Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2368 OF 201 1

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 27

th

April, 1978 onwards.

Page 2 2

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

19

th

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 :

1

(2006) 8 SCC 212

2

Para 124 of ‘M. Nagaraj’ (supra)

3

Vide order of this Court dated 18

th

March, 2010

Page 3 3

“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 27

th

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

⅔

%. A roster of 33 points was issued applicable to each cadre of posts

under each appointing authority. Prior to 1

st

April, 1992, there was no

carry forward system of the vacancies. It was introduced on 1

st

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

Page 4 4

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-chief44.44%

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 1

st

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.

4

(2001) 2 SCC 666

5

(1996) 2 SCC 715

6

(1999) 7 SCC 209

Page 5 5

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 1

st

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 24

th

June,

1997 was issued for fixation of seniority of SC/ST candidates promoted

7

(1995) 2 SCC 745

8

(1997) 2 SCC 661

Page 6 6

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 85

th

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

9

(1995) 6 SCC 684

Page 7 7

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 85

th

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

27

th

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 3

rd

February, 1999, the policy was modified to

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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

⅔

%. The said order was further amended on 13

th

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 24

th

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

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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.

10

(2012) 7 SCC 1

Page 10 10

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

11

(2003) 5 SCC 604

Page 11 11

disturbed. The roster points ensured that there was no excessive

representation in different cadres of service. In view of Government

Order dated 3

rd

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 31

st

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

27

th

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 (85

th

Amendment) Act, 2001 permitting consequential seniority in the case of

promotion on the basis of reservation. It states that to remove any

Page 12 12

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 27

th

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

Page 13 13

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. “

Page 14 14

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),

85

th

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

12

(2011) 1 SCC 467

Page 15 15

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 77

th

, 81

st

, 82

nd

and 85

th

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 :

Page 16 16

“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

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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

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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

Page 19 19

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

Page 20 20

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).

Page 21 21

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

Page 22 22

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

Page 23 23

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 25

th

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. 28

th

December, 2002. The

notification purported to give consequential seniority to candidates

belonging to SCs and STs who got roster point promotions. The

Page 24 24

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.”

Page 25 25

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

13

(2011) 3 All LJ 343

14

(2011) 1 All LJ 428

15

(1992) Supp. (3) SCC 217

Page 26 26

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:

16

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)

Page 27 27

(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

Page 28 28

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.”

Page 29 29

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

Page 30 30

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

17

(2015) 12 SCC 308

Page 31 31

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.”

Page 32 32

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

18

(2015) 1 SCC 292

Page 33 33

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

Page 34 34

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

Page 35 35

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