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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2368   OF 201  1

B.K. PAVITRA  & ORS.                                              …APPELLANTS

VERSUS

UNION OF INDIA &  ORS.               ...RESPONDENTS

WITH

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

J U D G M E N T

ADARSH KUMAR GOEL, J

1. These  appeals  involve  the  question  of  validity  of  the  Karnataka

Determination of  Seniority of the Government Servants Promoted on the

Basis of Reservation (To the Posts in the Civil Services of the State) Act,

2002  (the  impugned  Act).   The  Act  inter  alia provides  for  grant  of

consequential  seniority  to  the  Government  servants  belonging  to

Scheduled Castes and the Scheduled Tribes promoted under reservation

policy.  It also protects consequential seniority already accorded from 27 th

April, 1978 onwards.  

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2. The validity of the Act was challenged before this Court by way of

Writ  Petition  (Civil)  No.61  of  2002 titled  M. Nagaraj  and others  v.

Union of India and others.  The issue referred to larger Bench in the

writ petition along with connected matters was decided by this Court on

19th October, 20061.   While upholding the constitutional validity of the

Constitution (seventy-seventh Amendment) Act, 1995; the Constitution

(Eighty-first  Amendment)  Act,  2000;  the  Constitution  (Eighty-Second

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

Act, 2001, individual matters were remitted to the appropriate Bench2.

Thereafter, the matter was remitted back to the High Court for deciding

the question of validity of the said enactment3.   

3. The petition was re-numbered by the High Court as Writ Petition

(Civil) No.14672 of 2010.  The High Court by the impugned judgment has

held the Act to be valid.  The question framed for determination by the

High Court is as follows :

1

(2006) 8 SCC 212 2

Para 124 of ‘M. Nagaraj’ (supra) 3

Vide order of this Court dated 18th March, 2010

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

4. It  will  be  appropriate  to  notice  the  factual  matrix  relevant  to

determine  the  controversy.   Policy  of  reservation  in  promotion  was

introduced in the State of Karnataka vide Government Order dated 27 th

April, 1978.  The reservation in promotion was provided to the SCs and

STs to the extent of 15% and 3% respectively but upto and inclusive of

the lowest Group-A posts  in the cadres where there is  no element of

direct  recruitment  and  where  the  direct  recruitment  does  not  exceed

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

under each appointing authority.  Prior to 1st April, 1992, there was no

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

1992.  In the stream of graduate Engineers, the reservation in promotion

was available upto and inclusive of third level, i.e., Executive Engineers

upto  1999 and on the date  of  filing  of  the  petition  (in  2002),  it  was

available  upto  second  level,  i.e.  Assistant  Executive  Engineer.    In

Diploma  Engineers,  it  was  available  upto  third  level,  i.e.  Assistant

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Executive Engineer – Division II.  According to the appellants, Assistant

Engineers of SC/ST category recruited in the year 1987 were promoted to

the  cadre  of  Assistant  Executive  Engineers  while  in  general  merit,

Assistant Engineers recruited in 1976 were considered for promotion to

the said cadre.  The representation of the SC/ST group was as follows:

EE Cadre 19.9% SE Cadre 23.95% CE Cadre 4.3% (being a selection post) Engineer-in-chief 44.44%

5. Thus, according to the appellants, SC/ST candidates got promotion

early  and on account  of  consequential  seniority,  percentage of  SC/ST

candidates was much higher than the permitted percentage and all top

positions were likely to be filled up by SC/ST candidates without general

merit candidates getting to higher positions.  This aspect was considered

in  the  judgment  of  this  Court  dated  1st December,  2000  in  M.G.

Badappanavar   v.  State  of  Karnataka4.   This  Court  applying  the

principles  laid  down in  Ajit  Singh Januja  v. State of  Punjab (Ajit

Singh I)5; Ajit Singh (II) v. State of Punjab6 and R.K. Sabharwal v.

4

(2001) 2 SCC 666 5

(1996) 2 SCC 715 6

(1999) 7 SCC 209

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State of Punjab7 issued a direction to the State of Karnataka to redo the

seniority  and  take  further  action  in  the  light  of  the  said  judgments.

Pointing out the consequence of accelerated seniority to the roster point

promotee, it has been averred in the writ petition that the roster point

promotee would reach the third level by the age of 45 and fourth, fifth

and sixth level  in  next  three,  two and two years.   The general  merit

promotee would reach the third level only at the age of 56 and retire

before  reaching  the  fourth  level.    This  would  result  in  reverse

discrimination  and  representation  of  reserved  category  would  range

between 36% to 100%.   

6. Stand of the State and the contesting respondents who have been

given promotion under the reservation, is that inter se seniority amongst

persons  promoted  on  any  occasion  is  determined  as  per  Karnataka

Government  Servants  (Seniority)  Rules,  1957  (1957  Rules).   By

amendment dated 1st April, 1992 provision was made to fill-up backlog

vacancies which was upheld by this Court in  Bhakta Ramegowda  v.

State of Karnataka8.  On that basis, Government order dated 24th June,

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

7

(1995) 2 SCC 745 8

(1997) 2 SCC 661

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under reservation.  Thus, all candidates promoted ‘on the same occasion’

retained  their  seniority  in  the  lower  cadre.   This  aspect  was  not

considered in Badappanavar (supra).  Extent of reservation for SC and

ST was 15% and 3% respectively on the basis of census figures of 1951,

though the population of SCs and STs has substantially increased.  As per

census figures of 1991 population of SC and ST was 16.38% and 4.26%

respectively.   The  stand  of  the  appellants  that  the  SC/ST  candidates

reach level four at 45 years or become Chief Engineers by 49 years or

there is reverse discrimination has been denied.   

7. In the light of the above pleadings and judgment of this Court in M.

Nagaraj (supra), the matter was put in issue before the High Court.  The

contention  raised  on  behalf  of  the  appellants  was  that  grant  of

consequential  seniority  to candidates promoted by way of  reservation

affected efficiency of administration and was violative of Articles 14 and

16.  In spite of 85th Amendment having been upheld, law laid down in

Badappanavar  (supra), Ajit Singh II  (supra) and Union of India  v.

Virpal   Chauhan9 remained  relevant  in  absence  of  ‘backwardness’,

‘inadequacy  of  representation’  and  ‘overall  administrative  efficiency’

being  independently  determined.   The  State  Government  had  not

provided any material or data to show inadequacy of reservation to the 9

(1995) 6 SCC 684

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members of SC/ST nor the State has given any thought to the issue of

overall administrative efficiency.

8. On the other hand, the submission on behalf of the State was that

reservation to SCs and STs to the extent  of  15% and 3% respectively

could never be said to be excessive in view of progressive increase in

population of SCs and STs.

9. The High Court referring to this Court’s judgment in  M. Nagaraj

(supra)  observed  that  concept  of  “catch  up”  rule  and  “consequential

seniority”  are  judicially  evolved  concepts  to  control  the  effect  of

reservations.  Deleting the said rule cannot by itself be in conflict with

“equality  code”  under  the  Constitution.   The  85th Amendment  gave

freedom  to  the  State  to  provide  for  reservation  in  promotion  with

consequential  seniority  under  Article  16(4-A)  if  ‘backwardness’,

‘inadequacy  of  representation’  and  ‘overall  efficiency’  so  warranted.

There  is  no  fixed  yardstick  to  identify  and  measure  the  above  three

factors.  If the State fails to identify and measure the above three factors,

the reservation can be invalid.  Examining whether the State had in fact

measured the above factors, the High Court observed that Order dated

27th April, 1978 was issued by the State of Karnataka after considering

the  statistics  available  about  the  representation  of  SCs  and  STs  in

promotional vacancies.  On 3rd February, 1999, the policy was modified to

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limit reservation in promotion in cadre upto and inclusive of the lowest

category of Group-A posts in which there is no element of recruitment

beyond 66⅔  %.  The said order was further amended on 13th April, 1999

to  the  effect  that  reservation  in  the  promotion  for  SCs  and  STs  will

continue  to  operate  till  their  representation  reached  15% or  3%

respectively and promotion of SCs and STs and against backlog was to

continue as per order dated 24th June, 1997 till the said percentage was

so  reached  in  the  total  working  strength.   As  per  the  Karnataka

Scheduled  Castes,  Scheduled  Tribes  and  other  Backward  Classes

(Reservation of seats in Educational Institutions and of appointments or

posts in the services under the State) Act, 1994 (the Karnataka Act 43 of

1994), seniority in the lower cadre is maintained in promotional posts for

the  persons  promoted  “on one  occasion”.   Since  reservation  had  not

exceeded  15% and  3% for  SCs  and  STs  while  population  of  the  said

categories had increased, there was adequate consideration of the above

three  factors  of  “backwardness”,  inadequacy  of  representation”  and

“overall  efficiency”.   Section  3  of  the  Act  provided  for  an  inbuilt

mechanism for providing reservation in promotion to the extent of 15%

and 3% respectively for the SCs and STs.  The State Government collects

statistics every year.  The High Court held that contention that if all the

posts in higher echelons may be filled by SCs and STs, the promotional

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prospects of general merit candidates will get choked or blocked could

not be accepted as reservation in promotion was provided only upto the

cadre of  Assistant  Executive Engineers.   It  was  further  observed that

there  was  no  pleading  that  overall  efficiency  of  service  would  be

hampered by promoting persons belonging to SCs and STs.

10. The  impugned  judgment  has  been  challenged  on  behalf  of  the

appellants mainly relying upon judgment of this Court in Uttar Pradesh

Power Corporation Limited v. Rajesh Kumar10.  It was submitted that

the High Court erroneously held that there was an inbuilt  mechanism

under  Section  3  of  the  impugned  Act  or  that  the  seniority  rule

maintaining lower cadre seniority in respect of persons promoted on a

particular  occasion  was  a  safeguard  against  excessive  reservation.

Similarly, the finding that reservation was only upto a particular level and

not beyond or that accelerated promotion upto that level did not affect

further promotions was erroneous.  It was also submitted that there was

no provision for excluding the creamy layer which also rendered the Act

invalid.  It was submitted that no exercise whatsoever in terms of    M.

Nagaraj case has been undertaken by the State.

10

(2012) 7 SCC 1

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11. Shri  Basava Prabhu S. Patil,  learned senior counsel appearing on

behalf  of  the  State  submitted  that  the  Act  did  not  deal  with  the

reservation.  It only dealt with seniority.  Seniority was not a fundamental

right  but  a  civil  right  as  held  in  Bimlesh  Tanwar  vs.  State  of

Haryana11.   M.  Nagaraj judgment  of  this  Court  had  dealt  with

reservation and not  with  consequential  seniority.   Once reservation is

within the prescribed limit, there was no bar to consequential seniority

being granted.  It was further submitted that even if seniority is to be

struck  down,  the  clock  cannot  be  entirely  reversed  so  as  to  affect

seniority of persons who had retired or who are about to retire or who

had reached higher positions.

12. Shri  S.N.  Bhat,  learned  counsel  for  the  private  respondents

supported the impugned judgment  and submitted that the Government

was not required to carry out the exercise of finding out ‘backwardness’,

‘inadequacy of representation’ and ‘overall administrative efficiency’ for

providing consequential seniority to officers on the basis of reservation.

The  said  exercise  was  required  to  be  carried  out  only  for  providing

reservation in promotion.  Reservation in promotion was permissible only

upto Class I posts in Karnataka.  Moreover, inter se seniority of reserved

category and general category candidates promoted together was not 11

(2003) 5 SCC 604

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disturbed.   The  roster  points  ensured  that  there  was  no  excessive

representation  in  different  cadres  of  service.   In  view of  Government

Order dated 3rd February, 1999 there was enough data available to justify

continuance of provision for consequential seniority under the impugned

Act.  Data collected by the Department of Statistics with regard to overall

representation of SCs and STs as on 31st March, 2002 showed that the

representation of SCs and STs was not above 15% and 3% respectively.

Section 4 of the Act only protected consequential  seniority which was

already given.  Promotions already effected cannot be disturbed.

13. Reference may now be made to the impugned Act.  The preamble

of  the  Act  refers  to  policy  of  reservation  in  promotion  in  favour  of

Government servants belonging to SCs and STs in terms of order dated

27th April, 1978.  Para 7 of the said order stipulates that inter se seniority

amongst persons promoted in accordance with the said order has to be

determined in the manner provided under Rule 4 or Rule 4A of the 1957

Rules.  There  is  further  reference  to  the  judgment  of  this  Court  in

Badappanavar  (supra)  to  the  effect  that  there  was  no  specific  rule

permitting  seniority  to  be  counted  for  persons  promoted  against  a

reserved  roster  point.   It  further  refers  to  the  Constitution  (85th

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

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

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ambiguity and to clarify that government servants belonging to SCs and

STs promoted in accordance with the reservation in promotion shall be

entitled to seniority as it is available to government servants belonging

to  other  categories.   Section  3  of  the  impugned  Act  provides  that

government servants belonging to SCs and STs promoted in accordance

with the policy reservation in promotion shall be entitled to consequential

seniority on the basis of length of service in a cadre.  Proviso to the said

section  to  the  effect  that  inter  se  seniority  of  government  servants

belonging  to  SCs/STs  and  those  belonging  to  unreserved  category

promoted at the same time by a common order shall be on the basis of

inter se seniority in the lower cadre.  Section 4 provides for protection of

consequential  seniority  already accorded from 27th April,  1978.  Since

Sections 3 and 4 are the key sections, the same are reproduced below :

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

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cadre, at the same time by a common 5 order, shall be determined on the basis of their seniority inter-se, in the lower cadre.  Provided  further  that  where  the  posts  in  a  cadre, according to  the rules  of  recruitment  applicable  to them are required to be filled by promotion from two or more lower cadres,-  

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

(ii) The roster shall be applied separately to the number of vacancies so calculated in respect of each of those lower cadres;  Provided also that the serial  numbers of the roster points  specified  in  the  Reservation  Order  are intended only to facilitate calculation of the number of vacancies reserved for promotion at a time and such  roster  points  are  not  intended  to  determine inter-se  seniority  of  the  Government  Servants belonging  to  the  Scheduled  Castes  and  the Scheduled Tribes vis-a-vis the Government Servants belonging to  the unreserved category promoted at the same time and such inter-se seniority  shall  be determined  by  their  seniority  inter-se  in  the  cadre from which they are promoted, as illustrated in the Schedule appended to this Act.  4. Protection of consequential seniority already accorded  from  27th  April,  1978,  onwards.- Notwithstanding  anything  contained  in  this  Act  or any  other  law  for  the  time  being  in  force,  the consequential  seniority  already  accorded  to  the Government  servants  belonging  to  the  Scheduled Castes and the Scheduled Tribes who were promoted in  accordance  with  the  policy  of  reservation  in promotion provided for in the Reservation Order with effect  from  the  Twenty  Seventh  Day  of  April, Nineteen Hundred and Seventy Eight shall be valid and shall be protected and shall not be disturbed. “

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14. Question  for  consideration  is  whether  the  impugned  Act  is

consistent with Articles 14 and 16 of the Constitution.  The said

question has been gone into by this  Court  inter  alia  in  identical

circumstances in Suraj Bhan Meena v. State of Rajasthan12 and

Uttar Pradesh Power Corporation Limited (supra) to which we

will make a reference at appropriate place.   

15. We  proceed  to  deal  with  the  contention  that  High  Court

judgment proceeds on incorrect understanding of the law laid down

in  M. Nagaraj  (supra).   While no doubt in  M. Nagaraj  (supra),

85th Amendment was upheld with the observation that enabling the

State  to  do  away  with  the  ‘catch  up’  rule,  a  judicially  evolved

concept  to  control  the  effect  of  reservations,  was  valid  but  the

exercise  of  power  to  do  away  with  the  said  rule  and  providing

consequential  seniority  in  favour  of  roster  point  promotees  of

reserved category was subject to the limitation of determining the

three factors of ‘backwardness’, ‘inadequacy of representation’ and

‘overall  efficiency’.   The  High  Court  brushed  aside  the  said

mandatory  requirement  by  simply  observing  that  Section  3

provided for an inbuilt mechanism as the extent of mechanism was

12

(2011) 1 SCC 467

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limited  to  15% and  3% respectively  for  the  SCs  and  STs  which

dispensed  with  any  requirement  of  determining  inadequacy  of

representation or backwardness.  High Court further dispensed with

the requirement of determining overall efficiency by observing that

there was no pleading that overall efficiency would be hampered by

promoting persons belonging to SCs and STs.  This reasoning in the

judgment  of  the  High  Court,  it  is  submitted,  is  contrary  to  the

mandate of law as recognized in M. Nagaraj (supra) and the view

similar to the impugned judgment has been repeatedly disapproved

in decisions of this Court.   

16. We find considerable force in the submission.  The issue is no

longer  res integra and it will be suffice to refer to the law clearly

laid down by this Court in this regard.

17. In  M. Nagaraj  (supra),  this  Court  considered constitutional

validity of 77th, 81st, 82nd and 85th Amendments.  In doing so, the

Court was concerned with the question whether the amendment

infringed the basic structure of the Constitution.  It was held that

equality is part of the basic structure but in the present context,

right to equality is not violated by an enabling provision if exercise

of  power  so  justifies.   In  this  regard,  following  observations  are

worthwhile to note :

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“31. At the outset, it may be noted that equality, rule  of  law,  judicial  review  and  separation  of powers  are  distinct  concepts.  They  have  to  be treated  separately,  though  they  are  intimately connected. There can be no rule of law if there is no  equality  before  the  law;  and  rule  of  law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial  review and judicial  relief and all  these features  would  lose  their  significance  if  judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed  to  secure  among  other  things,  justice both social and economic    ……

……          …… 32.  In  Minerva  Mills  [(1980)  3  SCC  625] Chandrachud,  C.J.,  speaking  for  the  majority, observed that Articles 14 and 19 do not confer any fanciful  rights.  They  confer  rights  which  are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If  Articles 14 and 19 are put out of operation, Article 32 will be rendered nugatory      ….. …… ……          ……

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

……          ……

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

xxxx

42.    …..  ….There  can  be  no  justice  without equality.  Article  14  guarantees  the  fundamental

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right  to  equality  before  the  law  on  all  persons. Great  social  injustice  resulted  from  treating sections of the Hindu community as “untouchable” and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing  for  throwing  open  all  public  Hindu religious  temples  to  untouchables.  Therefore, provisions of Part III  also provide for political and social justice.

18.  Considering  the  right  of  equality  in  the  context  of

reservation/affirmative action it was observed :

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

19. Thereafter, concepts of ‘equity’, ‘justice’ and ‘merit’ in public

employment were referred to and it  was held that application of

these concepts  in  public  employment depends upon quantifiable

data in each case.  It was observed:

“44.  …  …  …Backward  Classes  seek  justice. General class in public employment seeks equity. The  difficulty  comes  in  when  the  third  variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium  between  justice  to  the  backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are

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hard concepts.  However,  if  you add efficiency to equity  and  justice,  the  problem  arises  in  the context of the reservation. This problem has to be examined,  therefore,  on  the  facts  of  each  case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in  representation  and  backwardness  of  the Scheduled  Castes  and  Scheduled  Tribes  are circumstances which enable the State Government to  act  under  Article  16(4)  of  the  Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under  Article  16(4)  as  well  as  Article 16(4-A)  come  in  the  form  of  Article  335  of  the Constitution.  

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

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

20. The above discussion led this Court to hold that conferment of

enabling power on State under Article 16(4A) did not by itself violate

the basic feature of equality.   If the affirmative action stipulated under

Article  16(4A)  could  be  balanced  with  the  need  for  adequate

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representation for justice to the backwards while upholding equity for

the  forwards  and  efficiency  for  the  entire  system with  the  further

observation that the content of a right is defined by the Courts and

even while the amendment as such could be upheld, validity of an

individual enactment was required to be gone into.  If the State wished

to  exercise  its  discretion  under  Article  16(4A),  it  was  to  collect

quantifiable data showing backwardness of the class and inadequacy

of  representation of  that  class  in public  employment  in addition to

compliance with Article 335. It was made clear that even if the State

has compelling reasons, as stated above, the State will have to see

that its reservation provision does not lead to excessiveness so as to

breach  the  ceiling  limit  of  50%  or  obliterate  the  creamy  layer  or

extend the reservation indefinitely.

21. It may also be worthwhile to note further observations of this Court

in the said judgment :

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

59. Giving  the  judgment  of  the  Court  in  Indra Sawhney [(1992) Supp. (3) SCC 217] Jeevan Reddy, J. stated  that  Article  16(4)  speaks  of  adequate representation  not  proportionate  representation

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although  proportion  of  population  of  Backward Classes  to  the  total  population  would  certainly  be relevant    ………… …… …… xxxx

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

xxxxx

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

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xxxxx

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

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

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

xxxxx

117.    …..     …… Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will

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have  to  place  before  the  Court  the  requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of  inadequacy  of  representation  of  SCs/STs  in  a particular class or classes of posts without affecting general  efficiency  of  service  as  mandated  under Article 335 of the Constitution.

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

xxxx

120. At  this  stage,  one  aspect  needs  to  be mentioned.  Social  justice  is  concerned  with  the distribution  of  benefits  and  burdens.  The  basis  of distribution  is  the  area  of  conflict  between  rights, needs and means.  These three criteria  can be put under  two  concepts  of  equality,  namely,  “formal equality” and “proportional equality”. Formal equality means that  law treats  everyone equal.  Concept  of egalitarian  equality  is  the  concept  of  proportional equality and it expects the States to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity. In  Indra Sawhney all the Judges except Pandian, J. held that the “means test” should be adopted to exclude the creamy layer from the protected group earmarked for reservation.  In  Indra  Sawhney this  Court  has, therefore,  accepted  caste  as  a  determinant  of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of  the  Constitution  by  bringing  in  the  concept  of

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creamy layer.  Views have often  been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should  be  the  determinant  of  backwardness.  As stated above, we are bound by the decision in Indra Sawhney.  The question as  to  the “determinant”  of backwardness cannot be gone into by us in view of the  binding  decision.  In  addition  to  the  above requirements  this  Court  in  Indra  Sawhney has evolved  numerical  benchmarks  like  ceiling  limit  of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination.

xxxx

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

22. Question  of  application  of  principles  laid  down  in  M. Nagaraj

(supra)  for  judging  the  exercise  of  enabling  power  of  granting

consequential  seniority  and  promotion  was  raised  in  Suraj  Bhan

Meena (supra).  Therein challenge  was to the validity of notification

dated 25th August, 2008 issued by the State Government of Rajasthan

under proviso to Article 309 of the Constitution, amending the service

rules  in  the  State  of  Rajasthan  w.e.f.  28th December,  2002.   The

notification  purported to give consequential  seniority to candidates

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

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challenge to the notification was that without quantifying figures of SCs

and  STs  or  showing   compelling  reasons  such  as  ‘backwardness’,

‘inadequacy of representation’  and ‘overall  administrative efficiency’

as  laid  down  in  M.  Nagaraj  (supra)  the  grant  of  consequential

seniority was not permissible. The High Court quashed the notification

providing for consequential seniority on the ground that no exercise

had been undertaken in terms of Article 16(4A) to acquire quantifiable

data regarding inadequacy of representation to SCs and STs in public

service and to assess whether such reservation was necessary.  This

was upheld by this Court as under :

“66. The position after  the decision in  M. Nagaraj case is  that  reservation  of  posts  in  promotion  is dependent  on  the  inadequacy  of  representation  of members  of  the  Scheduled  Castes  and  Scheduled Tribes  and  Backward  Classes  and  subject  to  the condition  of  ascertaining  as  to  whether  such reservation was at all required. 67. The  view  of  the  High  Court  is  based  on  the decision  in  M.  Nagaraj  case as  no  exercise  was undertaken  in  terms  of  Article  16(4-A)  to  acquire quantifiable  data  regarding  the  inadequacy  of representation  of  the  Scheduled  Caste  and Scheduled Tribe communities in public services. The Rajasthan  High  Court  has  rightly  quashed  the Notifications dated 28-12-2002 and 25-4-2008 issued by the State of Rajasthan providing for consequential seniority  and  promotion  to  the  members  of  the Scheduled  Caste  and Scheduled  Tribe  communities and the same does not call for any interference.”

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23. Again in  Uttar Pradesh Power Corporation Limited  (supra),

validity of Rule 8A of the U.P.  Government Servants Seniority Rules,

1991, inserted by way of an amendment in 2007, was put in issue.

While a Division Bench of Lucknow Bench in  Prem Kumar Singh  v.

State of U.P.13 struck down the said rule, another Division Bench at

Allahabad in  Mukund Kumar Srivastava  v. State of U.P.14 took a

contrary view.  This Court dismissed the appeal filed by the U.P. Power

Corporation  Limited  and  upheld  the  view  of  the  Lucknow  Bench.

Reference was made to observations in para 819 in Indra Sawhney v.

UOI15 to  the  effect  that  reservation  under  Article  16(4)  of  the

Constitution could only be at the stage of entry into the State service

and not in promotion.  Reservation in promotion is bound to generate

acute  heartburning  and  lead  to  inefficiency  in  administration.   The

members of open category would think that whatever be their record

or performance, members of reserved category will steal a march over

them irrespective of their performance and competence.  Once persons

coming from different sources join a category or class, they must be

treated alike for promotion and no distinction was permissible on the 13

(2011) 3 All LJ 343 14

(2011) 1 All LJ 428 15

(1992) Supp. (3) SCC 217

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basis of ‘birth-mark’.  Reservation in promotion will be contrary to the

mandate  of  Article  335,  viz.,  maintenance  of  efficiency  in

administration and put premium on efficiency.  Members of reserved

category will not work hard since they do not have to compete with

their  colleagues  and  because  of  assured  promotion,  which  will  be

against the goal of excellence under Article 51-A (j).  Reference was

also  made  to  para  831  in  the  said  judgment  to  the  effect  that

extending concessions and relaxations in the matter of promotion to

members of reserved category could affect efficiency of administration.

Reference was then made to the  decisions of this Court holding that

roster only ensured percentage of reservation in promotion but could

not affect seniority.16

24. Reference  was  then  made  to  the  Constitution  amendment

enabling reservation in promotions and consequential seniority which

was  upheld  in  M.  Nagaraj  (supra).   The  said  judgment  was

summarized as follows:

“  81. From the aforesaid decision in M. Nagaraj case and the paragraphs we have quoted hereinabove, the following principles can be carved out:

16

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

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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  the  backwardness  and inadequacy  keeping  in  mind  the  efficiency  of service as required under Article 335.

(ii)  Article  16(4)  which  protects  the  interests  of certain  sections  of  the  society  has  to  be balanced  against  Article  16(1)  which  protects the  interests  of  every  citizen  of  the  entire society.  They  should  be  harmonised  because they  are  restatements  of  the  principle  of equality under Article 14.

(iii)  Each  post  gets  marked  for  the  particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.

(iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster  in  order  to  ascertain  whether  a  given class/group  is  adequately  represented  in  the service.  The  cadre  strength  as  a  unit  also ensures that the upper ceiling limit of 50% is not  violated.  Further,  roster  has  to  be post-specific and not vacancy based.

(v)  The  State  has  to  form  its  opinion  on  the quantifiable  data  regarding  adequacy  of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to  provide  for  reservation  in  matters  of promotion.  Clause  (4-A)  of  Article  16  applies only to SCs and STs. The said clause is carved out  of  Article  16(4-A).  Therefore,  clause  (4-A) will be governed by the two compelling reasons —“backwardness”  and  “inadequacy  of representation”, as mentioned in Article 16(4). If  the said two reasons do not exist, then the enabling provision cannot be enforced.

(vi) If the ceiling limit on the carry over of unfilled vacancies  is  removed,  the  other  alternative time  factor  comes  in  and  in  that  event,  the

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timescale has to be imposed in the interest of efficiency  in  administration  as  mandated  by Article  335.  If  the timescale is  not kept,  then posts will  continue to remain vacant for years which  would  be  detrimental  to  the administration.  Therefore,  in  each  case,  the appropriate  Government  will  now  have  to introduce the duration depending upon the fact situation.

(vii)  If  the appropriate  Government  enacts  a  law providing  for  reservation  without  keeping  in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.

(viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either  would  result  in  violation  of  the constitutional mandate. This exercise, however, will depend on the facts of each case.

(ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on  the  availability  of  data.  That  exercise depends  on  numerous  factors.  It  is  for  this reason that the enabling provisions are required to  be  made  because  each  competing  claim seeks to achieve certain goals.  How best one should  optimise  these  conflicting  claims  can only  be  done  by  the  administration  in  the context of local prevailing conditions in public employment.

(x)  Article  16(4),  therefore,  creates  a  field  which enables  a  State  to  provide  for  reservation provided there exists backwardness of a class and  inadequacy  of  representation  in employment.  These  are  compelling  reasons. They  do  not  exist  in  Article  16(1).  It  is  only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.”

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25. Referring to the “Social Justice Committee Report” relied upon by

the U.P. Power Corporation, it was observed that the said report was in

respect of population and vacancies and not in respect of the concepts

evolved in  M. Nagaraj  (supra).   Therefore,  exercise in  the light  of

judgment in M. Nagaraj was a categorical imperative.  The contention

that  no  such  exercise  was  necessary  could  not  be  accepted.

Accordingly,  this  Court  upheld  the view that  grant  of  consequential

seniority in promotion to the persons belonging to SCs and STs who

were granted promotion against roster points could not be sustained.

Reference may be made to the following observations :

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

86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in

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

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

26. In  Central  Bank  of  India  v. SC/ST  Employees  Welfare

Association17,   question  was  whether  in  absence  of  a  rule  of

reservation  for  promotion  such  reservation  was  permissible  merely

because  the  banks  were  following  reservation  policy  of  the

Government of  India.   The Madras High Court  after  considering the

17

(2015) 12 SCC 308

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statistics found that there was no adequate representation of SCs and

STs in higher scales.  It directed that such representation be granted.

Plea  of  the  Bank  that  such  reservation  will  affect  efficiency  in  the

administration was rejected.  This Court held that in absence of any

specific  provision  for  reservation  in  promotion,  the  Court  could  not

issue a direction for reservation.  It was observed :

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

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27. In  S.  Panneer  Selvam  v. State  of  Tamil  Nadu18,  question

before the Court was whether in absence of any policy decision by the

State for giving consequential seniority to candidates promoted on the

basis of reservation prior to a senior general category candidate, claim

for consequential seniority could be accepted.  Answering the question

in  the  negative,  it  was  held  that  in  absence  of  provision  for

consequential seniority, ‘catch up’ rule will be applicable and the roster

point promotees cannot claim such consequential seniority. The senior

general  candidates  will  regain  their  seniority  on  being  promoted.

Observations relevant in this regard are as follows :

“34. If we look at the above comparative table of the  service  particulars  of  the  appellants  and  the respondents,  it  is  seen  that  the  contesting respondents  U.  Palaniappan  joined  the  service almost  seven  years  after  the  appellants,  his seniority  is  automatically  accelerated  at  an unprecedented  rate  and  as  on  1-4-2004  his seniority  rank  as  ADE  is  150  and  seniority  of  V. Appadurai is 120. The appellants who are qualified and  senior  than  the  contesting  respondents  are placed much below in  rank  in  comparison to  the person belonging to the reserved class promotees who  were  promoted  following  the  rule  of reservation.  It  is  to  be  noted  that  the  private respondents  in  the  present  case  have  been promoted  temporarily  under  Rule  39(a)  and  Rule 10(a)(i) of the General Rules with the condition that their  inclusion  in  the  promotional  order  shall  not

18

(2015) 1 SCC 292

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confer on them any right whatsoever in the service. Determination of seniority is  a vital  aspect in the service  career  of  an  employee  and  his  future promotion  is  dependent  on  this.  Therefore, determination of seniority must be based on some principles which are just and fair. In the absence of any policy  decision taken or  rules  framed by the State of Tamil Nadu regarding Tamil Nadu Highways Engineering  Service,  accelerated  promotion  given to the respondents following rule of reservation in terms of Rule 12 will not give them consequential accelerated seniority.

xxxx

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

26. It is clear from the above discussion that exercise for determining

‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’,

is a must for exercise of power under Article 16(4A).  Mere fact that

there is no proportionate representation in promotional posts for the

population of SCs and STs is not by itself enough to grant consequential

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seniority to promotees who are otherwise junior and thereby denying

seniority  to  those  who  are  given  promotion  later  on  account  of

reservation policy.  It is for the State to place material on record that

there was compelling necessity for exercise of such power and decision

of the State was based on material  including the study that overall

efficiency is not compromised.  In the present case, no such exercise

has been undertaken.  The High Court erroneously observed that it was

for the petitioners to plead and prove that the overall efficiency was

adversely affected by giving consequential seniority to junior persons

who  got  promotion  on  account  of  reservation.   Plea  that  persons

promoted at the same time were allowed to retain their seniority in the

lower cadre is untenable and ignores the fact that a senior person may

be promoted later and not at same time on account of roster point

reservation.  Depriving him of his seniority affects his further chances

of promotion.  Further plea that seniority was not a fundamental right

is  equally  without  any merit  in  the present context.   In  absence of

exercise under Article 16(4A),  it  is  the ‘catch up’ rule which is fully

applies.   It  is  not  necessary  to  go  into  the  question  whether  the

concerned Corporation had adopted the rule of consequential seniority.

27. In  view  of  the  above,  we  allow  these  appeals,  set  aside  the

impugned judgment and declare the provisions of the impugned Act to

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the extent of doing away with the ‘catch up’ rule and providing for

consequential seniority under Sections 3 and 4 to persons belonging to

SCs and STs on promotion against roster points to be ultra vires Articles

14 and 16 of the Constitution.  The judgment will not affect those who

have already retired and will not affect financial benefits already taken.

Consequential  promotions  granted  to  serving  employees,  based  on

consequential seniority benefit, will be treated as ad hoc and liable to

be reviewed.   Seniority  list  may be now revised in the light  of  this

judgment  within  three  months  from  today.   Further  consequential

action may be taken accordingly within next three months.  

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

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

NEW DELHI FEBRUARY 09, 2017