1    

             Reportable   

IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE/INHERENT/ORIGINAL JURISDICTION   

M A No. 1151 of 2018  

In   

Civil Appeal No. 2368 of 2011  

B K Pavitra and Ors                                  ...Appellants    

Versus   

The Union of India and Ors                                              ...Respondents    

With    

Review Petition (c) Diary No. 7833 of 2017    

With    

Review Petition (c) Diary No.10240 of 2017    

With    

Review Petition (c) Diary No.10258 of 2017    

With

2    

 Review Petition (c) Diary No.10859 of 2017  

With    

Review Petition (c) Diary No.12622 of 2017    

With    

Review Petition (c) Diary No.12674 of 2017    

With    

Review Petition (c) Diary No.13047 of 2017    

With    

Review Petition (c) Diary No.14563 of 2017    

With    

Review Petition (c) Diary No.16896 of 2017    

With    

M A No. 1152 of  2018    

In    

Civil Appeal No. 2369 of 2011    

With      

Writ Petition (c) No. 764 of 2018      

With      

Writ Petition (c) No. 769 of 2018    

With     

3    

Writ Petition No.791 of  2018    

With    

Writ Petition (c) No.823 of 2018      

With      

Writ Petition (c) No. 827 of 2018      

With    

Writ Petition (c) No. 850 of 2018      

With    

Writ Petition (c) No.875 of 2018      

With    

Writ Petition (c) No. 872 of 2018    

With      

Writ Petition (c) No. 901 of 2018    

With      

Writ Petition (c) No. 879 of 2018    

And    

With      

Writ Petition (c) No. 1209 of 2018   

4    

J U D G M E N T  

Dr Dhananjaya Y Chandrachud,  J.  

This judgment has been divided into sections to facilitate analysis. They are  

A The constitutional challenge   

B The constitutional backdrop to reservations in Karnataka   

C Submissions   

C.I  Petitioners  

C.2  Submissions for the respondents and intervenors   

 D Assent to the Bill   

E Does the Reservation Act 2018 overrule or nullify B K Pavitra I  

E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act  

2018  

E.2 The Ratna Prabha Committee report   

F Substantive versus formal equality  

F.I The Constituent Assembly‘s understanding of Article 16 (4)  

F.2 The Constitution as a transformative instrument   

G Efficiency in administration   

H The issue of creamy layer   

I Retrospectivity   

J Over representation in KPTCL and PWD  

K Conclusion

PART A   

5    

A The constitutional challenge   

  1 The principal challenge in this batch of cases is to the validity of the  

Karnataka Extension of Consequential Seniority to Government Servants  

Promoted on the Basis of Reservation (to the Posts in the Civil Services of the  

State) Act 2018 1 . The enactment provides, among other things, for consequential  

seniority to persons belonging to the Scheduled Castes 2  and Scheduled Tribes

3   

promoted under the reservation policy of the State of Karnataka. The law protects  

consequential seniority from 24 April 1978.  

2 The Reservation Act 2018 was preceded in time by the Karnataka  

Determination of Seniority of the Government Servants Promoted on the Basis of  

the Reservation (to the Posts in the Civil Services of the State) Act 2002 4 . The  

constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra  

v Union of India 5 , (―B K Pavitra I‖). A two judge Bench of this Court (consisting  

of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and 4 of the  

Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on  

the ground that an exercise for determining ―inadequacy of representation‖,  

―backwardness‖ and the impact on ―overall efficiency‖ had not preceded the  

enactment of the law. Such an exercise was held to be mandated by the decision  

of a Constitution Bench of this Court in M Nagaraj v Union of India 6  (―Nagaraj‖).

                                                           1  Reservation Act 2018   

2  SCs  

3  STs  

4  Reservation Act 2002  

5  (2017) 4 SCC 620  

6  (2006) 8 SCC 212

PART B   

6    

In the absence of the State of Karnataka having collected quantifiable data on  

the above three parameters, the Reservation Act 2002 was held to be invalid.  

3 The legislature in the State of Karnataka enacted the Reservation Act 2018  

after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The  

grievance of the petitioners is that the state legislature has virtually re-enacted  

the earlier legislation without curing its defects. According to the petitioners, it is  

not open to a legislative body governed by the parameters of a written  

constitution to override a judicial decision, without taking away its basis. On the  

other hand, the State government has asserted that an exercise for collecting  

―quantifiable data‖ was in fact carried out, consistent with the parameters required  

by the decision in Nagaraj. The petitioners question both the process and the  

outcome of the exercise carried out by the state for collecting quantifiable data.   

B The constitutional backdrop to reservations in Karnataka   

4 The present case necessitates that this Court weave through the body of  

precedent which forms a part of our constitutional jurisprudence on the issue of  

reservations. In many ways, the issues before the Court are unique. For, in the  

post Nagaraj world which governs this body of law, the State government  

defends its legislation on the ground that it has fulfilled the constitutional  

requirement of collecting quantifiable data before it enacted the law. If such an  

exercise has been carried out, the Court will need to address itself to the  

standard of judicial review by a constitutional court of a legislation enacted by a  

competent legislature. The extent to which a data collection exercise by the

PART B   

7    

government, which precedes the enactment of the law, may be reviewed by the  

Court is a seminal issue.  B K Pavitra I involved a situation where this Court  

invalidated a law on the ground that no exercise of data collection was carried out  

by the State of Karnataka. In the present batch of cases, (herein referred to as B  

K Pavitra II), there is a constitutional challenge to the validity of a law enacted  

after the State had undertaken the exercise of collecting quantifiable data.  

Whether that exercise of data collection and the enactment of the new law which  

has emerged on its foundation takes away the basis of or the cause for the  

invalidation of the Reservation Act 2002 in B K Pavitra I is an essential question  

for our consideration.   

In this background, we set out the significant facts, in the chequered history of the  

present case.   

5 In exercise of the power conferred by the proviso to Article 309 of the  

Constitution, the Governor of Karnataka framed the Karnataka Government  

Servant (Seniority Rules) 1957 7 . Rules 2 and 4 provide for seniority on the basis  

of the period of service in a given cadre. There was no specific rule governing  

seniority in respect of roster promotions.  

Rule 2 inter alia, provides as follows:  

―2. Subject to the provisions hereinafter contained the  

seniority of a person in a particular cadre of service or class  

of post shall be determined as follows:-  

(a) Officers appointed substantively in clear vacancies shall  

be senior to all persons appointed on officiating or any  

other basis in the same cadre of service or class of post;  

                                                           7  The Rules 1957

PART B   

8    

(b) The seniority inter se of officers who are confirmed shall  

be determined according to dates of confirmation, but  

where the date of confirmation of any two officers is the  

same, their relative seniority will be determined by their  

seniority inter se while officiating in the same post and if  

not, by their seniority inter se in the lower grade.  

(c) Seniority inter se of persons appointed on temporary  

basis will be determined by the dates of their continuous  

officiation in that grade and where the period of officiation  

is the same the seniority inter se in the lower grade shall  

prevail.‖  

Rule 4 provides for the determination of seniority where promotions are made at  

the same time on the basis of seniority-cum-merit to a class of posts or cadre:  

―4. When promotions to a class of post or cadre are made on  

the basis of seniority-cum-merit at the same time, the relative  

seniority shall be determined.-  

(i) if promotions are made from any one cadre or class of  

post, by their seniority inter se in the lower cadre or class  

of post;  

(ii) if promotions are made from several cadres or classes of  

posts of the same grade, by the period of service in those  

grades;  

(iii) if promotions are made from several cadres or classes of  

posts, the grades of which are not the same, by the order  

in which the candidates are arranged by the authority  

making the promotion, in consultation with Public Service  

Commission where such consultation is necessary, taking  

into consideration the order in which promotions are to be  

made from those several cadres or classes of post.‖  

Rule 4-A provides for the determination of the seniority where promotion is made  

by selection:  

―4-A When promotions to a class of post or cadre are  

made by selection at the same time either from several  

cadres or classes of post or from same cadre or class of post  

by the order in which the candidates are arranged in order of  

merit by the Appointing Authority making the selection, in  

consultation with Public Service Commission where such  

consultation is necessary.

PART B   

9    

[Explanation – For purposes of this rule, ―several cadres or  

classes of post‖ shall be deemed to include cadres or classes  

of post of different grades from which recruitment is made in  

any specified order of priority in accordance with any special  

rules of recruitment.].‖  

6 Reservation for persons belonging to SCs and STs in specified categories  

of promotional posts was introduced by a Government Order 8  dated 27 April 1978  

of the Government of Karnataka. Reservation in promotional posts for SCs was  

set at 15 per cent and for STs at 3 per cent in all cadres up to and inclusive of the  

lowest category of Class I posts in which there is no element of direct recruitment  

or where the direct recruitment does not exceed 66 2/3

per cent. A 33 point roster  

was applicable to each cadre of posts under appointing authorities. Inter-se  

seniority amongst persons promoted on any occasion was to be determined in  

accordance with Rules 4 and 4-A, as the case may be, of the Rules 1957. It also  

stipulated that vacancies would not be carried forward.  

7 On 1 June 1978, the State government issued an Official Memorandum 9   

providing guidelines and clarifications for implementing the Government Order  

dated 27 April 1978. The Official Memorandum stipulated that after promotion,  

seniority among candidates promoted on the basis of seniority-cum-merit shall,  

on each occasion, be fixed in accordance with Rule 4 of the Rules 1957. In other  

words, seniority would be governed by the inter se seniority in the cadre from  

which candidates were promoted. For candidates promoted by selection,  

seniority would be governed by Rule 4-A : the ranking would be as assigned in  

                                                           8  G.O. No. DPAR 29 SBC 77   

9  O.M. No. DPAR 29 SBC 77

PART B   

10    

the list of selected candidates by the appointing authority. The Official  

Memorandum dated 1 June 1978 thus provided, what can be described as the  

principle of consequential seniority to reserved category candidates.  

8 By a notification 10

dated 1 April 1992, a proviso was inserted to Rule 8 of  

the Karnataka Civil Services (General Recruitment) Rules 1977 11

which provided  

that vacancies not filled by SCs and STs would be treated as a backlog and  

would be made good in the future. This provision was upheld by a two judge  

Bench of this Court in Bhakta Ramegowda v State of Karnataka 12

(―Bhakta  

Ramegowda‖).  

9 On 16 November 1992, a nine judge Bench of this Court delivered  

judgment in Indra Sawhney v Union of India 13

(―Indra Sawhney‖). The issue as  

to whether reservations of promotional posts were contemplated by Article 16  

(4) 14

- when it used the expression ‗appointment‘ was among the issues dealt  

with. Justice B P Jeevan Reddy speaking for a plurality of four judges held that:   

(i) Reservations contemplated by Article 16 (4) of the Constitution should not  

exceed 50 per cent 15

. While 50 per cent shall be the rule, ―it is necessary  

not to put out of consideration certain extraordinary situations inherent in  

                                                           10

No. DPAR 13 SRR 92  11

The Rules 1977  12

(1997) 2 SCC 661  13

1992 Supp (3) SCC 217  14

Clauses (1) and (4) of Article 16 provide:  (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment  

to any office under the State.  …   

(4)   Nothing in this article shall prevent the State from making any provision for the reservation of  appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not  adequately represented in the services under the State.   

15  Supra 13, paragraph 809 at page 735

PART B   

11    

the great diversity of this country and the people‖ 16

. But, any relaxation of  

the strict rule must be with extreme caution and on a special case being  

made out 17

;  

(ii) Reservations under Article 16 (4) could only be provided at the time of  

entry into government service but not in matters of promotion. However,  

this principle would operate only prospectively and not affect promotions  

already made. Moreover, reservations already provided in promotions shall  

continue in operation for a period of five years from the date of the  

judgment 18

;  

(iii) The creamy layer can be and must be excluded. Justice B P Jeevan  

Reddy held :  

―792…While we agree that clause (4) aims at group  

backwardness, we feel that exclusion of such socially  

advanced members will make the ‗class‘ a truly backward  

class and would more appropriately serve the purpose and  

object of clause (4). (This discussion is confined to Other  

Backward Classes only and has no relevance in the case of  

Scheduled Tribes and Scheduled Castes).‖ 19

 (iv) The adequacy of the representation of a backward class of citizens in  

services ―is a matter within the subjective satisfaction of the State‖ 20

, since  

the requirement in Article 16 (4) is preceded by the words ―in the opinion of  

the State‖. The basis of the standard of judicial review was formulated  

thus:  

―798…This opinion can be formed by the State on its own,  

i.e., on the basis of the material it has in its possession  

already or it may gather such material through a  

Commission/Committee, person or authority. All that is  

                                                           16

Ibid, paragraph 810 at page 735  17

Ibid, paragraph 810 at page 735  18

Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771  19

Ibid at page 725  20

Ibid, paragraph 798 at page 728

PART B   

12    

required is, there must be some material upon which the  

opinion is formed. Indeed, in this matter the court should  

show due deference to the opinion of the State, which in the  

present context means the executive. The executive is  

supposed to know the existing conditions in the society,  

drawn as it is from among the representatives of the people in  

Parliament/Legislature. It does not, however, mean that the  

opinion formed is beyond judicial scrutiny altogether. The  

scope and reach of judicial scrutiny in matters within  

subjective satisfaction of the executive are well and  

extensively stated in  Barium Chemicals v. Company Law  

Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need  

not be repeated here. Suffice it to mention that the said  

principles apply equally in the case of a constitutional  

provision like Article 16(4) which expressly places the  

particular fact (inadequate representation) within the  

subjective judgment of the State/executive.‖ 21

(v) The backward class of citizens cannot be identified only and exclusively  

with reference to an economic criterion 22

. It is permissible to identify a  

backward class of citizens with reference to occupation, income as well  

caste.  

10 In view of the decision of this Court in Indra Sawhney, the provisions for  

reservation in matters of promotion under the Government Order of 1978, as  

clarified by the Official Memorandum dated 1 June 1978 were saved for a period  

of five years from 16 November 1992. Promotions already made were saved.   

11 On 17 June 1995, Parliament acting in its constituent capacity adopted the  

seventy-seventh amendment by which clause (4A) was inserted into Article 16 to  

enable reservations to be made in promotion in favour of the SCs and STs 23

. The  

                                                           21

Ibid at page 728  22

Ibid, paragraph 799 at page 728  23

Clause 16 (4A) : Nothing in this article shall prevent the State from making any provision for reservation in  matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled

PART B   

13    

amendment came into force on 17 June 1995, before the expiry of five years from  

16 November 1992 (the date on which the decision in Indra Sawhney was  

pronounced). As a result of the decision in Indra Sawhney and the seventy-

seventh amendment to the Constitution, the provision for reservations made by  

the Government of Karnataka under the Government Order of 1978 stood saved  

and continued to operate.   

12 On 10 February 1995, a Constitution Bench of this Court rendered a  

judgment in R K Sabharwal v State of Punjab 24

(―Sabharwal‖) and held that:   

(i) Once the prescribed percentage of posts is filled by reserved category  

candidates by the operation of the roster, the numerical test of adequacy is  

satisfied and the roster would cease to operate 25

;  

(ii) The percentage of reservation has to be worked out in relation to the  

number of posts which form the cadre strength. The concept of vacancy  

has no relevance in operating the percentage of reservation 26

; and  

(iii) The interpretation placed on the working of the roster shall operate  

prospectively 27

from 10 February 1995.  

13 On 1 October 1995, a two judge Bench of this Court held in Union of India  

v Virpal Singh Chauhan 28

(―Virpal Singh‖) that the state could provide that even  

if a candidate belonging to the SC or ST is promoted earlier on the basis of  

                                                                                                                                                                                     Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the  services under the State.        

24  (1995) 2 SCC 745  

25  Ibid, paragraph 5 at page 750  

26  Ibid, paragraph 6  at page 751  

27  Ibid, paragraph 11 at page753  

28  (1995) 6 SCC 684  

PART B   

14    

reservation and on the application of the roster, this would entitle such a person  

to seniority over a senior belonging to the general category in the feeder cadre.  

However, a senior belonging to the general category who is promoted to a higher  

post subsequently would regain seniority over the reserved candidate who was  

promoted earlier. This rule came to be known as the catch-up rule. The two judge  

Bench directed that the above principle would be followed with effect from the  

date in the judgment in Sabharwal 29

.   

14 Six months after the decision in Virpal Singh, on 1 March 1996, a three  

judge Bench of this Court in Ajit Singh Januja v State of Punjab 30

(―Ajit Singh  

I‖), adopted the catch-up rule propounded in Virpal Singh, to the effect that the  

seniority between reserved category candidates and general candidates in the  

promoted category shall continue to be governed by their inter se seniority in the  

lower grades. This Court held that a balance has to be maintained so as to avoid  

―reverse discrimination‖ and, a rule or circular which gives seniority to a candidate  

belonging to the reserved category promoted on the basis of roster points would  

violate Articles 14 and 16 of the Constitution.   

15 On 24 June 1997, the Government of Karnataka issued a Government  

Order 31

formulating guidelines in regard to the manner in which backlog  

vacancies were required to be filled. On 3 February 1999, the Government of  

                                                           29

10 February 1995  30

(1996) 2 SCC 715  31

G.O. No. DPAR 10 SCBC 97  

PART B   

15    

Karnataka issued another Government Order 32

pursuant to Article 16 (4A)  

stipulating a modified policy of reservation in matters of promotion. The 1999  

Order provides for reservation in promotion to the extent of 15 per cent for SCs  

and 3 per cent for STs of the posts in a cadre up to and inclusive of the lowest  

category of group A posts in each service for which there is no element of direct  

recruitment or, where the proportionate of direct recruitment does not exceed  

66 2/3  

per cent. While providing for the continuance of reservations in promotion,  

the Government Order stipulated that reservation in favour of persons belonging  

to the SCs shall continue to operate until their representation in a cadre reaches  

15 per cent. Reservations in promotion for the STs would continue to operate  

until their representation in a cadre reaches 3 per cent. Thereafter, reservation in  

promotion shall continue only to maintain the representation to the extent of the  

above percentages for the respective categories. On 13 April 1999, the  

Government of Karnataka issued another Government Order 33

modifying the  

1999 Order to provide that reservations in promotions in favour of the SCs and  

STs shall continue to operate by applying the existing roster to the vacancies till  

the representation of persons belonging to these categories reached 15 per cent  

or 3 per cent as the case may be, respectively. Moreover, after the existing  

backlog was cleared, the representation of persons belonging to SCs and STs  

would be maintained to the extent of 15 per cent and 3 per cent of the total  

working strength.   

                                                           32

G.O. No. DPAR 21 SBC 97   33

Ibid

PART B   

16    

16 In Jagdish Lal v State of Haryana 34

, (―Jagdish Lal‖) a three judge Bench  

of this Court took a view contrary to the decision in Ajit Singh I. The decision in  

Jagdish Lal held that by virtue of the principle of continuous officiation, a  

candidate belonging to a reserved category who is promoted earlier than a  

general category candidate due to an accelerated promotion would not lose  

seniority in the higher cadre. This conflict of decisions was resolved by a  

Constitution Bench in Ajit Singh v State of Punjab 35

(―Ajit Singh II‖). The  

Constitution Bench held that Article 16 (4A) is only an enabling provision for  

reservation in promotion. In consequence, roster point promotees belonging to  

the reserved categories could not count their seniority in the promoted category  

from the date of continuance officiation in the promoted post in relation to general  

category candidates who were senior to them in the lower category and who  

were promoted later. Where a senior general candidate at the lower level is  

promoted later than a reserved category candidate, but before the further  

promotion of the latter, such a person will have to be treated as senior at the  

promotional level in relation to the reserved candidate who was promoted earlier.  

The Constitution Bench accordingly applied the catch-up rule for determining the  

seniority of roster point promotees vis-à-vis general category candidates. The  

Court held that any circular, order or rule that was issued to confer seniority to  

roster point promotees would be invalid. However, the Constitution Bench  

directed that candidates who were promoted contrary to the above principles of  

law before 1 March 1999 (the date of the decision in Ajit Singh I) need not be  

reverted.  

                                                           34

(1997) 6 SCC 538  35

(1999) 7 SCC 209

PART B   

17    

17 Contending that there was no provision permitting seniority to be granted  

in respect of roster point promotees belonging to the reserved categories, the  

reservation policy of the State of Karnataka came to be challenged before this  

Court in M G Badappanavar v State of Karnataka 36

(―Badappanavar‖). A three  

judge Bench, relying on the decisions in Ajit Singh I, Ajit Singh II and  

Sabharwal reiterated the principle that Article 16 (4A) does not permit the  

conferment of seniority to roster point promotees. This Court held that there was  

no specific rule in the State of Karnataka permitting seniority to be counted in  

respect of a roster promotion. It held thus:  

―12…The roster promotions were, it was held, meant only for  

the limited purpose of due representation of backward  

classes at various levels of service. If the rules are to be  

interpreted in a manner conferring seniority to the roster-point  

promotees, who have not gone through the normal channel  

where basic seniority or selection process is involved, then  

the rules, it was held will be ultra vires Article 14 and Article  

16 of the Constitution of India. Article 16(4-A) cannot also  

help. Such seniority, if given, would amount to treating  

unequals equally, rather, more than equals.‖ 37

18 The conferment of seniority to roster point promotees of the reserved  

categories would, in view of the court in Badappanavar, violate the equality  

principle which was part of the basic structure of the Constitution. The Court  

directed that the seniority lists and promotions be reviewed in accordance with its  

directions but those who were promoted before 1 March 1996 on principles  

contrary to Ajit Singh II and those who were promoted contrary to Sabharwal  

before 10 February 1995 need not be reverted.   

                                                           36

(2001) 2 SCC 666  37

Ibid at page 672

PART B   

18    

19 The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with  

effect from 17 June 1995. Article 16 (4A), as amended, reads thus:  

―Nothing in this article shall prevent the State from making  

any provision for reservation in matters of promotion, with  

consequential seniority, to any class or classes of posts in  

the services under the State in favour of the Scheduled  

Castes and the Scheduled Tribes which, in the opinion of the  

State, are not adequately represented in the services under  

the State.‖           (Emphasis supplied)  

 The purpose of the amendment was to enable the grant of consequential  

seniority to reserved categories promotees. The significance of the date on which  

the eighty-fifth amendment came into force – 17 June 1995 – is that it coincides  

with the coming into force of the seventy-seventh amendment which enabled  

reservations in promotions to be made for the SCs and STs.   

20 In 2002, the Karnataka State Legislature enacted the Reservation Act  

2002. The law came into force on 17 June 1995. It provided for consequential  

seniority to roster point promotees based on the length of service in a cadre,  

making the catch-up rule propounded in Ajit Singh II inapplicable. The earlier  

decision of this Court in Badappanavar had held that there was no specific rule  

for the conferment of seniority to roster point promotees. By the enactment of the  

Reservation Act 2002 with effect from 17 June 1995, the principle of  

consequential seniority was statutorily incorporated as a legislative mandate.   

21 The validity of the seventy-seventh and eighty-fifth amendments to the  

Constitution and of the legislation enacted in pursuance of those amendments

PART B   

19    

was challenged before a Constitution Bench of this Court in Nagaraj. The  

Constitution Bench analysed whether the replacement of the catch-up rule with  

consequential seniority violated the basic structure and equality principle under  

the Constitution. Upholding the constitutional validity of the amendments, this  

Court held that the catch-up rule and consequential seniority are judicially  

evolved concepts based on service jurisprudence. Hence, the exercise of the  

enabling power under Article 16 (4A) was held not to violate the basic features of  

the Constitution:  

―79. Reading the above judgments, we are of the view that  

the concept of ―catch-up‖ rule and ―consequential seniority‖  

are judicially evolved concepts to control the extent of  

reservation. The source of these concepts is in service  

jurisprudence. These concepts cannot be elevated to the  

status of an axiom like secularism, constitutional sovereignty,  

etc. It cannot be said that by insertion of the concept of  

―consequential seniority‖ the structure of Article 16(1) stands  

destroyed or abrogated. It cannot be said that ―equality code‖  

under Articles 14, 15 and 16 is violated by deletion of the  

―catch-up‖ rule. These concepts are based on practices.  

However, such practices cannot be elevated to the status of a  

constitutional principle so as to be beyond the amending  

power of Parliament. Principles of service jurisprudence are  

different from constitutional limitations. Therefore, in our view  

neither the ―catch-up‖ rule nor the concept of ―consequential  

seniority‖ is implicit in clauses (1) and (4) of Article 16 as  

correctly held in Virpal Singh Chauhan.‖ 38

22 The Constitution Bench held that Article 16 (4A) is an enabling provision.  

The state is not bound to make reservations for the SCs and STs in promotions.  

But, if it seeks to do so, it must collect quantifiable data on three facets:  

(i) The backwardness of the class;  

                                                           38

Supra 6 at page 259

PART B   

20    

(ii) The inadequacy of the representation of that class in public employment;  

and  

(iii) The general efficiency of service as mandated by Article 335 would not be  

effected.   

23 The principles governing this approach emerge from the following extracts  

from the decision:  

―107. …If the State has quantifiable data to show  

backwardness and inadequacy then the State can make  

reservations in promotions keeping in mind maintenance of  

efficiency which is held to be a constitutional limitation on the  

discretion of the State in making reservation as indicated by  

Article 335. As stated above, the concepts of efficiency,  

backwardness, inadequacy of representation are required to  

be identified and measured… 39

…  

117… in each case the Court has got to be satisfied that the  

State has exercised its opinion in making reservations in  

promotions for SCs and STs and for which the State  

concerned will have to place before the Court the requisite  

quantifiable data in each case and satisfy the Court that such  

reservations became necessary on account of inadequacy of  

representation of SCs/STs in a particular class or classes of  

posts without affecting general efficiency of service as  

mandated under Article 335 of the Constitution. 40

…  

123. … In this regard the State concerned will have to show  

in each case the existence of the compelling reasons,  

namely, backwardness, inadequacy of representation and  

overall administrative efficiency before making provision for  

reservation. As stated above, the impugned provision is an  

enabling provision. The State is not bound to make  

reservation for SCs/STs in matters of promotions. However, if  

they wish to exercise their discretion and make such  

provision, the State has to collect quantifiable data showing  

backwardness of the class and inadequacy of representation  

                                                           39

Ibid at pages 270-271  40

Ibid at pages 276-277

PART B   

21    

of that class in public employment in addition to compliance  

with Article 335. It is made clear that even if the State has  

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

see that its reservation provision does not lead to  

excessiveness so as to breach the ceiling limit of 50% or  

obliterate the creamy layer or extend the reservation  

indefinitely.‖ 41

The Constitution Bench held that the constitutional amendments do not abrogate  

the fundamentals of equality:  

―110…the boundaries of the width of the power, namely, the  

ceiling limit of 50% (the numerical benchmark), the principle  

of creamy layer, the compelling reasons, namely,  

backwardness, inadequacy of representation and the overall  

administrative efficiency are not obliterated by the impugned  

amendments. At the appropriate time, we have to consider  

the law as enacted by various States providing for reservation  

if challenged. At that time we have to see whether limitations  

on the exercise of power are violated. The State is free to  

exercise its discretion of providing for reservation subject to  

limitation, namely, that there must exist compelling reasons of  

backwardness, inadequacy of representation in a class of  

post(s) keeping in mind the overall administrative efficiency. It  

is made clear that even if the State has reasons to make  

reservation, as stated above, if the impugned law violates any  

of the above substantive limits on the width of the power the  

same would be liable to be set aside.‖ 42

These observations emphasise the parameters which must be applied where a  

law has been enacted to give effect to the provisions of Article 16 (4A). The  

legislative power of the state to enact such a law is preserved. The exercise of  

the power to legislate is conditioned by the existence of ―compelling reasons‖  

namely; the existence of backwardness, the inadequacy of representation and  

overall administrative efficiency. Elsewhere in the decision, the Constitution  

Bench treated these three parameters as ―controlling factors‖ for making  

                                                           41

Ibid at page 278  42

Ibid at page 272

PART B   

22    

reservations in promotions for SCs and STs. They were held to be constitutional  

requirements crucial to the preservation of ―the structure of equality of  

opportunity‖ in Article 16. The Constitution Bench left the validity of the individual  

enactments of the states to be adjudicated upon separately by Benches of this  

Court.   

24 In B K Pavitra I, a two judge Bench of this Court considered a challenge to  

the Reservation Act 2002 providing for consequential seniority on the ground that  

the exercise which was required to be carried out in Nagaraj had not been  

undertaken by the State and there was no provision for the exclusion of the  

creamy layer. The validity of the Reservation Act 2002 had been upheld by a  

Division Bench of the Karnataka High Court. In B K Pavitra I, this Court struck  

down Sections 3 and 4 of the Reservation Act 2002 as ultra vires Articles 14 and  

16. The petitioner contended that the law laid down by this Court in  

Badappanavar, Ajit Singh II and Virpal Singh remained applicable despite the  

Constitution (Eighty-fifth Amendment) Act 2001. Moreover, it was contended that  

the Government of Karnataka had not complied with the tests laid down in  

Nagaraj and had failed to provide any material or data to show inadequacy of  

representation. Moreover, no consideration was given to the issue of overall  

administrative efficiency. The principal challenge was that an exercise for  

determining ―backwardness‖, ―inadequacy of representation‖, and ―overall  

efficiency‖ in terms of the decision in Nagaraj had not been carried out.  

PART B   

23    

25 Relying on the decisions of this Court in Suraj Bhan Meena v State of  

Rajasthan 43

, Uttar Pradesh Power Corporation Ltd v Rajesh Kumar 44

and S  

Panneer Selvam v State of Tamil Nadu 45

(―Panneer Selvam‖), a two judge  

Bench of this Court affirmed that the exercise laid down in Nagaraj for  

determining ―inadequacy of representation‖, ―backwardness‖ and ―overall  

efficiency‖ is necessary for recourse to the enabling power under Article 16 (4A)  

of the Constitution. The Court held that the Government of Karnataka had failed  

to place material on record showing that there was a compelling necessity for the  

exercise of the power under Article 16 (4A). Hence, the directions laid down by  

this Court in Nagaraj were not followed.  Striking down Sections 3 and 4 of the  

Reservation Act 2002, this Court held thus:  

―29. It is clear from the above discussion in S. Panneer  

Selvam case that exercise for determining ―inadequacy of  

representation‖, ―backwardness‖ and ―overall efficiency‖, is a  

must for exercise of power under Article 16(4-A). Mere fact  

that there is no proportionate representation in promotional  

posts for the population of SCs and STs is not by itself  

enough to grant consequential seniority to promotees who are  

otherwise junior and thereby denying seniority to those who  

are given promotion later on account of reservation policy. It  

is for the State to place material on record that there was  

compelling necessity for exercise of such power and decision  

of the State was based on material including the study that  

overall efficiency is not compromised. In the present case, no  

such exercise has been undertaken. The High Court  

erroneously observed that it was for the petitioners to plead  

and prove that the overall efficiency was adversely affected  

by giving consequential seniority to junior persons who got  

promotion on account of reservation. Plea that persons  

promoted at the same time were allowed to retain their  

seniority in the lower cadre is untenable and ignores the fact  

that a senior person may be promoted later and not at the  

same time on account of roster point reservation. Depriving  

him of his seniority affects his further chances of promotion.  

Further plea that seniority was not a fundamental right is  

                                                           43

(2011) 1 SCC 467  44

(2012) 7 SCC 1  45

(2015) 10 SCC 292

PART B   

24    

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

exercise under Article 16(4-A), it is the ―catch-up‖ rule which  

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

whether the Corporation concerned had adopted the rule of  

consequential seniority.‖ 46

The Court clarified that the decision will not affect those who have already retired  

and availed of financial benefits. It was further directed that promotions granted to  

existing employees based on consequential seniority are liable to be reviewed  

and that the seniority list be revised in terms of the decision. Three months were  

granted to take further consequential action. Petitions seeking a review of the  

decision have been tagged with the present proceedings.  

26 After the decision of this Court in B K Pavitra I, on 22 March 2017, the  

Government of Karnataka constituted the Ratna Prabha Committee 47

headed by  

the Additional Chief Secretary to the State of Karnataka to submit a report on the  

backwardness and inadequacy of representation of SCs and STs in the State  

Civil Services and the impact of reservation on overall administrative efficiency in  

the State of Karnataka. The tasks entrusted to the Committee were to:  

―1) Collect information on the cadre-wise representation of  

Scheduled Castes and Scheduled Tribes in all the  

Government Departments;  

2) Collect information regarding backwardness of Scheduled  

Castes and Scheduled Tribes; and  

3) Study the effect on the administration due to the provision  

of reservation in promotion to the Scheduled Castes and  

Scheduled Tribes.‖  

                                                           46

Supra 6 at page 641  47

G.O. No. DPAR 182 SeneNi 2011  

PART B   

25    

27 On 5 May 2017, the Ratna Prabha Committee submitted a report, titled as  

the ‗Report on Backwardness, Inadequacy of Representation and  

Administrative Efficiency in Karnataka‘ 48

. The Government of Karnataka,  

through its Department of Personnel and Administrative Reforms, submitted the  

Ratna Prabha Committee report to the Law Commission of Karnataka on 8 June  

2017. The Law Commission sought to opine on ‗whether the data collected and  

reasons assigned by the Ratna Prabha Committee constitute a valid basis for  

validating the law‘ and submitted its report on 27 July 2017.  

28 In the meantime, the petitioners filed contempt petitions contending that  

the directions of this Court in B K Pavitra I to the State of Karnataka to review  

the seniority list were not complied with. The State of Karnataka filed applications  

for extension of time for compliance. On 20 March 2018, this Court disposed of  

the petitions rejecting the applications for extension of time for compliance with  

the decision in B K Pavitra I and granted one month time to take any  

consequential action. The State of Karnataka subsequently filed compliance  

affidavits before this Court stating that the exercise directed by the decision in B  

K Pavitra I had been carried out.  

29 On the basis of the Ratna Prabha Committee report, the Government of  

Karnataka introduced the Karnataka Extension of Consequential Seniority to  

Government Servants Promoted on the Basis of Reservation (to the Posts in the  

Civil Services of the State) Bill 2017. The Bill was passed by the Legislative  

                                                           48

Ratna Prabha Committee report

PART B   

26    

Assembly on 17 November 2017 and by the Legislative Council on 23 November  

2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for  

the consideration of the President of India under Article 200 of the Constitution.  

The Bill received the assent of the President on 14 June 2018 and was published  

in the official Gazette on 23 June 2018.   

30 Sections 3, 4 and 5 of the Reservation Act 2018 provides as follows :  

―3. Determination of Seniority of the Government  

Servants Promoted on the basis of Reservation.-  

Notwithstanding anything contained in any other law for the  

time being in force, the Government Servants belonging to  

the Scheduled Castes and the Scheduled Tribes promoted in  

accordance with the policy of reservation in promotion  

provided for in the Reservation Order shall be entitled to  

consequential seniority. Seniority shall be determined on the  

basis of the length of service in a cadre:   

Provided that the seniority inter-se of the Government  

Servants belonging to the Scheduled Castes and the  

Scheduled Tribes as well as those belonging to the  

unreserved category, promoted to a cadre, at the same time  

by a common order, shall be determined on the basis of their  

seniority inter-se, in the lower cadre.   

Provided further that where the posts in a cadre, according to  

the rules of recruitment applicable to them are required to be  

filled by promotion from two or more lower cadres,-   

(i) The number of vacancies available in the promotional  

(higher) cadre for each of the lower cadres according to the  

rules of recruitment applicable to it shall be calculated; and  

(ii) The roster shall be applied separately to the number of  

vacancies so calculated in respect of each of those lower  

cadres:   

Provided also that the serial numbers of the roster points  

specified in the Reservation Order are intended only to  

facilitate calculation of the number of vacancies reserved for  

promotion at a time and such roster points are not intended to  

determine inter-se seniority of the Government Servants  

belonging to the Scheduled Castes and the Scheduled Tribes  

vis-a-vis the Government Servants belonging to the  

unreserved category promoted at the same time and such

PART B   

27    

inter-se seniority shall be determined by their seniority 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.   

5. Provision for review.- All promotions to the posts  

belonging to the State Civil Services shall be within the extent  

and in accordance with the provisions of the reservation  

orders and other rules pertaining to method of recruitment  

and seniority. The Appointing Authority shall revise and  

redraw the existing seniority lists to ensure that the  

promotions are made accordingly:   

Provided that subsequent to such a review, wherever it is  

found that Government Servants belonging to the Scheduled  

Castes and Scheduled Tribes were promoted against  

reservation and backlog vacancies in excess or contrary to  

extent of reservation provided in the reservation orders shall  

be adjusted and fitted with reference to the roster points in  

accordance with the reservation orders issued from time to  

time by assigning appropriate dates of eligibility. In case, if  

persons belonging to the Scheduled Castes and the  

Scheduled Tribes who have already been promoted against  

reservation or backlog vacancies in excess or contrary to the  

extent of reservation provisions cannot get adjusted and fitted  

against the roster points they shall be continued against  

supernumerary posts, to be created by the concerned  

administrative department presuming concurrence of Finance  

Department, in the cadres in which they are currently working,  

till they get the date of eligibility for promotion in that cadre.‖  

Section 9 provides for the validation of action taken in respect of promotions  

since 27 April 1978:   

―9. Validation of action taken under the provisions of  

this Act.- Notwithstanding anything contained in any

PART B   

28    

Judgment, Decree or Order of any court, tribunal or other  

authority contrary to section 3 and 4 of this Act any action  

taken or done in respect of any promotions made or  

purporting to have been made and any action or thing taken  

or done, all proceedings held and any actions purported to  

have been done since 27th April, 1978 in relation to  

promotions as per sections 3 and 4 of this Act, before the  

publication of this Act shall be deemed to be valid and  

effective as if such promotions or action or thing has been  

made, taken or done under this Act and accordingly:- (a) no  

suit or other proceedings shall be maintained or continued in  

any court or any tribunal or before any authority for the review  

of any such promotions contrary to the provisions of this Act;  

and (b) no court shall enforce any decree or order to direct  

the review of any such cases contrary to the provisions of this  

Act.‖  

Section 1 (2) provides that the Reservation Act 2018 came into force with effect  

from 17 June 1995 (the effective date of the seventy-seventh and eighty-fifth  

constitutional amendments).  

31 These proceedings were instituted to assail the vires of the Reservation  

Act 2018. The principal contention which has been urged is that the Reservation  

Act 2018 does not take away basis of the decision of this Court in B K Pavitra I  

and is ultra vires. All matters have been admitted for hearing and tagged  

together.   

   32 On 27 July 2018, when the batch of cases was listed for hearing, it was  

suggested by this Court that the status quo may not be altered pending  

consideration of the matter. The Advocate General for the State of Karnataka  

orally agreed and accepted an order of status quo. The Government of Karnataka  

issued a circular on 3 August 2018 with a direction to maintain status quo and not

PART B   

29    

affect the process of promotion/demotion till further orders from the government.  

These directions were issued to all autonomous bodies, universities, public  

enterprises, commissions, corporations, boards and to institutions availing aid  

from the government under their administrative control.  

33 In Jarnail Singh v Lachhmi Narain Gupta 49

, (―Jarnail‖) a Constitution  

Bench of this Court considered whether the decision in Nagaraj requires to be  

referred to a larger Bench since:  

(i) It requires the state to collect quantifiable data showing backwardness of  

the SCs and STs contrary to the nine judge Bench decision in Indra  

Sawhney;  

(ii) The creamy layer principle was not applied to SCs and STs in Indra  

Sawhney; and  

(iii) In applying the creamy layer principle, Nagaraj conflicts with the decision  

in E V Chinnaiah v State of AP 50

(―Chinnaiah‖).   

34 In Jarnail, the Constitution Bench held that :  

(i) The decision in Chinnaiah holds, in essence, that a state law 51

cannot  

further sub-divide the SCs into sub categories. Such an exercise would be  

violative of Article 341(2) since only an Act of Parliament and not the state  

legislatures can make changes in the Presidential list. Chinnaiah did not  

dwell on any aspect on which the constitutional amendments were upheld  

                                                           49

2018 (10) SCC 396  50

(2005) 1 SCC 394  51

The court was considering the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of  Reservations) Act 2000   

PART B   

30    

in Nagaraj. Hence, it was not necessary for Nagaraj to advert to the  

decision in Chinnaiah. Chinnaiah dealt with a completely different  

problem and not with the constitutional amendments, which were dealt with  

in Nagaraj 52

;  

(ii) The decision of the Constitution Bench in Nagaraj, insofar as it requires  

the state to collect quantifiable data on backwardness in relation to the  

SCs and STs is contrary to Indra Sawhney and would have to be declared  

to be bad on this ground 53

; and  

(iii) Constitutional courts, when applying the principle of reservation will be  

within their jurisdiction to exclude the creamy layer on a harmonious  

construction on Articles 14 and 16 along with Articles 341 and 342 54

. The  

creamy layer principle is an essential aspect of the equality code.  

35 On 12 October 2018, the State of Karnataka submitted before this Court  

that since a legislation has been enacted by the state legislature and in view of  

the judgment of the Constitution Bench in Jarnail, the State would no longer  

proceed on the oral assurance of the Advocate General and would not be bound  

to it. On the other hand, it was urged by learned Counsel appearing for the  

petitioners that the intent of the Reservation Act 2018 was only to nullify the effect  

of the judgment in B K Pavitra I. Counsel urged that in view of the decisions of  

this Court including those in Shri Prithvi Cotton Mills Ltd v Broach Borough  

Municipality 55

(―Prithvi Cotton Mills Ltd‖) and Madan Mohan Pathak v Union  

                                                           52

Supra 49, paragraph 22 at page 422-423  53

Ibid, paragraph 24 at page 424  54

Ibid, paragraph 26 at  page 425-426   55

(1969) 2 SCC 283  

PART B   

31    

of India (―Madan Mohan Pathak‖) 56

, it was not open to the legislature to render  

a judgment of this Court ineffective without taking away its basis or foundation.  

Since the case was of an urgent nature, the proceedings were listed on 23  

October 2018 for commencement of final hearing.  

36 On 27 February 2019, the State of Karnataka issued a Government  

Order 57

directing that:   

―In the circumstances explained in the preamble, the following  

instructions are hereby issued subject to the conditions that  

the officers/officials, who have been reverted, shall be  

reposted to the cadres held by them immediately prior to their  

reversion and if vacant posts are not available in those  

cadres, supernumerary posts shall be created to  

accommodate them. It is also ordered that the  

officers/officials working at present in those cadres, belonging  

to any category, shall not be reverted.‖  

   The Government Order was made subject to the outcome of these proceedings.  

On 1 March 2019, this Court granted a stay on the operation of the Government  

Order dated 27 February 2019.  This Court observed that since the case was in  

the concluding stages of the hearing, it would not be appropriate to alter the  

present status when the matter was in seisin of the Court.  

                                                           56

(1978) 2 SCC 50  57

G.O. No. DPAR 186 SRS 2018

PART C  

32    

C Submissions   

C.I Petitioners   

 37 In adjudicating upon the challenge to the constitutional validity of the  

Reservation Act 2018, we have heard the erudite submissions of Dr Rajeev  

Dhavan, learned Senior Counsel appearing on behalf of the Petitioners.  

Prefacing his submissions, Dr Rajeev Dhavan has adverted to the following  

issues which arise for the determination of this Court:  

A Is the Reservation Act 2018 valid?   

(a)  Does it not peremptorily overrule the decision of this Court in B K  

Pavitra I without altering the basis of the decision?   

(b)  Does it violate the law laid down by this Court in Badappanavar on  

seniority?   

(c)  Does the background to the enactment to the Reservation Act 2018  

reveal a manifest intent to overrule the decision in B K Pavitra I?   

(d)  Was the reference of the Bill by the Governor of Karnataka to the  

President under Article 200 of the Constitution and the subsequent  

events which took place constitutionally valid? In this context, could  

the Bill have been brought into force without the assent of the  

Governor?  

PART C  

33    

B  Is the Reservation Act 2018 compliant with the principles enunciated  

in the Constitution Bench decisions in Nagaraj and Jarnail? Does the  

report of the Ratna Prabha Committee dated 5 May 2017 constituted  

an adequate and appropriate basis to support the validity of the Act  

and its implementation?  

C Does the Reservation Act 2018 apply in the present writ petitions  

(instituted by B K Pavitra and Shivakumar) to those departments  

where there is over representation or in public corporations not  

covered by the Ratna Prabha report or the legislation?   

38 While we will be dealing with the submissions urged by Dr Dhavan in the  

course of our analysis, it would be appropriate at this stage to advert to the  

salient aspects of the submissions under the following heads:  

A Usurpation of judicial power   

39 Dr Dhavan has urged that the Reservation Act 2018 was enacted in a  

hurry with no purpose other than to overrule the decision in B K Pavitra I, while  

the issue of implementation was still pending. The decision in B K Pavitra I was  

rendered on 19 February 2017. On 22 March 2017, a Government Order was  

issued appointing the Additional Chief Secretary to submit a report on  

backwardness, inadequacy of representation and the impact of reservation on  

efficiency. The report was submitted on 5 May 2017. On 26 July 2017, the report

PART C  

34    

was accepted by the State Cabinet which constituted a sub-committee to  

examine the matter and submit a draft Bill. The State Law Commission  

recommended the State to pass a legislation with retrospective effect by curing  

the infirmities and factors noticed in the decision in B K Pavitra I. On 4 August  

2017, the Cabinet Sub-Committee submitted its decision based on the report. On  

7 August 2017, the Cabinet approved the proposed Bill. The Bill was introduced  

in the Karnataka State Legislative Assembly on 14 November 2017 and was  

passed on 17 November 2017. The Bill was passed by the State Legislative  

Council on 23 November 2017 and was submitted to the Governor on 6  

December 2017. The Bill was reserved by the Governor for the consideration of  

the President. On 15 February 2018, 9 March 2018 and 18 April 2018, the Union  

Government in the Ministry of Home Affairs sought clarifications from the State  

government which were provided on 16 March 2018 and 23 April 2018. The Bill  

received the assent of the President on 14 June 2018, and was published in the  

official Gazette and came into force on 23 June 2018.    

40 On the basis of the above facts, Dr Dhavan submitted that:   

(i) There was no compelling necessity to overrule B K Pavitra I ―except  

political necessities‖;  

(ii) A comparison of the provisions of the Reservation Act 2002 with the  

Reservation Act 2018 indicates that:  

(a) The Reservation Act 2018 is substantively the same as the Reservation  

Act 2002;

PART C  

35    

(b) The change in the basis of the decision in B K Pavitra I is on the  

factum of the Ratna Prabha Committee report;  

(c) ―Compelling necessities‖ are mentioned but their existence is not  

demonstrated;  

(d) The title of the Reservation Act 2018 is limited to consequential  

seniority which is not mentioned in the law;  

(e) Section 5 allows for an unlimited backlog and the creation of  

supernumerary posts for SCs and STs;  

(f) Section 5 presumes the permission of the Finance Department and  

visualizes an ―excess‖, which will invalidate the law; and  

(g) Section 9 brazenly overrules and goes beyond the date of 17 June  

1995 and postulates that in future a review of the cases is forbidden.   

B    Violation of the separation of powers   

41 Separation of powers postulates a constitutional division between  

legislative and judicial functions. In this context, the submission is:  

(a) The legislative power is distinct from the judicial power;  

(b) The legislature cannot lawfully usurp judicial power by sitting in appeal  

over any judicial decision by attempting to overturn it;  

(c) Any statute which seeks to overturn a judicial decision must be within the  

legislative competence of the legislature under the Seventh Schedule to  

the Constitution;  

(d) Any such statute must change the basis of the law;

PART C  

36    

(e) The decision of a court will always be binding unless the law or conditions  

underlying the legislation which was held to be invalid are so  

fundamentally altered so that a different result would enure;  

(f) While a legislation may be retroactive, an interim or final direction must be  

obeyed especially when rights are conferred;  

(g) A new legislation can be challenged on the basis that it violates the  

fundamental rights; and  

(h) Unless the basis of a legislation which is found to be ultra vires has been  

altered, the mere enactment of a new legislation would constitute a brazen  

overruling of the law, which is impermissible.   

42 Dr Dhavan urges that Reservation Act 2018 will not pass muster, when it is  

assessed in the context of the principles enunciated by the decisions of this Court  

in (i) Prithvi Cotton Mills Ltd, (ii) Madan Mohan Pathak, (iii) S R Bhagwat v  

State of Mysore 58

, (iv) Bakhtawar Trust v M D Narayan 59

, (v) Delhi Cloth &  

General Mills Co. Ltd v State of Rajasthan 60

, (vi) Re Cauvery 61

, (vii) S T Sadiq  

v State of Kerala 62

and (viii) Medical Council of India v State of Kerala 63

.  

43 Explaining the applicability of the above principles on facts, Dr Dhavan  

urged that after the decision of this Court in B K Pavitra I, the State Government  

filed applications for extension of time on 9 May 2017 and 8 September 2017 64

.  

                                                           58

(1995) 6 SCC 16  59

(2003) 5 SCC 298  60

(1996) 2 SCC 449  61

(1993) Supp (1) SCC 96  62

(2015) 4 SCC 400  63

(2018) 11 SCALE 141  64

M.A. Nos. 730-756 of 2017

PART C  

37    

This Court extended time to revise the seniority lists till 30 November 2017 and  

for consequential actions by 15 January 2018. On 15 January 2018, the State  

Government moved before this Court seeking extension of time for implementing  

the decision in B K Pavitra I. On 29 January 2018, this Court finally granted time  

until 15 March 2018. On 17 March 2018, the State moved before this Court for  

extension of time and on 20 March 2018, while disposing of certain contempt  

petitions and other applications, one month‘s time was granted to take  

consequential action. On 25 April 2018, this Court directed the State to file a  

further affidavit (by 1 May 2018) indicating that promotions and demotions have  

been duly effected. On 9 May 2018, this Court directed the State to file an  

affidavit to the effect that the judgment in B K Pavitra I had been fully complied  

with and the hearing was posted for 4 July 2018. On 28 June 2018, the State of  

Karnataka informed this Court that the ―further process have been stalled  

because of the enactment of the new legislation and its publication in the Gazette  

on 23 June 2018‖. On 7 August 2018, the State of Karnataka filed an interim  

application seeking permission of this Court to implement the Reservation Act  

2018. It has been urged that contrary to what was stated by the state  

Government, there was no compliance of the decision in B K Pavitra I. In this  

background, it has been submitted that the state has undertaken an exercise to  

overrule B K Pavitra I which constitutes a clear usurpation of judicial power.   

PART C  

38    

C Lack of compliance with Nagaraj and Jarnail    

44 Dr Dhavan assails the report of the Ratna Prabha Committee on the  

ground that is was not in compliance with Nagaraj and Jarnail. Nagaraj  

postulates that:   

(i)  The backlog should not extend beyond three years;   

(ii)  Excessive reservation would invalidate the exercise of power; and   

(iii) There is a theory of guided power under which a failure to follow the above  

conditionalities would result in reverse discrimination.   

45 According to the submission, the decision in Nagaraj:    

(a) Deploys the methodology that the seventy-seventh, eighty-first, eighty-  

second and eighty-sixth amendments were only enabling and were valid.  

The conditionalities for a valid exercise of the enabling power are two-fold:  

(i)  The existence of compelling reasons namely, backwardness,  

inadequacy of representation and overall administrative efficiency  

requiring quantifiable data; and  

(ii)  Excessiveness, which postulates that the ceiling limit of fifty per cent  

is not transgressed, the creamy layer is not obliterated and  

reservation is not extended indefinitely.   

(b) The methodology of Nagaraj was approved both in I R Coelho v State of  

TN 65

and Jarnail; and  

                                                           65

(2007) 2 SCC 1

PART C  

39    

(c) The decision in Jarnail, while upholding the methodology adopted in  

Nagaraj held that there is a constitutional presumption which obviates the  

need for quantifiable data on the backwardness of SCs and STs and  

hence that part of Nagaraj was held to be contrary to the decision in Indra  

Sawhney. The application of the creamy layer test was held to be a  

requirement for SCs and STs and other principles or applications  

enunciated in Nagaraj were held to be valid.  

46 In this background, the Ratna Prabha Committee report is assailed on the  

following grounds:   

(i) The chapter on backwardness is not necessary;  

(ii) Inadequacy of representation is examined over 30 pages;  

(iii) The data collected is over 32 years in thirty one government departments;  

(iv) No data exists in 1986;  

(v) The data indicates that STs are adequately represented from 1999 to 2015  

but the average of 31 years is 2.70;  

(vi) No data has been collected from public sector undertakings, boards,  

corporations, local bodies, grant-in-aid institutions, among others, and it is  

assumed that the data is representative in nature;  

(vii)  The representation in Public Works Department (―PWD‖) and Karnataka  

Power Transport Corporation Limited (―KPTCL‖) is adequate;  

(viii) The data collected is with respect to the availability of vacancies and not  

posts, contrary to the requirements laid out in Sabharwal‟s case;

PART C  

40    

(ix) The data is on sanctioned posts and not posts which have been filled;  

(x) The data is not cadre based but based on grades A, B, C and D even  

though Jarnail requires the data to be on the basis of cadre;  

(xi) The report erroneously assumed that grades A, B, C and D correspond to  

cadres;  

(xii) The report candidly admits that ―in some departments, corporations like  

PWD and KPTCL there may be over representation of the percentage  

mandated‖;  

(xiii) On administrative efficiency:   

(a)  The data is based on general considerations such as economic  

development;   

(b)  The efficiencies adverted to in matters of administrative, policy and  

service are general; and   

(c)  Reliance which has been placed is on performance reports.  

(xiv) The state has followed a strange method of back door entry by filling up  

vacancies not by selection but through toppers from universities in various  

departments for gazetted grade A and B posts.  

D Reservation of the Bill to the President   

47 Dr Dhavan urged that from the counter affidavit filed by the State  

Government, it is evident that:   

(i) The view of the State government was that given the legislative  

competence of the state legislature, the ―Bill was not required to be  

reserved‖ for the assent of the President;

PART C  

41    

(ii) On 6 December 2017, the Governor of Karnataka considered it appropriate  

to refer the Bill to the President in view of the decision in B K Pavitra I and  

the ―importance of the issue and the constitutional interpretation involved in  

the matter‖ under Article 200;  

(iv) The State government on the Bill being forwarded to the President  

continued to maintain that the Bill neither attracted the second proviso to  

Article 200 nor did it deal with a matter which was repugnant to a Union  

law on an entry falling in List III of the Seventh Schedule. Hence, the State  

government opined that there did not appear to be any situation warranting  

the reservation of the Bill for the consideration of the President. Hence, it  

has been urged that it may be:   

(a) The reference by the Governor on 6 December 2017 to the  

President simply stated that since a constitutional interpretation was  

required, the Bill was reserved for the President; however no  

specific issues were referred; and  

(b) The State government forwarded the Bill to the President, recording  

at the same time that there was no reason to refer.   

(v) The Union Government invited reasons for the reference to which  

responses were made by the State Government in its clarification;   

(vi) The Governor was altogether by-passed in this process; and  

(vii) The Governor has the exclusive authority under Article 200 on the  

reference and must formulate a specific reference, which was not done.  

The Central Government, it was urged, cannot create a reference which  

has not been made by the state.  

PART C  

42    

48 In order to buttress his submissions, Dr Dhavan relied upon the decisions  

in Kaiser-I-Hind Pvt Ltd v National Textile Corporation Ltd 66

, Gram  

Panchayat of Village Jamalpur v Malwinder Singh 67

(―Gram Panchayat of  

Village Jamalpur‖), Hoechst Pharmaceuticals Ltd v State of Bihar 68

(―Hoechst Pharmaceuticals Ltd‖) and  Nabam Rebia and Bamang Felix v  

Deputy Speaker Arunachal Pradesh Legislative Assembly 69

(―Nabam  

Rebia‖).   

Dr Dhavan urged that:  

(i) There was no valid reference by the Governor in the absence of specificity  

on the matter of reference;  

(ii) The State government consistently indicated that there was no reason to  

refer the Bill to the President;  

(iii)   The Union Government could not have created a reference where none  

existed; and  

(iv) The reference was unconstitutional and the assent of the Governor was  

not obtained.  

E Seniority including consequential seniority   

49 The submissions of Dr Dhavan are:  

(i) Seniority is determined by the Seniority Rules 1957;  

                                                           66

(2002) 8 SCC 182  67

(1985) 3 SCC 661  68

(1983) 4 SCC 45  69

(2016) 8 SSC 1

PART C  

43    

(ii) The decision in Badappanavar held that there was no specific rule  

providing for consequential seniority in the Seniority Rules 1957;  

(iii) The amendments in the Seniority Rules 1957 on 18 August 2006 did not  

effect any change to unsettle the decision in Badappanavar;  

(iv) The Reservation Act 2002 attempted to overrule Badappanavar and was  

eventually invalidated in B K Pavitra I;  

(v) The Reservation Act 2018 mentions consequential seniority in its title yet  

Section 5 makes no reference of it and in fact reinforces the Seniority  

Rules 1957 by implication. The reference to the Rules in Section 5 can  

only be in the context of the Seniority Rules 1957 as amended. The  

Seniority Rules 1957 will override the administrative orders of 27 April  

1978;  

(vi) The Government Order dated 27 April 1978 specifically adverts to Rules 4  

or 4-A (as the case may be) of the Seniority Rules 1957;  

(vii) No seniority can be conveyed by filling up of backlog and creating  excess  

or supernumerary posts; and  

(viii) The proviso to Section 5 would be liable to be struck down for its  

excessiveness.   

50 In substance, Dr Dhavan‘s are as follows:  

(i) Every administrative action or legislation has to be Nagaraj compliant as  

explained in Jarnail;  

PART C  

44    

(ii) After the decision in B K Pavitra I, the State of Karnataka hurriedly  

enacted the Reservation Act 2018 without demonstrating any compelling  

necessity;  

(iii) The Governor of Karnataka reserved the Bill for the President without  

delineating the exact reasons for doing so. Even while forwarding the Bill,  

the State government maintained that there was no reason to make a  

reference to the President. The queries exchanged subsequently would  

not constitute a valid reference;  

(iv) The Ratna Prabha Committee report is flawed and does not establish  

inadequacy of representation and impact on administrative efficiency;   

(v) The Reservation Act 2018 is similar to the Reservation Act 2002 except for  

(i) Section 5 while mandates reservations; and (ii) Section 9 which  

overrules all decisions of the past and pre-empts challenges in the future;  

(vi) The Seniority Rules 1957 continue not to cover consequential seniority and  

by the repeal of the Reservation Act 2002, the decision in Badappanavar  

continues to be good law;  

(vii) The uncontrolled backlog is not valid;  

(viii) A proper exercise must be post and not vacancy based, it must be based  

on cadres and not on groups A to D;  

(ix) The counter affidavit of the State admits the flaws of the process denying  

curative effect to the exercise; and  

(x) The Reservation Act 2018 has failed to pass muster and its non-compliant  

with the decisions in Nagaraj and Jarnail.      

PART C  

45    

51 Mr Shekhar Naphade, learned Senior Counsel submitted that:  

(i) The decision in B K Pavitra I has attained finality and a subsequent  

change in law cannot abrogate the principle of res judicata;    

(ii) As held in the decision of this Court in Pandit M S M Sharma v  Dr  

Krishna Sinha 70

, whether an earlier judgment is right or wrong is not  

material to the applicability of the doctrine of res judicata;  

(iii) The subsequent decision in Jarnail is not a ground for review and, in  

any event, a review of B K Pavitra I by the state will not lie;  

(iv) In view of the explanation to Order XLVII of the CPC, a reversal on a  

question of law in a subsequent decision of a superior court is not a  

ground for review;  

(v) An error of law is no ground for review (State of West Bengal v Kamal  

Sengupta 71

);  

(vi) The Reservation Act 2018 is based on a report which furnishes factual  

data: this could have been furnished in the earlier round. The  

legislature has taken recourse to exercise of judicial power;  

(vii) The provisions of the Reservation Act 2018 are virtually the same as  

those of the Reservation Act 2002;  

(viii) The basis of legislative intervention was the collection of data: the  

attempt is to place fresh material before the Court to review its decision  

in B K Pavitra I.  There is no change in law;  

(ix) Retrospectivity of the Reservation Act 2018 from 1978 is arbitrary;  

                                                           70

AIR 1960 SC 1186  71

(2008) 8 SCC 612

PART C  

46    

(x) There is no change in the basis of the law. The basis is a change in the  

factual matrix which is not available as a ground for review;  

(xi) The Ratna Prabha Committee report has collected no substantive  

material on the impact of reservation in promotion on the efficiency of  

administration;  

(xii) The second proviso to Article 200 and Article 254 (2) of the Constitution  

are exhaustive of the constitutional power of the Governor to reserve a  

Bill for the assent of the President;  

(xiii) The Ratna Prabha Committee report does not deal with the aspect of  

creamy layer which had been duly considered in Jarnail;  

(xiv) The Ratna Prabha Committee dwelt on groups and not on cadres. The  

data includes direct recruits as well as promotees, whereas the present  

case is only about promotion; and  

(xv) Data was collected only from thirty one government departments and  

not from public sector undertakings.   

52 Supplementing the submissions of Dr Dhavan, Mr Puneet Jain, learned  

Counsel appearing on the behalf of the petitioners has adverted to the following  

issues which arise for the consideration of this Court:  

(i) Section 3 of the Reservation Act 2018 only seeks to extend consequential  

seniority retrospectively to vacancy based roster point promotees and is  

not concerned with the state exercising its enabling power to provide for  

reservation in promotions. The Government Order 72

dated 27 April 1978 by  

                                                           72

G.O. No. DPAR 29 SBC 77  

PART C  

47    

which reservation for persons belonging to SCs and STs in specified  

categories of promotional posts was introduced cannot be ―justified‖ by a  

satisfaction on the basis of the Ratna Prabha Committee report;  

(ii) Article 16 (4A) confers a discretion upon the state to provide for  

reservations in promotion with or without consequential seniority.  Nagaraj  

mandates that there have to exist compelling reasons and the satisfaction  

of the state before exercise of its powers under Article 16 (4A). In view of  

the decision in Panneer Selvam, automatic conferment of consequential  

seniority can no longer be sustained; and   

(iii) The fact that the eighty-fifth amendment has been made retrospective from  

17 June 1995 cannot enable the state to make a provision for the first time  

by exercising powers retrospectively and consequently taking away vested  

rights which legitimately accrued upon the general category employees.  

C.2 Submissions for the respondents and intervenors    

53 Appearing for the State of Karnataka, Mr Basava Prabhu S Patil, learned  

Senior Counsel submitted thus:  

A The basis of B K Pavitra I has been altered  

(i)   The Reservation Act 2018 has taken away the basis of the judgment in B  

K Pavitra I and the protection of seniority with retrospective effect which is  

permissible in law:  

PART C  

48    

(a) The Reservation Act 2018 does not seek to overrule or nullify  

simpliciter the decision in B K Pavitra I. The law was enacted to  

provide consequential seniority for roster point promotees after  

collecting data showing the existence of the compelling reasons of :  

(i) backwardness; (ii) inadequacy of representation; and (iii) overall  

efficiency. Hence, the Reservation Act 2018 removes the basis of  

the decision in B K Pavitra I;  

(b)  The state legislature is competent to enact a law with retrospective  

or retroactive operation. The legislative competence of the State  

Legislature to enact law is traceable to Article 16 (4A). Merely  

because the legislation confers seniority with effect from 1978, will  

not lead to its invalidation (Cheviti Venkanna Yadav v State of  

Telangana 73

(―Cheviti Venkanna Yadav‖), Utkal Contractors &  

Joinery (P) Ltd v State of Orissa 74

(―Utkal Contractors and  

Joinery (P) Ltd‖) and State of Himachal Pradesh v Narain  

Singh 75

(―Narain Singh‖);  

(c) Sections 3 and 4 of the Reservation Act 2018 came into operation  

on 17 June 1995, on which date the seventy-seventh and eighty-fifth  

amendments to the Constitution came into effect, thereby enabling  

reservations to be made in promotion together with consequential  

seniority. The Reservation Act 2018 protects consequential seniority  

accorded from 27 April 1978 (the date of the reservation order) in  

                                                           73

(2017) 1 SCC 283  74

(1987) Supp. SCC 751  75

(2009) 13 SCC 165

PART C  

49    

light of the data collected which shows the inadequacy of  

representation;  

(d) In terms of the decision in Virpal Singh, the catch-up rule was to be  

applied with effect from 10 February 1995 (i.e. the date of the  

judgment in Sabharwal). According to the decision in Ajit Singh II,  

promotions granted prior to 1 March 1996 without following the  

catch-up rule are protected. Badappanavar protects the promotions  

of reserved candidates based on consequential seniority which took  

place before 1 March 1996;  

(e) While judicial review allows courts to declare a statute as  

unconstitutional if it transgresses constitutional limits, courts are  

precluded from inquiring into the propriety or wisdom underlying the  

exercise of the legislative power. The motives of the legislature in  

enacting a law are incapable of being judicially evaluated; and  

(f) Seniority is not a vested or an accrued right and hence it is open for  

the legislature to enact a law for dealing with it.     

(ii)  The Reservation Act 2018 is not of the same genre of legislation dealt with  

in the decision of Madan Mohan Pathak:  

(a) Madan Mohan Pathak involved a challenge by the employees of  

the Life Insurance Corporation to the constitutional validity of a  

Parliamentary law which attempted to render ineffective a settlement  

with employees for the payment of bonus. The judgment does not

PART C  

50    

deal with a case where the basis of the invalidity of a legislation  

noticed in a judicial decision is taken away by a subsequent law;  

and  

  (b) Madan Mohan Pathak in fact, notices that in the case of a  

declaratory judgment holding an action to be invalid, validating  

legislation to remove the defect is permissible.  

(iii) The collection of data by the State must demonstrate the presence of  

compelling reasons namely, (a) inadequacy of representation; (b)  

backwardness; and (c) overall administrative efficiency as enunciated in   

Nagaraj and B K Pavitra I;  

(iv) The decision in Indra Sawhney holds that the question as to whether a  

backward class of citizens is not adequately represented in the services  

under the state is a matter of subjective satisfaction;   

(v)  Nagaraj also notices the position that there is a presumption that the state  

is in the best position to define and measure merit and that there is no  

fixed yardstick to identify and measure the three factors on which  

quantifiable data has to be collected;   

(vi)  The decision in Jarnail also holds that the test of determining the  

adequacy of representation in promotional posts is left wisely to the states;  

and

PART C  

51    

(vii) The Reservation Act 2018 was enacted after the State was satisfied about  

the existence of the three compelling reasons.   

B The Ratna Prabha Committee has dealt with all the three facets  

constituting the „compelling reasons‟:  

1  Backwardness   

(i)    The decision in Jarnail has clarified that there is no requirement of collecting  

quantifiable data on the backwardness of SCs and STs. The observation in  

Nagaraj is contrary to the larger Bench decision in Indra Sawhney.    

(ii)  Yet, in any event, the Ratna Prabha Committee considered the  

backwardness of SCs and STs in view of the dictum in Nagaraj which then  

held the field. The Committee after carrying out the exercise came to the  

conclusion that the requirement of backwardness is satisfied.  

2 Inadequacy of representation   

(i)   Chapter II of the Ratna Prabha Committee report considered the  

inadequacy of representation and records a summary of its conclusions in  

paragraphs 2.5 and 2.6;  

(ii)     It is misleading to assert that the State did not collect cadre wise data.  

Para 2.4.1 indicates that the government took into account the data for  

groups A, B, C and D to draw a conclusion about the inadequacy of  

representation;  

PART C  

52    

(iii)  The decisions in Indra Sawhney and Sabharwal are clear in postulating  

that persons belonging to the SCs and STs who are appointed against  

general category posts/vacancies are not to be reckoned for ascertaining  

over representation; and  

(iv)   It is a matter of common experience that for most of the group D posts  

such as municipal sweepers, only persons belonging to SCs and STs  

apply. Over representation in group D posts which results from general  

category candidates keeping away from them is no ground to deny  

promotion to group D employees recruited against the reserved category.  

3 Administrative efficiency   

(i)  Para 3.12 of Chapter III of the Ratna Prabha Committee report has  

considered all relevant aspects before coming to the conclusion that  

reservations in promotion do not affect administrative efficiency;  

(ii)  Promotions are made on the basis of seniority-cum-merit. [Rule 19(3)(a) of  

the Rules 1977] Only those candidates who fulfil the criteria of  

merit/suitability are promoted based on seniority. Since this criterion is  

applicable even in respect of roster promotions, the efficiency of  

administration is not adversely impacted; and  

(iii)  On promotion, a candidate is required to serve a statutory period of  

officiation before being confirmed in service. This applies to all candidates  

including roster point promotees and ensures that the efficiency of  

administration is not adversely affected.  

PART C  

53    

C The challenge on the ground that the Reservation Act 2018 does not  

exclude the benefit of consequential seniority in respect of the creamy  

layer in terms of the decision in Jarnail is baseless:  

(i)  Creamy layer as a concept can be applied only at the entry level or at  

appointment and has no application while granting reservations in  

promotion and allowing for consequential seniority. The Reservation Act  

2018 provides only for consequential seniority and the extent of  

reservation granted to SCs and STs at the entry level/ in appointment is  

not under challenge;  

(ii)  Even assuming that the concept of creamy layer can be applied at the  

stage of promotion, it is inapplicable to the conferment of consequential  

seniority. Consequential seniority is not an additional benefit but a  

consequence of promotion;  

(iii)  Appointment to a post or progression in career based on promotion cannot  

be treated as acquisition of creamy layer status. In fact, the decision in  

Jarnail makes it clear that the concept of creamy layer applies only to the  

entry stage;   

(iv)  Nagaraj does not hold that the exclusion of the creamy layer is a pre-

condition for the exercise of the enabling power under Article 16 (4A) for  

providing promotion or consequential seniority;   

(v)  In the decision in B K Pavitra I, the challenge to the Reservation Act 2002  

was accepted on the ground that the State had not carried out an exercise  

for determining inadequacy of representation, backwardness and overall

PART C  

54    

efficiency of administration. B K Pavitra I did not accept the plea of the  

applicability of creamy lawyer principle to consequential seniority; and   

(vi)  Under the Reservation Order 1978, reservations in promotion are  

restricted up to the lowest category of class I post.   

D There is no basis in the challenge that the Reservation Act 2018 does  

not meet the proportionality test and results in over representation.  

(i)  In view of the Reservation Order 1999 providing that reservation in  

promotion in favour of SCs and STs shall continue only till their  

representation reaches 15 per cent and 3 per cent respectively, it is  

ensured that there is no over representation; and  

(ii)  Since the Reservation Act 2018 provides only for consequential seniority  

and not for reservation in appointment or promotion, it cannot be asserted  

that reservation for the purpose of seniority is vacancy-based and not post-

based, contrary to the decision in Sabharwal. Reservations in promotion  

are provided by the Government Order 1978 which provides for roster  

point promotion and not roster point seniority. The Government Order  

dated 13 April 1999 provides for making promotions (after the existing  

backlog is filled) in favour of SCs and STs by maintaining their  

representation to the extent of 15 per cent and 3 per cent of the total  

working strength (and not vacancies).   

PART C  

55    

E There was no constitutional infirmity in the Governor of Karnataka  

having reserved the Reservation Act 2018 for the consideration of the  

President.   

The Governor in reserving the Bill for consideration of the President acted in  

pursuance of the provisions of Article 200 of the Constitution. The Governor may  

under Article 200 (i) declare assent to a Bill; or (ii) declare the withholding of  

assent; or (iii) reserve a Bill for consideration of the President. The power of the  

Governor to reserve a Bill for consideration of the President is not subject to the  

existence of a repugnancy under Article 254 (2). The action of the Governor is  

non-justiciable. (Hoechst Pharmaceuticals Ltd)   

F The assent of the Governor is not contemplated once the President has  

given assent to a Bill.   

Neither Article 200 nor Article 201 contemplates that the Bill should be presented  

again before the Governor after it has been assented to by the President. Section  

5(1)(iv) of the Karnataka General Clauses Act 1899 postulates that an Act  

passed by the Karnataka legislature shall come into operation on the day on  

which the assent of the Governor or, as the case may be, of  the President is  

granted and is first published in the Official Gazette. Hence, once the assent of  

the President is granted, the necessity of a further assent by the Governor is  

obviated.   

G The submission that in Karnataka Power Transport Corporation Limited,  

as a consequence of the reservation in seniority in the cadre of

PART C  

56    

Superintending Engineer and Engineer-in-Chief, there was over  

representation for SCs and ST between 2005 and 2016 is erroneous.  

(i)  There is no reservation for promotion to the posts of Superintending  

Engineer and Engineer-in-Chief in KPTCL. Reservation in promotion and  

consequential seniority is available only up to the post of Assistant  

Executive Engineer. In fact, if consequential seniority were not to be  

granted on promotion up to the post of Assistant Executive Engineer, there  

would be excessive under-representation of reserved category candidates.  

The Ratna Prabha Committee report, in paragraph 2.4, took note of the  

total number of officials/employees working in thirty one government  

departments of the State Government. It noted that 80.35 per cent of the  

sanctioned posts are concentrated in six major Government departments  

namely; Education, Home, Health, Revenue, Judicial and Finance. The  

data pertaining to thirty one government departments was taken in the  

totality to analyse and assess the adequacy of representation. The data of  

smaller departments may not be representative of the State Civil Services  

as a whole.   

On the above grounds, it was urged that the challenge to the Reservation Act  

2018 must fail.   

54 Ms Indira Jaising 76

, learned Senior Counsel appearing on behalf of the  

intervenors (Karnataka SC/ST Engineer‘s Welfare Association) contended that  

                                                           76

In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018

PART C  

57    

the Reservation Act 2018 is constitutionally valid. Ms Jaising urged the following  

submissions:  

(i) The decisions of this Court in State of Kerala v N M Thomas 77

(―N M  

Thomas‖) and Nagaraj affirmed that Article 16 (4) is an emphatic  

declaration of Article 16 (1). The principle of ‗proportional equality‘ entails  

substantive equality which is reflected in affirmative action to remedy  

injustice to SCs, STs and Other Backward Classes 78

. Social justice is  

concerned with the distribution of benefits and burdens. The Reservation  

Act 2018, in providing for consequential seniority, furthers the vision of  

substantive equality and is valid;  

(ii) Affirmative action under Article 15 (4) and reservation under Article 16 (4)  

of the Constitution are intended to ensure that all sections of the society  

are represented equally in services under the state. The Reservation Act  

2018 underlies this salient objective and furthers the promotion of the  

interests of the SCs, STs and other weaker sections as stipulated in Article  

46 of the Constitution;  

(iii) Article 16 (4A) is an enabling provision which empowers the State to frame  

rules or enact a legislation granting reservations in promotions with  

consequential seniority subject to the fulfilment of the conditions laid down   

in Nagaraj and modified by Jarnail. Following the decision in Jarnail, the  

state is required to show data only on the inadequacy of representation  

and efficiency of administration. The State of Karnataka, in exercise of the  

enabling power under Article 16 (4A) enacted the Reservation Act 2018 in  

                                                           77

(1976) 2 SCC 310  78

OBCs

PART C  

58    

compliance with the conditions precedent to the exercise of the power  

stipulated in that Article;  

(iv) The decision in Sabharwal lays down that in determining the inadequacy  

of representation of SCs and STs in promotional posts, the state may take  

the total population of a particular class and its representation in the  

service. The State has studied the extent of reservation in posts for SCs  

and STs in a ‗group‘ which is a collection of cadres. Hence, it cannot be  

said that the state failed to collect quantifiable data on the representation  

of SCs and STs in promotional posts. Without the grant of consequential  

seniority, the percentage of reservation will not reach the prescribed  

percentage;  

(v) No statistical studies have been provided to show that the grant of  

consequential seniority has led to the lowering of efficiency in  

administration. It cannot be presumed that the appointment of SCs and  

STs will lead to a lowering of efficiency as at the individual level, all  

individuals belonging to SCs and STs must also achieve the minimum  

benchmark of ‗good‘;  

(vi) The Reservation Act 2002 was struck down on the basis of the failure of  

the state to collect quantifiable data. The Reservation Act 2018 has been  

enacted on the basis of data collected and studied in the Ratna Prabha  

Committee report. Hence, the basis of the decision in B K Pavitra I has  

been removed. Additionally, no mandamus was issued in B K Pavitra I;  

(vii) The collection of data required to be carried out by the State is a matter of  

social science and is carried out by experts. Data collection is both

PART C  

59    

qualitative and quantitative. As long as the methodology adopted by the  

state is scientifically sound, the assessment of the data collected is the  

prerogative of the state. The court may intervene in judicial review only  

when there is a complete absence of data or if the data relied on is  

irrelevant; and  

(viii) The principles laid down by this Court in Indra Sawhney on the exclusion  

of the creamy layer apply only to OBCs and cannot extend to SCs and  

STs. No question arose in Nagaraj on the exclusion of the creamy layer in  

respect of SCs and STs. Hence, the decision is not an authority for the  

principle that the states are bound to exclude the creamy layer in respect  

of SCs and STs. The decision of this Court in Jarnail dealt with the  

competence of Parliament to enact a law in relation to the creamy layer  

and did not lay down a general proposition on its exclusion. The concept of  

creamy layer, if applicable, can only be applied at the entry level and not in  

promotions.  

 55 Mr Dinesh Dwivedi

79 , learned Senior Counsel appearing on behalf of the  

intervenor (Karnataka SC/ST Engineers‘ Welfare Association), urged the  

following submissions:  

(i) The decision in Nagaraj was concerned with whether reservation in  

promotion as inserted in Article 16 (4A) by the Constitution (Seventy-

seventh Amendment) Act 1995 and the enabling provision for the grant of  

consequential seniority under Article 16 (4A) inserted by the Constitution  

(Eighty-fifth Amendment) Act 2001 violated the basic structure of the  

                                                           79

In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018

PART C  

60    

Constitution. The decision in Nagaraj was concerned with reservations in  

promotion and did not equate reservation in promotion with the grant of  

consequential seniority. In this view, the four controlling factors, namely (i)  

backwardness; (ii) adequacy of representation; (iii) elimination of the  

creamy layer; and (iv) efficiency of administration have relevance only to  

the exercise of the enabling power under Article 16 (4A) for making  

reservation in promotion and not the exercise of the enabling power to  

grant consequential seniority;   

(ii) Reservation in promotion was introduced in the State of Karnataka by the  

Government Order dated 27 April 1978 and continues to be in operation.  

The Reservation Act 2018 stipulates the grant of consequential seniority  

which is premised on the prior existence and operation of reservation in  

promotion. Absent a challenge to the Government Order dated 27 April  

1978 in the present proceedings, the petitioner is precluded from  

challenging the grant of consequential seniority in the Reservation Act  

2018;   

(iii) Consequential seniority is nothing but the normal rule of seniority which  

accords seniority to roster point promotees from the date of their  

substantive promotion. The catch-up rule is an exception to the normal rule  

of seniority. Prior to the decision in Indra Sawhney, accelerated seniority  

to roster point promotees existed in the State of Karnataka with the  

application of the continuous officiation rule. This is supported by Rule 2(b)  

of the 1957 Rules. Para III (d) of the Government Order dated 27 April  

1978 provided for the application of the catch-up rule only in a limited

PART C  

61    

manner. Rule 4 is restricted in its application to appointments made on the  

same day which implies that in the absence of its application to a given  

case, consequential seniority must be granted;  

(iv) The decision in Virpal Singh concerned a rule that specifically provided for  

the application of the catch-up rule in a departure from the normal rule of  

seniority. This Court held that a state may prescribe either consequential  

seniority based on continuous officiation or the catch-up rule of seniority in  

case of roster point promotions. A harmonious reading of Articles 14 and  

16(1) of the Constitution does not stipulate that the catch-up rule must  

apply in the case of roster point promotions. Thus, a balancing of Articles  

14, 16(1) and 16(4) of the Constitution denotes that the catch-up rule is not  

mandatory. The decisions of this Court in Ajit Singh I, Ajit Singh II and  

Badappanavar, in holding to the contrary, have been expressly overruled  

by the seventy-seventh and the eighty-fifth amendments to the  

Constitution, following which the principles enunciated in Virpal Singh  

continue to govern the field. The eighty-fifth amendment was intended to  

make consequential seniority a constitutional principle and revive  

consequential seniority as the normal rule of seniority;  

(v) The principles enunciated in Virpal Singh are fortified by the decision in  

Nagaraj which held that the catch-up rule and consequential seniority are  

principles of service jurisprudence and cannot be elevated to a  

constitutional status. The discretion to choose between consequential  

seniority and catch-up vests with the state. The Reservation Act 2018, in

PART C  

62    

stipulating for consequential seniority, is a valid exercise of discretion by  

the State; and  

(vi) In the alternative, the tests laid down by the four controlling factors in  

Nagaraj and Jarnail have been satisfied prior to the enactment of the  

Reservation Act 2018. The satisfaction of the state in this regard cannot be  

subjected to review by this Court.  

56 Mr Lakshminarayana, learned Senior Counsel has submitted thus:  

(i)  The issue as to whether reservation under Article 16 (4A) can be provided  

by an executive order was answered in the affirmative in the judgment of  

Justice BP Jeevan Ready speaking for a plurality of judges in Indra  

Sawhney. The word ‗provision‘ in Article 16 (4) was interpreted in contrast  

with the word ‗law‘ in clauses (3) and (5) of Article 16. The word ‗any‘ and  

the word ‗provision‘ in Article 16 (4) must be given their due meaning.  

Article 16 (4) is exhaustive as a special provision in favour of the backward  

class of citizens. Backward classes having been classified by the  

Constitution as a class deserving special treatment and the Constitution  

itself having specified the nature of the special treatment, it should be  

presumed that no further classification or special treatment is permissible  

in their favour outside Article 16 (4). In light of the decision in Indra  

Sawhney, it is now a settled principle that a provision for reservation can  

be made by the legislature, by statutory rules and by executive orders;   

(ii)  Provisions for reservation in promotions were introduced in Karnataka by  

the Government Order dated 27 April 1978 on the basis of the inadequacy

PART C  

63    

of representation of SCs and STs in public services under Article 16 (4).  

After the report on the inadequacy of representation dated 30 August  

1979, first and second roster points were reserved for SCs and STs. The  

principle of consequential seniority is adopted by clause (vii) of the  

Government Order dated 27 April 1978 and clause (d) of the Government  

Order  dated 1 June 1978;  

(iii)  Clause (vii) of the Government Order dated 27 April 1978 as it originally  

stood provided that inter se seniority amongst persons promoted ―on any  

occasion‖ shall be determined under Rules 4 and 4 (A) of the Seniority  

Rules 1957;   

(iv)  The words ―on any occasion‖ in clause (vii) were amended by clause (d) of  

the Government Order dated 1 June 1978 so that the determination of  

seniority among reserved promotees and general candidates on the basis  

of seniority-cum-merit shall ―on each occasion‖ be fixed under Rule 4 of  

the Seniority Rules 1957;   

(v)  The substitution of the expression ―on any occasion‖ with the expression  

―on each occasion‖ denotes the intention of the government to provide  

consequential seniority to reserved category candidates promoted on the  

basis of roster;   

(vi)  The legislature enacted provisions pertaining to the policy of reservation in  

promotion in the State Civil Services and Public Sector Undertakings as  

follows :  

PART C  

64    

(a) The Rules 1977 including the proviso to Rule 8, upheld by this Court  

in Bhakta Ramegowda;  

(b) The Karnataka Scheduled Castes, Scheduled Tribes and Other  

Backward Classes (Reservation of Appointment etc.,) Act 1990;  

(c) The Karnataka Scheduled Castes, Scheduled Tribes and Other  

Backward Classes (Reservation of Appointment etc.,) Rules 1992;  

and   

(d) The Karnataka State Civil Services (Unfilled Vacancies Reserved for  

the persons belonging to the Scheduled Castes and the Scheduled  

Tribes) (Special Recruitment) Rules 2001.   

The above provisions were followed by the Reservation Acts of 2002 and 2017.  

(vii)  With effect from 1 April 1992, the State of Karnataka inserted the proviso  

to Rule 8 in the Rules 1977 which reads as follows:  

―8. Provision for reservation of appointments or posts.-  

Appointments or posts shall be reserved for the members of  

the Scheduled Castes, Scheduled Tribes, and Other  

Backward Classes to such extent and in such manner as may  

be specified by the government under clause (4) of Article 16  

of the Constitution of India.  

Proviso to Rule 8  

80 [Provided that, notwithstanding anything in the rules of  

Recruitment specially made in respect of any Service or Post,  

the backlog vacancies in the promotional quota shall be  

determined and implemented with effect from 27 th  April,1978.  

Note.– The backlog vacancy means the extent of the number  

of vacancies available under the roster system up to the level  

of lowest category in Group-A post calculated from 27 th  April,  

1978.].‖   

                                                           80

Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992   

PART C  

65    

The above Rule was upheld in Bhakta Ramegowda;  

(viii)  The Government Order dated 24 June 1997 provided additional roster  

points to cover up backlog promotional roster points, both in promotion and  

direct recruitment. Clauses (iv) and (v) of para 8 of the Government Order  

dated 24 June 1997 reads as follows :   

―Clause (IV).  

After effecting review of promotion and adjustment and  

fitment as indicated in item (iii) above, if some more persons  

belonging to scheduled castes and scheduled tribes who  

have already been promoted against backlog cannot get  

adjusted due to want of adequate number of vacancies as per  

the aforesaid roster points, such persons shall be adjusted  

and fitted in accordance with the procedure specified in item  

(iii) while effecting promotion in respect of future vacancies.  

Until such time, shall be continued against supernumerary  

posts to be created by the concerned Administrative  

Department. For this purpose, the Secretaries to Government  

are hereby delegated the power to create supernumerary  

posts presuming the concurrence of Finance Department and  

to that extent the Government Order No. FD 1 TFP 96, dated  

10.07.1996, shall be deemed to have been modified  

accordingly.   

Clause (V)       

While adjusting and fitting promote[e]s as indicated in item (iii)  

and (iv) above, the inter-se seniority among the General  

category, the scheduled caste category and the scheduled  

tribe category shall be determined in accordance with  rule 4  

or rule 4 A as the case may be, of the Karnataka Government  

Servants Seniority Rules 1957. The roster points are meant  

only for calculating the number of vacancies that become  

available for the different categories on each occasion and  

they do not determine the seniority.‖     

The above clauses reiterated the purpose of assessing inter se seniority  

after promotion of roster promotees in reckoning consequential seniority  

among two groups.  

PART C  

66    

(ix) The State Government is entitled to prescribe the percentage of  

reservation based on the total population of a particular backward class  

and its representation in the services of the State under Article 16 (4).  

Once the prescribed percentage of reservations is determined, the  

numerical test of adequacy is satisfied. The percentage of reservation is  

the desired representation of the backward classes in the state services  

and is consistent with the demographic estimate, based on the proportion  

worked out in relation to their population;   

(x)  The operation of the roster points and filling of the cadre strength ensures  

that the reservation remains within the limit of 50 per cent;   

(xi)  Reserved candidates who have been appointed or promoted on merit as  

general candidates cannot be included in calculating adequacy of  

representation of backward classes in operating the roster points. Only  

reserved candidates promoted against roster points are to be taken into  

account in considering the adequacy of representation;  

(xii)  A cadre includes different grades and reservation can be provided in  

different grades within the cadre. The reservation policy contained in the  

Government Order dated 27 April 1978 has been re-issued on 17 April  

1993 and 11 May 1993 after the decision in Indra Sawhney;  

(xiii)  Both clauses (1) and (4) of Article 16 operate in the same field. Both are  

directed towards achieving equality of opportunity in services under the  

State. The formation of opinion by the State on the adequacy of  

representation is a matter of subjective satisfaction and the test is whether

PART C  

67    

there was some material before the State to justify its opinion. In the  

exercise of judicial review, the court would extend due deference to the  

judgment and discretion of the executive. Even if there are some errors on  

the part of the State Government, that would not in any way result in the  

invalidation of the entire exercise;   

(xiv)  Efficiency of administration means governance which provides responsive  

service to the people. Merit alone is not a component of efficiency. Once  

an employee is promoted, efficiency is judged on the basis of the annual  

confidential reports;   

(xv) A curative legislation does not constitute an encroachment on judicial  

power by the State Legislature. Similarly, it is open to the legislature to  

enact a legislation both with retrospective and prospective effect;   

(xvi) Judicial review cannot extend to examine the adequacy of the material  

available before the President and unless, there is a situation involving a  

fraud on power or conduct actuated by oblique motive, the court would not  

intervene;   

(xvii) The principle of creamy layer has no application to in-service candidates;  

and   

(xviii) The State having rectified the lacuna which was pointed out in B K Pavitra  

I, by carrying out the exercise of data collection, the opinion formed by the  

State after analysing the data lies in its subjective satisfaction. The  

reservation policy dated 27 April 1978 which introduced provisions for

PART C  

68    

reservations in promotions for SCs and STs in public services has  

continued until date without interruption.    

 57 Mr Nidhesh Gupta, learned Senior Counsel urged the following  

submissions:  

(i) The phrase ‗in the opinion of the state‘ in Article 16(4) of the Constitution  

indicates that the issue with regard to adequacy of representation is within  

the subjective satisfaction of the state. The role of the court is limited to  

examining whether the opinion formed by the government was on the  

basis of data available with it. While the existence of circumstances  

requiring state action may be reviewed, the opinion formed is outside the  

purview of judicial review. These propositions have been accepted in the  

decisions of this Court in Indra Sawhney, Barium Chemicals Ltd. v  

Company Law Board 81

(―Barium Chemicals Ltd.‖), Rohtas Industries v  

S D Agarwal 82

and Rustom Cavasjee Cooper v Union of India 83

;  

(ii) The expression ‗to any class or classes of posts‘ in Article 16(4) makes it  

abundantly clear that the phrase refers to a ‗class‘ or ‗group‘ and not a  

cadre. The use of the word ‗services‘ in the phrase ‗services under the  

state‘ in Article 16 (4A) supports this contention. The decisions in  

Sabharwal and Nagaraj clarify that cadre strength is to be applied in the  

operation of the roster. The reference to ‗entire cadre strength‘ in  

Sabharwal adverted to the fact that the entire cadre strength should be  

taken into account in determining whether reservation up to the quota limit  

                                                           81

AIR 1967 SC 295  82

(1969) 1 SCC 325  83

(1970) 1 SCC 248

PART C  

69    

has been reached. In this view, ‗entire cadre strength‘ is the reference  

point to (i) ascertain the position of representation in the entire service; (ii)  

determine whether reservation up to the quota limit has been reached in  

the application of the roster; and (iii) the cadre strength has been applied in  

the operation of the roster. It was urged that if the percentages were  

calculated on the basis of vacancies, the actual appointments made may  

exceed the prescribed quota. Reliance has been placed on the decisions  

of this Court in Indra Sawhney, Nagaraj, and Jarnail;  

(iii) The decision in Indra Sawhney does not deal with SCs and STs in regard  

to the creamy layer principle. In any case, even if the principle applies to  

SCs and STs, it would only be applicable at the stage of appointments and  

not for promotional posts; and  

(iv) The percentages in the PWD which are marginally above the stipulated  

quota are by way of including those reserved category candidates who  

were selected on general merit. This is contrary to the law laid down by  

this Court in Sabharwal, Indra Sawhney and Ritesh Sah v Y L Yamul 84

.  

 58 The rival submissions now fall for consideration.      

59 Other Counsel, who argued and submitted their written submissions, have  

with certain nuances, reiterated similar arguments.  

                                                           84

(1996) 3 SCC 253

PART D  

70    

D Assent to the Bill   

60 Besides the Governor, the legislatures of the States consist of a bicameral  

legislature for some States and a unicameral legislature for others. 85

61 Article 200 is the provision which enunciates the power of the Governor to  

assent to a Bill, withhold assent or reserve a Bill for considering of the President:  

―200. When a Bill has been passed by the Legislative  

Assembly of a State or, in the case of a State having a  

Legislative Council, has been passed by both Houses of the  

Legislature of the State, it shall be presented to the Governor  

and the Governor shall declare either that he assents to the  

Bill or that he withholds assent therefrom or that he reserves  

the Bill for the consideration of the President:   

Provided that the Governor may, as soon as possible after  

the presentation to him of the Bill for assent, return the Bill if it  

is not a Money Bill together with a message requesting that  

the House or Houses will reconsider the Bill or any specified  

provisions thereof and, in particular, will consider the  

desirability of introducing any such amendments as he may  

recommend in his message and, when a Bill is so returned,  

the House or Houses shall reconsider the Bill accordingly,  

and if the Bill is passed again by the House or Houses with or  

without amendment and presented to the Governor for  

assent, the Governor shall not withhold assent therefrom:   

Provided further that the Governor shall not assent to, but  

shall reserve for the consideration of the President, any Bill  

which in the opinion of the Governor would, if it became law,  

so derogate from the powers of the High Court as to  

endanger the position which that Court is by this Constitution  

designed to fill.‖  

                                                           85

 Article 168. (1) For every State there shall be a Legislature which shall consist of the Governor, and—   (a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh],  [Maharashtra],  [Karnataka], [[Tamil Nadu,  Telangana]] [and Uttar Pradesh], two Houses;   (b) in other States, one House.  (2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council  and the other as the Legislative Assembly, and where there is only one House, it shall be known as the  Legislative Assembly.

PART D  

71    

Article 201 deals with what is to happen when the Governor reserves a Bill for the  

consideration of the President.   

―201. When a Bill is reserved by a Governor for the  

consideration of the President, the President shall declare  

either that he assents to the Bill or that he withholds assent  

therefrom:   

Provided that, where the Bill is not a Money Bill, the President  

may direct the Governor to return the Bill to the House or, as  

the case may be, the Houses of the Legislature of the State  

together with such a message as is mentioned in the first  

proviso to article 200 and, when a Bill is so returned, the  

House or Houses shall reconsider it accordingly within a  

period of six months from the date of receipt of such message  

and, if it is again passed by the House or Houses with or  

without amendment, it shall be presented again to the  

President for his consideration.‖  

Upon a Bill being passed by the Houses of the legislature (or by the sole House  

where there is only a legislative assembly), it has to be presented to the  

Governor. The Governor can (i) assent to the Bill; (ii) withhold assent; or (iii)  

reserve the Bill for the consideration of the President.  

62 Where a Bill is not a Money Bill, the Governor may return the Bill for  

reconsideration upon which the House or Houses, as the case may be, will  

reconsider the desirability of introducing the amendments which the Governor  

has recommended. If the Bill is passed again by the House (or Houses as the  

case may be), the Governor cannot thereafter withhold assent. The second  

proviso to Article 200 stipulates that the Governor must not assent to a Bill but  

necessarily reserve it for the consideration of the President if the Bill upon being  

enacted would derogate from the powers of the High Court in a manner that

PART D  

72    

endangers its position under the Constitution. Save and except for Bills falling  

within the description contained in the second proviso (where the Governor must  

reserve the Bill for consideration of the President), a discretion is conferred upon  

the Governor to follow one of the courses of action enunciated in the substantive  

part of Article 200. Aside from Bills which are covered by the second proviso,  

where the Governor is obliged to reserve the Bill for the consideration of the  

President, the substantive part of Article 200 does not indicate specifically, the  

circumstances in which the Governor may reserve a Bill for the consideration of  

the President. The Constitution has entrusted this discretion to the Governor. The  

nature and scope of the discretionary power of the Governor to act independent  

of, or, contrary to aid and advice of Council of Ministers under Article 163 was  

discussed in Nabam Rebia, Justice J S Khehar (as the learned Chief Justice  

then was) held thus:  

―154. We are, therefore, of the considered view that insofar as  

the exercise of discretionary powers vested with the Governor  

is concerned, the same is limited to situations, wherein a  

constitutional provision expressly so provides that the  

Governor should act in his own discretion. Additionally, a  

Governor can exercise his functions in his own discretion, in  

situations where an interpretation of the constitutional  

provision concerned, could not be construed otherwise…‖ 86

Justice Dipak Misra (as the learned judge then was), observed thus:  

―375. …The Governor is expected to function in accordance  

with the provisions of the Constitution (and the history behind  

the enactment of its provisions), the law and the rules  

regulating his functions. It is easy to forget that the Governor  

is a constitutional or formal head—nevertheless like  

everybody else, he has to play the game in accordance with  

the rules of the game—whether it is in relation to the  

                                                           86

Supra 69 at page 159

PART D  

73    

Executive (aid and advice of the Council of Ministers) or the  

Legislature (Rules of Procedure and Conduct of Business of  

the Arunachal Pradesh Legislative Assembly). This is not to  

say that the Governor has no powers—he does, but these too  

are delineated by the Constitution either specifically or by  

necessary implication…‖ 87

63 The framers carefully eschewed defining the circumstances in which the  

Governor may reserve a Bill for the consideration of the President. By its very  

nature the conferment of the power cannot be confined to specific categories.  

Exigencies  may arise in the working of the Constitution which justify a recourse  

to the power of reserving a Bill for the consideration of the President. They  

cannot be foreseen with the vision of a soothsayer. The power having been  

conferred upon a constitutional functionary, it is conditioned by the expectation  

that it would be exercised upon careful reflection and for resolving legitimate  

concerns in regard to the validity of the legislation. The entrustment of a  

constitutional discretion to the Governor is premised on the trust that the exercise  

of authority would be governed by constitutional statesmanship. In a federal  

structure, the conferment  of this constitutional discretion is not intended to thwart  

democratic federalism. The state legislatures represent the popular will of those  

who elect their representatives. They are the collective embodiments of that will.  

The act of reserving a Bill for the assent of the President must be undertaken  

upon careful reflection, upon a doubt being entertained by the Governor about  

the constitutional legitimacy of the Bill which has been passed.   

                                                           87

Ibid at page 244

PART D  

74    

64 Dr Dhavan in the course of his submissions, has dwelt at length on the  

power which is entrusted to the Governor to reserve a Bill for the consideration of  

the President under Article 254 (2). Article 254 (2) deals with a situation where a  

law which has been enacted by the legislature of a state on a matter which is  

enumerated in the Concurrent List of the Seventh Schedule contains any  

provision which is repugnant either to an earlier law made by Parliament or an  

existing law with respect to that matter. In such an eventuality, the law made by  

the legislature of the state can prevail in that state only if it has received the  

assent of the President on being reserved for consideration.   

65 When the reservation of a Bill for the assent of the President has been  

occasioned on the ground of a repugnancy with an existing law or a law enacted  

by the Parliament, there are decisions of this Court which hold that the President  

has to be apprised of the reason why the assent was sought. In Gram  

Panchayat of Village Jamalpur, a law enacted by the Punjab legislature in  

1953, extinguished all private interests in Shamlat-deh lands and vested them in  

the village Panchayats as a matter of agrarian reform. This Court held that the  

Punjab enactment had not been reserved for the assent of the President on the  

ground that it was repugnant to an earlier Act enacted by  Parliament in 1950 but  

the assent was sought for a different and a specific purpose. In this background,  

the Constitution Bench held that the assent of the President would not avail the  

state government to accord precedence to the law enacted by the state  

legislature over the law made by Parliament. The Constitution Bench held:

PART D  

75    

―12…The assent of the President under Article 254(2) of the  

Constitution is not a matter of idle formality. The President  

has, at least, to be apprised of the reason why his assent is  

sought if, there is any special reason for doing so. If the  

assent is sought and given in general terms so as to be  

effective for all purposes, different considerations may  

legitimately arise. But if, as in the instant case, the assent of  

the President is sought to the Law for a specific purpose, the  

efficacy of the assent would be limited to that purpose and  

cannot be extended beyond it.‖ 88

66 A similar principle was adopted in Kaiser-I-Hind Pvt Ltd. The case  

concerned rent legislation in Maharashtra and the Public Premises (Eviction of  

Unauthorized Occupants) Act 1971 enacted by Parliament. This Court held that  

where the assent was given after considering the repugnancy between the  

Bombay Rent Act, the Transfer of Property Act and the Presidency Small Cause  

Courts Act, it was not correct to hold that the state law would prevail over another  

parliamentary enactment for which no assent had been sought. In that context,  

the Court held:  

―65… 2. (a) Article 254(2) contemplates ―reservation for  

consideration of the President‖ and also ―assent‖. Reservation  

for consideration is not an empty formality. Pointed attention  

of the President is required to be drawn to the repugnancy  

between the earlier law made by Parliament and the  

contemplated State legislation and the reasons for having  

such law despite the enactment by Parliament.  

(b) The word ―assent‖ used in clause (2) of Article 254 would  

in context mean express agreement of mind to what is  

proposed by the State.‖ 89

67 These decisions are specifically in the context of Article 254. Article 254(1)  

postulates inter alia, that in a matter which is governed by the Concurrent List, a  

                                                           88

Supra 67 at pages 668-669  89

Supra 66 at pages 215-216

PART D  

76    

law which has been enacted by the legislature of a state shall be void to the  

extent of its repugnancy with a law enacted by the Parliament. Clause (2) of  

Article 254 obviates that consequence where the law has been reserved for the  

consideration of the President and has received assent. Article 254(1) is made  

subject to Clause (2), thereby emphasizing that the assent of the President will  

cure a repugnancy of the state law with a law enacted by the Parliament in a  

matter falling in the Concurrent List. It is in this context, that the decisions of this  

Court hold that the assent of the President should be sought in relation to a  

repugnancy with a specific provision contained in a Parliamentary legislation so  

as to enable due consideration by the President of the ground on which assent  

has been sought. Article 200 contains the source of the constitutional power  

which is conferred upon the Governor to reserve a Bill for the consideration of the  

President. Article 254 (2) is an illustration of the constitutional authority of the  

Governor to reserve a law enacted by the state legislature for consideration of the  

President in a specified situation - where it is repugnant to an existing law or to a  

Parliamentary legislation on a matter falling in the Concurrent List. The  

eventuality which is specified in Article 254 (2) does not exhaust the ambit of the  

power entrusted to the Governor under Article 200 to reserve a Bill for the  

consideration of the President. Apart from a repugnancy in matters falling in the  

Concurrent List between state and Parliamentary legislation, a Governor may  

have sound constitutional reasons to reserve a Bill for the consideration of the  

President. Article 200, in its second proviso mandates that a Bill which derogates  

from the powers of the High Court must be reserved for the consideration of the  

President. Apart from Bills which fall within the description set out in the second

PART D  

77    

proviso, the Governor may legitimately refer a Bill for consideration of the  

President upon entertaining a legitimate doubt about the validity of the law. By its  

very nature, it would not be possible for this Court to reflect upon the situations in  

which the power under Article 200 can be exercised. This was noticed in the  

judgment of this Court in Hoechst. Excluding it from judicial scrutiny, the Court  

held:  

―86…There may also be a Bill passed by the State  

Legislature where there may be a genuine doubt about the  

applicability of any of the provisions of the Constitution which  

require the assent of the President to be given to it in order  

that it may be effective as an Act. In such a case, it is for the  

Governor to exercise his discretion and to decide whether he  

should assent to the Bill or should reserve it for consideration  

of the President to avoid any future complication. Even if it  

ultimately turns out that there was no necessity for the  

Governor to have reserved a Bill for the consideration of the  

President, still he having done so and obtained the assent of  

the President, the Act so passed cannot be held to be  

unconstitutional on the ground of want of proper assent. This  

aspect of the matter, as the law now stands, is not open to  

scrutiny by the courts. In the instant case, the Finance Bill  

which ultimately became the Act in question was a  

consolidating Act relating to different subjects and perhaps  

the Governor felt that it was necessary to reserve it for the  

assent of the President. We have no hesitation in holding that  

the assent of the President is not justiciable, and we cannot  

spell out any infirmity arising out of his decision to give such  

assent.‖ 90

68 Hoechst is an authority for the proposition that the assent of the President  

is non - justiciable. Hoechst also lays down that even if, as it turns out, it was not  

necessary for the Governor to reserve a Bill for the consideration of the  

President, yet if it was reserved for and received the assent of the President, the  

                                                           90

Supra 68 at pages 100-101

PART D  

78    

law as enacted cannot be regarded as unconstitutional for want of ‗proper‘  

assent.  

69 The above decisions essentially answer the submissions which were urged  

by Dr Dhavan. The law as propounded in the line of precedents adverted to  

above must negate the submissions which were urged on behalf of the  

petitioners. Once the Bill (which led to the Reservation Act 2018) was reserved  

by the Governor for the consideration of the President, it was for the President to  

either grant or withhold assent to the Bill. The President having assented to the  

Bill, the requirements of Article 201 were fulfilled. The validity of the assent by the  

President is non-justiciable. The Governor, while reserving the Bill in the present  

case for the consideration of the President on 6 December 2017 observed thus:  

―The Supreme Court in the case of BK Pavitra Case, while  

considering the issue of grant of promotion to persons  

belonging to SC and STs has observed the necessity of  

applying the test of inadequacy of representation,  

backwardness and overall efficiency, for exercise of power  

under Article 16 (4A) of the Constitution and has directed the  

State Government to revise the seniority list within the time  

frame.   

The State Government to overcome the situation which was  

found fault with by the Supreme Court in the aforesaid  

judgment has come out with a Bill, which is now sent for my  

assent.   

Having regard to the judgment of the Supreme Court in the  

aforesaid case and importance of the issue and the  

Constitutional interpretation involved in the matter, I deem it  

appropriate to reserve the matter for the consideration of the  

President. Accordingly, the Bill is reserved for the  

consideration of the President under Article 200 of the  

Constitution of India.‖  

PART E  

79    

70 The state government, in the course of its clarifications, was of the view  

that there was no necessity of reserving the Bill for the consideration of the  

President, since in its view, the Governor had not recorded a finding that it was  

unconstitutional, or fell afoul of existing central legislation on the subject or that it  

was beyond legislative competence or derogated from the fundamental rights. All  

procedural requirements under the Constitution were according to the  

government duly complied with. This objection of the state government cannot  

cast doubt upon the grant of assent by the President. The law having received  

the assent of the President, the submissions which were urged on behalf of the  

petitioners cannot be countenanced.   

E Does the Reservation Act 2018 overrule or nullify B K Pavitra I  

71 The foundation of the decision in B K Pavitra I is the principle enunciated  

in Nagaraj that in order to sustain the exercise of the enabling power contained in  

Article 16 (4A), the state is required to demonstrate a ―compelling necessity‖ by  

collecting quantifiable data on: (i) inadequacy of representation; (ii)  

backwardness; and (iii) overall efficiency.  The judgment in B K Pavitra I held  

that no such exercise was undertaken by the State of Karnataka before providing  

for reservation in promotion and providing for consequential seniority. On the  

ground that the state had not collected quantifiable data on the three parameters  

enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional.  

The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the  

basis that before taking recourse to the enabling power the state has to carry out

PART E  

80    

the exercise of collecting quantifiable data and fulfilling the three parameters  

noted above.  B K Pavitra I essentially held that there was a failure on the part of  

the state to undertake this exercise, which was a pre-condition for the exercise of  

the enabling power to make reservations in promotions and to provide for  

consequential seniority.   

72 The decision in B K Pavitra I did not restrain the state from carrying out  

the exercise of collecting quantifiable data so as to fulfil the conditionalities for the  

exercise of the enabling power under Article 16 (4A). The legislature has the  

plenary power to enact a law. That power extends to enacting a legislation both  

with prospective and retrospective effect. Where a law has been invalidated by  

the decision of a constitutional court, the legislature can amend the law  

retrospectively or enact a law which removes the cause for invalidation. A  

legislature cannot overrule a decision of the court on the ground that it is  

erroneous or is nullity. But, it is certainly open to the legislature either to amend  

an existing law or to enact a law which removes the basis on which a declaration  

of invalidity was issued in the exercise of judicial review. Curative legislation is  

constitutionally permissible. It is not an encroachment on judicial power. In the  

present case, state legislature of Karnataka, by enacting the Reservation Act  

2018, has not nullified the judicial decision in B K Pavitra I, but taken care to  

remedy the underlying cause which led to a declaration of invalidity in the first  

place. Such a law is valid because it removes the basis of the decision.  

PART E  

81    

73 These principles have consistently been reiterated in a line of precedents  

emerging from this Court. In Utkal Contractors and Joinery (P) Ltd, this Court  

held:  

―15. …The legislature may, at any time, in exercise of the  

plenary power conferred on it by Articles 245 and 246 of the  

Constitution render a judicial decision ineffective by enacting  

a valid law. There is no prohibition against retrospective  

legislation. The power of the legislature to pass a law  

postulates the power to pass it prospectively as well as  

retrospectively. That of course, is subject to the legislative  

competence and subject to other constitutional limitations.  

The rendering ineffective of judgments or orders of competent  

courts by changing their basis by legislative enactment is a  

well-known pattern of all validating acts. Such validating  

legislation which removes the causes of ineffectiveness or  

invalidity of action or proceedings cannot be considered as  

encroachment on judicial power. The legislature, however,  

cannot by a bare declaration, without more, directly overrule,  

reverse or set aside any judicial decision…‖ 91

(See also in this context : Bhubaneshwar Singh v Union of India 92

, Indian  

Aluminium Co v State of Kerala 93

(―Indian Aluminium Co‖),  Narain Singh 94

and Cheviti Venkanna Yadav).  

74 The legislature has the power to validate a law which is found to be invalid  

by curing the infirmity. As an incident of the exercise of this power, the legislature  

may enact a validating law to make the provisions of the earlier law effective from  

the date on which it was enacted (The United Provinces v Mst Atiqa Begum 95

                                                           91

Supra 74 at page 759  92

(1994)  6 SCC 77  93

(1996) 7 SCC 637  94

(2009) 13 SCC 165  95

AIR 1941 FC 16

PART E  

82    

and Rai Ramkrishna v State of Bihar 96

). These principles were elucidated in the  

decision of this Court in Prithvi Cotton Mills Ltd. The judgment makes a  

distinction between a law which simply declares that a decision of the court will  

not bind (which is impermissible for the legislature) and a law which  

fundamentally alters the basis of an earlier legislation so that the decision would  

not have been given in the altered circumstances. This distinction is elaborated in  

the following extract:   

―4. … Granted legislative competence, it is not sufficient to  

declare merely that the decision of the Court shall not bind for  

that is tantamount to reversing the decision in exercise of  

judicial power which the Legislature does not possess or  

exercise. A court's decision must always bind unless the  

conditions on which it is based are so fundamentally altered  

that the decision could not have been given in the altered  

circumstances. Ordinarily, a court holds a tax to be invalidly  

imposed because the power to tax is wanting or the statute or  

the rules or both are invalid or do not sufficiently create the  

jurisdiction. Validation of a tax so declared illegal may be  

done only if the grounds of illegality or invalidity are capable  

of being removed and are in fact removed and the tax thus  

made legal.‖ 97

75 In State of T N v Arooran Sugars Ltd 98

, a Constitution Bench of this  

Court recognized the power of the legislature to enact a law retrospectively to  

cure a defect found by the Court. It was held that in doing so, the legislature did  

not nullify a writ or encroach upon judicial power. The legislature in remedying a  

deficiency in the law acted within the scope of its authority. This Court held:   

―16…It is open to the legislature to remove the defect pointed  

out by the court or to amend the definition or any other  

provision of the Act in question retrospectively. In this process  

it cannot be said that there has been an encroachment by the  

                                                           96

(1964) 1 SCR 897  97

Supra 55 at pages 286-287  98

(1997)  1 SCC 326

PART E  

83    

legislature over the power of the judiciary. A court‘s directive  

must always bind unless the conditions on which it is based  

are so fundamentally altered that under altered circumstances  

such decisions could not have been given. This will include  

removal of the defect in a statute pointed out in the judgment  

in question, as well as alteration or substitution of provisions  

of the enactment on which such judgment is based, with  

retrospective effect.‖ 99

The same principle was formulated in the decision of this Court in Virender  

Singh Hooda v State of Haryana 100

:   

―59. …vested rights can be taken away by retrospective  

legislation by removing the basis of a judgment so long as the  

amendment does not violate the fundamental rights. We are  

unable to accept the broad proposition… that the effect of the  

writs issued by the courts cannot be nullified by the legislature  

by enacting a law with retrospective effect. The question, in  

fact, is not of nullifying the effect of writs which may be issued  

by the High Court or this Court. The question is of removing  

the basis which resulted in issue of such a writ. If the basis is  

nullified by enactment of a valid legislation which has the  

effect of depriving a person of the benefit accrued under a  

writ, the denial of such benefit is incidental to the power to  

enact a legislation with retrospective effect. Such an exercise  

of power cannot be held to be usurpation of judicial  

power…‖ 101

76 A declaration by a court that a law is constitutionally invalid does not fetter  

the authority of the legislature to remedy the basis on which the declaration was  

issued by curing the grounds for invalidity. While curing the defect, it is essential  

to understand the reasons underlying the declaration of invalidity. The reasons  

constitute the basis of the declaration. The legislature cannot simply override the  

declaration of invalidity without remedying the basis on which the law was held to  

be ultra vires. A law may have been held to be invalid on the ground that the  

                                                           99

Ibid at page 340  100

(2004) 12 SCC 588  101

Ibid at page 616

PART E  

84    

legislature which enacted the law had no legislative competence on the subject  

matter of the legislation. Obviously, in such a case, a legislature which has been  

held to lack legislative competence cannot arrogate to itself competence over a  

subject matter over which it has been held to lack legislative competence.  

However, a legislature which has the legislative competence to enact a law on  

the subject can certainly step in and enact a legislation on a field over which it  

possesses legislative competence. For instance, where a law has been  

invalidated on the ground that the state legislature lacks legislative competence  

to enact a law on a particular subject – Parliament being conferred with legislative  

competence over the same subject – it is open for the Parliament, following a  

declaration of the invalidity of the state law, to enact a new law and to regulate  

the area. As an incident of its validating exercise, Parliament may validate the  

collection of a levy under the earlier law. The collection of a levy under a law  

which has been held to be invalid is validated by the enactment of legislation by a  

legislative body – Parliament in the above example – which has competence over  

the subject matter. Apart from legislative competence, a law may have been  

declared invalid on the ground that there was a breach of the fundamental rights  

contained in Part III of the Constitution. In that situation, if the legislature  

proceeds to enact a new law on the subject, the issue in essence is whether the  

re-enacted law has taken care to remove the infractions of the fundamental rights  

on the basis of which the earlier law was held to be invalid. The true test  

therefore is whether the legislature has acted within the bounds of its authority to  

remedy the basis on which the earlier law was held to suffer from a constitutional  

infirmity.  

PART E  

85    

77 The petitioners have placed a considerable degree of reliance on the  

decision in Madan Mohan Pathak, where a law – The Life Insurance Corporation  

(Modification of Settlements) Act 1976 was enacted by Parliament to render  

ineffective a settlement which was arrived at between LIC and its employees for  

the payment of bonus. The law was challenged by the employees. In that case,  

there was a judgment of the Calcutta High Court which had given effect to the  

right of the employees to an annual cash bonus under an industrial settlement, by  

the issuance of a writ of mandamus. The mandamus bound the parties to the  

dispute. It was in this backdrop that the Constitution Bench observed that the  

effect of the mandamus issued by the High Court could not simply be nullified by  

enacting a law overriding the industrial settlement. This Court held:  

―9...Here the judgment given by the Calcutta High Court,  

which is relied upon by the petitioners, is not a mere  

declaratory judgment holding an impost or tax to be invalid,  

so that a validation statute can remove the defect pointed out  

by the judgment amending the law with retrospective effect  

and validate such impost or tax. But it is a judgment giving  

effect to the right of the petitioners to annual cash bonus  

under the Settlement by issuing a writ of mandamus directing  

the Life Insurance Corporation to pay the amount of such  

bonus. If by reason of retrospective alteration of the factual or  

legal situation, the judgment is rendered erroneous, the  

remedy may be by way of appeal or review, but so long as  

the judgment stands, it cannot be disregarded or ignored and  

it must be obeyed by the Life Insurance Corporation. We are,  

therefore, of the view that, in any event, irrespective of  

whether the impugned Act is constitutionally valid or not, the  

Life Insurance Corporation is bound to obey the writ of  

mandamus issued by the Calcutta High Court and to pay  

annual cash bonus for the year April 1, 1975 to March 31,  

1976 to Class III and Class IV employees.‖ 102

                                                           102

Supra 56 at page 67

PART E  

86    

78 The decision in Madan Mohan Pathak is hence distinguishable from the  

facts of the present case. The above observations recognized the constitutional  

position that in the case of a declaratory judgment holding an action to be invalid,  

a validating legislation to remove the defect is permissible. Applying this principle,  

it is evident that the decision in B K Pavitra I declared the Reservation Act 2002  

to be invalid and consequent upon the declaration of invalidity, certain directions  

were issued. If the basis on which Reservation Act 2002 was held to be invalid is  

cured by a validating legislation, in this case the Reservation Act 2018, this would  

constitute a permissible legislative exercise. The grounds which weighed in  

Madan Mohan Pathak would hence not be available in the present case.  

79 The decision in Madan Mohan Pathak has been adverted to and clarified  

in several decisions of this Court rendered subsequently. These include:  

(i) Sri Ranga Match Industries v Union of India 103

, where it was held that:  

―14. While appreciating the ratio of the said opinions, it is  

necessary to bear in mind the basic fact that the settlement  

between the Corporation and its employees was not based  

upon any statute or statutory provision. Sub-sections (1) and  

(3) of Section 18 of the Industrial Disputes Act provide merely  

the binding nature of such settlements; they do not constitute  

the basis of the settlements. The settlement between the  

parties was directed to be implemented by the High  

Court. In other words, it was not a case where the High  

Court either struck down a statutory provision nor was it  

a case where a statutory provision was interpreted in a  

particular manner or directed to be implemented. It was  

also not a case where the statutory provision, on which  

the judgment was based, was amended or altered to  

remove/rectify the defect.‖ 104

                (Emphasis supplied)  

                                                           103

1994 Supp. (2) SCC 726  104

Ibid at pages 736-737  

PART E  

87    

(ii) Indian Aluminium Co, where it was held that:  

―49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC  

50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]…   

From the observations made by Bhagwati, J. per majority, it is  

clear that this Court did not intend to lay down that  

Parliament, under no circumstance, has power to amend  

the law removing the vice pointed out by the court.  

Equally, the observation of Chief Justice Beg is to be  

understood in the context that as long as the effect of  

mandamus issued by the court is not legally and  

constitutionally made ineffective, the State is bound to  

obey the directions. Thus understood, it is unexceptionable.  

But it does not mean that the learned Chief Justice intended  

to lay down the law that mandamus issued by court cannot at  

all be made ineffective by a valid law made by the legislature,  

removing the defect pointed out by the court.‖ 105

(Emphasis  

supplied)  

(iii)  Agricultural Income Tax Officer v Goodricke Group Ltd 106

, where it was  

held:   

―14. We are of the view that Madan Mohan Pathak case  

[(1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]  

would not apply to the facts in the present case for the simple  

reason that what has been undone by Section 4-B and  

Section 78-C is not a mandamus issued by a superior  

court. What is undone is the very basis of the judgment  

in Buxa Dooars Tea Co. Ltd. case[(1989) 3 SCC 211 : 1989  

SCC (Tax) 394] by retrospectively changing the levy of rural  

employment cess and education cess.‖ 107

(Emphasis  

supplied)  

80 Madan Mohan Pathak involved a situation where a parliamentary law was  

enacted to override a mandamus which was issued by the High Court for the  

                                                           105

Supra 93 at page 660  106

(2015) 8 SCC 399  107

Ibid at page 407

PART E  

88    

payment of bonus under an industrial settlement. The case did not involve a  

situation where a law was held to be ultra vires and the basis of the declaration of  

invalidity of the law was sought to be cured.   

81 Dr Dhavan adverted to the legal basis of B K Pavitra I as set out in the  

following extract from the conclusion:  

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

the impugned judgment and declare the provisions of the  

impugned Act to the extent of doing away with the ‗catch-up‘  

rule and providing for consequential seniority under Sections  

3 and 4 to persons belonging to SCs and STs on promotion  

against roster points to be ultra vires Articles 14 and 16 of the  

Constitution.‖ 108

Dr Dhavan is entirely correct, if we may say so with respect, in submitting ―that  

what has to be shown is whether the Reservation Act 2018 is, in law Articles 14  

and 16 compliant‖. This necessitates an examination of the constitutionality of the  

Reservation Act 2018. That would require this Court to examine the challenge on  

the ground that there has been a violation of the equality code contained in  

Articles 14 and 16.   

E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act  

2018  

82 The Statement of Objects and Reasons of the Reservation Act 2018 refers  

to the legislative history preceding its enactment. The Ratna Prabha Committee  

                                                           108

Supra 5 at page 641

PART E  

89    

was constituted after the Reservation Act 2002 was held to be invalid in B K  

Pavitra I on the ground that no compelling necessity had been shown by the  

state to provide for reservation in matters of promotion for SCs and STs by  

collecting and analysing relevant data to satisfy the requirements laid out in  

Nagaraj.  The constitution of the Ratna Prabha Committee was consequent upon  

the Reservation Act 2002 having been held to be invalid in B K Pavitra I.   

83 The Statement of Objects and Reasons is extracted below, insofar as it is  

material:  

―The Hon‘ble Supreme Court of India in its judgment dated:  

09.02.2017 in the case of BK Pavitra and others Vs Union of  

India and others in Civil Appeal No. 2368 of 2011 and  

connected matters while dealing with the issue of  

consequential seniority provided to the Scheduled Castes and  

Scheduled Tribes, having regard to the ratio of the decision of  

the Constitution Bench in M.Nagaraj in Writ Petition No. 61 of  

2002 has observed that a proper exercise for determining  

‗inadequacy of representation‘ ‗backwardness‘ and ‗overall  

efficiency‘ is a must for exercise of power under Article 16  

(4A). The court held that in the absence of this exercise under  

Article 16 (4A) it is the ―catch-up‖ rule that shall be applicable.  

Having observed this the Court declared the provisions of  

Sections 3 and 4 of the Karnataka Act 10 of 2002 to be ultra  

vires of Articles 14 and 16 of the Constitution. The Hon‘ble  

Supreme Court directed that revision of the Seniority lists be  

undertaken and completed within three months and further  

consequential action be taken within the next three months;  

In order to comply with the directions of the Hon‘ble Supreme  

Court in BK Pavitra and others vs Union of India and others in  

Civil Appeal No. 2368 of 2011 the Government has issued  

order vide Government order No. DPAR 182 SRR 2011 dated  

06.05.2017 to all appointing authorities to revise the seniority  

lists;  

While in compliance of the Supreme Court order, the  

Government considering the need and taking note of the  

decision of the Constitution Bench in M Nagaraj, in Writ  

Petition No. 61 of 2002, has entrusted the task of conducting  

study and submitting a report on the backwardness of the

PART E  

90    

Scheduled Castes and Scheduled Tribes in the state,  

inadequacy of their representation in the State Civil Services  

and the effect of reservation in promotion on the State  

administration, to the Additional Chief Secretary to  

Government in Government order No. DPAR 182 SRR 2011  

dated 22.03.2017;  

The Additional Chief Secretary to Government with the  

assistance of officers from various departments has collated  

the scientific, quantifiable and relevant data collected and  

having made a detailed study of quantifiable data has  

submitted a report on backwardness of Scheduled Castes  

and Scheduled Tribes in the state, inadequacy of their  

representation in the State Civil Services and the effect of  

reservation in promotion on the State administration to the  

State Government;  

The report confirms the backwardness of the Scheduled  

Castes and Scheduled Tribes in the state, inadequacy of their  

representation in the State Civil Services and that the overall  

efficiency of administration has not been affected or  

hampered by extending reservation in promotion to the  

Scheduled Castes and Scheduled Tribes in the state and  

continuance of reservation in promotion within the limits will  

not affect or hamper overall efficiency of administration;‖   

84 The first principle of statutory interpretation guides us towards the view that  

undoubtedly, the Statement of Objects and Reasons:  

(i) Cannot be used for restricting the plain meaning of a legislation 109

;  

(ii)  Cannot determine whether a provision is valid 110

; and    

(iii)  May not be definitive of the circumstances in which it was passed 111

.  

[See in this context Welfare Association v Ranjit 112

].  

                                                           109

Bhaiji v Sub-Divisional Officer, Thandla : (2003) 1 SCC 692 at page 700, A Manjula Bhashini v A P Monen‘s  Coor. Finance Corp. Ltd. : (2009) 8 SCC 431 at paras 34, 40    

110  Kerala State (Electricity) Board v Indian Aluminum : (1976) 1 SCC 466   

111  K S Paripoornan v State of Kerala : (1994) 5 SCC 593   

112  (2003) 9 SCC 358

PART E  

91    

85 The preamble to a law may be a statutory aid to consider the mischief  

which the law seeks to address. While it cannot prevail over the provisions of the  

statute, it can be an aid to resolve an ambiguity 113

.   

86 In the course of his submissions, Dr Dhavan has emphasized the ―new  

provisions‖ contained in the Reservation Act 2018. These according to him, are:  

(i) Section 2 (d) which defines ‗backlog‘;  

(ii) Section 5 under which the appointing authority is to revise and redraw the  

existing seniority lists;  

(iii)  Section 7 which deals with the power to remove difficulties;   

(iv) Section 8 which provides for the repeal of the Reservation Act 2002; and  

(v) Section 9 which is a validating provision.  

87 The essential issue which now needs to be addressed by this Court is  

whether the basis of the decision in B K Pavitra I has been cured. The decision  

of the Constitution Bench in Nagaraj mandates that before the State can take  

recourse to the enabling power contained in Clauses (4A) and (4B) of Article 16,  

it must demonstrate the existence of ―compelling reasons‖ on three facets: (i)   

backwardness; (ii)  inadequacy of representation; and (iii) overall administrative  

efficiency. In Jarnail, the Constitution Bench clarified that the first of the above  

factors – ―backwardness‖ has no application in the case of reservations for the  

SCs and STs. Nagaraj to that extent was held to be contrary to the decision of  

the larger Bench in Indra Sawhney.   

                                                           113

Burrakur Coal Co. Ltd. v Union of India : AIR 1961 SC 954 at pages 956-957

PART E  

92    

E.2 The Ratna Prabha Committee report   

88 The decision in B K Pavitra I was rendered on 9 February 2017. The  

Ratna Prabha Committee was established on 22 March 2017. Its report was  

examined by a Cabinet Sub-Committee on 4 August 2017 and was eventually  

approved by the Cabinet on 7 August 2017. The Ratna Prabha Committee report  

was commissioned to : (i) collect information on cadre wise representation of SC  

and ST employees in all government departments; (ii) collect information on  

backwardness of SCs and STs; and (iii) study the effect on the administration due  

to the promotion of SCs and STs.   

89 Dr Dhavan‘s challenge to the report is basically founded on the following  

features:    

(i) Only thirty one out of sixty two government departments were examined;  

(ii) No data was collected for public sector undertakings, boards, corporations,  

local bodies, grant-in-aid institutions and autonomous bodies;  

(iii) In PWD and KPTCL, the representation is excessive;  

(iv) The data is vacancy based and not post based as required by Sabharwal;  

(v)  The data is on sanctioned posts and not of filled posts;  

(vi)  The data is based on grades A, B, C and D and not cadre based; and  

(vii)  On efficiency, there is only a general reference to the economic  

development of the State of Karnataka.  

 90 Based on the above features, the petitioners have invoked the power of  

judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the  

constitutional validity of successive constitutional amendments to Article 16

PART E  

93    

conditional upon the existence of compelling reasons which must be  

demonstrated by the State by collecting and analysing relevant data. It is  

submitted that the flaws in the report of the Ratna Prabha Committee would  

indicate that the compelling reasons which constitute the foundation for the  

exercise of the enabling power contained in Article 16 are absent, which must  

result in the invalidation of the Reservation Act 2018.  

91 Before we deal with the merits of the attack on the Ratna Prabha  

Committee report, it is necessary to set down the parameters on which judicial  

review can be exercised. Essentially, the exercise which the petitioners require  

this Court to undertake is to scrutinize the underlying collection of data by the  

State on two facets laid out in Nagaraj, as now clarified by Jarnail: (i) the  

adequacy of representation; and (ii) impact on efficiency in administration.  

Clause (4) of Article 16 contains an enabling provision to empower the State to  

make reservations in appointments or posts in favour of any backward class of  

citizens ―which, in the opinion of the State, is not adequately represented in the  

services under the State‖. Clause (4A) contains an enabling provision that allows  

the state to provide for reservations in promotion with consequential seniority in  

posts or classes of posts in services under the State in favour of SCs and STs.  

Clause (4A) also uses the expression ―which, in the opinion of the State, are not  

adequately represented in the services under the State‖. In Indra Sawhney,  

while construing the nature of the satisfaction which has to be arrived at by the  

State, this Court held:

PART E  

94    

―798….The language of clause (4) makes it clear that the  

question whether a backward class of citizens is not  

adequately represented in the services under the State is a  

matter within the subjective satisfaction of the State. This is  

evident from the fact that the said requirement is preceded by  

the words ―in the opinion of the State‖. This opinion can be  

formed by the State on its own, i.e., on the basis of the  

material it has in its possession already or it may gather such  

material through a Commission/Committee, person or  

authority. All that is required is, there must be some material  

upon which the opinion is formed. Indeed, in this matter the  

court should show due deference to the opinion of the State,  

which in the present context means the executive. The  

executive is supposed to know the existing conditions in the  

society, drawn as it is from among the representatives of the  

people in Parliament/Legislature. It does not, however, mean  

that the opinion formed is beyond judicial scrutiny altogether.  

The scope and reach of judicial scrutiny in matters within  

subjective satisfaction of the executive are well and  

extensively stated in Barium Chemicals v. Company Law  

Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need  

not be repeated here. Suffice it to mention that the said  

principles apply equally in the case of a constitutional  

provision like Article 16 (4) which expressly places the  

particular fact (inadequate representation) within the  

subjective judgment of the State/executive.‖ 114

(Emphasis  

supplied)  

The above extract from the decision in Indra Sawhney presents two mutually  

complementary and reinforcing principles. The first principle is that the executive  

arm of the state is aware of prevailing conditions. The legislature represents the  

collective will of the people through their elected representatives. The  

presumption of constitutionality of a law enacted by a competent legislature  

traces itself to the fundamental doctrine of constitutional jurisprudence that the  

legislature is accountable to those who elect their representatives. Collectively,  

the executive and the legislature are entrusted with the constitutional duty to  

                                                           114

Supra 13 at page 728

PART E  

95    

protect social welfare. This Court explained in Amalgamated Tea Estates Co  

Ltd v State of Kerala 115

, the rationale for the principles of constitutionality:   

―11.The reason why a statute is presumed to be constitutional  

is that the Legislature is the best judge of the local conditions  

and circumstances and special needs of various classes of  

persons. ―(T)he Legislature is the best judge of the needs of  

particular classes and to estimate the degree of evil so as to  

adjust its legislation according to the exigency found to  

exist.‖ 116

This principle was reiterated in V C Shukla v State (Delhi Administration) 117

:  

―11…Furthermore, the legislature which is in the best position  

to understand the needs and requirements of the people must  

be given sufficient latitude for making selection or   

differentiation and so long as such a selection is not arbitrary  

and has a rational basis having regard to the object of the  

Act, Article 14 would not be attracted. That is why this Court  

has laid down that presumption is always in favour of the  

constitutionality of an enactment and the onus lies upon the  

person who attacks the statute to show that there has been  

an infraction of the constitutional concept of equality.‖ 118

92 More recently, this was emphasized in State of Himachal Pradesh v  

Satpal Saini 119

:  

―12…The duty to formulate policies is entrusted to the  

executive whose accountability is to the legislature and,  

through it, to the people. The peril of adopting an incorrect  

policy lies in democratic accountability to the people…‖ 120

                                                           115

(1974) 4 SCC 415  116

Ibid at page 420  117

(1980) Supp SCC 249  118

Ibid at page 259  119

(2017) 11 SCC 42  120

Ibid at page 47

PART E  

96    

93 The second of the reinforcing principles which emerges from Indra  

Sawhney is that the opinion of the government on the adequacy of  

representation of the SCs and STs in the public services of the state is a matter  

which forms a part of the subjective satisfaction of the state. Significantly, the  

extract from Indra Sawhney reproduced earlier adverts to the decision in Barium  

Chemicals Ltd, which emphasises that when an authority is vested with the  

power to form an opinion, it is not open for the court to substitute its own opinion  

for that of the authority, nor can the opinion of the authority be challenged on  

grounds of propriety or sufficiency. In Nagaraj, while dealing with the parameters  

governing the assessment of the adequacy of representation or of the impact on  

efficiency, the Constitution Bench held:  

―45… The basic presumption, however, remains that it is  

the State who is in the best position to define and  

measure merit in whatever ways it consider it to be  

relevant to public employment because ultimately it has  

to bear the costs arising from errors in defining and  

measuring merit. Similarly, the concept of ―extent of  

reservation‖ is not an absolute concept and like merit it is  

context-specific.   

…  

49. Reservation is necessary for transcending caste and not  

for perpetuating it. Reservation has to be used in a limited  

sense otherwise it will perpetuate casteism in the country.  

Reservation is underwritten by a special justification. Equality  

in Article 16(1) is individual-specific whereas reservation in  

Article 16 (4) and Article 16(4A) is enabling. The discretion of  

the State is, however, subject to the existence of  

―backwardness‖ and ―inadequacy of representation‖ in public  

employment. Backwardness has to be based on objective  

factors whereas inadequacy has to factually exist. This is  

where judicial review comes in. However, whether  

reservation in a given case is desirable or not, as a  

policy, is not for us to decide as long as the parameters  

mentioned in Articles 16 (4) and 16 (4A) are maintained. As  

stated above, equity, justice and merit (Article

PART E  

97    

335)/efficiency are variables which can only be identified  

and measured by the State.  

…  

102…equity, justice and efficiency are variable factors. These  

factors are context-specific. There is no fixed yardstick to  

identify and measure these three factors, it will depend  

on the facts and circumstances of each case.‖ 121

(Emphasis supplied)  

94 The element of discretion vested in the state governments to determine  

adequacy of representation in promotional posts is once again emphasized in the  

following extract from the decision in Jarnail:  

―35…According to us, Nagaraj has wisely left the test for  

determining adequacy of representation in promotional  

posts to the States for the simple reason that as the post  

gets higher, it may be necessary, even if a proportionality test  

to the population as a whole is taken into account, to reduce  

the number of Scheduled Castes and Scheduled Tribes in  

promotional pots, as one goes upwards. This is for the simple  

reason that efficiency of administration has to be looked at  

every time promotions are made. As has been pointed out by  

B P Jeevan Reddy, J.‘s judgment in Indra Sawhney, there  

may be certain posts right at the top, where reservation is  

impermissible altogether. For this reason, we make it clear  

that Article 16 (4A) has been couched in language which  

would leave it to the States to determine adequate  

representation depending upon the promotional post that  

is in question.‖ 122

          (Emphasis supplied)    

95 In dealing with the submissions of the petitioners on this aspect, it is  

relevant for this Court to recognize the circumspection with which judicial power  

must be exercised on matters which pertain to propriety and sufficiency, in the  

context of scrutinizing the underlying collection of data by the State on the  

adequacy of representation and impact on efficiency.  The Court, is above all,  

                                                           121

Supra 6 at pages 249-250   122

Supra 49 at page 430

PART E  

98    

considering the validity of a law which was enacted by the State legislature for  

enforcing the substantive right to equality for the SCs and STs. Judicial review  

must hence traverse conventional categories by determining as to whether the  

Ratna Prabha Committee report considered material which was irrelevant or  

extraneous or had drawn a conclusion which no reasonable body of persons  

could have adopted. In this area, the fact that an alternate line of approach was  

possible or may even appear to be desirable cannot furnish a foundation for the  

assumption by the court of a decision making authority which in the legislative  

sphere is entrusted to the legislating body and in the administrative sphere to the  

executive arm of the government.   

96 On the inadequacy of representation, the summary which emerges from  

the Ratna Prabha Committee report is as follows:   

―2.5: Summary:  

1) The analysis of time series data collected for the last 32  

years (1984-2016 except for 1986) across 31 Departments of  

the State Government provides the rich information on the  

inadequacy of representation of SCs and STs employees in  

various cadres of Karnataka Civil Services.  

2) The total number of sanctioned posts as per the data of  

2016 is 7,45,593 of which 70.22 percent or 5,23,574 are filled  

up across 31 Departments.  

3) The vacancies or posts are filled up through Direct  

Recruitment (DR) and Promotions including consequential  

promotion.  

4) The overall representation of the SC and ST employees of  

all 31 Departments in comparison with total sanctioned posts  

comprises of 10.65 per cent and 2.92 per cent respectively.  

This proves inadequacy of representation of SCs and STs.  

5) On an average the representation in Cadre A for SCs is at  

12.07 per cent and STs 2.70 per cent which sufficiently  

proves the inadequacy of representation.  

6) The extent of representation in Cadre B is on an average  

of 9.79 per cent and 2.34 per cent for ST for all the years of  

the study period.

PART E  

99    

7) It is observed that on an average 3.05 per cent of SC  

representation is inadequate in the Cadre ‗C‘ whereas, 0.05  

per cent excess representation is seen for ST.   

8) On an average of 2 per cent and 1 per cent over  

representation of employees of SCs and STs is found in  

Cadre D respectively. However, in the last 5 years,  

inadequacy of representation of SCs by 3 per cent is found in  

this cadre.  

9) The representation of Scheduled Caste in Cadre A, B and  

C is on an average 12, 9.79 and 12.04 per cent respectively  

whereas in Cadre D it is 16.91.  

10) In case of STs in the cadres A and B the representation is  

2.70 and 2.34 per cent. However, excess representation of  

0.04 and 0.93 per cent is found in case of Group C and Group  

D respectively.  

11) Over representation in some years and departments is  

attributed to either Direct Recruitment or retirement of  

employees or filling up of backlog vacancies as the later does  

not fall under 50 per cent limitation of reservation.   

2.6: Conclusion:  

The data clearly shows the inadequacy of representation of  

SCs and STs in the civil services in Groups A, B  and C and  

adequate representation in Group D.‖    

97 Collection of data and its analysis are governed by varying and often  

divergent approaches in the social sciences. An informative treatise on the  

subject titled Empirical Political Analysis – Quantitative and Qualitative  

Research Methods 123

distinguishes between obtaining knowledge and using  

knowledge. The text seeks to explain empirical analysis on the one hand and  

normative analysis on the other hand:   

―Social Scientists distinguish between obtaining knowledge  

and using knowledge. Dealing with factual realities is termed  

empirical analysis. Dealing with how we should use our  

knowledge of the world is termed normative analysis.   

Empirical analysis is concerned with developing and  

using a common, objective language to describe and explain  

reality. It can be quantitative or qualitative. Quantitative  

analyses are based on math-based comparisons of the  

                                                           123

Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B Willnat, Longman  Publishers  

PART E  

100    

characteristics of the various objects or events that we study.  

Qualitative analyses are based on the researcher‘s informed  

and contextual understanding of objects or events.   

Normative analysis is concerned with developing and  

examining subjective values and ethical rules to guide us in  

judging and applying what we have learned about reality.  

Although the emphasis in this book is on empirical analysis, it  

seeks to develop an appreciation of the larger, normative  

perspective within which knowledge is acquired, interpreted,  

and applied through a discussion of the ethics of research.   

Normative analysis without an empirical foundation  

can lead to value judgments that are out of touch with reality.  

Empirical analysis in the absence of sensitivity to normative  

concerns, on the other hand, can lead to the collection of  

observations whose significance we are not prepared to  

understand fully. The objective in undertaking political inquiry  

is to draw upon both types of analysis – empirical and  

normative – so as to maximize not only our factual  

knowledge, but also our ability to use the facts we discover  

wisely.‖           

98 In supporting the methodology which has been adopted by the Ratna  

Prabha Committee, Ms Indira Jaising, learned Senior Counsel emphasized that:  

(i) Save and except where a national census is proposed to be conducted,  

data collection is based on valid sampling methods on which conclusions  

are drawn;  

(ii) Research methodology can be qualitative as well as quantitative – the  

present case deals with the collection of quantitative data;  

(iii)  Quantitative data is also collected on the basis of sample surveys. In this  

case, the purpose of the study was to collect data on the adequacy of  

representation in promotional posts and the sample which was chosen was  

a representative sample from which conclusions were drawn; and

PART E  

101    

(iv)  In the study conducted by the State of Karnataka, statistics of a number of  

persons belonging to the SCs and STs in promotional posts were collected  

group wise. The groups include cadres. Hence, it stands to reason that if  

the data is collected in relation to a group, it will include data pertaining to  

cadres as well since, every cadre within the group has been statistically  

enquired.  

 99 We find merit in the above submissions. The methodology which was  

adopted by the Ratna Prabha Committee has not been demonstrated to be alien  

to conventional social science methodologies. We are unable to find that the  

Committee has based its conclusions on any extraneous or irrelevant material. In  

adopting recourse to sampling methodologies, the Committee cannot be held to  

have acted arbitrarily. If, as we have held above, sampling is a valid methodology  

for collection of data, the necessary consequence is that the exercise cannot be  

invalidated only on the ground that data pertaining to a particular department or  

of some entities was not analysed. The data which was collected pertained to  

thirty one departments which are representative in character. The State has  

analysed the data which is both relevant and representative, before drawing its  

conclusions. As we have noted earlier, there are limitations on the power of  

judicial review in entering upon a factual arena involving the gathering, collation  

and analysis of data.    

100 Dr Dhavan has painstakingly compiled charts for the purpose of his  

argument. We may also note at this stage that Ms Jaising in response to the  

charts relied upon by Dr Dhavan, also placed on records charts indicating:

PART E  

102    

(i) Current representation after demotion of SC and ST employees in the  

PWD of Karnataka;  

(ii)  Percentage of SCs and STs in the post of Executive Engineer without  

consequential seniority in the PWD; and   

(iii)  Corresponding figures in the post of Executive Engineer without  

consequential seniority in the PWD.   

 101 We are of the view that once an opinion has been formed by the State  

government on the basis of the report submitted by an expert committee which  

collected, collated and analysed relevant data, it is impossible for the Court to  

hold that the compelling reasons which Nagaraj requires the State to  

demonstrate have not been established.  Even if there were to be some errors in  

data collection, that will not justify the invalidation of a law which the competent  

legislature was within its power to enact. After the decision in B K Pavitra I, the  

Ratna Prabha Committee was correctly appointed to carry out the required  

exercise. Once that exercise has been carried out, the Court must be  

circumspect in exercising the power of judicial review to re-evaluate the factual  

material on record.   

102 The adequacy of representation has to be assessed with reference to a  

benchmark on adequacy. Conventionally, the State and the Central governments  

have linked the percentage of reservation for the SCs and STs to their  

percentage of population, as a measure of adequacy. The Constitution Bench  

noticed this in Sabharwal, where it observed:

PART E  

103    

―4. When a percentage of reservation is fixed in respect of a  

particular cadre and the roster indicates the reserve points, it  

has to be taken that the posts shown at the reserve points are  

to be filled from amongst the members of reserve categories  

and the candidates belonging to the general category are not  

entitled to be considered for the reserved posts. On the other  

hand the reserve category candidates can compete for the  

non-reserve posts and in the event of their appointment to the  

said posts their number cannot be added and taken into  

consideration for working out the percentage of reservation.  

Article 16 (4) of the Constitution of India permits the State  

Government to make any provision for the reservation of  

appointments or posts in favour of any Backward Class of  

citizens which, in the opinion of the State is not adequately  

represented in the Services under the State. It is, therefore,  

incumbent on the State Government to reach a conclusion  

that the Backward Class/Classes for which the reservation is  

made is not adequately represented in the State Services.  

While doing so the State Government may take the total  

population of a particular Backward Class and its  

representation in the State Services. When the State  

Government after doing the necessary exercise makes the  

reservation and provides the extent of percentage of posts to  

be reserved for the said Backward Class then the percentage  

has to be followed strictly. The prescribed percentage cannot  

be varied or changed simply because some of the members  

of the Backward Class have already been  

appointed/promoted against the general seats. As mentioned  

above the roster point which is reserved for a Backward Class  

has to be filled by way of appointment/promotion of the  

member of the said class. No general category candidate can  

be appointed against a slot in the roster which is reserved for  

the Backward Class…‖ 124

Explaining this further, the Constitution Bench held:  

―5...Once the prescribed percentage of posts is filled the  

numerical test of adequacy is satisfied and thereafter the  

roster does not survive. The percentage of reservation is the  

desired representation of the Backward Classes in the State  

Services and is consistent with the demographic estimate  

based on the proportion worked out in relation to their  

population. The numerical quota of posts is not a shifting  

boundary but represents a figure with due application of mind.  

Therefore, the only way to assure equality of opportunity to  

the Backward Classes and the general category is to permit  

                                                           124

Supra 24 at page 750

PART E  

104    

the roster to operate till the time the respective  

appointees/promotees occupy the posts meant for them in the  

roster…‖ 125

Consequently, it is open to the State to make reservation in promotion for SCs  

and STs proportionate to their representation in the general population.  

103 One of the submissions which has been urged on behalf of the petitioners  

is that the quota has to be reckoned with reference to posts which are actually  

filled up or the working strength and not with reference to sanctioned posts. This  

submission is answered by the decision in Sabharwal, which holds that the  

percentage of reservation has to be worked out in relation to the number of posts  

which form part of the cadre strength. The Constitution Bench held:  

―6. The expressions ‗posts‘ and ‗vacancies‘, often used in the  

executive instructions providing for reservations, are rather  

problematical. The word ‗post‘ means an appointment, job,  

office or employment. A position to which a person is  

appointed. ‗Vacancy‘ means an unoccupied post or office.  

The plain meaning of the two expressions make it clear that  

there must be a ‗post‘ in existence to enable the ‗vacancy‘ to  

occur. The cadre-strength is always measured by the  

number of posts comprising the cadre. Right to be  

considered for appointment can only be claimed in  

respect of a post in a cadre. As a consequence the  

percentage of reservation has to be worked out in  

relation to the number of posts which form the cadre-

strength. The concept of „vacancy‟ has no relevance in  

operating the percentage of reservation.‖ 126

(Emphasis  

supplied)  

                                                           125

Ibid at page 751   126

Ibid at pages 751-752

PART E  

105    

Similarly, in Nagaraj, the Constitution Bench held:  

―83. In our view, the appropriate Government has to apply the  

cadre strength as a unit in the operation of the roster in order  

to ascertain whether a given class/group is adequately  

represented in the service. The cadre strength as a unit also  

ensures that upper ceiling limit of 50% is not violated. Further,  

roster has to be post-specific and not vacancy based.‖ 127

Hence, the submission that the quota must be reckoned on the basis of the posts  

which are actually filled up and not the sanctioned posts cannot be accepted.  

104 We find no merit in the challenge to the Ratna Prabha Committee report on  

the ground that the collection of data was on the basis of groups A, B, C and D as  

opposed to cadres. For one thing, the expression ‗cadre‘ has no fixed meaning  

ascribed to it in service jurisprudence. But that apart, Nagaraj requires the  

collection of quantifiable data inter alia, on the inadequacy of representation in   

services under the state. Clause 4A of Article 16 specifically refers to the  

inadequacy of representation in the services under the state. The collection of  

data on the basis of groups A to D does not by its very nature exclude data  

pertaining to cadres. The state has studied in the present case the extent of  

reservation for SCs and STs in groups A to D, consisting of several cadres.  

Since, the group includes posts in all the cadres in that group, it can logically be  

presumed that the state has collected quantifiable data on the representation of  

SCs and STs in promotional posts in the cadres as well.  

                                                           127

Supra 6 at page 261

PART F  

106    

105 Another facet of the matter is that in the judgment of Justice Jeevan Reddy  

in Indra Sawhney, it was observed that reservation under Article 16 (4) does not  

operate on communal grounds. Hence, if a member belonging to a reserved  

category is selected in the general category, the selection would not count  

against the quota prescribed for the reserved category. The decision in   

Sabharwal also noted that while candidates belonging to the general category  

are not entitled to fill reserved posts, reserved category candidates are entitled to  

compete for posts in the general category. In several group D posts, such as  

municipal sweepers, the sobering experience of administration is that the  

overwhelmingly large segment of applicants consists of persons belonging to the  

SCs and STs. Over representation in group D posts as a result of candidates  

belonging to the general category staying away from those posts cannot be a  

valid or logical basis to deny promotion to group D employees recruited from the  

reserved category.   

F Substantive versus formal equality  

106 The core of the present case is based on the constitutional content of  

equality.   

107 For equality to be truly effective or substantive, the principle must  

recognise existing inequalities in society to overcome them.  Reservations  

are thus not an exception to the rule of equality of opportunity. They are rather  

the true fulfilment of effective and substantive equality by accounting for the

PART F  

107    

structural conditions into which people are born. If Article 16(1) merely postulates  

the principle of formal equality of opportunity, then Article 16(4) (by enabling  

reservations due to existing inequalities) becomes an exception to the strict rule  

of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the  

principle of substantive equality (including the recognition of existing inequalities)  

then Article 16 (4) becomes the enunciation of one particular facet of the rule  

of substantive equality set out in Article 16 (1).   

F.I The Constituent Assembly‟s understanding of Article 16 (4)  

(I) Reservations to overcome existing inequalities in society  

(a)  There is substantial evidence that the members of the Constituent  

Assembly recognised that (i) Indian society suffered from deep structural  

inequalities; and (ii) the Constitution would serve as a transformative document to  

overcome them. One method of overcoming these inequalities is reservations for  

the SCs and STs in the legislatures and state services.  Therefore, for the  

members of the Constituent Assembly who supported reservations, a key  

rationale for incorporating reservations for SCs and STs in the Constitution  

was the existence of inequalities in society based on discrimination and  

prejudice within the caste structure. This is evidenced by the statements in  

support of reservations for minorities by members. For example, in the context of  

legislative reservations for minorities Monomohan Das noted:  

―… Therefore, it is evident from the Report of the Minorities  

Committee that it is on account of the extremely low  

educational and economic conditions of the scheduled castes  

and the grievous social disabilities from which they suffer that

PART F  

108    

the political safeguard of reservation of seats had been  

granted to them...‖ 128

(b) Prof. Yashwant Rai used similar statements to support reservations for  

backward communities in employment:   

―… Therefore, if you want to give equal status to those  

communities which are backward and depressed and on  

whom injustice has been perpetrated for thousands of  

years and if you want to establish Indian unity, so that the  

country may progress and so that many parties in the country  

may not mislead the poor, I would say that there should be  

a provision in the constitution under which the educated  

Harijans may be provided with employment….‖ 129

(Emphasis supplied)  

(II) Recognition of the insufficiency of formal equality by the Constituent  

Assembly  

108 During the debates on the principles of equality underlying Article 16 (then  

draft Article 10), certain members of the Assembly recognised that in order to  

give true effect to the principle of equality of opportunity, the Constitution had to  

expressly recognise the existing inequalities. For example, Shri Phool Singh  

noted:   

―… Much has been made of merit in this case; but equal  

merit pre-supposes equal opportunity, and I think it goes  

without saying that the toiling masses are denied all those  

opportunities which a few literate people living in big cities  

enjoy. To ask the people from the villages to compete  

with those city people is asking a man on bicycle to  

compete with another on a motorcycle, which in itself is  

                                                           128

(Volume XI) Debate on 25 August 1949.   129

(Volume XI) Debate on 23 August 1949.

PART F  

109    

absurd. Then again, merit should also have some reference  

to the task to be discharged…‖ 130

  (Emphasis supplied)  

 Similarly, P Kakkam stated,   

―… If you take merit alone into account, the Harijans  

cannot come forward. I say in this house, that the  

Government must take special steps for the reservation of  

appointment for the Harijans for same years. I expect the  

government will take the necessary steps to give more  

appointments in police and military services also...‖ 131

(Emphasis supplied)  

109 By recognising that formal equality of opportunity will be insufficient in  

fulfilling the transformative goal of the Constitution, these members recognised  

that the conception of equality of opportunity must recognise and account for  

existing societal inequalities. The most revealing debates as to how the  

Constituent Assembly understood equality of opportunity under the Constitution  

took place on 30 November 1948.  Members debated draft article 10 (which  

would go on to become Article 16 of the Constitution).  In these debates, some   

members understood sub-clause (4) (providing for reservations) as an exception  

to the general rule of formal equality enunciated in sub-clause (1). Illustratively,  

an articulation of this position was made by Mohammad Ismail Khan, who stated,   

―… There can be only one of these two things--either  

there can be clear equal opportunity or special  

consideration. Article 10 says there shall be equality of  

opportunity, then it emphasises the fact by a negative clause  

that no citizen shall be discriminated on account of religion or  

race. It is quite good, but when no indication is given whether  

this would override article 296 or article 296 is independent of  

it, we are certainly left in the lurch. What would be the fate of  

the minorities? [Article 296 stated that special  

                                                           130

(Volume XI) Debate on 23 August 1949.  131

(Volume VII) Debate on 30 May 1948.

PART F  

110    

considerations shall be shown to minorities to ensure  

representation in the services]…‖ 132

   (Emphasis supplied)  

110 Dr B R Ambedkar‘s response summarises the different conceptions of  

equality of opportunity that the members of the assembly put forward. Dr  

Ambedkar argued that the inclusion of sub-clause (4) was a method of  

recognising the demand that mere formal equality in sub-clause (1) would be  

insufficient, and a balance between formal equality of opportunity and the needs  

of the disadvantaged classes of society was needed. Dr Ambedkar presciently  

observed:   

―… If members were to try and exchange their views on this  

subject, they will find that there are three points of view which  

it is necessary for us to reconcile if we are to produce a  

workable proposition which will be accepted by all…   

The first is that there shall be equality of opportunity for all  

citizens. It is the desire of many Members of this House that  

every individual who is qualified for a particular post should be  

free to apply for that post, to sit for examinations and to have  

his qualifications tested so as to determine whether he is fit for  

the post or not and that there ought to be no limitations…  

Another view mostly shared by a section of the House is that, if  

this principle is to be operative--and it ought to be operative in  

their judgment to its fullest extent--there ought to be no  

reservations of any sort for any class or community at all…  

Then we have quite a massive opinion which insists that,  

although theoretically it is good to have the principle that  

there shall be equality of opportunity, there must at the  

same time be a provision made for the entry of certain  

communities which have so far been outside the  

administration. As I said, the Drafting Committee had to  

produce a formula which would reconcile these three points of  

view, firstly, that there shall be equality of opportunity,  

secondly that there shall be reservations in favour of certain  

communities which have not so far had a `proper look-in' so to  

say into the administration…   

                                                           132

(Volume VII) Debate on 30 May 1948.

PART F  

111    

The view of those who believe and hold that there shall be  

equality of opportunity, has been embodied in sub-clause  

(1) of Article 10. It is a generic principle. At the same time,  

as I said, we had to reconcile this formula with the  

demand made by certain communities that the  

administration which has now--for historical reasons--

been controlled by one community or a few communities,  

that situation should disappear and that the others also  

must have an opportunity of getting into the public  

services…‖ 133

                     (Emphasis supplied)   

F.2 The Constitution as a transformative instrument   

111 The Constitution is a transformative document. The realization of its  

transformative potential rests ultimately in its ability to breathe life and meaning  

into its abstract concepts. For, above all, the Constitution was intended by its  

draftspersons to be a significant instrument of bringing about social change in a  

caste based feudal society witnessed by centuries of oppression of and  

discrimination against the marginalised. As our constitutional jurisprudence has  

evolved, the realisation of the transformative potential of the Constitution has  

been founded on the evolution of equality away from its formal underpinnings to  

its substantive potential.   

112 In the context of reservations, the decision in T Devadasan v The Union  

of India 134

construed Article 16 (4) to be a proviso or an exception to Article 16  

(1). In a dissent which embodied a vision statement of the Constitution, Justice  

Subba Rao held:  

―26. Article 14 lays down the general rule of equality. Article  

16 is an instance of the application of the general rule with  

                                                           133

(Volume VII) Debate on 30 May 1948.  134

AIR 1964 SC 179

PART F  

112    

special reference to opportunity of appointments under the  

State. It says that there shall be equality of opportunity for all  

citizens in matters relating to employment or appointment to  

any office under the State… Centuries of calculated  

oppression and habitual submission reduced a considerable  

section of our community to a life of serfdom. It would be well  

nigh impossible to raise their standards if the doctrine of  

equal opportunity was strictly enforced in their case. They  

would not have any chance if they were made to enter the  

open field of competition without adventitious aids till such  

time when they could stand on their own legs. That is why the  

makers of the Constitution introduced clause (4) in Article 16.  

The expression ―nothing in this article‖ is a legislative device  

to express its intention in a most emphatic way that the power  

conferred thereunder is not limited in any way by the main  

provision but falls outside it. It has not really carved out an  

exception, but has preserved a power untrammelled by the  

other provisions of the article.‖  

113 Subsequently, in N M Thomas, the Constitution Bench adopted an  

interpretation of Articles 15 and 16 which recognized these provisions as but a  

facet of the doctrine of equality under Article 14. Justice K K Mathew observed:  

―78…Article 16(4) is capable of being interpreted as an  

exception to Article 16(1) if the equality of opportunity  

visualized in Article 16(1) is a sterile one, geared to the  

concept of numerical equality which takes no account of the  

social, economic, educational background of the members of  

Scheduled Castes and Scheduled Tribes. If equality of  

opportunity guaranteed under Article 16 (1) means effective  

material equality, then Article 16(4) is not an exception to  

Article 16(1). It is only an emphatic way of putting the extent  

to which equality of opportunity could be carried viz., even up  

to the point of making reservation.‖ 135

In his own distinctive style, Justice Krishna Iyer observed:   

―139. It is platitudinous constitutional law that Articles 14 to 16  

are a common code of guaranteed equality, the first laying  

down the broad doctrine, the other two applying it to sensitive  

                                                           135

Supra 77 at page 347

PART F  

113    

areas historically important and politically polemical in a  

climate of communalism and jobbery.‖ 136

This court has set out this latter understanding in several cases including ABS  

Sangh (Railways) v Union of India 137

.  

114 Ultimately, a Bench of nine judges of this Court in Indra Sawhney  

recognized that Article 16 (4) is not an exception to but a facet of equality in  

Article 16 (1). Justice Jeevan Reddy delivering the judgment of a plurality of four  

judges observed:   

―741…Article 16(4) is not an exception to Article 16(1) but that  

it is only an emphatic way of stating the principle inherent in  

the main provision itself...  

In our respectful opinion, the view taken by the majority  

in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 :  

(1976) 1 SCR 906] is the correct one. We too believe that  

Article 16(1) does permit reasonable classification for  

ensuring attainment of the equality of opportunity assured by  

it.‖ 138

115 Justice Mathew in N M Thomas spoke of the need for proportional equality  

as a means of achieving justice. Highlighting the notion that equality under the  

Constitution is based on the substantive idea of providing equal access to  

resources and opportunities, learned judge observed:  

―73. There is no reason why this Court should not also require  

the State to adopt a standard of proportional equality which  

takes account of the differing conditions and circumstances of  

a class of citizens whenever those conditions and

                                                           136

Ibid at page 369  137

(1981) 1 SCC 246  138

Supra 13 at page 691

PART G  

114    

circumstances stand in the way of their equal access to the  

enjoyment of basic rights or claims.‖ 139

Carrying these precepts further Justice S H Kapadia (as the learned judge then  

was) speaking for the Constitution Bench in Nagaraj observed:  

―51…Therefore, there are three criteria to judge the basis of  

distribution, namely, rights, deserts or need. These three  

criteria can be put under two concepts of equality— ―formal  

equality‖ and ―proportional equality‖. ―Formal equality‖ means  

that law treats everyone equal and does not favour anyone  

either because he belongs to the advantaged section of the  

society or to the disadvantaged section of the society.  

Concept of ―proportional equality‖ expects the States to take  

affirmative action in favour of disadvantaged sections of the  

society within the framework of liberal democracy.‖ 140

Social justice, in other words, is a matter involving the distribution of benefits and  

burdens.     

G Efficiency in administration   

116 Critics of affirmative action programs in government services argue that  

such programs adversely impact the overall competence or ―efficiency‖ of  

government administration.  Critics contend that the only method to ensure  

―efficiency‖ in the administration of government is to use a ―merit‖ based  

approach – whereby candidates that fulfil more, seemingly ―neutral‖, criteria than  

others are given opportunities in government services. The constitutional  

justification for this ―efficiency‖ argument is centred around Article 335.  

                                                           139

Supra 77 at page 346  140

Supra 6 at page 250

PART G  

115    

―335. The claims of the members of the Scheduled Castes  

and the Scheduled Tribes shall be taken into consideration,  

consistently with the maintenance of efficiency of  

administration, in the making of appointments to services and  

posts in connection with the affairs of the Union or of a State:   

[Provided that nothing in this article shall prevent in making of  

any provision in favour of the members of the Scheduled  

Castes and the Scheduled Tribes for relaxation in qualifying  

marks in any examination or lowering the standards of  

evaluation, for reservation in matters of promotion to any  

class or classes of services or posts in connection with the  

affairs of the Union or of a State.].‖  

The proviso was inserted by the Constitution (Eighty-second Amendment) Act  

2000.   

117 The substantive part of Article 335 contains a mandate : a requirement to  

take into consideration the claims of SCs and STs in making appointments to  

services and posts in connection with the affairs of the Union or of a State.  

Consideration is much broader in its ambit than reservation. The consideration of  

their claims to appointment is to be in a manner consistent with maintaining the  

efficiency of administration. The proviso specifically protects provisions in favour  

of the SCs and STs for: (i) relaxing qualifying marks in an examination; (ii)   

lowering the standards of evaluation; or (iii) reservation in matters of promotion.  

Reservation is encompassed within the special provision but the universe of the  

latter is wider.     

118 The proviso recognises that special measures need to be adopted for   

considering the claims of SCs and STs in order to bring them to a level playing

PART G  

116    

field.  Centuries of discrimination and prejudice suffered by the SCs and STs in a  

feudal, caste oriented societal structure poses real barriers of access to  

opportunity. The proviso contains a realistic recognition that unless special  

measures are adopted for the SCs and STs, the mandate of the Constitution for  

the consideration of their claim to appointment will remain illusory. The proviso, in  

other words, is an aid of fostering the real and substantive right to equality to the  

SCs and STs. It protects the authority of the Union and the States to adopt any of  

these special measures, to effectuate a realistic (as opposed to a formal)  

consideration of their claims to appointment in services and posts under the  

Union and the states. The proviso is not a qualification to the substantive part of   

Article 335 but it embodies a substantive effort to realise substantive equality.   

The proviso also emphasises that the need to maintain the efficiency of  

administration cannot be construed as a fetter on adopting these special  

measures designed to uplift and protect the welfare of the SCs and STs.   

119 The Constitution does not define what the framers meant by the phrase  

―efficiency of administration‖. Article 335 cannot be construed on the basis of a  

stereotypical assumption that roster point promotees drawn from the SCs and  

STs are not efficient or that efficiency is reduced by appointing them. This is  

stereotypical because it masks deep rooted social prejudice. The benchmark for  

the efficiency of administration is not some disembodied, abstract ideal measured  

by the performance of a qualified open category candidate. Efficiency of  

administration in the affairs of the Union or of a State must be defined in an  

inclusive sense, where diverse segments of society find representation as a true

PART G  

117    

aspiration of governance by and for the people. If, as we hold, the Constitution  

mandates realisation of substantive equality in the engagement of the  

fundamental rights with the directive principles, inclusion together with the  

recognition of the plurality and diversity of the nation constitutes a valid  

constitutional basis for defining efficiency. Our benchmarks will define our  

outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce  

a pattern of governance which is skewed against the marginalised. If this  

benchmark of efficiency is grounded in equal access, our outcomes will reflect  

the commitment of the Constitution to produce a just social order. Otherwise, our  

past will haunt the inability of our society to move away from being deeply  

unequal to one which is founded on liberty and fraternity. Hence, while  

interpreting Article 335, it is necessary to liberate the concept of efficiency from a  

one sided approach which ignores the need for and the positive effects of the  

inclusion of diverse segments of society on the efficiency of administration of the  

Union or of a State. Establishing the position of the SCs and STs as worthy  

participants in affairs of governance is intrinsic to an equal citizenship. Equal  

citizenship recognizes governance which is inclusive but also ensures that those  

segments of our society which have suffered a history of prejudice, discrimination  

and oppression have a real voice in governance. Since inclusion is inseparable  

from a well governed society, there is, in our view, no antithesis between  

maintaining the efficiency of administration and considering the claims of the SCs  

and STs to appointments to services and posts in connection with the affairs of  

the Union or of a State.   

PART G  

118    

120 This part of the philosophy of the Constitution was emphasized in a  

powerful exposition contained in the judgment of Justice O Chinnappa Reddy in  

K C Vasanth Kumar v State of Karnataka 141

(―K C Vasanth Kumar‖). The  

learned Judge held:  

―35. One of the results of the superior, elitist approach is that  

the question of reservation is invariably viewed as the conflict  

between the meritarian principle and the compensatory  

principle. No, it is not so. The real conflict is between the  

class of people, who have never been in or who have already  

moved out of the desert of poverty, illiteracy and  

backwardness and are entrenched in the oasis of convenient  

living and those who are still in the desert and want to reach  

the oasis. There is not enough fruit in the garden and so  

those who are in, want to keep out those who are out. The  

disastrous consequences of the so-called meritarian principle  

to the vast majority of the under-nourished, poverty-stricken,  

barely literate and vulnerable people of our country are too  

obvious to be stated. And, what is merit? There is no merit in  

a system which brings about such consequences…‖ 142

Speaking of efficiency, the learned Judge held:  

―36. Efficiency is very much on the lips of the privileged  

whenever reservation is mentioned…   

One would think that the civil service is a Heavenly Paradise  

into which only the archangels, the chosen of the elite, the  

very best may enter and may be allowed to go higher up the  

ladder. But the truth is otherwise. The truth is that the civil  

service is no paradise and the upper echelons belonging to  

the chosen classes are not necessarily models of efficiency.  

The underlying assumption that those belonging to the upper  

castes and classes, who are appointed to the non-reserved  

posts will, because of their presumed merit, ―naturally‖  

perform better than those who have been appointed to the  

reserved posts and that the clear stream of efficiency will be  

polluted by the infiltration of the latter into the sacred  

precincts is a vicious assumption, typical of the superior  

approach of the elitist classes…‖ 143

                                                           141

(1985) Supp. SCC 714  142

Ibid at pages 737-738  143

Ibid at page 738

PART G  

119    

121 The substantive right to equality is for all segments of society. Articles 15  

(4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions  

of the SCs and STs. While, we are conscious of the fact that the decision in Indra  

Sawhney did not accept K C Vasanth Kumar 144

on certain aspects, the   

observations have been cited by us to explain the substantive relationship  

between equal opportunity and merit. It embodies the fundamental philosophy of  

the Constitution towards advancing substantive equality.  

122 An assumption implicit in the critique of reservations is that awarding  

opportunities in government services based on “merit” results in an  

increase in administrative efficiency. Firstly, it must be noted that  

administrative efficiency is an outcome of the actions taken by officials after they  

have been appointed or promoted and is not tied to the selection method itself.   

The argument that one selection method produces officials capable of taking  

better actions than a second method must be empirically proven based on an  

evaluation of the outcomes produced by officials selected through both methods.   

Secondly, arguments that attack reservations on the grounds of efficiency equate  

―merit‖ with candidates who perform better than other candidates on seemingly  

―neutral‖ criteria, e.g. standardised examinations.  Thus, candidates who score  

beyond a particular ―cut-off point‖ are considered ―meritorious‖ and others are  

―non-meritorious‖.  However, this is a distorted understanding of the function  

―merit‖ plays in society.   

                                                           144

Supra 139 at paragraph 613

PART G  

120    

123 As Amartya Sen notes in his chapter on ―Merit and Justice‖, 145

the idea of  

merit is fundamentally derivative of our views of a good society. Sen notes,   

―Actions may be rewarded for the good they do, and a  

system of remunerating the activities that generate good  

consequences would, it is presumed, tend to produce a better  

society. The rationale of incentive structures may be more  

complex than this simple statement suggests, but the idea of  

merit in this instrumental perspective relates to the motivation  

of producing better results.  In this view, actions are  

meritorious in a derivative and contingent way,  

depending on the good they do, and more particularly,  

the good that can be brought about by rewarding them….  

…The concept of merit is deeply contingent on our views of a  

good society. Indeed, the notion of merit is fundamentally  

derivative, and thus cannot be qualified and contingent. There  

is some elementary tension between (1) the inclination to  

see merit in fixed and absolute terms, and (2) the  

ultimately instrumental character of merit – its  

dependence on the concept of “the good” in the relevant  

society.   

This basic contrast is made more intense by the tendency, in  

practice, to characterise ―merit‖ in inflexible forms reflecting  

values and priorities of the past, often in sharp conflict with  

conceptions that would be needed for seeing merit in the  

context of contemporary objectives and concerns…    

Even though the typical “objective functions” that are  

implicitly invoked in most countries to define and assess  

what is to count as merit tend to be indifferent to (or  

negligent of) distributive aspects of outcomes, there is  

no necessity to accept that ad hoc characterisation. This  

is not a matter of a “natural order” of “merit” that is  

independent of our value system….‖ (Emphasis supplied)   

124 Once we understand ―merit‖ as instrumental in achieving goods that we as  

a society value, we see that the equation of ―merit‖ with performance at a few  

narrowly defined criteria is incomplete.  A meritocratic system is one that rewards  

actions that result in the outcomes that we as a society value.    

                                                           145

Sen A, Merit and Justice, in Arrow, KJ, MERITOCRACY AND ECONOMIC INEQUALITY (Princeton University Press  2000) (Amartya Sen, Merit and Justice).   

PART G  

121    

125 For example, performance in standardised examinations (distinguished  

from administrative efficiency) now becomes one among many of the actions that  

the process of appointments in government services seeks to achieve.  Based on  

the text of Articles 335, Articles 16 (4), and 46, it is evident that the uplifting of the  

SCs and STs through employment in government services, and having an  

inclusive government are other outcomes that the process of appointments in  

government services seeks to achieve. Sen gives exactly such an example.   

―If, for example, the conceptualisation of a good society  

includes the absence of serious economic inequalities, then  

in the characterisation of instrumental goodness,  

including the assessment of what counts as merit, note  

would have to be taken of the propensity of putative  

merit to lessen – or to generate – economic inequality. In  

this case, the rewarding of merit cannot be done independent  

of its distributive consequences.  

…  

A system of rewarding of merit may well generate inequalities  

of well-being and of other advantages. But, as was argued  

earlier, much would depend on the nature of the  

consequences that are sought, on the basis of which merits  

are to be characterised. If the results desired have a strong  

distributive component, with a preference for equality,  

then in assessing merits (through judging the generating  

results, including its distributive aspects), concerns  

about distribution and inequality would enter the  

evaluation.‖ 146

         (Emphasis supplied)  

Thus, the providing of reservations for SCs and the STs is not at odds with the  

principle of meritocracy. ―Merit‖ must not be limited to narrow and inflexible  

criteria such as one‘s rank in a standardised exam, but rather must flow from the  

actions a society seeks to reward, including the promotion of equality in society  

                                                           146

Ibid

PART G  

122    

and diversity in public administration.  In fact, Sen argues that there is a risk to  

excluding equality from the outcomes.   

―In most versions of modern meritocracy, however, the  

selected objectives tend to be almost exclusively  

oriented towards aggregate achievements (without any  

preference against inequality), and sometimes the  

objectives chosen are even biased (often implicitly) towards  

the interests of more fortunate groups (favouring the  

outcomes that are more preferred by ―talented‖ and  

―successful‖ sections of the population. This can reinforce  

and augment the tendency towards inequality that might  

be present even with an objective function that inter alia,  

attaches some weight to lower inequality levels.‖ 147

(Emphasis supplied)  

126 The Proviso to Article 335 of the Constitution seeks to mitigate this risk by  

allowing for provisions to be made for relaxing the marks in qualifying exams in  

the case of candidates from the SCs and the STs.  If the government‘s sole  

consideration in appointments was to appoint individuals who were considered  

―talented‖ or ―successful‖ in standardised examinations, by virtue of the inequality  

in access to resources and previous educational training (existing inequalities in  

society), the stated constitutional goal of uplifting these sections of society and  

having a diverse administration would be undermined. Thus, a ―meritorious‖  

candidate is not merely one who is ―talented‖ or ―successful‖ but also one whose  

appointment fulfils the constitutional goals of uplifting members of the SCs and  

STs and ensuring a diverse and representative administration.   

                                                           147

Ibid

PART G  

123    

127 It is well settled that existing inequalities in society can lead to a seemingly  

―neutral‖ system discriminating in favour of privileged candidates. As Marc  

Galanter notes, three broad kinds of resources are necessary to produce the  

results in competitive exams that qualify as indicators of ―merit‖. These are:   

―… (a) economic resources (for prior education, training,  

materials, freedom from work etc.); (b) social and cultural  

resources (networks of contacts, confidence, guidance and  

advice, information, etc.); and (c) intrinsic ability and hard  

work...‖  148

128 The first two criteria are evidently not the products of a candidate‘s own  

efforts but rather the structural conditions into which they are born. By the  

addition of upliftment of SCs and STs in the moral compass of merit in  

government appointments and promotions, the Constitution mitigates the risk that  

the lack of the first two criteria will perpetuate the structural inequalities existing in  

society.     

129 The Ratna Prabha Committee report considers in Chapter III, the  

relationship between reservation in promotion and maintenance of efficiency in  

administration. Finally, it concludes:  

―3.12: Conclusion:  

Karnataka has been showing high performance in all the  

sectors of development viz., finance, health, education,  

industry, services, etc., to support sustainable economic  

growth. The analysis on performance of the state in economic  

development clearly indicates that reservation in promotions  

has not affected the overall efficiency of administration.

                                                           148

Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New  Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in  Indian higher education, 40:1 South African Review of Sociology 127-147.   

PART H  

124    

130 Moreover, even in a formal legal sense, promotions, including those in  

respect of roster points, are made on the basis of seniority-cum-merit and a  

candidate to be promoted has to meet this criteria [See in this context Rule 19(3)  

A and D of the Karnataka Civil Services General Recruitment Rules 1977 which  

states that subject to other provisions all appointments by promotion shall be on  

an officiating basis for a period of one year and at the end of the period of  

officiation, if appointing authority considers the person not suitable for promotion,   

she/he may be reverted back to the post held prior to the promotion]. A candidate  

on promotion has to serve a statutory period of officiation before being confirmed.  

This rule applies across the board including to roster point promotees. This  

ensures that the efficiency of administration is, in any event, not adversely  

affected.  

H The issue of creamy layer   

131 At the outset, we analyse the submission of Ms Indira Jaising, learned  

Senior Counsel that the concept of creamy layer is inapplicable to the SCs and  

STs. This submission which has been urged by the learned Counsel is founded  

on two hypotheses which we have extracted below from the written submissions:  

―(i) This Court in Indra Sawhney seems to suggest that the  

creamy layer should be excluded, however there was no  

unanimity for determining what is creamy layer. Some judges  

took the view that the criteria for creamy layer exclusion is  

social advancement (i.e. based on social basis, educational,  

and economical basis) and others took the view that it will be  

economic basis alone. It is submitted that it must be kept in  

mind that the said judgment related only to OBCs; and  

(ii) Jarnail is not an authority for the proposition that the  

creamy layer principle applies to SCs and STs. It dealt only

PART H  

125    

with the competence of the Parliament to enact a law in  

relation to creamy layer without affecting Articles 341 and  

342.‖  

132 Dr Dhavan, learned Senior Counsel in his response has urged that the  

above submissions are incorrect because:  

(i) Indra Sawhney decided the issue of creamy layer as a principle of equality;  

and   

(ii) Jarnail affirmed that if Nagaraj is rightly applied, creamy layer is a principle  

of equality and of the basic structure.   

133 Ms Jaising‘s argument is based on the decision in Chinnaiah  that the SCs  

and STs cannot be split or bifurcated and the adoption of the creamy layer  

principle would amount to a spilt in the homogenous groups of the SCs and STs.  

This argument according to Dr Dhavan, was rejected in Jarnail by the  

Constitution Bench.   

134 As a Bench of two judges we are bound by the decision in Indra Sawhney  

as indeed, we are by the construction placed on that decision by the Constitution  

Benches in Nagaraj and Jarnail. Construing the decision in Indra Sawhney.  

Nagaraj held:  

―120…Concept of egalitarian equality is the concept of  

proportional equality and it expects the States to take  

affirmative action in favour of disadvantaged sections of  

society within the framework of democratic polity. In Indra  

Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1  

: (1992) 22 ATC 385] all the Judges except Pandian, J. held  

that the ―means test‖ should be adopted to exclude the

PART H  

126    

creamy layer from the protected group earmarked for  

reservation. In Indra Sawhney [1992 Supp (3) SCC 217 :  

1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has,  

therefore, accepted caste as a determinant of backwardness  

and yet it has struck a balance with the principle of secularism  

which is the basic feature of the Constitution by bringing in  

the concept of creamy layer. Views have often been  

expressed in this Court that caste should not be the  

determinant of backwardness and that the economic criteria  

alone should be the determinant of backwardness. As stated  

above, we are bound by the decision in Indra Sawhney [1992  

Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC  

385] . The question as to the ―determinant‖ of backwardness  

cannot be gone into by us in view of the binding decision. In  

addition to the above requirements this Court in Indra  

Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1  

: (1992) 22 ATC 385] has evolved numerical benchmarks like  

ceiling limit of 50% based on post-specific roster coupled with  

the concept of replacement to provide immunity against the  

charge of discrimination.‖ 149

Then again, in paragraphs 121, 122 and 123, the Constitution Bench held:  

―121. The impugned constitutional amendments by which  

Articles 16 (4A) and 16 (4B) have been inserted flow from  

Article 16(4). They do not alter the structure of Article 16(4).  

They retain the controlling factors or the compelling reasons,  

namely, backwardness and inadequacy of representation  

which enables the States to provide for reservation keeping in  

mind the overall efficiency of the State administration under  

Article 335. These impugned amendments are confined only  

to SCs and STs. They do not obliterate any of the  

constitutional requirements, namely, ceiling limit of 50%  

(quantitative limitation), the concept of creamy layer  

(qualitative exclusion), the sub-classification between OBCs  

on one hand and SCs and STs on the other hand as held  

in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)  

Supp 1 : (1992) 22 ATC 385] , the concept of post-based  

roster with inbuilt concept of replacement as held in R.K.  

Sabharwa [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995)  

29 ATC 481] .  

122. We reiterate that the ceiling limit of 50%, the concept of  

creamy layer and the compelling reasons, namely,  

backwardness, inadequacy of representation and overall  

                                                           149

Supra 6 at pages 277-278  

PART H  

127    

administrative efficiency are all constitutional requirements  

without which the structure of equality of opportunity in Article  

16 would collapse.  

123. However, in this case, as stated above, the main issue  

concerns the ―extent of reservation‖. In this regard the State  

concerned will have to show in each case the existence of the  

compelling reasons, namely, backwardness, inadequacy of  

representation and overall administrative efficiency before  

making provision for reservation. As stated above, the  

impugned provision is an enabling provision. The State is not  

bound to make reservation for SCs/STs in matters of  

promotions. However, if they wish to exercise their discretion  

and make such provision, the State has to collect quantifiable  

data showing backwardness of the class and inadequacy of  

representation of that class in public employment in addition  

to compliance with Article 335. It is made clear that even if the  

State has compelling reasons, as stated above, the State will  

have to see that its reservation provision does not lead to  

excessiveness so as to breach the ceiling limit of 50% or  

obliterate the creamy layer or extend the reservation  

indefinitely.‖ 150

135 The reference before the Constitution Bench in Jarnail arose out of an  

initial reference by a two judge Bench in State of Tripura v Jayanta  

Chakraborty (―State of Tripura‖) 151

and then by a three judge Bench in State of  

Maharashtra v Vijay Ghogre 152

. The order in State of Tripura states:   

―2…However, apart from the clamour for revisit, further  

questions were also raised about application of the principle  

of creamy layer in situations of competing claims within the  

same races, communities, groups or parts thereof of SC/STs  

notified by the President under Articles 341 and 342 of the  

Constitution of India.‖ 153

136 Before the Constitution Bench in Jarnail, the learned Attorney General  

specifically raised the following arguments:  

                                                           150

Ibid at pages 278 -280  151

(2018) 1 SCC 146  152

(2018) 15 SCC 64  153

Supra 149 at pages 147-148  

PART H  

128    

―3…according to the learned Attorney General, the creamy  

layer concept has not been applied in Indra Sawhney  

(1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217  

: 1992 SCC (L&S) Supp 1] to the Scheduled Castes and the  

Scheduled Tribes and Nagaraj [M. Nagaraj v. Union of India,  

(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has misread  

the aforesaid judgment to apply this concept to the Scheduled  

Castes and the Scheduled Tribes. According to the learned  

Attorney General, once the Scheduled Castes and the  

Scheduled Tribes have been set out in the Presidential List,  

they shall be deemed to be Scheduled Castes and Scheduled  

Tribes, and the said List cannot be altered by anybody except  

Parliament under Articles 341 and 342. The learned Attorney  

General also argued that Nagaraj [M. Nagaraj v. Union of  

India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does  

not indicate any test for determining adequacy of  

representation in service. According to him, it is important that  

we lay down that the test be the test of proportion of  

Scheduled Castes and Scheduled Tribes to the population in  

India at all stages of promotion, and for this purpose, the  

roster that has been referred to in R.K. Sabharwal v. State of  

Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745  

: 1995 SCC (L&S) 548] can be utilised. Other counsel who  

argued, apart from the learned Attorney General, have, with  

certain nuances, reiterated the same arguments.‖ 154

The decision in Jarnail specifically addressed the issue of creamy layer:  

―28. Therefore, when Nagaraj [M. Nagaraj v. Union of India,  

(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the  

creamy layer test to Scheduled Castes and Scheduled Tribes  

in exercise of application of the basic structure test to uphold  

the constitutional amendments leading to Articles 16 (4A) and  

16 (4B), it did not in any manner interfere with Parliament's  

power under Article 341 or Article 342. We are, therefore,  

clearly of the opinion that this part of the judgment does not  

need to be revisited, and consequently, there is no need to  

refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212  

: (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We  

may also add at this juncture that Nagaraj [M.  

Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC  

(L&S) 1013] is a unanimous judgment of five learned Judges  

of this Court which has held sway since the year 2006. This  

judgment has been repeatedly followed and applied…‖ 155

                                                           154

Supra 49 at pages 407-408  155

Ibid at page 426

PART H  

129    

Justice Rohinton Nariman speaking for the Constitution Bench in Jarnail  

explained the reason for applying the creamy layer principle:   

―25. However, when it comes to the creamy layer principle, it  

is important to note that this principle sounds in Articles 14  

and 16 (1), as unequals within the same class are being  

treated equally with other members of that class.‖  

137 We are thus unable to subscribe to the submission that Jarnail is not per  

curium on the issue of creamy layer. For one thing, Jarnail specifically examined  

the decision in Indra Sawhney, noticing that eight of the nine learned Judges  

applied the creamy layer principle as a facet of the larger equality principle. In  

fact, the decision in Indra Sawhney II v Union of India 156

(―Indra Sawhney II‖)  

summarised the judgments in Indra Sawhney I on the aspect of creamy layer.  

The judgment in Jarnail approved Indra Sawhney II when it held that the creamy  

layer principle sounds in Articles 14 and 16 (1):   

―12. In para 27 of the said judgment, the three-Judge Bench  

of this Court clearly held that the creamy layer principle  

sounds in Articles 14 and 16(1) as follows: [Indra Sawhney  

(2) case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC  

168 : 2000 SCC (L&S) 1] , SCC p. 190, para 27]  

―(i) Equals and unequals, twin aspects  

27. As the ―creamy layer‖ in the backward class is to  

be treated ―on a par‖ with the forward classes and is  

not entitled to benefits of reservation, it is obvious that  

if the ―creamy layer‖ is not excluded, there will be  

discrimination and violation of Articles 14 and 16(1)  

inasmuch as equals (forwards and creamy layer of  

Backward Classes) cannot be treated unequally.  

Again, non-exclusion of creamy layer will also be  

violative of Articles 14, 16(1) and 16(4) of the  

Constitution of India since unequals (the creamy  

layer) cannot be treated as equals, that is to say,  

equal to the rest of the backward class…   

                                                           156

(2000)1 SCC 168

PART H  

130    

Thus, any executive or legislative action refusing to exclude  

the creamy layer from the benefits of reservation will be  

violative of Articles 14 and 16(1) and also of Article 16(4). We  

shall examine the validity of Sections 3, 4 and 6 in the light of  

the above principle. (emphasis in original)‖ 157

Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of  

legislative competence on the part of the State legislatures to create sub-  

categories among the Presidential lists under Articles 341 and 342. The decision  

in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on  

which the constitutional amendments were upheld in Nagaraj and hence it was  

not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter,  

we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds  

that the creamy layer principle is a principle of equality.   

138 Though, we have not accepted the above submission which was urged by  

Ms Jaising on behalf of the intervenors, we will have to decide as to whether the  

Reservation Act 2018 is unconstitutional. The challenge in the present case is to  

the validity of the Reservation Act 2018 which provides for consequential  

seniority. In other words, the nature or extent of reservation granted to the SCs  

and STs at the entry level in appointment is not under challenge. The  

Reservation Act 2018 adopts the principle that consequential seniority is not an  

additional benefit but a consequence of the promotion which is granted to the  

SCs and STs. In protecting  consequential seniority as an incident of promotion,  

the Reservation Act 2018 constitutes an exercise of the enabling power conferred  

by Article 16 (4A). The concept of creamy layer has no relevance to the grant of  

                                                           157

Supra 49 at page 415

PART H  

131    

consequential seniority. There is merit in the submission of the State of  

Karnataka that progression in a cadre based on promotion cannot be treated as  

the acquisition of creamy layer status. The decision in Jarnail rejected the  

submission that a member of an SC or ST who reaches a higher post no longer  

has a taint of untouchability or backwardness. The Constitution Bench declined to  

accept the submission on the ground that it related to the validity of Article 16  

(4A) and held thus:  

―34…We may hasten to add that Shri Dwivedi‘s argument  

cannot be confused with the concept of ―creamy layer‖ which,  

as has been pointed out by us hereinabove, applies to  

persons within the Scheduled Castes or the Scheduled Tribes  

who no longer require reservation, as opposed to posts  

beyond the entry stage, which may be occupied by  

members of the Scheduled Castes or the Scheduled  

Tribes.‖ 158

          (Emphasis supplied)  

139 In sustaining the validity of Articles 16 (4A) and 16 (4B) against a  

challenge of violating the basic structure, Nagaraj applied the test of width and  

the test of identity. The Constitution Bench ruled that the catch-up rule and  

consequential seniority are not constitutional requirements. They were held not to  

be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not  

constitutional limitations or principles but are concepts derived from service  

jurisprudence. Hence, neither the obliteration of those concepts nor their insertion  

would violate the equality code contained in Articles 14, 15 and 16. The principle  

postulated in Nagaraj is that consequential seniority is a concept purely based in  

service jurisprudence. The incorporation of consequential seniority would hence  

not violate the constitutional mandate of equality. This being the true

                                                           158

Supra 49 at page 430

PART I  

132    

constitutional position, the protection of consequential seniority as an incident of  

promotion does not require the application of the creamy layer test. Articles 16  

(4A) and 16 (4B) were held to not obliterate any of the constitutional limitations  

and to fulfil the width test. In the above view of the matter, it is evident that the  

concept of creamy layer has no application in assessing the validity of the  

Reservation Act 2018 which is designed to protect consequential seniority upon  

promotion of persons belonging to the SCs and STs.   

I Retrospectivity   

140 Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June  

1995. The other provisions came into force ―at once‖ as provided in Section 1(2).  

Section 4 stipulates that the consequential seniority already granted to  

government servants belonging to the SCs and STs in accordance with the  

reservation order with effect from 27 April 1978 shall be valid and shall be  

protected. In this context, we must note from the earlier decisions of this Court  

that:  

(i) The decision in Virpal Singh held that the catch-up rule would be applied  

only from 10 February 1995 which was the date of the judgment in   

Sabharwal;  

(ii) The decision in Ajit Singh II specifically protected the promotions which were  

granted before 1 March 1996 without following the catch-up rule; and

PART J  

133    

(iii) In Badappanavar, promotions of reserved candidates based on  

consequential seniority which took place before 1 March 1996 were  

specifically protected.   

 141 Since promotions granted prior to 1 March 1996 were protected, it was  

logical for the legislature to protect consequential seniority. The object of the  

Reservation Act 2018 is to accord consequential seniority to promotees against  

roster points. In this view of the matter, we find no reason to hold that the  

provisions in regard to retrospectivity in the Ratna Prabha Committee report are  

either arbitrary or unconstitutional.  

   142 The benefit of consequential seniority has been extended from the date of  

the Reservation Order 1978 under which promotions based on reservation were  

accorded.  

J Over representation in KPTCL and PWD  

143 The Ratna Prabha Committee collected data from thirty one departments  

of the State Government of Karnataka. It has been pointed out on behalf of the  

State that corporations such as KPTCL and other public sector undertakings fall  

within the administrative control of one of the departments of the State  

government. The position in thirty one departments was taken as representative  

of the position in public employment under the State. The over representation in  

KPTCL and PWD has been projected by the petitioners with reference to the total  

number of posts which have been filled. On the other hand, the quota is fixed and  

the roster applies as regards the total sanctioned posts as held in Sabharwal and

PART K  

134    

Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates  

that if consequential seniority is not allowed, there would be under representation  

of the reserved categories. Finally, it may also be noted that under the  

Government Order dated 13   April 1999, reservation in promotion in favour of SC‘s  

and ST‘s has been provided until the representation for these categories reaches  

15 per cent and 3 per cent, respectively. The State has informed the Court that  

the above Government Order is applicable to KPTCL and PWD, as well.   

K Conclusion  

144 For the above reasons, we have come to the conclusion that the challenge  

to the constitutional validity of the Reservation Act 2018 is lacking in substance.  

Following the decision in B K Pavitra I, the State government duly carried out the  

exercise of collating and analysing data on the compelling factors adverted to by  

the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the  

deficiency which was noticed by B K Pavitra I in respect of the Reservation Act   

2002. The Reservation Act 2018 does not amount to a usurpation of judicial  

power by the state legislature. It is Nagaraj and Jarnail compliant. The  

Reservation Act 2018 is a valid exercise of the enabling power conferred by  

Article 16 (4A) of the Constitution.   

145 We therefore find no merit in the batch of writ petitions as the constitutional  

validity of the Reservation Act 2018 has been upheld. They shall stand  

dismissed. Accordingly, the review petitions and miscellaneous applications shall

PART K  

135    

also stand dismissed in view of the judgment in the present case. There shall be  

no order as to costs. All pending applications are disposed of.  

146 Before concluding, the Court records its appreciation of the erudite  

submissions of the learned Counsel who have ably assisted the Court. We  

deeply value the assistance rendered by Dr Rajeev Dhavan and Mr Shekhar  

Naphade, learned Senior Counsel and Mr Puneet Jain, learned Counsel who led  

the arguments on behalf of the Petitioners. We acknowledge the valuable  

assistance rendered to the Court by Ms Indira Jaising, Mr Basava Prabhu S Patil,  

Mr Dinesh Dwivedi, Mr Nidhesh Gupta and Mr V Lakshminarayana, learned  

Senior Counsel.   

           …...…..…....…........……………….…........J.  

                            [Uday Umesh Lalit]  

 .…….……...…...….......………………........J.  

                                                      [Dr Dhananjaya Y Chandrachud]  

 New Delhi;   May 10, 2019.