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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     2608     OF     2011   

U.P. Power Corporation Ltd.       ... Appellant

Versus

Rajesh Kumar & Ors. … Respondents

WITH

CIVIL     APPEAL     NO.     4009____     OF     2012   (arising out of SLP (C) No. 10217/2011)

WITH CIVIL     APPEAL     NO.     _4022___     OF     2012   

(arising out of SLP (C) No. 15114/2011) WITH

CIVIL     APPEAL     NOS.     ___4027-4029_     OF     2012      (arising out of SLP (C) Nos. 20577-20579/2011)

WITH CIVIL APPEAL NOS. 2605 OF 2011, 2607/2011, 2609/2011,  2610/2011, 2614/2011, 2616/2011, 2629/2011, 2675/2011,  2676/2011, 2677/2011, 2678/2011, 2679/2011, 2729/2011,  

2730/2011, 2737/2011 WITH

CIVIL     APPEAL     NO.     4023     OF     2012      (arising out of SLP(C ) No. 14188 OF 2012 (CC 4420/2011)

WITH CIVIL     APPEAL     NO.     4024     OF     2012      

(arising out of SLP(C ) No.14189/2012 (CC 4421/2011) WITH

CIVIL     APPEAL     NO.     4025     OF     2012   (arising out of SLP(C ) No.14190/2012 (CC 4431/2011)

WITH CIVIL APPEAL NO. 4691 OF 2011

WITH CIVIL APPEAL NO. 4697 OF 2011

WITH CIVIL APPEAL NO. 4699 OF 2011

WITH CIVIL     APPEAL     NO.4026     OF     2012   

(arising out of SLP(C ) No. 14191 OF 2012 (CC 5070/2011) WITH

CIVIL     APPEAL     NO.     4016     OF     2012      (arising out of SLP(C) No.14179/2012 (CC 5580/2011)

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WITH CIVIL     APPEAL     NO.4021     OF     2012      

(arising out of SLP(C ) No.14184/2012 (CC 6362/2011) WITH

CIVIL     APPEAL     NO.     4017     OF     2012      (arising out of SLP(C ) No. 14181/2012 (CC 6482/2011)

WITH CIVIL     APPEAL     NO.     4018     OF     2012      

(arising out of SLP(C ) No. 14182/2012 (CC 7037/2011) WITH

CIVIL     APPEAL     NO.4019     OF     2012      (arising out of SLP(C ) No. 14183/2012 (CC 7042/2011)

WITH CIVIL     APPEAL     NO.     4020OF     2012      

(arising out of SLP(C ) No.14184/2012 (CC 7058/2011) WITH

CIVIL     APPEAL     NO.4030     OF     2012      (arising out of SLP(C) No. 30325/2011)

WITH CIVIL     APPEAL     NO.     4031     OF     2012      

(arising out of SLP(C ) No. 30326/2011) WITH

CIVIL     APPEAL     NO.4032     OF     2012      (arising out of SLP(C ) No. 30327/2011)

WITH CIVIL     APPEAL     NO.4033     OF     2012      

(arising out of SLP(C ) No. 30692/2011 WITH

CIVIL     APPEAL     NO.4034     OF     2012      (arising out of SLP(C ) No. 30696/2011)

AND

CIVIL     APPEAL     No.     2622     OF     2011   

State of U.P.        ...  Appellant

Versus

Brij Bhushan Sharma & Anr. … Respondents

WITH

CIVIL APPEAL NO. 2611 OF 2011 WITH

CIVIL APPEAL NO. 2612/2011

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WITH CIVIL APPEAL NO. 2613 OF 2011

WITH CIVIL APPEAL NO. 2623 OF 2011

WITH CIVIL APPEAL NO. 2624 OF 2011

WITH CIVIL APPEAL NO. 2682-2683 OF 2011

WITH CIVIL APPEAL NO. 2684 OF 2011

WITH CIVIL APPEAL NO. 2881 OF 2011

WITH CIVIL APPEAL NO. 2884-2885 OF 2011

WITH CIVIL APPEAL NO. 2886 OF 2011

WITH CIVIL APPEAL NO. 2908 OF 2011

WITH CIVIL APPEAL NO. 2909 OF 2011

WITH CIVIL APPEAL NOS. 2944-2945 OF 2011

CIVIL APPEAL NO. 66 OF 2012

WITH

CIVIL     APPEAL     NO.4067/2012      (arising out of SLP(C ) No.14207/2012 (CC 17243/2011)

J     U     D     G     M     E     N     T      

Dipak      Misra,     J.   

Leave granted in Special Leave Petitions.

2. The controversy pertaining to reservation in promotion for  

the Scheduled Castes and Scheduled Tribes with consequential  

seniority as engrafted under Articles 16(4A) and 16(4B) and the

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facet of relaxation grafted by way of a proviso to Article 335 of the  

Constitution of India being incorporated by the Constitution  

(Seventy-seventh Amendment) Act, 1995, the Constitution (Eight-

first Amendment) Act, 2000, the Constitution (Eighty-second  

Amendment) Act, 2000 and the Constitution (Eighty-fifth  

Amendment) Act, 2001 at various stages having withstood  

judicial scrutiny by the dictum in M. Nagaraj v. Union of  

India1, the issue of implementation of the same through existing  

statutory enactment by the State Legislature and the subsequent  

rules framed by the authorities of the State or concerned  

corporation of the State of Uttar Pradesh, has, as the learned  

counsel appearing for both sides in their astute and penetrating  

manner have pyramided the concept in its essentiality, either  

appeared too simple that simplification may envy or so complex  

that it could manifest as the reservoir of imbalances or a  

sanctuary of uncertainties.  Thus, the net result commands for  

an endeavour for a detailed survey of the past and casts an  

obligation to dwell upon the controversy within the requisite  

parameters that are absolutely essential for adjudication of the  

lis emanated in praesenti.  

1 (2006) 8 SCC 212 : AIR 2007 SC 71

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THE     FACTUAL     EXPOSE  ’   

3. Extraordinary and, in a way, perplexing though it may  

seem, yet as the factual scenario pronouncedly reveals, the assail  

in some of the appeals of this batch of appeals is to the judgment  

and order passed by the Division Bench of the High Court of  

Judicature at Allahabad in Writ Petition No. 63217 of 2010  

(Mukund Kumar Srivastava vs. State of U.P. and Another)  

upholding the validity of the provisions contained in Rule 8-A of  

the U.P. Government Servants Seniority Rules, 1991 (for brevity  

‘the 1991 Rules’) that were inserted by the U.P. Government  

Servants Seniority (3rd Amendment) Rules, 2007 by the  

employees-appellants and in some of the appeals, the challenge  

by the State Government and the U.P. Power Corporation Ltd. (for  

short ‘the Corporation’) is to the judgment and order passed by  

the Division Bench of the High Court of Judicature at Allahabad,  

Lucknow Bench, Lucknow, in Writ Petition No. 1389 (S/B) of  

2007 (Prem Kumar Singh and others v. State of U.P. and others)  

and other connected writ petitions holding, inter alia, that the  

decision rendered by the Division Bench in the case of Mukund  

Kumar Srivastava (supra) at Allahabad is per incuriam and not a  

binding precedent and further Section 3(7) of the Uttar Pradesh

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Public Servants (Reservation for Scheduled Castes, Scheduled  

Tribes and other Backward Classes) Act, 1994 (for short ‘the  

1994 Act’) and Rule 8A of the 1991 Rules, as brought into force  

in 2007, are invalid, ultra vires and unconstitutional and, as a  

necessary corollary, the consequential orders relating to seniority  

passed by the State Government deserved to be quashed and,  

accordingly, quashed the same and further clarified that in case  

the State Government decides to provide reservation in promotion  

to any class or classes of posts in the services under the State, it  

is free to do so after undertaking the exercise as required under  

the constitutional provisions keeping in mind the law laid down  

by this Court in M. Nagraj (supra).  It has been directed that till  

it is done, no reservation in promotion on any post or classes of  

posts under the services of the State including the Corporation  

shall be made hence forth.  However, the Division Bench  

observed that the promotions already made as per the  

provisions/Rules where the benefit of Rule 8A has not been given  

while making the promotion shall not be disturbed.   

4. The cleavage has invited immense criticism by the learned  

senior counsel appearing for both sides on principles of judicial  

discipline, decorum, propriety and tradition.  Initially the debate

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centred around the concept of precedent and the duties of the  

Benches but gradually it was acceded to, absolutely totally being  

seemly, to decide the controversy on merits instead of a remit  

and, accordingly, the learned counsel for the parties addressed  

the Court at length.  As advised, we shall dwell upon the merits  

of the controversy but we shall not abdicate our responsibility to  

delve into the first issue, i.e., judicial discipline as we are inclined  

to think that it is the duty, nay, obligation in the present case to  

do so because despite repeated concern shown by this Court, the  

malady subsists, making an abode of almost permanency.  Ergo,  

we proceed to state the facts on the first issue and our opinion  

thereon and, thereafter, shall deal with the assail and attack on  

both the judgments on merits.

5. One Rajesh Kumar and two others, the private respondents  

in the appeal preferred by the Corporation, filed Writ Petition No.  

146     (S/B)     of     2009   at the Lucknow Bench of the High Court of  

Judicature at Allahabad seeking declaration to the effect that  

Rule 8A of the 1991 Rules and the resolution passed by the  

Corporation are ultra vires. That apart, the assail was to the  

constitutional validity of Section 3(7) of the 1994 Act on the  

foundation that the State Government in gross violation of the

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constitutional provisions enshrined under Articles 16(4A) and  

16(4B) and the interpretation placed thereon by the Constitution  

Bench in M. Nagraj (supra) has framed the Rules and the  

Corporation has adopted the same by amending its Rules and  

introduced the concept of reservation in promotion with  

accelerated seniority.

6. It was contended before the Lucknow Bench that neither the  

State Government nor the Corporation had carried out the  

exercise as per the decision in M. Nagraj (supra) and in the  

absence of the same, the provisions of the Act and the Rules  

caused discomfort to the constitutional provisions.  The stand  

and stance put forth by the writ petitioners was combated by the  

Corporation contending, inter alia, that the Scheduled Castes  

and Scheduled Tribes were inadequately represented in the  

service and the chart wise percentage of representation to direct  

recruitment of reserved categories incumbents would clearly  

reflect the inadequacy.  We are not referring to the pleadings in  

detail as that will be adverted to at a later stage.  Suffice to say at  

present, in view of the assertions made by the parties and the  

records produced the Division Bench framed the question for  

determination whether Rule 8-A of the Rules is ultra vires and

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unconstitutional.  During the course of hearing of the writ  

petition, the Corporation brought to the notice of the Division  

Bench at Lucknow the judgment dated 21.10.2010 passed by the  

Division Bench at Allahabad in Writ Petition No. 63127 of 2010  

(Mukund Kumar Srivastava v. State of U.P. and another).  It was  

urged that the same was a binding precedent and, therefore, the  

Division Bench was bound to follow the same.  But, the Bench  

hearing the writ petition declared the said decision as not binding  

and per incuriam as it had not correctly interpreted, appreciated  

and applied the ratio laid down in M. Nagraj (supra) and, on that  

base, declared Section 3(7) of the 1994 Act and Rule 8A of the  

1991 Rules as unconstitutional and issued the directions as have  

been stated hereinbefore.

7. It is the admitted position at the Bar that certain writ  

petitions were filed at Lucknow Bench and they were being  

heard.  They were filed on earlier point of time and were being  

dealt with on merits by the concerned Division Bench.  At that  

juncture, the Division Bench at Allahabad entertained Writ  

Petition No. 63127 of 2010.  The Bench was of the view that  

without calling for a counter affidavit from any of the  

respondents the writ petition could be decided.  Be it noted, the

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petitioner therein was an Executive Engineer in Rural  

Engineering Service at Sonebhadra Division and had challenged  

the seniority list of Executive Engineers of Rural Engineering  

Service published vide Office Memorandum No. 2950/62-3-2010-

45-RES/2010 dated 8.9.2010 and further sought declaration of  

Rule 8A of the 2007 Rules as unconstitutional.  A prayer for  

issue of a writ of mandamus was sought not to proceed with and  

promote any person on the next higher post on the basis of the  

impugned seniority list of Executive Engineers of Rural  

Engineering Service.  The Bench, as is manifest from the order,  

adverted to the facts and then dwelled upon the validity of the  

Rules.  It scanned Rules 6, 7, 8 and 8A and referred to the  

decision of this Court in Indra Sawhney etc. v. Union of India  

and others2, Section 3 of the 1994 Act, Article 335 of the  

Constitution and quoted in extenso from M. Nagraj (supra) and  

came to hold as follows: -

“The Constitutional validity of Amending Act 77th  Amendment Act 1995 and 85th Amendment Act  2001 whereby clause (4A) has been inserted after  clause (4) under the Article 16 of the Constitution  has already been upheld by the Constitution  Bench of Hon’ble Apex Court in M. Nagraj case  (supra) holding that neither the catch up rule nor  the Constitutional seniority is implicit in Clause  

2 1992 Supp. (3) SCC 217 : AIR 1993 SC 477

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(1) and Clause (4) of Article 16 rather the concept  of catch up rule and consequential seniority are  judicially evolved concepts to control the extent of  reservation.  The source of these concepts is in  service jurisprudence.  These concepts cannot be  elevated to the status of an axiom, like  secularism, constitutional sovereignty, equality  code etc. forming basic structure of the  Constitution.  It cannot be said that by insertion  of concept of consequential seniority the  structure of Article 16 stands destroyed or  abrogated. It cannot be said that equality code  contained under Articles 14, 15, 16 is violated by  deletion of catch-up rule.

We are bound by the aforesaid decision of  Hon’ble Apex Court in M. Nagraj case (supra).  Therefore, there can be no scope for doubt to  hold that deletion of catch-up rule and conferring  the benefits of consequential seniority upon the  members of SC and ST on account of reservation  in promotion in a particular service or grade or  post has any way obliterated the equality code  contained under Articles 14, 15 and 16 of the  Constitution as concept of catch-up rule of  seniority does not directly flow from Article 16(1)  and (4) of the Constitution of India.  We are of the  considered opinion that Rule 8A of 1991 Rules  has merely effectuated the provisions contained  under Article 16(4A) of the Constitution of India  whereby benefit of consequential seniority has  been given to the members of scheduled castes  and scheduled tribes due to reservation/roster in  promotion by obliterating the concept of catch-up  Rule of seniority.  Rule 8A of 1991 Rules  specifically stipulates that if any member of  scheduled castes or scheduled tribes is promoted  on any post or grade in service earlier to other  categories of persons, the member of SC/ST shall  be treated to be senior to such other categories of  persons who are promoted subsequently after  promotion of members of SC/ST, despite

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anything contained in Rules 6, 7 and 8 of 1991  Rules.  In our view Rule 8A of 1991 Rules has  constitutional sanctity of Article 16(4A) of the  Constitution and cannot be found faulty merely  on account of violation of judicially evolved  concept of catch-up rule of seniority which has  been specifically obliterated by Article 16(4A) of  the Constitution.  Likewise the said rule can also  not be held to be unconstitutional or invalid on  account of obliteration of any other judicially  evolved principle of seniority or any other  contrary rules of seniority existing under Rules 6,  7 and 8 of 1991 Rules, as Rule 8A of 1991 Rules  opens with non-obstante clause with overriding  effect upon Rules 6, 7 and 8 of 1991 Rules,  therefore, we do not find any justification to  strike down the provisions contained under Rule  8-A of 1991 Rules on the said ground and on any  of the grounds mentioned in the writ petition.”

After so stating, the Division Bench proceeded to observe as  

follows: -

“27. In this connection, we make it clear that  deletion of the said concept of catch-up Rule of  seniority and addition of consequential seniority  due to reservation in promotion on any post or  grade in service are applicable to the member of  scheduled castes and scheduled tribes only,  whereas inter-se seniority of other categories  employees shall continue to be determined  according to their existing seniority rules as  contemplated by the provisions of Rules 6, 7 and  8 of 1991 Rules, subject to aforesaid limitations.  Thus the concept of catch-up Rule of Seniority  stands obliterated only to the extent of giving  benefit of consequential seniority to the members  of scheduled castes and scheduled tribes on  account of their promotion on any post or grade

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in service due to reservation, therefore, the scope  of obliteration of concept of catch-up rule is  limited to that extent.  In this view of the matter  the petitioner is not entitled to get the relief  sought for in the writ petition questioning the  validity of said Rule 8A of 1991 Rules.  Thus we  uphold the validity of said Rules and the question  formulated by us is answered accordingly.”

It is interesting to note that in paragraph 29 of the said  

judgment the Division Bench expressed thus: -

“29. However, since the petitioner did not  challenge the Constitutional Validity of Law  regarding reservation in promotion in favour of  scheduled castes and scheduled tribes existing in  State of Uttar Pradesh which is applicable to the  services and posts in connection of affairs of  State of Uttar Pradesh inasmuch as other  services and posts covered by said Reservation  Act 1994, in our opinion, the petitioner shall not  be permitted to raise this question by filing any  other writ petition again.  In given facts and  circumstances of the case, we are not inclined to  issue any mandamus, commanding the  respondents, not to proceed with impugned  seniority list for the purpose of promotion on the  next higher post without expressing any opinion  on the merit of said seniority list.  We are also not  inclined to issue any such restraint order, staying  any promotion on the next higher post, if the  respondents are intending to make such  promotion on the basis of impugned seniority  list.”

8. We have been apprised at the Bar that it was brought to the  

notice of the Division Bench at Allahabad that certain writ

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petitions, where there was comprehensive challenge, were part-

heard and the hearing was in continuance at Lucknow Bench,  

but, as is vivid from the first paragraph of the said judgment, the  

Bench heard the learned counsel for the petitioner and the  

standing counsel for the State and caveator and proceeded to  

decide the matter without a counter affidavit.   

9. Presently, we shall advert to how the Lucknow Bench dealt  

with this decision.

10. After stating the basic pleas, the Division Bench at Lucknow  

proceeded to state as follows:-

“.......but before we proceed to decide the  validity of the challenge made and the  defence put, we find it expedient to respond  to the foremost plea of the respondents that  the aforesaid Rule 8-A of the U.P.  Government Servants Seniority Rules, 1991,  (hereinafter referred to as ‘the Rules, 1991),  was challenged before a Division Bench  (Hon’ble Sheo Kumar Singh and Hon’ble  Sabhajeet Yadav, JJ) at Allahabad in Writ  Petition No. 63127 of 2010 in re: Mukund  Kumar Srivastava versus State of U.P. and  another, which writ petition has been  dismissed upholding the validity of the  aforesaid Rule 8-A, therefore, this Court is  bound by the said judgment passed by a  Bench of equal strength and hence all these  petitions need be dismissed only on this  ground.”

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Before the said Bench, it was contended that the judgment  

rendered by the Division Bench at Allahabad is per incuriam and  

is not a binding precedent.   

11. Various grounds were urged to substantiate the aforesaid  

stand.  The Division Bench, after analysing the reasoning of the  

Allahabad Bench in great detail and after referring to certain  

decisions and the principles pertaining to binding precedent,  

opined as follows:-   

“The Division Bench at Allahabad, did not enter  into the question of exercise of power by the  State Government under the enabling  provisions of the Constitution and upheld the  validity of Rule 8-A only for the reason, that  there did exist such a power to enact the Rule,  whereas the Apex Court, very clearly has  pronounced, that if the given exercise has not  been undertaken by the State Government while  making a rule for reservation with or without  accelerated seniority, such a rule may not stand  the test of judicial review.

In fact, M. Nagraj obliges the High Court  that when a challenge is made to the  reservation in promotion, it shall scrutinize the  same on the given parameters and it also casts  a corresponding duty upon the State  Government to satisfy the Court about the  exercise undertaken in making such a provision  for reservation.  The Division Bench did not  advert upon this issue, nor the State  Government fulfilled its duty as enumerated in  M. Nagraj.

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The effect of the judgment delivered at  Allahabad is also to be seen in the light of the  fact that though the Division Bench at  Allahabad did not adjudicate on the dispute  with regard to the seniority for which the  petitioner Mukund Kumar Srivastava has been  relegated to the remedy of State Public Services  Tribunal, but upheld the validity of Rule 8-A,  which could not be said to be the main relief,  claimed by the petitioner.

For the aforesaid reasons and also for the  reason, that the present writ petitions do  challenge the very rule of reservation in  promotion, which challenge we have upheld for  the reasons hereinafter stated, because of which  the rule of accelerated seniority itself falls to the  ground, we, with deep respect, are unable to  subscribe to the view taken by the Division  Bench at Allahabad and hold that the said  judgment cannot be considered as binding  precedent having been rendered per incuriam.”

12. We have reproduced the paragraphs from both the  

decisions in extenso to highlight that the Allahabad Bench was  

apprised about the number of matters at Lucknow filed earlier in  

point of time which were being part heard and the hearing was in  

continuum.  It would have been advisable to wait for the verdict  

at Lucknow Bench or to bring it to the notice of the learned Chief  

Justice about the similar matters being instituted at both the  

places.  The judicial courtesy and decorum warranted such  

discipline which was expected from the learned Judges but for  

the unfathomable reasons, neither of the courses were taken

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recourse to.  Similarly, the Division Bench at Lucknow  

erroneously treated the verdict of Allahabad Bench not to be a  

binding precedent on the foundation that the principles laid  

down by the Constitution Bench in M. Nagraj (supra) are not  

being appositely appreciated and correctly applied by the Bench  

when there was reference to the said decision and number of  

passages were quoted and appreciated albeit incorrectly, the  

same could not have been a ground to treat the decision as per  

incuriam or not a binding precedent.  Judicial discipline  

commands in such a situation when there is disagreement to  

refer the matter to a larger Bench.  Instead of doing that, the  

Division Bench at Lucknow took the burden on themselves to  

decide the case.

13. In this context, we may profitably quote a passage from  

Lala Shri Bhagwan and another v. Ram Chand and another3:-

“18. .. It is hardly necessary to emphasise that  considerations of judicial propriety and  decorum require that if a learned single Judge  hearing a matter is inclined to take the view  that the earlier decisions of the High Court,  whether of a Division Bench or of a single  Judge, need to be reconsidered, he should not  embark upon that enquiry sitting as a single  Judge, but should refer the matter to a  

3 AIR 1965 SC 1767

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Division Bench or, in a proper case, place the  relevant papers before the Chief Justice to  enable him to constitute a larger Bench to  examine the question.  That is the proper and  traditional way to deal with such matters and  it is founded on healthy principles of judicial  decorum and propriety.  It is to be regretted  that the learned single Judge departed from  this traditional way in the present case and  chose to examine the question himself.”

14. In Sundarjas Kanyalal Bhathija and others v. The  

Collector, Thane, Maharashtra and others4 while dealing with  

judicial discipline, the two-Judge Bench has expressed thus:-

“One must remember that pursuit of the law,  however, glamorous it is, has its own  limitation on the Bench.  In a multi-Judge  Court, the Judges are bound by precedents  and procedure.  They could use their  discretion only when there is no declared  principle to be found, no rule and no  authority.  The judicial decorum and legal  propriety demand that where a learned single  Judge or a Division Bench does not agree with  the decision of a Bench of co-ordinate  jurisdiction, the matter shall be referred to a  larger Bench.  It is a subversion of judicial  process not to follow this procedure.”

The aforesaid pronouncements clearly lay down what is  

expected from the Judges when they are confronted with the  

decision of a Co-ordinate Bench on the same issue.  Any contrary  

attitude, however adventurous and glorious may be, would lead  

to uncertainty and inconsistency.  It has precisely so happened  4 AIR 1991 SC 1893

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in the case at hand.  There are two decisions by two Division  

Benches from the same High Court.  We express our concern  

about the deviation from the judicial decorum and discipline by  

both the Benches and expect that in future, they shall be  

appositely guided by the conceptual eventuality of such  

discipline as laid down by this Court from time to time.  We have  

said so with the fond hope that judicial enthusiasm should not  

obliterate the profound responsibility that is expected from the  

Judges.   

15. Having dealt with the judicial dictum and the propriety  

part, we shall now proceed to deal with the case on merit as a  

common consensus was arrived at the Bar for the said purpose.  

The affected employees have filed certain civil appeals against the  

judgment of the Allahabad High Court and the employees who  

are affected by the verdict of the Lucknow Bench have also  

preferred appeals.  That apart, the State of U.P. and the  

Corporation have also challenged the decision as the rules  

framed have been declared ultra vires.  The main controversy  

relates to the validity of Section 3(7) of the 1994 Act and Rule 8A  

of the 1991 Rules.  Thus, we really have to advert to the  

constitutional validity of the said provisions.

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16. Prior to the advertence in aforesaid regard, it is necessary to  

have a certain survey pertaining to reservation in promotional  

matters.  The question of reservation and the associated  

promotion with it has been a matter of debate in various  

decisions of this Court.  After independence, there were various  

areas in respect of which decisions were pronounced.  

Eventually, in the case of Indra Sawhney and another v.  

Union of India and others (supra) the nine-Judge Bench, while  

dealing with the question whether clause (4) of Article 16 of the  

Constitution provides for reservation only in the matter of initial  

appointment, direct recruitment or does it contemplate and  

provide for reservations being made in the matter of promotion as  

well, recorded the submissions of the petitioners in paragraph  

819 which reads as follows: -

“The petitioners’  submission is that the  reservation of appointments or posts  contemplated by clause (4) is only at the stage of  entry into State service, i.e., direct recruitment.  It is submitted that providing for reservation  thereafter in the matter of promotion amounts to  a double reservation and if such a provision is  made at each successive stage of promotion it  would be a case of reservation being provided  that many times.  It is also submitted that by  providing reservation in the matter of promotion,  the member of a reserved category is enabled to  leap-frog over his compatriots, which is bound to

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generate acute heartburning and may well lead to  inefficiency in administration.  The members of  the open competition category would come to  think that whatever be their record and  performance, the members of reserved categories  would steal a march over them, irrespective of  their performance and competence.  Examples  are give how two persons (A) and (B), one  belonging to O.C. category and the other  belonging to reserved category, having been  appointed at the same time, the member of the  reserved category gets promoted earlier and how  even in the promoted category he jumps over the  members of the O.C. category already there and  gains a further promotion and so on.  This would  generate, it is submitted, a feeling of  disheartening which kills the spirit of competition  and develops a sense of disinterestedness among  the members of O.C. category.  It is pointed out  that once persons coming from different sources  join a category or class, they must be treated  alike thereafter in all matters including  promotions and that no distinction is permissible  on the basis of their “birth-mark”.  It is also  pointed out that even the Constituent Assembly  debates on draft Article 10(3) do not indicate in  any manner that it was supported to extend to  promotions as well.  It is further submitted that if  Article 16(4) is construed as warranting  reservation even in the matter of promotion it  would be contrary to the mandate of Article 335  viz., maintenance of efficiency in administration.  It is submitted that such a provision would  amount to putting a premium upon inefficiency.  The members of the reserved category would not  work hard since they do not have to compete with  all their colleagues but only within the reserved  category and further because they are assured of  promotion whether they work hard and efficiently  or not.  Such a course would also militate against  the goal of excellence referred to in clause (j) of  Article 51-A (Fundamental Duties).”

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Thereafter, the Bench referred to the decisions in General  

Manager, S. Rly. v. Rangachari5, State of Punjab v. Hira  

Lal6, Akhil Bharatiya Soshit Karamchari Sangh v. Union of  

India7 and Comptroller and Auditor General v. K.S.  

Jagannathan8 and did not agree with the view stated in  

Rangachari (supra), despite noting the fact that Rangachari  

has been a law for more than thirty years and that attempt to  

reopen the issue was repelled in Akhil Bharatiya Soshit  

Karamchari Sangh (supra).  Thereafter, their Lordships  

addressed to the concept of promotion and, eventuall,y after  

adverting to certain legal principles, stated thus: -

“831. We must also make it clear that it  would not be impermissible for the State to  extend concessions and relaxations to members  of reserved categories in the matter of promotion  without compromising the efficiency of the  administration.  The relaxation concerned in  State of Kerala v. N.M. Thomas [(1976) 2 SCC  310] and the concessions namely carrying  forward of vacancies and provisions for in-service  coaching/training in Karamchari Sangh are  instances of such concessions and relaxations.  However, it would not be permissible to prescribe  lower qualifying marks or a lesser level of  evaluation for the members of reserved categories  since that would compromise the efficiency of  administration.  We reiterate that while it may be  

5 AIR 1962 SC 36 6 (1970) 3 SCC 567 7 (1981) 1 SCC 246 8 (1986) 2 SCC 679

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permissible to prescribe a reasonably lesser  qualifying marks or evaluation for the OBCs, SCs  and STs –  consistent with the efficiency of  administration and the nature of duties attaching  to the office concerned –  in the matter of direct  recruitment, such a course would not be  permissible in the matter of promotions for the  reasons recorded hereinabove.”

In paragraph 859, while summarising the said aspect, it  

has been ruled thus: -

“859. We may summarise our answers to the  various questions dealt with and answered  hereinabove:

.......... .............. ...........

(7) Article 16(4) does not permit provision for  reservations in the matter of promotion.  This rule shall, however, have only  prospective operation and shall not affect  the promotions already made, whether  made on regular basis or on any other  basis.  We direct that our decision on this  question shall operate only prospectively  and shall not affect promotions already  made, whether on temporary, officiating or  regular/permanent basis.  It is further  directed that wherever reservations are  already provided in the matter of promotion  – be it Central Services or State Services, or  for that matter services under any  Corporation, authority or body falling under  the definition of ‘State’  in Article 12 –  such  reservations may continue in operation for a  period of five years from this day.  Within  this period, it would be open to the  appropriate authorities to revise, modify or  re-issue the relevant rules to ensure the  achievement of the objective of Article 16(4).

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If any authority thinks that for ensuring  adequate representation of ‘backward class  of citizens’ in any service, class or category,  it is necessary to provide for direct  recruitment therein, it shall be open to it to  do so (Ahmadi, J expresses no opinion on  this question upholding the preliminary  objection of Union of India).  It would not be  impermissible for the State to extend  concessions and relaxations to members of  reserved categories in the matter of  promotion without compromising the  efficiency of the administration.”

17. After the said decision, another decision, namely, Union of  

India and others v. Virpal Singh Chauhan and others9 came  

to the field.  In the said case, the two-Judge Bench was  

concerned with the nature of rule and reservation in promotions  

obtaining in the railway service and the rule concerning the  

determination of seniority between general candidates and  

candidates belonging to reserved classes in the promotional  

category.  The Bench referred to the decision in R.K. Sabharwal  

v. State of Punjab10, various paragraphs of the Indian Railways  

Establishment Manual and paragraphs 692 and 693 of the  

Indra Sawhney (supra) and opined that the roster would only  

ensure the prescribed percentage of reservation but would not  

affect the seniority.  It has been stated that while the reserved  

9 (1995) 6 SCC 684 10 (1995) 2 SCC 745

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candidates are entitled to accelerated promotion, they would not  

be entitled to consequential seniority.

18. Thereafter, in Ajit Singh Januja and others v. State of  

Punjab and others11, the three-Judge Bench posed the question  

in the following terms: -

“The controversy which has been raised in the  present appeals is: whether, after the members of  Scheduled Castes/Tribes or Backward Classes  for whom specific percentage of posts have been  reserved and roster has been provided having  been promoted against those posts on the basis  of “accelerated promotion” because of reservation  of posts and applicability of the roster system,  can claim promotion against general category  posts in still higher grade on the basis of their  seniority which itself is the result of accelerated  promotion on the basis of reservation and  roster?”

The Bench referred to the decisions in Virpal Singh  

Chauhan (supra), R.K. Sabharwal (supra) and Indra Sawhney  

(supra) and ultimately concurred with the view expressed in  

Virpal Singh Chauhan by stating as follows: -

“16. We respectfully concur with the view in  Union of India v. Virpal Singh Chauhan, that  seniority between the reserved category  candidates and general candidates in the  promoted category shall continue to be governed  by their panel position i.e. with reference to their  inter se seniority in the lower grade.  The rule of  

11 (1996) 2 SCC 715

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reservation gives accelerated promotion, but it  does not give the accelerated “consequential  seniority”.  If a Scheduled Caste/Scheduled Tribe  candidate is promoted earlier because of the rule  of reservation/roster and his senior belonging to  the general category is promoted later to that  higher grade the general category candidate shall  regain his seniority over such earlier promoted  Scheduled Caste/Tribe candidate.  As already  pointed out above that when a Scheduled Caste/  Tribe candidate is promoted earlier by applying  the rule of reservation/roster against a post  reserved for such Scheduled Caste/Tribe  candidate, in this process he does not supersede  his seniors belonging to the general category.  In  this process there was no occasion to examine  the merit of such Scheduled Caste/Tribe  candidate vis-a-vis his seniors belonging to the  general category.  As such it will be only rational,  just and proper to hold that when the general  category candidate is promoted later from the  lower grade to the higher grade, he will be  considered senior to a candidate belonging to the  Scheduled Caste/Tribe who had been given  accelerated promotion against the post reserved  for him.  Whenever a question arises for filling up  a post reserved for Scheduled Caste/Tribe  candidate in a still higher grade then such  candidate belonging to Scheduled Caste/Tribe  shall be promoted first but when the  consideration is in respect of promotion against  the general category post in a still higher grade  then the general category candidate who has  been promoted later shall be considered senior  and his case shall be considered first for  promotion applying either principle of seniority- cum-merit or merit-cum-seniority.  If this rule  and procedure is not applied then result will be  that majority of the posts in the higher grade  shall be held at one stage by persons who have  not only entered service on the basis of  reservation and roster but have excluded the

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general category candidates from being promoted  to the posts reserved for general category  candidates merely on the ground of their initial  accelerated promotions.  This will not be  consistent with the requirement or the spirit of  Article 16(4) or Article 335 of the Constitution.”

19. In Jagdish Lal and others v. State of Haryana and  

others12, a three-Judge Bench opined that seniority granted to  

the Scheduled Caste and Scheduled Tribe candidates over a  

general candidate due to his accelerated promotion does not in  

all events get wiped out on promotion of general candidate.  The  

Bench explained the decisions in Vir Pal Singh Chauhan  

(supra) and Ajit Singh Januja (supra).

20. In Ajit Singh and others (II) v. State of Punjab and  

others13, the Constitution Bench was concerned with the issue  

whether the decisions in Vir Pal Singh Chauhan (supra) and  

Ajit Singh Januja (supra) which were earlier decided to the  

effect that the seniority of general candidates is to be confirmed  

or whether the later deviation made in Jagdish Lal (supra)  

against the general candidates is to be accepted.  The  

Constitution Bench referred to Articles 16(1), 16(4) and 16(4A) of  

the Constitution and discussed at length the concept of  

promotion based on equal opportunity and seniority and treated  12 AIR 1997 SC 2366 13 (1999) 7 SCC 209

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them to be facets of Fundamental Right under Article 16(1) of the  

Constitution.  The Bench posed a question whether Articles 16(4)  

and 16(4A) guarantee any Fundamental Right to reservation.  

Regard being had to the nature of language employed in both the  

Articles, they were to be treated in the nature of enabling  

provisions.  The Constitution Bench opined that Article 16(1)  

deals with the Fundamental Right and Articles 16(4) and 16(4A)  

are the enabling provisions.  After so stating, they proceeded to  

analyse the ratio in Indra Sawhney (supra), Akhil Bharatiya  

Soshit Karamchari Sangh (supra) and certain other authorities  

in the field and, eventually, opined that it is axiomatic in service  

jurisprudence that any promotions made wrongly in excess of  

any quota are to be treated as ad hoc.  This applies to reservation  

quota as much as it applies to direct recruits and promotee  

cases.  If a court decides that in order only to remove hardship  

such roster-point promotees are not to face reversions, - then it  

would, in our opinion be, necessary to hold – consistent with our  

interpretation of Articles 14 and 16(1) –  that such promotees  

cannot plead for grant of any additional benefit of seniority  

flowing from a wrong application of the roster.  While courts can  

relieve immediate hardship arising out of a past illegality, courts

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cannot grant additional benefits like seniority which have no  

element of immediate hardship.  Ultimately while dealing with  

the promotions already given before 10.2.1995 the Bench  

directed as follows: -

“Thus, while promotions in excess of roster made  before 10-2-1995 are protected, such promotees  cannot claim seniority.  Seniority in the  promotional cadre of such excess roster-point  promotees shall have to be reviewed after 10-2- 1995 and will count only from the date on which  they would have otherwise got normal promotion  in any future vacancy arising in a post previously  occupied by a reserved candidate.  That disposes  of the “prospectivity”  point in relation to  Sabharwal.”

21. At this juncture, it is condign to note that Article 16(4A) and  

Article 16 (4B) were inserted in the Constitution to confer  

promotion with consequential seniority and introduced the  

concept of carrying forward vacancies treating the vacancies  

meant for reserved category candidates as a separate class of  

vacancies.  The said Articles as amended from time to time read  

as follows: -

“16(4A) Nothing in this Article shall  prevent the State from making any provision for  reservation in matters of promotion, with  consequential seniority, to any class or classes of  posts in the services under the State in favour of  the Scheduled Castes and the Scheduled Tribes  which, in the opinion of the State, are not

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adequately represented in the services under the  State.

16(4B) Nothing in this article shall prevent the  State from considering any unfilled vacancies of a  year which are reserved for being filled up in that  year in accordance with any provision for  reservation made under clause (4) or (4A) as a  separate class of vacancies to be filled up in any  succeeding year or years and such class of  vacancies shall not be considered together with  the vacancies of the year in which they are being  filled up for determining the ceiling of fifty per  cent reservation on total number of that year.”

22. The validity of the said Articles were challenged under  

Article 32 of the Constitution of India before this Court and the  

Constitution Bench in M. Nagraj (supra) upheld the validity of  

the said Articles with certain qualifiers/riders by taking recourse  

to the process of interpretation.  As the controversy rests mainly  

on the said decision, we will advert to it in detail at a later stage.

23. Presently, we shall dwell upon the provisions that were  

under challenge before the High Court.  The Legislative Assembly  

of Uttar Pradesh brought in a legislation, namely, the Uttar  

Pradesh Public Services (Reservation for Scheduled Castes,  

Scheduled Tribes and other Backward Classes) Act, 1994 (UP Act  

No. 4 of 1994) to provide for reservation in public services and  

posts in favour of the persons belonging to Scheduled Castes,  

Scheduled Tribes and other Backward Classes of citizens and for

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matters connected therewith or incidental thereto.   Section 3(7),  

which is relevant for our present purpose, reads as follows: -

“Reservation in favour of Scheduled  Castes, Scheduled Tribes and other Backward  Classes. –  

...... .......... ..........

(7) If, on the date of commencement of this Act,  

reservation was in force under Government  

Orders for appointment to posts to be filled by  

promotion, such Government Orders shall  

continue to be applicable till they are modified or  

revoked.”

Sub-section (7) of Section 3 was the subject-matter of assail  

before the High Court.

24.  As the factual matrix would reveal, the State of Uttar  

Pradesh brought into existence the Uttar Pradesh Government  

Servants Seniority (First Amendment) Rules, 2002 on the 18th of  

October, 2002 in exercise of the power conferred under Article  

309 of the Constitution whereby after Rule 8, new Rule 8-A was  

inserted.  The said Rule reads as follows: -

“8-A.Notwithstanding anything contained in Rule  s6,7 or 8 of these rules, a person belonging to the  Scheduled Castes or Scheduled Tribes shall on

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his promotion by virtue of rule of reservation/  roster, be entitled to consequential seniority  also.”

25. It is worth noting that on May 13, 2005, by the Uttar  

Pradesh Government Servants Seniority (Second Amendment)  

Rules, 2005, Rule 8-A was omitted.  However, it was provided in  

the said Rules that the promotions made in accordance with the  

revised seniority as determined under Rule 8-A prior to the  

commencement of the 2005 Rules could not be affected.  

Thereafter, on September 14, 2007, by the Uttar Pradesh  

Government Servants Seniority (Third Amendment) Rules, 2007,  

Rule 8-A was inserted in the same language which we have  

already reproduced hereinabove.  It has been mentioned in the  

said Rule that it shall be deemed to have come into force on June  

17, 1995.  It is germane to note here that the U.P. Power  

Corporation Limited adopted the said Rules as there is no  

dispute about the fact that after the Rules came into existence  

and have been given effect to at some places and that is why the  

challenge to the constitutional validity of the Act and the Rules  

was made before the High Court.  We have already indicated how  

both the Benches have dealt with the said situation.

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26. At this stage, we may usefully state that though number of  

appeals have been preferred, yet some relate to the assail of the  

interim orders and some to the final orders.  We may only state  

for the sake of clarity and convenience that if Section 3(7) and  

Rule 8-A as amended in 2007 are held to be constitutionally  

valid, all the appeals are bound to be dismissed and if they are  

held to be ultra vires, then the judgment passed by the Lucknow  

Bench shall stand affirmed subject to any  

clarification/modification in our order.   

27. As has been noticed hereinbefore, the Allahabad Bench had  

understood the dictum in M. Nagaraj (supra) in a different  

manner and the Division Bench at Lucknow in a different  

manner.  The learned counsel appearing for various parties have  

advanced their contentions in support of the provisions in the  

enactment and the Rules.  We would like to condense their basic  

arguments and endeavour to pigeon-hole keeping in view the  

facts which are requisite to be referred to at the time of analysis  

of the said decision in the backdrop of the verdict in M. Nagaraj  

(supra).

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28. Mr. Andhyarujina and Mr. Raju Ram Chandran, learned  

senior counsel criticising the decision passed by the Lucknow  

Bench, have submitted that the High Court has fallen into grave  

error by not scrutinising the materials produced before it, as a  

consequence of which a sanctuary of errors have crept into it.  If  

the counter affidavit and other documents are studiedly scanned,  

it would be luminescent that opinion has been formed as regards  

inadequate representation in promotional posts and, therefore, it  

had become an imperative to provide for reservation.  The  

opinion formed by the Government need not be with  

mathematical precision to broad spectrum and such exercise has  

already been done by the State of U.P.,  since reservation in  

promotional matters was already in vogue by virtue of  

administrative circulars and statutory provisions for few decades.  

It is urged that the concept of inadequate representation and  

backwardness have been accepted by the amending power of the  

Constitution and, therefore, the High Court has totally flawed by  

laying unwarranted emphasis on the said concepts.  The High  

Court could not have sat in appeal on the rule of reservation  

solely on the factual bedrock.   The chart brought on record  

would reflect department wise how the persons from backward

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classes have not been extended the benefit of promotion and the  

same forms the foundation for making the enactment and  

framing the rule and hence, no fault could have been found with  

the same.  Once an incumbent belongs to Scheduled Castes/  

Scheduled Tribes  category, it is conclusive that he suffers from  

backwardness and no further enquiry is necessary.  It has been  

clearly held in the case of Indra Sawhney (supra) that the test  

or requirement of social and educational backwardness cannot  

be applied to Scheduled Castes/ Scheduled Tribes who  

indubitably fall within the expression ‘Backward Classes of  

Citizen’.   It is beyond any shadow of doubt that Scheduled  

Castes/ Scheduled Tribes are a separate class by themselves and  

the creamy layer principle is not applicable to them.  It has been  

so held in Avinash Singh Bagri and Ors. v. Registrar IIT  

Delhi and Another14.   Article 16 (4A) uses the phrase ‘in the  

opinion of’  and the said word carries a different meaning to  

convey that it is subjective in nature rather than objective.   The  

Report of the “Social Justice Committee”  dated 28.06.2001  

clearly ascertains the need for implementation of reservation in  

promotional matters in public service in U. P. and the said  

Report deserves acceptance.  The State Government was  14 (2009) 8 SCC 220

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possessed of sufficient materials to implement the promotional  

provisions which are enabling in nature and the same is justified  

by the “Social Justice Committee Report”  which has examined  

the current status of implementation of Scheduled Castes/  

Scheduled Tribes and other backward classes in other public  

services with respect to their quota, their participation and  

progress in various services, the substantial backlog in  

promotional posts in category A, B and C posts and the  

inadequacy of representation in promotional posts and various  

departments and State owned corporations.   The High Court has  

completely erred specially when there was sufficient data  

available with the State Government.  Regard being had to the  

factum that the said promotions were being given for few  

decades, a fresh exercise regarding adequacy was not necessary.  

The concept of efficiency as stipulated under Article 335 of the  

Constitution is in no way affected if the reservation does not  

exceed 50%.   The consequential seniority being vested by the  

Constitution, it follows as natural corollary and hence, no further  

exercise was required to be undertaken.  The learned counsel for  

the State has drawn the attention of this Court with respect to  

the percentage of representation to justify that requisite data was

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available and no further exercise was needed and, therefore, the  

decision of the High Court is fundamentally fallacious.   

29. Mr. P. S Patwalia, learned senior counsel appearing in some  

appeals for the corporation, has submitted that the requirement  

of having quantifiable data is not a new concept propounded in  

the case of M.  Nagraj (supra) but is a reiteration of the earlier  

view enunciated in Indra Sawhney case (supra) and, therefore,  

the provision could not have been declared as ultra vires.  The  

emphasis on backwardness is absolutely misconceived, for  

Scheduled Castes/ Scheduled Tribes are duly notified as such in  

the Presidential list by virtue of Articles 341 and 342 of the  

Constitution.  Their exclusion from the list can alone be done by  

the amendment of the Presidential Order and hence, any kind of  

collection of data as regards the backwardness is an exercise in  

futility.  The concept of creamy layer principle cannot be applied  

to Scheduled Castes/ Scheduled Tribes as has been held in the  

case of Ashok Kumar Thakur v. Union of India15.       Learned  

senior counsel has placed reliance on the decision in E. V.  

Chinniah v. State of Andhra Pradesh16 to highlight that there  

may be only one list of Scheduled Castes/Scheduled Tribes and  

15  (2008) 6 SCC 1 16 (2005) 1 SCC 394

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this list constitutes one group for the purpose of reservation and  

the same cannot be interfered with, disturbed, re-grouped or re-

classified by the State.  In essence, the submission is that there  

may not be exclusion by engrafting the principle of backwardness  

for the purpose of reservation in promotion.  Commenting on the  

adequacy of representation, it is urged by  Mr.  Patwalia that the  

data was immediately collected after the 1994 Act and thereafter,  

no fresh data was necessary to be collected after the decision  

rendered by the Constitution Bench in M. Nagraj (supra).  It is  

further submitted by the learned counsel that even if quantifiable  

data is not collected, the State can be asked to do so in view of  

the order passed by this Court in S. B Joshi  v. State of  

Karnatka and Others in W.P.  259 of 1994 decided on  

13.07.2010.  The efficiency of service as encapsuled in Article  

335 of the Constitution has been duly respected by providing a  

uniform minimum standard of the matters of promotion as far as  

the Corporation is concerned and, therefore, no fault can be  

found in that regard.

30. Mr.  P. P. Rao,  learned senior counsel appearing for some  

of the private respondents assailing the decision of the Lucknow  

Bench, has urged that when there was no challenge to the orders

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issued prior the amendment for reservation in promotion, no  

quantifiable  data is necessary.  Section 3 (7) of the 1994 Act  

does not make any change except recognising the earlier orders  

which lay down that they shall continue to be applicable till it is  

modified or revoked and, therefore, it has only been conferred  

statutory recognition.     The High Court has misunderstood the  

decision in M. Nagraj (supra) while stating that the collection of  

quantifiable data was not undertaken though the said decision  

clearly lays down that a collection of quantifiable data showing  

backwardness for the class would be required while  

demonstrating the same in Court to the extent of promotion  

when it is under challenge.  In the case at hand, the issue is not  

the extent of reservation or excessive reservation but reservation  

in promotion.  That apart, the principles laid down in M. Nagraj  

(supra) do not get attracted if reservation in promotion is sought  

to be made for the first time but not for continuing the  

reservation on the basis of assessment made by the Parliament  

in exercise of its constituent powers.    The Constitutional  

Amendment removed the base of the decision in Indra Sawhney  

(supra) that reservation in promotion is not permissible and the  

Government in its wisdom has carried out the assessment earlier

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and decided to continue the policy and, therefore, to lay down the  

principle that in view of the decision in M Nagraj (supra), a fresh  

exercise is necessary would tantamount to putting the concept in  

the realm of inherent fallacy.    The decision in Suraj Bhan  

Meena and Another v. State of Rajasthan & Ors.17 is not a  

binding precedent inasmuch as it takes note of the contention (at  

paragraph 24 at page no.  474-475 of the Report) but does not  

deal with it.  The 85th Amendment which provides for  

consequential seniority wipes out the ‘catch up’  rule ‘from its  

inception and the general principle of seniority from the date of  

promotion operates without any break and for the same reason  

the said amendment had been given retrospective effect’.  The  

intention of the Parliament at the time of exercise of its  

constitutional power clearly states that the representation of  

Scheduled Castes/ Scheduled Tribes in the services in the States  

had not reached the required level and it is necessary to continue  

the existing position of providing reservation in promotion in the  

case of Scheduled Castes/ Scheduled Tribes.  The learned senior  

counsel has laid immense emphasis on the intention of the  

Parliament and the Legislature to continue the policy and,  

pyramiding the said submission, he has contended that no fresh  17 (2011) 1 SCC 467

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exercise is required.    It is propounded by Mr. Rao that Article  

16 basically relates to classes and not backward individuals and  

therefore, no stress should be given on the backwardness.  

Alternatively, the learned senior counsel has submitted that the  

matter should be referred to a larger Bench, regard being had to  

the important issue involved in the case.    

31.  Mr. Rakesh Dwivedi, learned senior counsel who  

represents some of the petitioners aggrieved by the Lucknow  

Bench decision, has urged that backwardness is presumed in  

view of the nine-Judge Bench decision in Indra Sawhney  

(supra) and the same has to be regarded beyond any cavil.  The  

dictum in  M.  Nagraj  (supra) cannot be understood to mandate  

collection of quantifiable data for judging the backwardness of  

the Scheduled Castes/ Scheduled Tribes while making  

reservation in promotion.  But, unfortunately, the High Court  

has understood the Judgment in the aforesaid manner.  There is  

no material produced on record to establish that Scheduled  

Castes/ Scheduled Tribes candidates having been conferred the  

benefit of promotion under reservation have ceased to be  

backward.    Though the decision in Indra Sawhney (supra) held  

that the promotion in reservation is impermissible, yet it

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continued the reservation in promotion for a period of five years  

and, therefore, the Constitution Amendment came into force in  

this backdrop Section 3 (7) of the 1994 Act could not have been  

treated to be invalid.  But the stand that the refixation of  

seniority after coming into existence of Rule 8-A of the Rules or  

the rule by the corporation is basically fallacious, for persons  

who were promoted earlier to the higher post are entitled to  

seniority from the date of promotion.   The learned senior counsel  

has contended that after coming into force of the amendment of  

the Constitution by inserting Article 16 (4A), the decisions in  

Rangachary (supra) and Akhil Bhartiya Karmachari Sangh  

(supra) have been restored and the concept of ‘catch up’ rule as  

propounded in Ajit Singh II (supra) has also been nullified.  

Article 16 (4A) only makes it explicit what is implicit under  

service jurisprudence in matters of promotion and the said  

benefit was always enjoyed by the Scheduled Castes/ Scheduled  

Tribes people and M. Nagraj (supra) does not intend to affect the  

said aspect.  The learned counsel has referred to paragraph 798  

of Indra Sawhney (supra) to highlight the scope of judicial  

scrutiny in matters which are within the subjective satisfaction of  

the executive and are to be tested as per  the law laid down in

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Barium Chemicals v. Company Law Board 18.  In essence, the  

submission is that in adequacy of representation is in the  

domain of subjective satisfaction of the State Government and is  

to be regarded as a policy decision of the State.  The learned  

senior counsel has distinguished the principle enunciated in  

Suraj Bhan Meena (supra).  In that case, the court was not  

dealing with an issue where the reservation had already been  

made and was in continuance.  It is highlighted by Mr Dwivedi  

that in the present case the issue is not one where there is no  

material on record to justify the subjective satisfaction, but, on  

the contrary, there is adequate material to show that the State  

Government was justified in introducing the provision in the Act  

and the Rule. As regards the efficiency in administration has  

mandate under Article 335 of the Constitution, the submission of  

Mr. Dwivedi is that the constitutional amendment has been made  

keeping in mind the decision in Indra Sawhney (supra) and the  

amendment of Article 335 facilitates the reservations in  

promotion.  The learned senior counsel would contend that  

maintenance of efficiency basically would convey laying a  

prescription by maintaining the minimum standard and in the  

case of the Corporation it has been so done.  It has been  18 (1970) 3 SCC 567

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propounded by him that if backwardness becomes the criterion,  

it would bring out the internal conflict in the dictum of M.  

Nagraj (supra) and then in that case it has to be reconciled  

keeping in view the common thread of judgment or the matter  

should be referred to a larger Bench.    In any case, M. Nagraj  

(supra) does not lay down that the quantifiable data of  

backwardness should be collected with respect to eligible  

Scheduled Castes/ Scheduled Tribes employees seeking  

promotion.   Mr. Dwivedi  has commended to  the decision in  

Union of India v. Rakesh Kumar 19 to highlight that the  

proportion of population is the thumb rule as far as the  

Scheduled Castes/ Scheduled Tribes are concerned and that  

should be the laser beam to adjudge  the concept of inadequacy  

of reservation.  Reservation in promotion involves a balancing act  

between the national need to equalise by affirmative action and  

to do social justice on one hand and to ensure that equality of  

opportunity as envisaged under Article 14 is not unduly affected  

by the benefit of promotion which has been conferred by the Act  

and Rules on the Scheduled Castes/ Scheduled Tribes as a  

balancing act and same has always been upheld by this Court.   

19 2010 4 SCC 50

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32. Mr. Shanti Bhushan, learned senior counsel, has submitted  

that the Constitution Bench in M. Nagaraj (supra) has clearly  

laid down certain conditions, namely, that there must be  

compelling reasons for making reservation in promotion; that the  

State is not bound to make reservation for Scheduled Castes/  

Scheduled Tribes in matters of promotion; that if the State thinks  

that there are compelling reasons to make such reservation in  

promotion, it is obligatory on the part of the State to collect  

quantifiable data showing the backwardness of the class and  

inadequacy of representation of that class in public employment  

and also by making such reservation in promotion, the efficiency  

in administration is not affected; that the exercise is required to  

be made before making any reservation for promotion; that the  

State has not applied its mind to the question as to what could  

be regarded as an adequate representation for Scheduled  

Castes/Scheduled Tribes in respect of promotion; that the  

provision for reservation in matters of promotion has to be  

considered in any class or classes of posts not adequately  

represented in the services under the State but unfortunately,  

the exercise in that regard has not at all been taken up but  

amendments have been incorporated; that the concept of

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backwardness and inadequacy of representation as understood  

in the case of M. Nagaraj (supra) has been absolutely  

misunderstood and misconstrued by the State Government as a  

consequence of which the Rules of the present nature have come  

into existence; that the overall efficiency as enshrined under  

Article 335 of the Constitution has been given a total go-bye  

which makes Section 3(7) of the 1994 Act and Rule 8-A  

absolutely vulnerable and thereby invites the frown of the  

enabling provision and the dictum in M. Nagaraj (supra); that  

Rule 8-A which confers accelerated seniority would leave no room  

for the efficient general category officers which is not the  

intention of the framers of the Constitution and also as it is  

understood by various decisions of this Court.

33. Dr. Rajeev Dhavan, learned senior counsel, supporting the  

decision of the Division Bench which has declared the Rule as  

ultra vires, has submitted that if M. Nagaraj (supra) is properly  

read, it does clearly convey that social justice is an over reaching  

principle of the Constitution like secularism, democracy,  

reasonableness, social justice, etc. and it emphasises on the  

equality code and the parameters fixed by the Constitution  

Bench as the basic purpose is to bring in a state of balance but

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the said balance is destroyed by Section 3(7) of the 1994 Act and  

Rule 8-A inasmuch as no exercise has been undertaken during  

the post M. Nagaraj (supra) period.  In M. Nagraj (supra), there  

has been emphasis on interpretation and implementation, width  

and identity, essence of a right, the equality code and avoidance  

of reverse discrimination, the nuanced distinction between the  

adequacy and proportionality, backward class and  

backwardness, the concept of contest specificity as regards equal  

justice and efficiency, permissive nature of the provisions and  

conceptual essence of guided power, the implementation in  

concrete terms which would not cause violence to the  

constitutional mandate; and the effect of accelerated seniority  

and the conditions prevalent for satisfaction of the conditions  

precedent to invoke the settled principles.  The learned senior  

counsel further submitted that M. Nagaraj (supra) deals with  

cadre and the posts but the State has applied it across the board  

without any kind of real quantifiable data  after pronouncement  

of the M. Nagaraj (supra).  It is his further submission that after  

Section 3(7) of the 1994 Act and  Rule 8-A are allowed to stand,  

the balancing  factor which has so far been sustained by this  

Court especially pertaining to reservation would stand crucified.

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It is urged by him that the chart supplied by the State only refers  

to the number and, seniority of officers but it does not throw any  

light on the core issue and further, a mere submission of a chart  

would not meet the requisite criteria as specified in M. Nagaraj  

(supra).

34. Mr. Vinod Bobde, learned senior counsel, has submitted  

that if accelerated seniority is confirmed on the roster by the  

promotees, the consequences would be disastrous inasmuch as  

the said employee can reach the fourth level by the time he  

attains the age of 45 years and at the age of 49, he would reach  

the highest level and stay there for nine years whereas a general  

merit promotee would reach the third level out of the six levels at  

the age of 56 and by the time he gets eligibility to get into the  

fourth level, he would reach the age of superannuation.  It is  

urged by him that if reservation in promotion is to be made,  

there has to be collection of quantifiable data, regard being had  

to the backwardness and inadequacy of representation in respect  

of the posts in a particular cadre and while doing so, the other  

condition as engrafted under Article 335 of the Constitution  

relating to the efficiency of administration has to be maintained.  

It is his further submission that in M. Nagaraj (supra), Articles

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16(4A) and 16(4B) have been treated to be enabling provisions  

and an enabling provision does not create a fundamental right.  

If the State thinks to exercise the power, it has to exercise the  

power strictly in accordance with the conditions postulated in the  

case of M. Nagaraj (supra).  The State of U.P. has totally  

misguided itself by harbouring the notion that merely because  

there has to be  representation of Scheduled Castes and  

Scheduled Tribes in the services, the State is obliged to provide  

for reservation in promotion under Article 16(4A).  The learned  

senior counsel would vehemently contend that nothing has been  

brought on record to show that after pronouncement of M.  

Nagaraj (supra), the State had carried out an exercise but has  

built a castle in Spain by stating that the provision being always  

there, the data was available.  It is canvassed that the stand of  

the State runs counter to the principles laid down in M. Nagaraj  

(supra) which makes Section 3(7) and Rule 8-A sensitively  

susceptible.  The consequential seniority was introduced on  

18.10.2002 but was obliterated on 13.5.2005 and thereafter, it  

was revived on 14.9.2007 with retrospective effect and the reason  

is demonstrable from the order/circular dated 17.10.2007 which  

is based on total erroneous understanding and appreciation of

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the law laid down by this Court.  It is argued by him that the Act  

and the Rules were amended solely keeping in view the  

constitutional provision totally ignoring how the said Articles  

were interpreted by this Court.  It is propounded by Mr. Bobde  

that the State has referred to certain data and the “Social Justice  

Committee Report” of 2001 but the same cannot save the edifice  

of the impugned statutory provision and the Rules as the State  

could not have anticipated what this Court was going to say  

while upholding the constitutional validity.

35. Mr. Ranjit Kumar, learned senior counsel, has laid immense  

emphasis on paragraphs 121 to 123 of M. Nagaraj (supra) to  

buttress the stand that reservation in promotional matters is  

subject to the conditions enumerated in the said paragraphs.  

The learned senior counsel has drawn inspiration from an order  

dated 11.3.2010 passed by a two-Judge Bench in Writ Petition  

(civil) 81 of 2002 wherein the direction was given that the validity  

may be challenged and on such challenge, the same shall be  

decided in view of the final decision in M. Nagaraj (supra).  The  

learned senior counsel has placed reliance on Ashok Kumar  

Thakur v. Union of India and others20 to highlight that any  

20 (2008) 6 SCC 1

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privilege given to a class should not lead to inefficiency.  

Emphasis has also been laid on the term backwardness having  

nexus with the reservation in promotion and collection of  

quantifiable data in a proper perspective.  He has drawn  

inspiration from various paragraphs in M. Nagaraj (supra) to  

show that when an enabling provision is held valid, its exercise  

can be arbitrary and in the case at hand, the provisions are  

absolutely arbitrary, unreasonable and irrational.  

36. To appreciate the rival submissions raised at the bar  

and the core controversy, it is absolutely seemly to understand  

what has been held in M. Nagraj (supra) by the Constitution  

Bench.  While assailing the validity of Article 16(4A) of the  

Constitution which provides for reservation in promotion with a  

consequential seniority, it was contended that equity in the  

context of Article 16(1) connotes accelerated promotion so as not  

to include consequential seniority and as consequential seniority  

has been attached to the accelerated promotion, the  

constitutional amendment is violative of Article 14 read with  

Article 16(1) of the Constitution.  Various examples were cited  

about the disastrous affects that would be ushered in, in view of  

the amendment.  After noting all the contentions, the

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Constitution Bench addressed to the concept of reservation in  

the context of Article 16(4) and further proceeded to deal with  

equity, justice and merit.  In that context, the Bench stated thus:  

-

“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 Scheduled Caste 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(4A) come in the form of  Article 335 of the Constitution.”

While dealing with reservation and affirmative action, the  

Constitution Bench opined thus: -

“48. It is the equality "in fact" which has to be  decided looking at the ground reality. Balancing  comes in where the question concerns the extent  of reservation. If the extent of reservation goes  beyond cut-off point then it results in reverse  discrimination. Anti-discrimination legislation  has a tendency of pushing towards de facto  reservation. Therefore, a numerical benchmark is  the surest immunity against charges of  discrimination.

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

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is under-written by a special justification.  Equality in Article 16(1) is individual- specific  whereas reservation in Article 16(4) and Article 16  (4-A) is enabling. The discretion of the State is,  however, subject to the existence of  "backwardness" and "inadequacy of  representation" in public employment.  Backwardness has to be based on objective  factors whereas inadequacy has to factually exist.  This is where judicial review comes in. However,  whether reservation in a given case is desirable or  not, as a policy, is not for us to decide as long as  the parameters mentioned in Articles 16(4) and  16(4-A) are maintained. As stated above, equity,  justice and merit (Article 335)/efficiency are  variables which can only be identified and  measured by the State. Therefore, in each case, a  contextual case has to be made out depending  upon different circumstances which may exist  Statewise.”

37. The Bench referred to the cases of Indra Sawhney (supra),  

R.K. Sabharwal (supra), Vir Pal Singh Chauhan (supra), Ajit  

Singh (I) (supra) and Ajit Singh (II) (supra) and opined that the  

concept of catch-up rule and consequential seniority are  

judicially evolved concepts to control the extent in reservation  

and the creation of this concept is relatable to service  

jurisprudence.  Thereafter, the Constitution Bench referred to the  

scope of the impugned amendment and the Objects and Reasons  

and, in paragraph 86, observed thus: -

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“Clause (4-A) follows the pattern specified in  Clauses (3) and (4) of Article 16. Clause (4-A) of  Article 16 emphasizes the opinion of the States in  the matter of adequacy of representation. It gives  freedom to the State in an appropriate case  depending upon the ground reality to provide for  reservation in matters of promotion to any class  or classes of posts in the services. 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). 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 come into  force. The State can make provision for  reservation only if the above two circumstances  exist. Further in Ajit Singh (II) , this Court has  held that apart from “backwardness”  and  “inadequacy of representation”  the State shall  also keep in mind “overall efficiency” (Article 335).  Therefore, all the three factors have to be kept in  mind by the appropriate Government in providing  for reservation in promotion for SCs and STs.”

Thereafter, the Bench referred to the 2000 Amendment Act,  

the Objects and Reasons and the proviso inserted to Article 335  

of the Constitution and held thus: -

“98. By the Constitution (Eighty-Second  Amendment) Act, 2000, a proviso was inserted at  the end of Article 335 of the Constitution which  reads as under:

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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  concerned State fails to identify and measure  backwardness, inadequacy and overall  administrative efficiency then in that event the  provision for reservation would be invalid. These  amendments do not alter the structure of  Articles 14, 15 and 16 (equity code). The  parameters mentioned in Article 16(4) are  retained. Clause (4-A) is derived from Clause (4)  of Article 16. Clause (4-A) is confined to SCs and  STs alone. Therefore, the present case does not  change the identity of the Constitution.”

After so stating, it was observed that there is no violation of the  

basic structure of the Constitution and the provisions are  

enabling provisions.  At that juncture, it has been observed as  

follows: -

“Article 16(4) is enacted as a remedy for the past  historical discriminations against a social class.  The object in enacting the enabling provisions  like Articles 16(4), 16(4-A) and 16(4-B) is that the  State is empowered to identify and recognize the  compelling interests. 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. That exercise depends on availability  of data. That exercise depends on numerous

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factors. It is for this reason that enabling  provisions are required to be made because each  competing claim seeks to achieve certain goals.  How best one should optimize these conflicting  claims can only be done by the administration in  the context of local prevailing conditions in public  employment. This is amply demonstrated by the  various decisions of this Court discussed  hereinabove. Therefore, there is a basic difference  between “equality in law”  and “equality in fact”  (See Affirmative Action by William Darity). If  Articles 16(4-A) and 16(4-B) flow from  Article 16(4) and if Article 16(4) is an enabling  provision then Articles 16(4-A) and 16(4-B) are  also enabling provisions. As long as the  boundaries mentioned in Article 16(4), namely,  backwardness, inadequacy and efficiency of  administration are retained in Articles 16(4- A) and 16(4-B) as controlling factors, we cannot  attribute constitutional invalidity to these  enabling provisions. However, when the State  fails to identify and implement the controlling  factors then excessiveness comes in, which is to  be decided on the facts of each case. In a given  case, where excessiveness results in reverse  discrimination, this Court has to examine  individual cases and decide the matter in  accordance with law. This is the theory of “guided  power”.  We may once again repeat that equality  is not violated by mere conferment of power but it  is breached by arbitrary exercise of the power  conferred.”

In paragraph 108, the Bench analyzed the concept of application  

of the doctrine of guided power under Article 335 of the  

Constitution and, in that context,  opined thus: -

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“Therefore, the question before us is - whether  the State could be empowered to relax qualifying  marks or standards for reservation in matters of  promotion. In our view, even after insertion of  this proviso, the limitation of overall efficiency in  Article 335 is not obliterated. Reason is that  "efficiency" is a variable factor. It is for State  concerned  to decide in a given case, whether the  overall efficiency of the system is affected by such  relaxation. If the relaxation is so excessive that it  ceases to be qualifying marks then certainly in a  given case, as in the past, the State is free not to  relax such standards. In other cases, the State  may evolve a mechanism under which efficiency,  equity and justice, all three variables, could be  accommodated. 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.”

Thereafter, the Constitution Bench proceeded to deal with  

the test to judge the validity of the impugned State Acts and  

opined as follows: -

“110. As stated above, the boundaries of the  width of the power, namely, the ceiling-limit of  50% (the numerical benchmark), the principle of  creamy layer, the compelling reasons, namely,  backwardness, inadequacy of representation and  the overall administrative efficiency are not

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obliterated by the impugned amendments. At the  appropriate time, we have to consider the law as  enacted by various States providing for  reservation if challenged. At that time we have to  see whether limitations on the exercise of power  are violated. The State is free to exercise its  discretion of providing for reservation subject to  limitation, namely, that there must exist  compelling reasons of backwardness, inadequacy  of representation in a class of post(s) keeping in  mind the overall administrative efficiency. It is  made clear that even if the State has reasons to  make reservation, as stated above, if the  impugned law violates any of the above  substantive limits on the width of the power the  same would be liable to be set aside.”

In paragraph 117,  the Bench laid down as follows: -

“The extent of reservation has to be decided on  facts of each case. The judgment in Indra  Sawhney does not deal with constitutional  amendments. In our present judgment, we are  upholding the validity of the constitutional  amendments subject to the limitations. 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.”

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In the conclusion portions, in paragraphs 123  and 124, it has  

been ruled thus: -

“123. However, in this case, as stated above,  the main issue concerns the "extent of  reservation". In this regard the  State concerned  will have to show in each case the existence of the  compelling reasons, namely, backwardness,  inadequacy of representation and overall  administrative efficiency before making provision  for reservation. As stated above, the impugned  provision is an enabling provision. The State is  not bound to make reservation for SCs/STs in  matter of promotions. However, if they wish to  exercise their discretion and make such  provision, the State has to collect quantifiable  data showing backwardness of the class and  inadequacy of representation of that class in  public employment in addition to compliance with  Article 335. It is made clear that even if the State  has compelling reasons, as stated above, the  State will have to see that its reservation  provision does not lead to excessiveness so as to  breach the ceiling-limit of 50% or obliterate the  creamy layer or extend the reservation  indefinitely.  

124. Subject to the above, we uphold 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.”

38. From the aforesaid decision and the paragraphs we have  

quoted hereinabove, the following principles can be carved out: -

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(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 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 harmonized 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

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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 (4A) of Article  

16 is an enabling provision.  It gives freedom to the State to  

provide for reservation in matters of promotion.  Clause (4A)  

of Article 16 applies only to SCs and STs.  The said clause is  

carved out of Article 16(4A).  Therefore, Clause (4A) 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 time-scale has to be imposed in the interest  

of efficiency in administration as mandated by Article 335.  

If the time-scale 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.

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(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 optimize 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

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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.

39. At this stage, we think it appropriate to refer to the case of  

Suraj Bhan Meena and another (supra).  In the said case, while  

interpreting the case in M. Nagaraj (supra), the two-Judge  

Bench has observed: -

“10. In M. Nagaraj case, this Court while  upholding the constitutional validity of the  Constitution (77thAmendment) Act, 1995 and the  Constitution (85th Amendment) Act, 2001,  clarified the position that it would not be  necessary for the State Government to frame  rules in respect of reservation in promotion with  consequential seniority, but in case the State  Government wanted to frame such rules in this  regard, then it would have to satisfy itself by  quantifiable data, that there was backwardness,  inadequacy of representation in public  employment and overall administrative  inefficiency and unless such an exercise was  undertaken by the State Government, the rule  relating to reservation in promotion with  consequential seniority could not be introduced.”

40. In the said case, the State Government had not undertaken  

any exercise as indicated in M. Nagaraj (supra).  The two-Judge  

Bench has noted three conditions in the said judgment.  It was

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canvassed before the Bench that exercise to be undertaken as  

per the direction in M.Nagaraj (supra) was mandatory and  the  

State cannot, either directly or indirectly, circumvent or ignore or  

refuse to undertake the exercise by taking recourse to the  

Constitution (Eighty-Fifth Amendment) Act providing for  

reservation for promotion with consequential seniority.  While  

dealing with the contentions, the two-Judge Bench opined that  

the State is required to place before the Court the requisite  

quantifiable data in each case and to satisfy the court that the  

said reservation became necessary on account of inadequacy of  

representation of Scheduled Castes and Scheduled Tribes  

candidates in a particular class or classes of posts, without  

affecting the general efficiency of service.  Eventually, the Bench  

opined as follows: -

“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 Schedule Caste and

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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.”  

After so stating, the two-Judge Bench affirmed the view taken by  

the High Court of Rajasthan.

41. 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 jeopardized.   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 (supra).  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 Vir Pal Singh Chauhan  

(supra) and Ajit Singh (II) (supra).  We are of the firm view that a

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fresh exercise in the light of the judgment of the  Constitution  

Bench in M. Nagaraj (supra) 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(4A) and 16(4B) 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.

42. In the ultimate analysis, we conclude and hold that Section  

3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires  

as they run counter to the dictum in M. Nagaraj (supra).  Any  

promotion that has been given on the dictum of Indra Sawhney

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(supra) and without the aid or assistance of Section 3(7) and Rule  

8A shall remain undisturbed.

43. The appeals arising out of the final judgment of Division  

Bench at Allahabad are allowed and the impugned order is set  

aside.  The appeals arising out of the judgment from the Division  

Bench at Lucknow is affirmed subject to the modification as  

stated hereinabove.  In view of the aforesaid, all other appeals are  

disposed of.  The parties shall bear their respective costs.   

......................................................J.  [Dalveer Bhandari]

......................................................J.  [Dipak Misra]

New Delhi;

April 27, 2012