) collect information on cadre wise representation of SC
and ST employees in all government departments; (ii) collect information on
backwardness of SCs and STs; and (iii) study the effect on the administration due
to the promotion of SCs and STs.
89 Dr Dhavan‘s challenge to the report is basically founded on the following
features:
(i) Only thirty one out of sixty two government departments were examined;
(ii) No data was collected for public sector undertakings, boards, corporations,
local bodies, grant-in-aid institutions and autonomous bodies;
(iii) In PWD and KPTCL, the representation is excessive;
(iv) The data is vacancy based and not post based as required by Sabharwal;
(v) The data is on sanctioned posts and not of filled posts;
(vi) The data is based on grades A, B, C and D and not cadre based; and
(vii) On efficiency, there is only a general reference to the economic
development of the State of Karnataka.
90 Based on the above features, the petitioners have invoked the power of
judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the
constitutional validity of successive constitutional amendments to Article 16
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93
conditional upon the existence of compelling reasons which must be
demonstrated by the State by collecting and analysing relevant data. It is
submitted that the flaws in the report of the Ratna Prabha Committee would
indicate that the compelling reasons which constitute the foundation for the
exercise of the enabling power contained in Article 16 are absent, which must
result in the invalidation of the Reservation Act 2018.
91 Before we deal with the merits of the attack on the Ratna Prabha
Committee report, it is necessary to set down the parameters on which judicial
review can be exercised. Essentially, the exercise which the petitioners require
this Court to undertake is to scrutinize the underlying collection of data by the
State on two facets laid out in Nagaraj, as now clarified by Jarnail: (i) the
adequacy of representation; and (ii) impact on efficiency in administration.
Clause (4) of Article 16 contains an enabling provision to empower the State to
make reservations in appointments or posts in favour of any backward class of
citizens ―which, in the opinion of the State, is not adequately represented in the
services under the State‖. Clause (4A) contains an enabling provision that allows
the state to provide for reservations in promotion with consequential seniority in
posts or classes of posts in services under the State in favour of SCs and STs.
Clause (4A) also uses the expression ―which, in the opinion of the State, are not
adequately represented in the services under the State‖. In Indra Sawhney,
while construing the nature of the satisfaction which has to be arrived at by the
State, this Court held:
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94
―798….The language of clause (4) makes it clear that the
question whether a backward class of citizens is not
adequately represented in the services under the State is a
matter within the subjective satisfaction of the State. This is
evident from the fact that the said requirement is preceded by
the words ―in the opinion of the State‖. This opinion can be
formed by the State on its own, i.e., on the basis of the
material it has in its possession already or it may gather such
material through a Commission/Committee, person or
authority. All that is required is, there must be some material
upon which the opinion is formed. Indeed, in this matter the
court should show due deference to the opinion of the State,
which in the present context means the executive. The
executive is supposed to know the existing conditions in the
society, drawn as it is from among the representatives of the
people in Parliament/Legislature. It does not, however, mean
that the opinion formed is beyond judicial scrutiny altogether.
The scope and reach of judicial scrutiny in matters within
subjective satisfaction of the executive are well and
extensively stated in Barium Chemicals v. Company Law
Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need
not be repeated here. Suffice it to mention that the said
principles apply equally in the case of a constitutional
provision like Article 16 (4) which expressly places the
particular fact (inadequate representation) within the
subjective judgment of the State/executive.‖
114 (Emphasis
supplied)
The above extract from the decision in Indra Sawhney presents two mutually
complementary and reinforcing principles. The first principle is that the executive
arm of the state is aware of prevailing conditions. The legislature represents the
collective will of the people through their elected representatives. The
presumption of constitutionality of a law enacted by a competent legislature
traces itself to the fundamental doctrine of constitutional jurisprudence that the
legislature is accountable to those who elect their representatives. Collectively,
the executive and the legislature are entrusted with the constitutional duty to
114 Supra 13 at page 728
PART E
95
protect social welfare. This Court explained in Amalgamated Tea Estates Co
Ltd v State of Kerala115, the rationale for the principles of constitutionality:
―11.The reason why a statute is presumed to be constitutional
is that the Legislature is the best judge of the local conditions
and circumstances and special needs of various classes of
persons. ―(T)he Legislature is the best judge of the needs of
particular classes and to estimate the degree of evil so as to
adjust its legislation according to the exigency found to
exist.‖116
This principle was reiterated in V C Shukla v State (Delhi Administration)117:
―11…Furthermore, the legislature which is in the best position
to understand the needs and requirements of the people must
be given sufficient latitude for making selection or
differentiation and so long as such a selection is not arbitrary
and has a rational basis having regard to the object of the
Act, Article 14 would not be attracted. That is why this Court
has laid down that presumption is always in favour of the
constitutionality of an enactment and the onus lies upon the
person who attacks the statute to show that there has been
an infraction of the constitutional concept of equality.‖118
92 More recently, this was emphasized in State of Himachal Pradesh v
Satpal Saini119:
―12…The duty to formulate policies is entrusted to the
executive whose accountability is to the legislature and,
through it, to the people. The peril of adopting an incorrect
policy lies in democratic accountability to the people…‖120
115 (1974) 4 SCC 415
116 Ibid at page 420
117 (1980) Supp SCC 249
118 Ibid at page 259
119 (2017) 11 SCC 42
120 Ibid at page 47
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96
93 The second of the reinforcing principles which emerges from Indra
Sawhney is that the opinion of the government on the adequacy of
representation of the SCs and STs in the public services of the state is a matter
which forms a part of the subjective satisfaction of the state. Significantly, the
extract from Indra Sawhney reproduced earlier adverts to the decision in Barium
Chemicals Ltd, which emphasises that when an authority is vested with the
power to form an opinion, it is not open for the court to substitute its own opinion
for that of the authority, nor can the opinion of the authority be challenged on
grounds of propriety or sufficiency. In Nagaraj, while dealing with the parameters
governing the assessment of the adequacy of representation or of the impact on
efficiency, the Constitution Bench held:
―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.
…
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. Equality
in Article 16(1) is individual-specific whereas reservation in
Article 16 (4) and Article 16(4A) is enabling. The discretion of
the State is, however, subject to the existence of
―backwardness‖ and ―inadequacy of representation‖ in public
employment. Backwardness has to be based on objective
factors whereas inadequacy has to factually exist. This is
where judicial review comes in. However, whether
reservation in a given case is desirable or not, as a
policy, is not for us to decide as long as the parameters
mentioned in Articles 16 (4) and 16 (4A) are maintained. As
stated above, equity, justice and merit (Article
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97
335)/efficiency are variables which can only be identified
and measured by the State.
…
102…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.‖
121
(Emphasis supplied)
94 The element of discretion vested in the state governments to determine
adequacy of representation in promotional posts is once again emphasized in the
following extract from the decision in Jarnail:
―35…According to us, Nagaraj has wisely left the test for
determining adequacy of representation in promotional
posts to the States for the simple reason that as the post
gets higher, it may be necessary, even if a proportionality test
to the population as a whole is taken into account, to reduce
the number of Scheduled Castes and Scheduled Tribes in
promotional pots, as one goes upwards. This is for the simple
reason that efficiency of administration has to be looked at
every time promotions are made. As has been pointed out by
B P Jeevan Reddy, J.‘s judgment in Indra Sawhney, there
may be certain posts right at the top, where reservation is
impermissible altogether. For this reason, we make it clear
that Article 16 (4A) has been couched in language which
would leave it to the States to determine adequate
representation depending upon the promotional post that
is in question.‖122
(Emphasis supplied)
95 In dealing with the submissions of the petitioners on this aspect, it is
relevant for this Court to recognize the circumspection with which judicial power
must be exercised on matters which pertain to propriety and sufficiency, in the
context of scrutinizing the underlying collection of data by the State on the
adequacy of representation and impact on efficiency. The Court, is above all,
121 Supra 6 at pages 249-250
122 Supra 49 at page 430
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considering the validity of a law which was enacted by the State legislature for
enforcing the substantive right to equality for the SCs and STs. Judicial review
must hence traverse conventional categories by determining as to whether the
Ratna Prabha Committee report considered material which was irrelevant or
extraneous or had drawn a conclusion which no reasonable body of persons
could have adopted. In this area, the fact that an alternate line of approach was
possible or may even appear to be desirable cannot furnish a foundation for the
assumption by the court of a decision making authority which in the legislative
sphere is entrusted to the legislating body and in the administrative sphere to the
executive arm of the government.
96 On the inadequacy of representation, the summary which emerges from
the Ratna Prabha Committee report is as follows:
―2.5: Summary:
1) The analysis of time series data collected for the last 32
years (1984-2016 except for 1986) across 31 Departments of
the State Government provides the rich information on the
inadequacy of representation of SCs and STs employees in
various cadres of Karnataka Civil Services.
2) The total number of sanctioned posts as per the data of
2016 is 7,45,593 of which 70.22 percent or 5,23,574 are filled
up across 31 Departments.
3) The vacancies or posts are filled up through Direct
Recruitment (DR) and Promotions including consequential
promotion.
4) The overall representation of the SC and ST employees of
all 31 Departments in comparison with total sanctioned posts
comprises of 10.65 per cent and 2.92 per cent respectively.
This proves inadequacy of representation of SCs and STs.
5) On an average the representation in Cadre A for SCs is at
12.07 per cent and STs 2.70 per cent which sufficiently
proves the inadequacy of representation.
6) The extent of representation in Cadre B is on an average
of 9.79 per cent and 2.34 per cent for ST for all the years of
the study period.
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7) It is observed that on an average 3.05 per cent of SC
representation is inadequate in the Cadre ‗C‘ whereas, 0.05
per cent excess representation is seen for ST.
8) On an average of 2 per cent and 1 per cent over
representation of employees of SCs and STs is found in
Cadre D respectively. However, in the last 5 years,
inadequacy of representation of SCs by 3 per cent is found in
this cadre.
9) The representation of Scheduled Caste in Cadre A, B and
C is on an average 12, 9.79 and 12.04 per cent respectively
whereas in Cadre D it is 16.91.
10) In case of STs in the cadres A and B the representation is
2.70 and 2.34 per cent. However, excess representation of
0.04 and 0.93 per cent is found in case of Group C and Group
D respectively.
11) Over representation in some years and departments is
attributed to either Direct Recruitment or retirement of
employees or filling up of backlog vacancies as the later does
not fall under 50 per cent limitation of reservation.
2.6: Conclusion:
The data clearly shows the inadequacy of representation of
SCs and STs in the civil services in Groups A, B and C and
adequate representation in Group D.‖
97 Collection of data and its analysis are governed by varying and often
divergent approaches in the social sciences. An informative treatise on the
subject titled Empirical Political Analysis – Quantitative and Qualitative
Research Methods123 distinguishes between obtaining knowledge and using
knowledge. The text seeks to explain empirical analysis on the one hand and
normative analysis on the other hand:
―Social Scientists distinguish between obtaining knowledge
and using knowledge. Dealing with factual realities is termed
empirical analysis. Dealing with how we should use our
knowledge of the world is termed normative analysis.
Empirical analysis is concerned with developing and
using a common, objective language to describe and explain
reality. It can be quantitative or qualitative. Quantitative
analyses are based on math-based comparisons of the
123 Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B Willnat, Longman
Publishers
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100
characteristics of the various objects or events that we study.
Qualitative analyses are based on the researcher‘s informed
and contextual understanding of objects or events.
Normative analysis is concerned with developing and
examining subjective values and ethical rules to guide us in
judging and applying what we have learned about reality.
Although the emphasis in this book is on empirical analysis, it
seeks to develop an appreciation of the larger, normative
perspective within which knowledge is acquired, interpreted,
and applied through a discussion of the ethics of research.
Normative analysis without an empirical foundation
can lead to value judgments that are out of touch with reality.
Empirical analysis in the absence of sensitivity to normative
concerns, on the other hand, can lead to the collection of
observations whose significance we are not prepared to
understand fully. The objective in undertaking political inquiry
is to draw upon both types of analysis – empirical and
normative – so as to maximize not only our factual
knowledge, but also our ability to use the facts we discover
wisely.‖
98 In supporting the methodology which has been adopted by the Ratna
Prabha Committee, Ms Indira Jaising, learned Senior Counsel emphasized that:
(i) Save and except where a national census is proposed to be conducted,
data collection is based on valid sampling methods on which conclusions
are drawn;
(ii) Research methodology can be qualitative as well as quantitative – the
present case deals with the collection of quantitative data;
(iii) Quantitative data is also collected on the basis of sample surveys. In this
case, the purpose of the study was to collect data on the adequacy of
representation in promotional posts and the sample which was chosen was
a representative sample from which conclusions were drawn; and
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(iv) In the study conducted by the State of Karnataka, statistics of a number of
persons belonging to the SCs and STs in promotional posts were collected
group wise. The groups include cadres. Hence, it stands to reason that if
the data is collected in relation to a group, it will include data pertaining to
cadres as well since, every cadre within the group has been statistically
enquired.
99 We find merit in the above submissions. The methodology which was
adopted by the Ratna Prabha Committee has not been demonstrated to be alien
to conventional social science methodologies. We are unable to find that the
Committee has based its conclusions on any extraneous or irrelevant material. In
adopting recourse to sampling methodologies, the Committee cannot be held to
have acted arbitrarily. If, as we have held above, sampling is a valid methodology
for collection of data, the necessary consequence is that the exercise cannot be
invalidated only on the ground that data pertaining to a particular department or
of some entities was not analysed. The data which was collected pertained to
thirty one departments which are representative in character. The State has
analysed the data which is both relevant and representative, before drawing its
conclusions. As we have noted earlier, there are limitations on the power of
judicial review in entering upon a factual arena involving the gathering, collation
and analysis of data.
100 Dr Dhavan has painstakingly compiled charts for the purpose of his
argument. We may also note at this stage that Ms Jaising in response to the
charts relied upon by Dr Dhavan, also placed on records charts indicating:
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(i) Current representation after demotion of SC and ST employees in the
PWD of Karnataka;
(ii) Percentage of SCs and STs in the post of Executive Engineer without
consequential seniority in the PWD; and
(iii) Corresponding figures in the post of Executive Engineer without
consequential seniority in the PWD.
101 We are of the view that once an opinion has been formed by the State
government on the basis of the report submitted by an expert committee which
collected, collated and analysed relevant data, it is impossible for the Court to
hold that the compelling reasons which Nagaraj requires the State to
demonstrate have not been established. Even if there were to be some errors in
data collection, that will not justify the invalidation of a law which the competent
legislature was within its power to enact. After the decision in B K Pavitra I, the
Ratna Prabha Committee was correctly appointed to carry out the required
exercise. Once that exercise has been carried out, the Court must be
circumspect in exercising the power of judicial review to re-evaluate the factual
material on record.
102 The adequacy of representation has to be assessed with reference to a
benchmark on adequacy. Conventionally, the State and the Central governments
have linked the percentage of reservation for the SCs and STs to their
percentage of population, as a measure of adequacy. The Constitution Bench
noticed this in Sabharwal, where it observed:
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103
―4. When a percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserve points, it
has to be taken that the posts shown at the reserve points are
to be filled from amongst the members of reserve categories
and the candidates belonging to the general category are not
entitled to be considered for the reserved posts. On the other
hand the reserve category candidates can compete for the
non-reserve posts and in the event of their appointment to the
said posts their number cannot be added and taken into
consideration for working out the percentage of reservation.
Article 16 (4) of the Constitution of India permits the State
Government to make any provision for the reservation of
appointments or posts in favour of any Backward Class of
citizens which, in the opinion of the State is not adequately
represented in the Services under the State. It is, therefore,
incumbent on the State Government to reach a conclusion
that the Backward Class/Classes for which the reservation is
made is not adequately represented in the State Services.
While doing so the State Government may take the total
population of a particular Backward Class and its
representation in the State Services. When the State
Government after doing the necessary exercise makes the
reservation and provides the extent of percentage of posts to
be reserved for the said Backward Class then the percentage
has to be followed strictly. The prescribed percentage cannot
be varied or changed simply because some of the members
of the Backward Class have already been
appointed/promoted against the general seats. As mentioned
above the roster point which is reserved for a Backward Class
has to be filled by way of appointment/promotion of the
member of the said class. No general category candidate can
be appointed against a slot in the roster which is reserved for
the Backward Class…‖124
Explaining this further, the Constitution Bench held:
―5...Once the prescribed percentage of posts is filled the
numerical test of adequacy is satisfied and thereafter the
roster does not survive. The percentage of reservation is the
desired representation of the Backward Classes in the State
Services and is consistent with the demographic estimate
based on the proportion worked out in relation to their
population. The numerical quota of posts is not a shifting
boundary but represents a figure with due application of mind.
Therefore, the only way to assure equality of opportunity to
the Backward Classes and the general category is to permit
124 Supra 24 at page 750
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104
the roster to operate till the time the respective
appointees/promotees occupy the posts meant for them in the
roster…‖125
Consequently, it is open to the State to make reservation in promotion for SCs
and STs proportionate to their representation in the general population.
103 One of the submissions which has been urged on behalf of the petitioners
is that the quota has to be reckoned with reference to posts which are actually
filled up or the working strength and not with reference to sanctioned posts. This
submission is answered by the decision in Sabharwal, which holds that the
percentage of reservation has to be worked out in relation to the number of posts
which form part of the cadre strength. The Constitution Bench held:
―6. The expressions ‗posts‘ and ‗vacancies‘, often used in the
executive instructions providing for reservations, are rather
problematical. The word ‗post‘ means an appointment, job,
office or employment. A position to which a person is
appointed. ‗Vacancy‘ means an unoccupied post or office.
The plain meaning of the two expressions make it clear that
there must be a ‗post‘ in existence to enable the ‗vacancy‘ to
occur. The cadre-strength is always measured by the
number of posts comprising the cadre. Right to be
considered for appointment can only be claimed in
respect of a post in a cadre. As a consequence the
percentage of reservation has to be worked out in
relation to the number of posts which form the cadrestrength. The concept of „vacancy‟ has no relevance in
operating the percentage of reservation.‖126 (Emphasis
supplied)
125 Ibid at page 751
126 Ibid at pages 751-752
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105
Similarly, in Nagaraj, the Constitution Bench held:
―83. In our view, 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 upper ceiling limit of 50% is not violated. Further,
roster has to be post-specific and not vacancy based.‖127
Hence, the submission that the quota must be reckoned on the basis of the posts
which are actually filled up and not the sanctioned posts cannot be accepted.
104 We find no merit in the challenge to the Ratna Prabha Committee report on
the ground that the collection of data was on the basis of groups A, B, C and D as
opposed to cadres. For one thing, the expression ‗cadre‘ has no fixed meaning
ascribed to it in service jurisprudence. But that apart, Nagaraj requires the
collection of quantifiable data inter alia, on the inadequacy of representation in
services under the state. Clause 4A of Article 16 specifically refers to the
inadequacy of representation in the services under the state. The collection of
data on the basis of groups A to D does not by its very nature exclude data
pertaining to cadres. The state has studied in the present case the extent of
reservation for SCs and STs in groups A to D, consisting of several cadres.
Since, the group includes posts in all the cadres in that group, it can logically be
presumed that the state has collected quantifiable data on the representation of
SCs and STs in promotional posts in the cadres as well.
127 Supra 6 at page 261
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106
105 Another facet of the matter is that in the judgment of Justice Jeevan Reddy
in Indra Sawhney, it was observed that reservation under Article 16 (4) does not
operate on communal grounds. Hence, if a member belonging to a reserved
category is selected in the general category, the selection would not count
against the quota prescribed for the reserved category. The decision in
Sabharwal also noted that while candidates belonging to the general category
are not entitled to fill reserved posts, reserved category candidates are entitled to
compete for posts in the general category. In several group D posts, such as
municipal sweepers, the sobering experience of administration is that the
overwhelmingly large segment of applicants consists of persons belonging to the
SCs and STs. Over representation in group D posts as a result of candidates
belonging to the general category staying away from those posts cannot be a
valid or logical basis to deny promotion to group D employees recruited from the
reserved category.
F Substantive versus formal equality
106 The core of the present case is based on the constitutional content of
equality.
107 For equality to be truly effective or substantive, the principle must
recognise existing inequalities in society to overcome them. Reservations
are thus not an exception to the rule of equality of opportunity. They are rather
the true fulfilment of effective and substantive equality by accounting for the
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107
structural conditions into which people are born. If Article 16(1) merely postulates
the principle of formal equality of opportunity, then Article 16(4) (by enabling
reservations due to existing inequalities) becomes an exception to the strict rule
of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the
principle of substantive equality (including the recognition of existing inequalities)
then Article 16 (4) becomes the enunciation of one particular facet of the rule
of substantive equality set out in Article 16 (1).
F.I The Constituent Assembly‟s understanding of Article 16 (4)
(I) Reservations to overcome existing inequalities in society
(a) There is substantial evidence that the members of the Constituent
Assembly recognised that (i) Indian society suffered from deep structural
inequalities; and (ii) the Constitution would serve as a transformative document to
overcome them. One method of overcoming these inequalities is reservations for
the SCs and STs in the legislatures and state services. Therefore, for the
members of the Constituent Assembly who supported reservations, a key
rationale for incorporating reservations for SCs and STs in the Constitution
was the existence of inequalities in society based on discrimination and
prejudice within the caste structure. This is evidenced by the statements in
support of reservations for minorities by members. For example, in the context of
legislative reservations for minorities Monomohan Das noted:
―… Therefore, it is evident from the Report of the Minorities
Committee that it is on account of the extremely low
educational and economic conditions of the scheduled castes
and the grievous social disabilities from which they suffer that
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108
the political safeguard of reservation of seats had been
granted to them...‖128
(b) Prof. Yashwant Rai used similar statements to support reservations for
backward communities in employment:
―… Therefore, if you want to give equal status to those
communities which are backward and depressed and on
whom injustice has been perpetrated for thousands of
years and if you want to establish Indian unity, so that the
country may progress and so that many parties in the country
may not mislead the poor, I would say that there should be
a provision in the constitution under which the educated
Harijans may be provided with employment….‖129
(Emphasis supplied)
(II) Recognition of the insufficiency of formal equality by the Constituent
Assembly
108 During the debates on the principles of equality underlying Article 16 (then
draft Article 10), certain members of the Assembly recognised that in order to
give true effect to the principle of equality of opportunity, the Constitution had to
expressly recognise the existing inequalities. For example, Shri Phool Singh
noted:
―… Much has been made of merit in this case; but equal
merit pre-supposes equal opportunity, and I think it goes
without saying that the toiling masses are denied all those
opportunities which a few literate people living in big cities
enjoy. To ask the people from the villages to compete
with those city people is asking a man on bicycle to
compete with another on a motorcycle, which in itself is
128 (Volume XI) Debate on 25 August 1949.
129 (Volume XI) Debate on 23 August 1949.
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109
absurd. Then again, merit should also have some reference
to the task to be discharged…‖
130
(Emphasis supplied)
Similarly, P Kakkam stated,
―… If you take merit alone into account, the Harijans
cannot come forward. I say in this house, that the
Government must take special steps for the reservation of
appointment for the Harijans for same years. I expect the
government will take the necessary steps to give more
appointments in police and military services also...‖131
(Emphasis supplied)
109 By recognising that formal equality of opportunity will be insufficient in
fulfilling the transformative goal of the Constitution, these members recognised
that the conception of equality of opportunity must recognise and account for
existing societal inequalities. The most revealing debates as to how the
Constituent Assembly understood equality of opportunity under the Constitution
took place on 30 November 1948. Members debated draft article 10 (which
would go on to become Article 16 of the Constitution). In these debates, some
members understood sub-clause (4) (providing for reservations) as an exception
to the general rule of formal equality enunciated in sub-clause (1). Illustratively,
an articulation of this position was made by Mohammad Ismail Khan, who stated,
―… There can be only one of these two things--either
there can be clear equal opportunity or special
consideration. Article 10 says there shall be equality of
opportunity, then it emphasises the fact by a negative clause
that no citizen shall be discriminated on account of religion or
race. It is quite good, but when no indication is given whether
this would override article 296 or article 296 is independent of
it, we are certainly left in the lurch. What would be the fate of
the minorities? [Article 296 stated that special
130 (Volume XI) Debate on 23 August 1949.
131 (Volume VII) Debate on 30 May 1948.
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110
considerations shall be shown to minorities to ensure
representation in the services]…‖
132
(Emphasis supplied)
110 Dr B R Ambedkar‘s response summarises the different conceptions of
equality of opportunity that the members of the assembly put forward. Dr
Ambedkar argued that the inclusion of sub-clause (4) was a method of
recognising the demand that mere formal equality in sub-clause (1) would be
insufficient, and a balance between formal equality of opportunity and the needs
of the disadvantaged classes of society was needed. Dr Ambedkar presciently
observed:
―… If members were to try and exchange their views on this
subject, they will find that there are three points of view which
it is necessary for us to reconcile if we are to produce a
workable proposition which will be accepted by all…
The first is that there shall be equality of opportunity for all
citizens. It is the desire of many Members of this House that
every individual who is qualified for a particular post should be
free to apply for that post, to sit for examinations and to have
his qualifications tested so as to determine whether he is fit for
the post or not and that there ought to be no limitations…
Another view mostly shared by a section of the House is that, if
this principle is to be operative--and it ought to be operative in
their judgment to its fullest extent--there ought to be no
reservations of any sort for any class or community at all…
Then we have quite a massive opinion which insists that,
although theoretically it is good to have the principle that
there shall be equality of opportunity, there must at the
same time be a provision made for the entry of certain
communities which have so far been outside the
administration. As I said, the Drafting Committee had to
produce a formula which would reconcile these three points of
view, firstly, that there shall be equality of opportunity,
secondly that there shall be reservations in favour of certain
communities which have not so far had a `proper look-in' so to
say into the administration…
132 (Volume VII) Debate on 30 May 1948.
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111
The view of those who believe and hold that there shall be
equality of opportunity, has been embodied in sub-clause
(1) of Article 10. It is a generic principle. At the same time,
as I said, we had to reconcile this formula with the
demand made by certain communities that the
administration which has now--for historical reasons--
been controlled by one community or a few communities,
that situation should disappear and that the others also
must have an opportunity of getting into the public
services…‖
133
(Emphasis supplied)
F.2 The Constitution as a transformative instrument
111 The Constitution is a transformative document. The realization of its
transformative potential rests ultimately in its ability to breathe life and meaning
into its abstract concepts. For, above all, the Constitution was intended by its
draftspersons to be a significant instrument of bringing about social change in a
caste based feudal society witnessed by centuries of oppression of and
discrimination against the marginalised. As our constitutional jurisprudence has
evolved, the realisation of the transformative potential of the Constitution has
been founded on the evolution of equality away from its formal underpinnings to
its substantive potential.
112 In the context of reservations, the decision in T Devadasan v The Union
of India134 construed Article 16 (4) to be a proviso or an exception to Article 16
(1). In a dissent which embodied a vision statement of the Constitution, Justice
Subba Rao held:
―26. Article 14 lays down the general rule of equality. Article
16 is an instance of the application of the general rule with
133 (Volume VII) Debate on 30 May 1948.
134AIR 1964 SC 179
PART F
112
special reference to opportunity of appointments under the
State. It says that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the State… Centuries of calculated
oppression and habitual submission reduced a considerable
section of our community to a life of serfdom. It would be well
nigh impossible to raise their standards if the doctrine of
equal opportunity was strictly enforced in their case. They
would not have any chance if they were made to enter the
open field of competition without adventitious aids till such
time when they could stand on their own legs. That is why the
makers of the Constitution introduced clause (4) in Article 16.
The expression ―nothing in this article‖ is a legislative device
to express its intention in a most emphatic way that the power
conferred thereunder is not limited in any way by the main
provision but falls outside it. It has not really carved out an
exception, but has preserved a power untrammelled by the
other provisions of the article.‖
113 Subsequently, in N M Thomas, the Constitution Bench adopted an
interpretation of Articles 15 and 16 which recognized these provisions as but a
facet of the doctrine of equality under Article 14. Justice K K Mathew observed:
―78…Article 16(4) is capable of being interpreted as an
exception to Article 16(1) if the equality of opportunity
visualized in Article 16(1) is a sterile one, geared to the
concept of numerical equality which takes no account of the
social, economic, educational background of the members of
Scheduled Castes and Scheduled Tribes. If equality of
opportunity guaranteed under Article 16 (1) means effective
material equality, then Article 16(4) is not an exception to
Article 16(1). It is only an emphatic way of putting the extent
to which equality of opportunity could be carried viz., even up
to the point of making reservation.‖135
In his own distinctive style, Justice Krishna Iyer observed:
―139. It is platitudinous constitutional law that Articles 14 to 16
are a common code of guaranteed equality, the first laying
down the broad doctrine, the other two applying it to sensitive
135 Supra 77 at page 347
PART F
113
areas historically important and politically polemical in a
climate of communalism and jobbery.‖136
This court has set out this latter understanding in several cases including ABS
Sangh (Railways) v Union of India137
.
114 Ultimately, a Bench of nine judges of this Court in Indra Sawhney
recognized that Article 16 (4) is not an exception to but a facet of equality in
Article 16 (1). Justice Jeevan Reddy delivering the judgment of a plurality of four
judges observed:
―741…Article 16(4) is not an exception to Article 16(1) but that
it is only an emphatic way of stating the principle inherent in
the main provision itself...
In our respectful opinion, the view taken by the majority
in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 :
(1976) 1 SCR 906] is the correct one. We too believe that
Article 16(1) does permit reasonable classification for
ensuring attainment of the equality of opportunity assured by
it.‖138
115 Justice Mathew in N M Thomas spoke of the need for proportional equality
as a means of achieving justice. Highlighting the notion that equality under the
Constitution is based on the substantive idea of providing equal access to
resources and opportunities, learned judge observed:
―73. There is no reason why this Court should not also require
the State to adopt a standard of proportional equality which
takes account of the differing conditions and circumstances of
a class of citizens whenever those conditions and
136 Ibid at page 369
137 (1981) 1 SCC 246
138 Supra 13 at page 691
PART G
114
circumstances stand in the way of their equal access to the
enjoyment of basic rights or claims.‖139
Carrying these precepts further Justice S H Kapadia (as the learned judge then
was) speaking for the Constitution Bench in Nagaraj observed:
―51…Therefore, there are three criteria to judge the basis of
distribution, namely, rights, deserts or need. These three
criteria can be put under two concepts of equality— ―formal
equality‖ and ―proportional equality‖. ―Formal equality‖ means
that law treats everyone equal and does not favour anyone
either because he belongs to the advantaged section of the
society or to the disadvantaged section of the society.
Concept of ―proportional equality‖ expects the States to take
affirmative action in favour of disadvantaged sections of the
society within the framework of liberal democracy.‖
140
Social justice, in other words, is a matter involving the distribution of benefits and
burdens.
G Efficiency in administration
116 Critics of affirmative action programs in government services argue that
such programs adversely impact the overall competence or ―efficiency‖ of
government administration. Critics contend that the only method to ensure
―efficiency‖ in the administration of government is to use a ―merit‖ based
approach – whereby candidates that fulfil more, seemingly ―neutral‖, criteria than
others are given opportunities in government services. The constitutional
justification for this ―efficiency‖ argument is centred around Article 335.
139 Supra 77 at page 346
140 Supra 6 at page 250
PART G
115
―335. The claims of the members of the Scheduled Castes
and the Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of
administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State:
[Provided that nothing in this article shall prevent in making of
any provision in favour of the members of the Scheduled
Castes and the Scheduled Tribes for relaxation in qualifying
marks in any examination or lowering the standards of
evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the
affairs of the Union or of a State.].‖
The proviso was inserted by the Constitution (Eighty-second Amendment) Act
2000.
117 The substantive part of Article 335 contains a mandate : a requirement to
take into consideration the claims of SCs and STs in making appointments to
services and posts in connection with the affairs of the Union or of a State.
Consideration is much broader in its ambit than reservation. The consideration of
their claims to appointment is to be in a manner consistent with maintaining the
efficiency of administration. The proviso specifically protects provisions in favour
of the SCs and STs for: (i) relaxing qualifying marks in an examination; (ii)
lowering the standards of evaluation; or (iii) reservation in matters of promotion.
Reservation is encompassed within the special provision but the universe of the
latter is wider.
118 The proviso recognises that special measures need to be adopted for
considering the claims of SCs and STs in order to bring them to a level playing
PART G
116
field. Centuries of discrimination and prejudice suffered by the SCs and STs in a
feudal, caste oriented societal structure poses real barriers of access to
opportunity. The proviso contains a realistic recognition that unless special
measures are adopted for the SCs and STs, the mandate of the Constitution for
the consideration of their claim to appointment will remain illusory. The proviso, in
other words, is an aid of fostering the real and substantive right to equality to the
SCs and STs. It protects the authority of the Union and the States to adopt any of
these special measures, to effectuate a realistic (as opposed to a formal)
consideration of their claims to appointment in services and posts under the
Union and the states. The proviso is not a qualification to the substantive part of
Article 335 but it embodies a substantive effort to realise substantive equality.
The proviso also emphasises that the need to maintain the efficiency of
administration cannot be construed as a fetter on adopting these special
measures designed to uplift and protect the welfare of the SCs and STs.
119 The Constitution does not define what the framers meant by the phrase
―efficiency of administration‖. Article 335 cannot be construed on the basis of a
stereotypical assumption that roster point promotees drawn from the SCs and
STs are not efficient or that efficiency is reduced by appointing them. This is
stereotypical because it masks deep rooted social prejudice. The benchmark for
the efficiency of administration is not some disembodied, abstract ideal measured
by the performance of a qualified open category candidate. Efficiency of
administration in the affairs of the Union or of a State must be defined in an
inclusive sense, where diverse segments of society find representation as a true
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aspiration of governance by and for the people. If, as we hold, the Constitution
mandates realisation of substantive equality in the engagement of the
fundamental rights with the directive principles, inclusion together with the
recognition of the plurality and diversity of the nation constitutes a valid
constitutional basis for defining efficiency. Our benchmarks will define our
outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce
a pattern of governance which is skewed against the marginalised. If this
benchmark of efficiency is grounded in equal access, our outcomes will reflect
the commitment of the Constitution to produce a just social order. Otherwise, our
past will haunt the inability of our society to move away from being deeply
unequal to one which is founded on liberty and fraternity. Hence, while
interpreting Article 335, it is necessary to liberate the concept of efficiency from a
one sided approach which ignores the need for and the positive effects of the
inclusion of diverse segments of society on the efficiency of administration of the
Union or of a State. Establishing the position of the SCs and STs as worthy
participants in affairs of governance is intrinsic to an equal citizenship. Equal
citizenship recognizes governance which is inclusive but also ensures that those
segments of our society which have suffered a history of prejudice, discrimination
and oppression have a real voice in governance. Since inclusion is inseparable
from a well governed society, there is, in our view, no antithesis between
maintaining the efficiency of administration and considering the claims of the SCs
and STs to appointments to services and posts in connection with the affairs of
the Union or of a State.
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120 This part of the philosophy of the Constitution was emphasized in a
powerful exposition contained in the judgment of Justice O Chinnappa Reddy in
K C Vasanth Kumar v State of Karnataka141 (―K C Vasanth Kumar‖). The
learned Judge held:
―35. One of the results of the superior, elitist approach is that
the question of reservation is invariably viewed as the conflict
between the meritarian principle and the compensatory
principle. No, it is not so. The real conflict is between the
class of people, who have never been in or who have already
moved out of the desert of poverty, illiteracy and
backwardness and are entrenched in the oasis of convenient
living and those who are still in the desert and want to reach
the oasis. There is not enough fruit in the garden and so
those who are in, want to keep out those who are out. The
disastrous consequences of the so-called meritarian principle
to the vast majority of the under-nourished, poverty-stricken,
barely literate and vulnerable people of our country are too
obvious to be stated. And, what is merit? There is no merit in
a system which brings about such consequences…‖
142
Speaking of efficiency, the learned Judge held:
―36. Efficiency is very much on the lips of the privileged
whenever reservation is mentioned…
One would think that the civil service is a Heavenly Paradise
into which only the archangels, the chosen of the elite, the
very best may enter and may be allowed to go higher up the
ladder. But the truth is otherwise. The truth is that the civil
service is no paradise and the upper echelons belonging to
the chosen classes are not necessarily models of efficiency.
The underlying assumption that those belonging to the upper
castes and classes, who are appointed to the non-reserved
posts will, because of their presumed merit, ―naturally‖
perform better than those who have been appointed to the
reserved posts and that the clear stream of efficiency will be
polluted by the infiltration of the latter into the sacred
precincts is a vicious assumption, typical of the superior
approach of the elitist classes…‖
143
141 (1985) Supp. SCC 714
142 Ibid at pages 737-738
143 Ibid at page 738
PART G
119
121 The substantive right to equality is for all segments of society. Articles 15
(4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions
of the SCs and STs. While, we are conscious of the fact that the decision in Indra
Sawhney did not accept K C Vasanth Kumar144 on certain aspects, the
observations have been cited by us to explain the substantive relationship
between equal opportunity and merit. It embodies the fundamental philosophy of
the Constitution towards advancing substantive equality.
122 An assumption implicit in the critique of reservations is that awarding
opportunities in government services based on “merit” results in an
increase in administrative efficiency. Firstly, it must be noted that
administrative efficiency is an outcome of the actions taken by officials after they
have been appointed or promoted and is not tied to the selection method itself.
The argument that one selection method produces officials capable of taking
better actions than a second method must be empirically proven based on an
evaluation of the outcomes produced by officials selected through both methods.
Secondly, arguments that attack reservations on the grounds of efficiency equate
―merit‖ with candidates who perform better than other candidates on seemingly
―neutral‖ criteria, e.g. standardised examinations. Thus, candidates who score
beyond a particular ―cut-off point‖ are considered ―meritorious‖ and others are
―non-meritorious‖. However, this is a distorted understanding of the function
―merit‖ plays in society.
144 Supra 139 at paragraph 613
PART G
120
123 As Amartya Sen notes in his chapter on ―Merit and Justice‖,145 the idea of
merit is fundamentally derivative of our views of a good society. Sen notes,
―Actions may be rewarded for the good they do, and a
system of remunerating the activities that generate good
consequences would, it is presumed, tend to produce a better
society. The rationale of incentive structures may be more
complex than this simple statement suggests, but the idea of
merit in this instrumental perspective relates to the motivation
of producing better results. In this view, actions are
meritorious in a derivative and contingent way,
depending on the good they do, and more particularly,
the good that can be brought about by rewarding them….
…The concept of merit is deeply contingent on our views of a
good society. Indeed, the notion of merit is fundamentally
derivative, and thus cannot be qualified and contingent. There
is some elementary tension between (1) the inclination to
see merit in fixed and absolute terms, and (2) the
ultimately instrumental character of merit – its
dependence on the concept of “the good” in the relevant
society.
This basic contrast is made more intense by the tendency, in
practice, to characterise ―merit‖ in inflexible forms reflecting
values and priorities of the past, often in sharp conflict with
conceptions that would be needed for seeing merit in the
context of contemporary objectives and concerns…
Even though the typical “objective functions” that are
implicitly invoked in most countries to define and assess
what is to count as merit tend to be indifferent to (or
negligent of) distributive aspects of outcomes, there is
no necessity to accept that ad hoc characterisation. This
is not a matter of a “natural order” of “merit” that is
independent of our value system….‖ (Emphasis supplied)
124 Once we understand ―merit‖ as instrumental in achieving goods that we as
a society value, we see that the equation of ―merit‖ with performance at a few
narrowly defined criteria is incomplete. A meritocratic system is one that rewards
actions that result in the outcomes that we as a society value.
145 Sen A, Merit and Justice, in Arrow, KJ, MERITOCRACY AND ECONOMIC INEQUALITY (Princeton University Press
2000) (Amartya Sen, Merit and Justice).
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121
125 For example, performance in standardised examinations (distinguished
from administrative efficiency) now becomes one among many of the actions that
the process of appointments in government services seeks to achieve. Based on
the text of Articles 335, Articles 16 (4), and 46, it is evident that the uplifting of the
SCs and STs through employment in government services, and having an
inclusive government are other outcomes that the process of appointments in
government services seeks to achieve. Sen gives exactly such an example.
―If, for example, the conceptualisation of a good society
includes the absence of serious economic inequalities, then
in the characterisation of instrumental goodness,
including the assessment of what counts as merit, note
would have to be taken of the propensity of putative
merit to lessen – or to generate – economic inequality. In
this case, the rewarding of merit cannot be done independent
of its distributive consequences.
…
A system of rewarding of merit may well generate inequalities
of well-being and of other advantages. But, as was argued
earlier, much would depend on the nature of the
consequences that are sought, on the basis of which merits
are to be characterised. If the results desired have a strong
distributive component, with a preference for equality,
then in assessing merits (through judging the generating
results, including its distributive aspects), concerns
about distribution and inequality would enter the
evaluation.‖146
(Emphasis supplied)
Thus, the providing of reservations for SCs and the STs is not at odds with the
principle of meritocracy. ―Merit‖ must not be limited to narrow and inflexible
criteria such as one‘s rank in a standardised exam, but rather must flow from the
actions a society seeks to reward, including the promotion of equality in society
146 Ibid
PART G
122
and diversity in public administration. In fact, Sen argues that there is a risk to
excluding equality from the outcomes.
―In most versions of modern meritocracy, however, the
selected objectives tend to be almost exclusively
oriented towards aggregate achievements (without any
preference against inequality), and sometimes the
objectives chosen are even biased (often implicitly) towards
the interests of more fortunate groups (favouring the
outcomes that are more preferred by ―talented‖ and
―successful‖ sections of the population. This can reinforce
and augment the tendency towards inequality that might
be present even with an objective function that inter alia,
attaches some weight to lower inequality levels.‖
147
(Emphasis supplied)
126 The Proviso to Article 335 of the Constitution seeks to mitigate this risk by
allowing for provisions to be made for relaxing the marks in qualifying exams in
the case of candidates from the SCs and the STs. If the government‘s sole
consideration in appointments was to appoint individuals who were considered
―talented‖ or ―successful‖ in standardised examinations, by virtue of the inequality
in access to resources and previous educational training (existing inequalities in
society), the stated constitutional goal of uplifting these sections of society and
having a diverse administration would be undermined. Thus, a ―meritorious‖
candidate is not merely one who is ―talented‖ or ―successful‖ but also one whose
appointment fulfils the constitutional goals of uplifting members of the SCs and
STs and ensuring a diverse and representative administration.
147 Ibid
PART G
123
127 It is well settled that existing inequalities in society can lead to a seemingly
―neutral‖ system discriminating in favour of privileged candidates. As Marc
Galanter notes, three broad kinds of resources are necessary to produce the
results in competitive exams that qualify as indicators of ―merit‖. These are:
―… (a) economic resources (for prior education, training,
materials, freedom from work etc.); (b) social and cultural
resources (networks of contacts, confidence, guidance and
advice, information, etc.); and (c) intrinsic ability and hard
work...‖ 148
128 The first two criteria are evidently not the products of a candidate‘s own
efforts but rather the structural conditions into which they are born. By the
addition of upliftment of SCs and STs in the moral compass of merit in
government appointments and promotions, the Constitution mitigates the risk that
the lack of the first two criteria will perpetuate the structural inequalities existing in
society.
129 The Ratna Prabha Committee report considers in Chapter III, the
relationship between reservation in promotion and maintenance of efficiency in
administration. Finally, it concludes:
―3.12: Conclusion:
Karnataka has been showing high performance in all the
sectors of development viz., finance, health, education,
industry, services, etc., to support sustainable economic
growth. The analysis on performance of the state in economic
development clearly indicates that reservation in promotions
has not affected the overall efficiency of administration.
148 Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New
Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in
Indian higher education, 40:1 South African Review of Sociology 127-147.
PART H
124
130 Moreover, even in a formal legal sense, promotions, including those in
respect of roster points, are made on the basis of seniority-cum-merit and a
candidate to be promoted has to meet this criteria [See in this context Rule 19(3)
A and D of the Karnataka Civil Services General Recruitment Rules 1977 which
states that subject to other provisions all appointments by promotion shall be on
an officiating basis for a period of one year and at the end of the period of
officiation, if appointing authority considers the person not suitable for promotion,
she/he may be reverted back to the post held prior to the promotion]. A candidate
on promotion has to serve a statutory period of officiation before being confirmed.
This rule applies across the board including to roster point promotees. This
ensures that the efficiency of administration is, in any event, not adversely
affected.
H The issue of creamy layer
131 At the outset, we analyse the submission of Ms Indira Jaising, learned
Senior Counsel that the concept of creamy layer is inapplicable to the SCs and
STs. This submission which has been urged by the learned Counsel is founded
on two hypotheses which we have extracted below from the written submissions:
―(i) This Court in Indra Sawhney seems to suggest that the
creamy layer should be excluded, however there was no
unanimity for determining what is creamy layer. Some judges
took the view that the criteria for creamy layer exclusion is
social advancement (i.e. based on social basis, educational,
and economical basis) and others took the view that it will be
economic basis alone. It is submitted that it must be kept in
mind that the said judgment related only to OBCs; and
(ii) Jarnail is not an authority for the proposition that the
creamy layer principle applies to SCs and STs. It dealt only
PART H
125
with the competence of the Parliament to enact a law in
relation to creamy layer without affecting Articles 341 and
342.‖
132 Dr Dhavan, learned Senior Counsel in his response has urged that the
above submissions are incorrect because:
(i) Indra Sawhney decided the issue of creamy layer as a principle of equality;
and
(ii) Jarnail affirmed that if Nagaraj is rightly applied, creamy layer is a principle
of equality and of the basic structure.
133 Ms Jaising‘s argument is based on the decision in Chinnaiah that the SCs
and STs cannot be split or bifurcated and the adoption of the creamy layer
principle would amount to a spilt in the homogenous groups of the SCs and STs.
This argument according to Dr Dhavan, was rejected in Jarnail by the
Constitution Bench.
134 As a Bench of two judges we are bound by the decision in Indra Sawhney
as indeed, we are by the construction placed on that decision by the Constitution
Benches in Nagaraj and Jarnail. Construing the decision in Indra Sawhney.
Nagaraj held:
―120…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 [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1
: (1992) 22 ATC 385] all the Judges except Pandian, J. held
that the ―means test‖ should be adopted to exclude the
PART H
126
creamy layer from the protected group earmarked for
reservation. In Indra Sawhney [1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] 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 [1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] . 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 [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1
: (1992) 22 ATC 385] 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.‖149
Then again, in paragraphs 121, 122 and 123, the Constitution Bench held:
―121. The impugned constitutional amendments by which
Articles 16 (4A) and 16 (4B) have been inserted flow from
Article 16(4). They do not alter the structure of Article 16(4).
They retain the controlling factors or the compelling reasons,
namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in
mind the overall efficiency of the State administration under
Article 335. These impugned amendments are confined only
to SCs and STs. They do not obliterate any of the
constitutional requirements, namely, ceiling limit of 50%
(quantitative limitation), the concept of creamy layer
(qualitative exclusion), the sub-classification between OBCs
on one hand and SCs and STs on the other hand as held
in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] , the concept of post-based
roster with inbuilt concept of replacement as held in R.K.
Sabharwa [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995)
29 ATC 481] .
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
149 Supra 6 at pages 277-278
PART H
127
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity in Article
16 would collapse.
123. However, in this case, as stated above, the main issue
concerns the ―extent of reservation‖. In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before
making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not
bound to make reservation for SCs/STs in matters of
promotions. However, if they wish to exercise their discretion
and make such provision, the State has 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 is 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.‖150
135 The reference before the Constitution Bench in Jarnail arose out of an
initial reference by a two judge Bench in State of Tripura v Jayanta
Chakraborty (―State of Tripura‖)151 and then by a three judge Bench in State of
Maharashtra v Vijay Ghogre152
. The order in State of Tripura states:
―2…However, apart from the clamour for revisit, further
questions were also raised about application of the principle
of creamy layer in situations of competing claims within the
same races, communities, groups or parts thereof of SC/STs
notified by the President under Articles 341 and 342 of the
Constitution of India.‖153
136 Before the Constitution Bench in Jarnail, the learned Attorney General
specifically raised the following arguments:
150 Ibid at pages 278 -280
151 (2018) 1 SCC 146
152 (2018) 15 SCC 64
153 Supra 149 at pages 147-148
PART H
128
―3…according to the learned Attorney General, the creamy
layer concept has not been applied in Indra Sawhney
(1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
: 1992 SCC (L&S) Supp 1] to the Scheduled Castes and the
Scheduled Tribes and Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has misread
the aforesaid judgment to apply this concept to the Scheduled
Castes and the Scheduled Tribes. According to the learned
Attorney General, once the Scheduled Castes and the
Scheduled Tribes have been set out in the Presidential List,
they shall be deemed to be Scheduled Castes and Scheduled
Tribes, and the said List cannot be altered by anybody except
Parliament under Articles 341 and 342. The learned Attorney
General also argued that Nagaraj [M. Nagaraj v. Union of
India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does
not indicate any test for determining adequacy of
representation in service. According to him, it is important that
we lay down that the test be the test of proportion of
Scheduled Castes and Scheduled Tribes to the population in
India at all stages of promotion, and for this purpose, the
roster that has been referred to in R.K. Sabharwal v. State of
Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745
: 1995 SCC (L&S) 548] can be utilised. Other counsel who
argued, apart from the learned Attorney General, have, with
certain nuances, reiterated the same arguments.‖154
The decision in Jarnail specifically addressed the issue of creamy layer:
―28. Therefore, when Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] 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 (4A) and
16 (4B), 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 revisited, and consequently, there is no need to
refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212
: (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We
may also add at this juncture that Nagaraj [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC
(L&S) 1013] 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…‖
155
154 Supra 49 at pages 407-408
155 Ibid at page 426
PART H
129
Justice Rohinton Nariman speaking for the Constitution Bench in Jarnail
explained the reason for applying the creamy layer principle:
―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.‖
137 We are thus unable to subscribe to the submission that Jarnail is not per
curium on the issue of creamy layer. For one thing, Jarnail specifically examined
the decision in Indra Sawhney, noticing that eight of the nine learned Judges
applied the creamy layer principle as a facet of the larger equality principle. In
fact, the decision in Indra Sawhney II v Union of India156 (―Indra Sawhney II‖)
summarised the judgments in Indra Sawhney I on the aspect of creamy layer.
The judgment in Jarnail approved Indra Sawhney II when it held that the creamy
layer principle sounds in Articles 14 and 16 (1):
―12. In para 27 of the said judgment, the three-Judge Bench
of this Court clearly held that the creamy layer principle
sounds in Articles 14 and 16(1) as follows: [Indra Sawhney
(2) case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC
168 : 2000 SCC (L&S) 1] , SCC p. 190, para 27]
―(i) Equals and unequals, twin aspects
27. As the ―creamy layer‖ in the backward class is to
be treated ―on a par‖ with the forward classes and is
not entitled to benefits of reservation, it is obvious that
if the ―creamy layer‖ is not excluded, there will be
discrimination and violation of Articles 14 and 16(1)
inasmuch as equals (forwards and creamy layer of
Backward Classes) cannot be treated unequally.
Again, non-exclusion of creamy layer will also be
violative of Articles 14, 16(1) and 16(4) of the
Constitution of India since unequals (the creamy
layer) cannot be treated as equals, that is to say,
equal to the rest of the backward class…
156 (2000)1 SCC 168
PART H
130
Thus, any executive or legislative action refusing to exclude
the creamy layer from the benefits of reservation will be
violative of Articles 14 and 16(1) and also of Article 16(4). We
shall examine the validity of Sections 3, 4 and 6 in the light of
the above principle. (emphasis in original)‖
157
Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of
legislative competence on the part of the State legislatures to create subcategories among the Presidential lists under Articles 341 and 342. The decision
in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on
which the constitutional amendments were upheld in Nagaraj and hence it was
not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter,
we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds
that the creamy layer principle is a principle of equality.
138 Though, we have not accepted the above submission which was urged by
Ms Jaising on behalf of the intervenors, we will have to decide as to whether the
Reservation Act 2018 is unconstitutional. The challenge in the present case is to
the validity of the Reservation Act 2018 which provides for consequential
seniority. In other words, the nature or extent of reservation granted to the SCs
and STs at the entry level in appointment is not under challenge. The
Reservation Act 2018 adopts the principle that consequential seniority is not an
additional benefit but a consequence of the promotion which is granted to the
SCs and STs. In protecting consequential seniority as an incident of promotion,
the Reservation Act 2018 constitutes an exercise of the enabling power conferred
by Article 16 (4A). The concept of creamy layer has no relevance to the grant of
157 Supra 49 at page 415
PART H
131
consequential seniority. There is merit in the submission of the State of
Karnataka that progression in a cadre based on promotion cannot be treated as
the acquisition of creamy layer status. The decision in Jarnail rejected the
submission that a member of an SC or ST who reaches a higher post no longer
has a taint of untouchability or backwardness. The Constitution Bench declined to
accept the submission on the ground that it related to the validity of Article 16
(4A) and held thus:
―34…We may hasten to add that Shri Dwivedi‘s argument
cannot be confused with the concept of ―creamy layer‖ which,
as has been pointed out by us hereinabove, applies to
persons within the Scheduled Castes or the Scheduled Tribes
who no longer require reservation, as opposed to posts
beyond the entry stage, which may be occupied by
members of the Scheduled Castes or the Scheduled
Tribes.‖
158
(Emphasis supplied)
139 In sustaining the validity of Articles 16 (4A) and 16 (4B) against a
challenge of violating the basic structure, Nagaraj applied the test of width and
the test of identity. The Constitution Bench ruled that the catch-up rule and
consequential seniority are not constitutional requirements. They were held not to
be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not
constitutional limitations or principles but are concepts derived from service
jurisprudence. Hence, neither the obliteration of those concepts nor their insertion
would violate the equality code contained in Articles 14, 15 and 16. The principle
postulated in Nagaraj is that consequential seniority is a concept purely based in
service jurisprudence. The incorporation of consequential seniority would hence
not violate the constitutional mandate of equality. This being the true
158 Supra 49 at page 430
PART I
132
constitutional position, the protection of consequential seniority as an incident of
promotion does not require the application of the creamy layer test. Articles 16
(4A) and 16 (4B) were held to not obliterate any of the constitutional limitations
and to fulfil the width test. In the above view of the matter, it is evident that the
concept of creamy layer has no application in assessing the validity of the
Reservation Act 2018 which is designed to protect consequential seniority upon
promotion of persons belonging to the SCs and STs.
I Retrospectivity
140 Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June
1995. The other provisions came into force ―at once‖ as provided in Section 1(2).
Section 4 stipulates that the consequential seniority already granted to
government servants belonging to the SCs and STs in accordance with the
reservation order with effect from 27 April 1978 shall be valid and shall be
protected. In this context, we must note from the earlier decisions of this Court
that:
(i) The decision in Virpal Singh held that the catch-up rule would be applied
only from 10 February 1995 which was the date of the judgment in
Sabharwal;
(ii) The decision in Ajit Singh II specifically protected the promotions which were
granted before 1 March 1996 without following the catch-up rule; and
PART J
133
(iii) In Badappanavar, promotions of reserved candidates based on
consequential seniority which took place before 1 March 1996 were
specifically protected.
141 Since promotions granted prior to 1 March 1996 were protected, it was
logical for the legislature to protect consequential seniority. The object of the
Reservation Act 2018 is to accord consequential seniority to promotees against
roster points. In this view of the matter, we find no reason to hold that the
provisions in regard to retrospectivity in the Ratna Prabha Committee report are
either arbitrary or unconstitutional.
142 The benefit of consequential seniority has been extended from the date of
the Reservation Order 1978 under which promotions based on reservation were
accorded.
J Over representation in KPTCL and PWD
143 The Ratna Prabha Committee collected data from thirty one departments
of the State Government of Karnataka. It has been pointed out on behalf of the
State that corporations such as KPTCL and other public sector undertakings fall
within the administrative control of one of the departments of the State
government. The position in thirty one departments was taken as representative
of the position in public employment under the State. The over representation in
KPTCL and PWD has been projected by the petitioners with reference to the total
number of posts which have been filled. On the other hand, the quota is fixed and
the roster applies as regards the total sanctioned posts as held in Sabharwal and
PART K
134
Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates
that if consequential seniority is not allowed, there would be under representation
of the reserved categories. Finally, it may also be noted that under the
Government Order dated 13 April 1999, reservation in promotion in favour of SC‘s
and ST‘s has been provided until the representation for these categories reaches
15 per cent and 3 per cent, respectively. The State has informed the Court that
the above Government Order is applicable to KPTCL and PWD, as well.
K Conclusion
144 For the above reasons, we have come to the conclusion that the challenge
to the constitutional validity of the Reservation Act 2018 is lacking in substance.
Following the decision in B K Pavitra I, the State government duly carried out the
exercise of collating and analysing data on the compelling factors adverted to by
the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the
deficiency which was noticed by B K Pavitra I in respect of the Reservation Act
2002. The Reservation Act 2018 does not amount to a usurpation of judicial
power by the state legislature. It is Nagaraj and Jarnail compliant. The
Reservation Act 2018 is a valid exercise of the enabling power conferred by
Article 16 (4A) of the Constitution.
145 We therefore find no merit in the batch of writ petitions as the constitutional
validity of the Reservation Act 2018 has been upheld. They shall stand
dismissed. Accordingly, the review petitions and miscellaneous applications shall
PART K
135
also stand dismissed in view of the judgment in the present case. There shall be
no order as to costs. All pending applications are disposed of.
146 Before concluding, the Court records its appreciation of the erudite
submissions of the learned Counsel who have ably assisted the Court. We
deeply value the assistance rendered by Dr Rajeev Dhavan and Mr Shekhar
Naphade, learned Senior Counsel and Mr Puneet Jain, learned Counsel who led
the arguments on behalf of the Petitioners. We acknowledge the valuable
assistance rendered to the Court by Ms Indira Jaising, Mr Basava Prabhu S Patil,
Mr Dinesh Dwivedi, Mr Nidhesh Gupta and Mr V Lakshminarayana, learned
Senior Counsel.
…...…..…....…........……………….…........J.
[Uday Umesh Lalit]
.…….……...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
New Delhi;
May 10, 2019.
