B.K.PAVITRA & ORS. Vs. UNION OF INDIA & ORS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 2368 of 2011, Judgment Date: Feb 09, 2017

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

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

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2368 OF 2011

B.K. PAVITRA & ORS. …APPELLANTS

VERSUS

UNION OF INDIA & ORS. ...RESPONDENTS

WITH

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

J U D G M E N T

ADARSH KUMAR GOEL, J

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

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

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

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

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

EE Cadre 19.9%

SE Cadre 23.95%

CE Cadre 4.3% (being a selection post)

Engineer-in-chief 44.44%

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxxx

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

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

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

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

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

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

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

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

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

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

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

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

xxxxx

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

xxxxx

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

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

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

xxxxx

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

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

xxxx

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

xxxx

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

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

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

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

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

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

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

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

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

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

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

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

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

xxxx

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

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

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

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

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

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

[2] (2006) 8 SCC 212
[3]

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

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

[8] (2001) 2 SCC 666
[9]

[10] (1996) 2 SCC 715
[11]

[12] (1999) 7 SCC 209
[13]

[14] (1995) 2 SCC 745
[15]

[16] (1997) 2 SCC 661
[17]

[18] (1995) 6 SCC 684
[19]

[20] (2012) 7 SCC 1
[21]

[22] (2003) 5 SCC 604
[23]

[24] (2011) 1 SCC 467
[25]

[26] (2011) 3 All LJ 343
[27]

[28] (2011) 1 All LJ 428
[29]

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

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

[34] (2015) 12 SCC 308
[35]

[36] (2015) 1 SCC 292

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