BK Pavitra V Union of India BK II

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M A No. 1151 of 2018
B.K. Pavitra v. Union of India
2019 SCC OnLine SC 694
In the Supreme Court of India

(BEFORE UDAY UMESH LALIT AND DR. DHANANJAYA Y. CHANDRACHUD, JJ.)
M A No. 1151 of 2018

In
Civil Appeal No. 2368 of 2011
B.K. Pavitra and Others .…. Appellants;
v.
Union of India and Others .…. Respondents.
With
Review Petition (c) Diary No. 7833 of 2017
With
With
With
With
With
With
With
With
With
M A No. 1152 of 2018
In
Civil Appeal No. 2369 of 2011
With
Writ Petition (c) No. 764 of 2018
With
With
Writ Petition No. 791 of 2018
With
With
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With
With
With
With
With
And
With
Decided on May 10, 2019
A. Constitution of India — Arts. 14 and 16 — Reservation (to the Posts in the Civil
Services of the State) Act, 2018 under challenge — Legislative power to enact to give effect
to the provisions of Art. 16(4A) — Held, the exercise of the power to legislate is conditioned
by the existence of “compelling reasons” namely; the inadequacy of representation and
overall administrative efficiency — In the instant case there is nothing to show that the
committee constituted to study the representation has based its conclusions on any
extraneous or irrelevant material
(Paras 29, 30, 112 and 122)
M. Nagaraj v. Union of India, (2006) 8 SCC 212, relied on
B. Constitution of India — Arts. 200 and 201 — Reservation (to the Posts in the Civil
Services of the State) Act, 2018 under challenge — Ss. 3, 4, 5 and 9 — Assent to the bill —
Held, the constitution has entrusted the discretion to the governor to decide on the
circumstances in which the governor may reserve a bill for the consideration of the
president — Apart from bills which fall within the description set out in the second proviso,
the governor may legitimately refer a bill for consideration of the president upon
entertaining a legitimate doubt about the validity of the law and by its very nature, it would
not be possible for the constitutional court to reflect upon the situations in which the power
under Art. 200 can be exercised — In the instant case the law received the assent of the
president
(Paras 78, 84 and 87)
C. Constitution of India — Reservation (to the Posts in the Civil Services of the State)
Act, 2018 under challenge — Ss. 3, 4, 5 and 9 — The act to nullify or overrule judgment of
Apex Court in B.K. Pavitra-I — Held, the legislature has the power to validate a law which is
found to be invalid by curing the infirmity and 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 — In the instant case if the basis on which
Reservation Act, 2002 was held to be invalid is cured by a validating legislation by the
Reservation Act, 2018, that would constitute a permissible legislative exercise — In the
instant case after the decision in B.K. Pavitra-I, the Ratna Prabha Committee was correctly
appointed to carry out the required exercise and 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
(Paras 92, 95, 97 and 124)
Bhubaneshwar Singh v. Union of India, (1994) 6 SCC 77; Indian Aluminium Co. v. State of Kerala,
(1996) 7 SCC 637; State of T.N. v. Arooran Sugars Ltd., (1997) 1 SCC 326, relied on
D. Constitution of India — Arts. 14 and 16(4) — Reservation (to the Posts in the civil
services of the state) Act, 2018 under challenge — Ss. 3, 4, 5 and 9 — Applicability of
creamy layer for SC STs — Held, Jarnail discussed the decision in Chinnaiah, (2005) 1 SCC
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394 and held that Chinnaiah case did not deal with any of the aspects on which the
constitutional amendments were upheld in Nagaraj, (2006) 8 SCC 212 and hence it was not
necessary for Nagaraj case to refer to Chinnaiah case at all and therefore, Jarnail, (2018)
10 SCC 396 on a construction of Indra Sawhney, 1992 Supp (3) SCC 217 holds that the
creamy layer principle is a principle of equality — In the instant case 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 — No merit in the writ petitions and constitutional validity of the Reservation Act,
2018 has been upheld
(Paras 176, 177 and 179)
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22
ATC 385; Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86,
relied on
The Judgment of the Court was delivered by
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 v. 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
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 20181 . The
enactment provides, among other things, for consequential seniority to persons
belonging to the Scheduled Castes2 and Scheduled Tribes3 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 20024 . The constitutional validity of the
Reservation Act 2002 was challenged in B K Pavitra v. Union of India5 , (“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
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of India6 (“Nagaraj”).
3. 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.
4. 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
5. 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 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.
6. In this background, we set out the significant facts, in the chequered history of
the present case.
7. 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) 19577 . 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;
(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
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of officiation is the same the seniority inter se in the lower grade shall
prevail.”
8. 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.”
9. 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.
[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.].”
10. Reservation for persons belonging to SCs and STs in specified categories of
promotional posts was introduced by a Government Order8 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 662/3 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.
11. On 1 June 1978, the State government issued an Official Memorandum9
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 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.
12. By a notification10 dated 1 April 1992, a proviso was inserted to Rule 8 of the
Karnataka Civil Services (General Recruitment) Rules 197711 which provided that
vacancies not filled by SCs and STs would be treated as a backlog and would be made
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good in the future. This provision was upheld by a two judge Bench of this Court in
Bhakta Ramegowda v. State of Karnataka12 (“Bhakta Ramegowda”).
13. On 16 November 1992, a nine judge Bench of this Court delivered judgment in
Indra Sawhney v. Union of India13 (“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 cent15 . While 50 per cent shall be the rule, “it is necessary not to
put out of consideration certain extraordinary situations inherent in 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 out17 ;
(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 judgment18 ;
(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 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 criterion22 . It is permissible to identify a backward class
of citizens with reference to occupation, income as well caste.
14. 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.
15. 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 STs23 . The
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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.
16. On 10 February 1995, a Constitution Bench of this Court rendered a judgment
in R K Sabharwal v. State of Punjab24 (“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 operate25 ;
(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 reservation26 ; and
(iii) The interpretation placed on the working of the roster shall operate
prospectively27 from 10 February 1995.
17. On 1 October 1995, a two judge Bench of this Court held in Union of India v.
Virpal Singh Chauhan28 (“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 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 Sabharwal29 .
18. 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 Punjab30 (“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.
19. On 24 June 1997, the Government of Karnataka issued a Government Order31
formulating guidelines in regard to the manner in which backlog vacancies were
required to be filled. On 3 February 1999, the Government of Karnataka issued another
Government Order32 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 662/3 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 Order33 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,
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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.
20. In Jagdish Lal v. State of Haryana34 , (“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 Punjab35 (“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.
21. 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 Karnataka36 (“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
22. 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.
23. 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
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represented in the services under the State.”
(Emphasis supplied)
24. 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.
25. 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.
26. The validity of the seventy-seventh and eighty-fifth amendments to the
Constitution and of the legislation enacted in pursuance of those amendments 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
27. 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;
(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.
28. 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
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…
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 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
29. 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
30. 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 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.
31. 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
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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.
32. Relying on the decisions of this Court in Suraj Bhan Meena v. State of
Rajasthan43 , Uttar Pradesh Power Corporation Ltd. v. Rajesh Kumar44 and S Panneer
Selvam v. State of Tamil Nadu45 (“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 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
33. 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.
34. After the decision of this Court in B K Pavitra I, on 22 March 2017, the
Government of Karnataka constituted the Ratna Prabha Committee47 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:
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“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.”
35. 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.
36. 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.
37. 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 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.
38. 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:
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Provided also that the serial numbers of the roster points specified in the
Reservation Order are intended only to facilitate calculation of the number of
vacancies reserved for promotion at a time and such roster points are not intended
to determine inter-se seniority of the Government Servants belonging to the
Scheduled Castes and the Scheduled Tribes vis-a-vis the Government Servants
belonging to the unreserved category promoted at the same time and such inter-se
seniority shall be determined by their seniority inter-se in the cadre from which
they are promoted, as illustrated in the Schedule appended to this Act.
4. Protection of consequential seniority already accorded from 27th April 1978
onwards.- Notwithstanding anything contained in this Act or any other law for the
time being in force, the consequential seniority already accorded to the Government
servants belonging to the Scheduled Castes and the Scheduled Tribes who were
promoted in accordance with the policy of reservation in promotion provided for in
the Reservation Order with effect from the Twenty Seventh Day of April, Nineteen
Hundred and Seventy Eight shall be valid and shall be protected and shall not be
disturbed.
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.”
39. 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 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.”
40. 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).
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41. 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.
42. 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 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.
43. In Jarnail Singh v. Lachhmi Narain Gupta49 , (“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 AP50 (“Chinnaiah”).
44. In Jarnail, the Constitution Bench held that:
(i) The decision in Chinnaiah holds, in essence, that a state law51 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 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 Nagaraj52 ;
(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
ground53 ; 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 34254 . The creamy layer principle
is an essential aspect of the equality code.
45. 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 Municipality55 (“Prithvi Cotton Mills Ltd.”)
and Madan Mohan Pathak v. Union 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.
46. On 27 February 2019, the State of Karnataka issued a Government Order57
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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.”
47. 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.
C Submissions
C.I Petitioners
48. 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?
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?
49. 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
50. 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
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on 5 May 2017. On 26 July 2017, the report 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.
51. 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;
(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
52. 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;
(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
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(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.
53. 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
Mysore58 , (iv) Bakhtawar Trust v. M D Narayan59 , (v) Delhi Cloth & General Mills Co.
Ltd. v. State of Rajasthan60 , (vi) Re Cauvery61 , (vii) S T Sadiq v. State of Kerala62 and
(viii) Medical Council of India v. State of Kerala63 .
54. 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 201764 . 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.
C Lack of compliance with Nagaraj and Jarnail
55. 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.
56. 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 TN65
and Jarnail; and
(c) The decision in Jarnail, while upholding the methodology adopted in Nagaraj
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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.
57. 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;
(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
58. 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;
(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
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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.
59. 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 Singh67 (“Gram Panchayat of Village Jamalpur”), Hoechst
Pharmaceuticals Ltd. v. State of Bihar68 (“Hoechst Pharmaceuticals Ltd”) and Nabam
Rebia and Bamang Felix v. Deputy Speaker Arunachal Pradesh Legislative Assembly69
(“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
60. The submissions of Dr. Dhavan are:
(i) Seniority is determined by the Seniority Rules 1957;
(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.
61. In substance, Dr. Dhavan's are as follows:
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(i) Every administrative action or legislation has to be Nagaraj compliant as
explained in Jarnail;
(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.
62. 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
Sinha70 , 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
Sengupta71 );
(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;
(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
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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.
63. 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 Order72 dated 27 April 1978 by 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
64. 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:
(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 Telangana73 (“Cheviti Venkanna
Yadav”), Utkal Contractors & Joinery (P) Ltd. v. State of Orissa74 (“Utkal
Contractors and Joinery (P) Ltd”) and State of Himachal Pradesh v. Narain
Singh75 (“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
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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 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 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
(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.
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(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;
(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.
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
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precondition 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 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).
E There was no constitutional infirmity in the Governor of Karnataka having
reserved the Reservation Act 2018 for the consideration of the President.
65. 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.
66. 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
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
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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.
67. On the above grounds, it was urged that the challenge to the Reservation Act
2018 must fail.
68. Ms. Indira Jaising76 , learned Senior Counsel appearing on behalf of the
intervenors (Karnataka SC/ST Engineer's Welfare Association) contended that 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 Thomas77 (“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 Classes78 . 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
(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;
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(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 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.
69. Mr. Dinesh Dwivedi79 , 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 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 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
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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 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.
70. 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 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
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promotion in the State Civil Services and Public Sector Undertakings as follows:
(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 27th
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 27th April, 1978.].”
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
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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.
(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 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 reservations in promotions
for SCs and STs in public services has continued until date without interruption.
71. 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
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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 Board81 (“Barium Chemicals Ltd.”),
Rohtas Industries v. S D Agarwal82 and Rustom Cavasjee Cooper v. Union of
India83 ;
(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 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 Yamul84 .
72. The rival submissions now fall for consideration.
73. Other Counsel, who argued and submitted their written submissions, have with
certain nuances, reiterated similar arguments.
D Assent to the Bill
74. Besides the Governor, the legislatures of the States consist of a bicameral
legislature for some States and a unicameral legislature for others.85
75. 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:
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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.”
76. 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.”
77. 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.
78. 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 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
79. 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
Executive (aid and advice of the Council of Ministers) or the Legislature (Rules of
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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
80. 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.
81. 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.
82. 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:
“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
83. 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
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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
84. 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 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 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
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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
85. 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 law as enacted cannot
be regarded as unconstitutional for want of ‘proper’ assent.
86. 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.”
87. 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
88. 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 the exercise of collecting quantifiable
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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.
89. 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.
90. 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
91. (See also in this context : Bhubaneshwar Singh v. Union of India92 , Indian
Aluminium Co v. State of Kerala93 (“Indian Aluminium Co”), Narain Singh94 and
Cheviti Venkanna Yadav).
92. 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 Begum95 and Rai
Ramkrishna v. State of Bihar96 ). 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
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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
93. 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
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
94. The same principle was formulated in the decision of this Court in Virender
Singh Hooda v. State of Haryana100 :
“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
95. 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 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.
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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.
96. 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
97. 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.
98. 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 India103 , 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
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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)
(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)
99. 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 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.
100. 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
101. 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
102. The Statement of Objects and Reasons of the Reservation Act 2018 refers to
the legislative history preceding its enactment. The Ratna Prabha Committee was
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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.
103. 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 v. Union of India 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 v. Union of India 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 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;”
104. 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 legislation109 ;
(ii) Cannot determine whether a provision is valid110 ; and
(iii) May not be definitive of the circumstances in which it was passed111 .
[See in this context Welfare Association v. Ranjit112 ].
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105. 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 ambiguity113 .
106. 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.
107. 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.
E.2 The Ratna Prabha Committee report
108. 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.
109. 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.
110. 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
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.
111. 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
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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.
112. 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:
“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)
113. 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 protect social welfare. This Court
explained in Amalgamated Tea Estates Co Ltd. v. State of Kerala115 , 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
114. 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
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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
115. More recently, this was emphasized in State of Himachal Pradesh v. Satpal
Saini119 :
“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
116. 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 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)
117. 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
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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)
118. 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, 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.
119. 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.
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
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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.”
120. 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 Methods123
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 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.”
121. 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
(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.
122. 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
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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.
123. 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:
(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.
124. 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.
125. 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:
“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
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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
126. 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 the roster to operate till the time the respective
appointees/promotees occupy the posts meant for them in the roster…—125
127. Consequently, it is open to the State to make reservation in promotion for SCs
and STs proportionate to their representation in the general population.
128. 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)
129. 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
130. 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.
131. 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
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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.
132. 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 v. formal equality
133. The core of the present case is based on the constitutional content of equality.
134. 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 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
(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
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educated Harijans may be provided with employment….—129
(Emphasis supplied)
(II) Recognition of the insufficiency of formal equality by the Constituent
Assembly
135. 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 the
political safeguard of reservation of seats had been granted to them…—128 absurd.
Then again, merit should also have some reference to the task to be discharged…—
130
(Emphasis supplied)
136. 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)
137. 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 considerations shall be shown to
minorities to ensure representation in the services]…—132
(Emphasis supplied)
138. 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
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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…
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
139. 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.
140. In the context of reservations, the decision in T Devadasan v. The Union of
India134 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 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.”
141. Subsequently, in N M Thomas, the Constitution Bench adopted an
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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
142. 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 areas historically important and politically polemical in a
climate of communalism and jobbery.—136
143. This court has set out this latter understanding in several cases including ABS
Sangh (Railways) v. Union of India137 .
144. 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
145. 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
circumstances stand in the way of their equal access to the enjoyment of basic
rights or claims.—139
146. 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
147. Social justice, in other words, is a matter involving the distribution of benefits
and burdens.
G Efficiency in administration
148. 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
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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.
“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.].”
149. The proviso was inserted by the Constitution (Eighty-second Amendment) Act
2000.
150. 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.
151. 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 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.
152. 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 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.
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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.
153. 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 Karnataka141 (“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
154. 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
155. 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 Kumar144 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.
156. An assumption implicit in the critique of reservations is that awarding
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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.
157. 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.
158. 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)
159. 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.
160. 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
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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)
161. 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 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)
162. 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.
163. 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
164. 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.
165. The Ratna Prabha Committee report considers in Chapter III, the relationship
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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.
166. 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
167. 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 with the competence of the Parliament to
enact a law in relation to creamy layer without affecting Articles 341 and 342.”
168. 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.
169. 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.
170. 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 Supp SCC (L&S) 1 : (1992) 22 ATC 385] all the Judges except
Pandian, J. held that the “means test” should be adopted to exclude the creamy
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
layer from the protected group earmarked for reservation. In Indra Sawhney [1992
Supp (3) SCC 217 : 1992 Supp SCC (L&S) 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 Supp SCC (L&S) 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 Supp SCC (L&S) 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
171. 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 Supp SCC (L&S) 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 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
172. 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
Ghogre152 . 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
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-
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
173. Before the Constitution Bench in Jarnail, the learned Attorney General
specifically raised the following arguments:
“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 Supp SCC (L&S) 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
174. 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
175. 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.”
176. 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 India156 (“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…
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
177. 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.
178. 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 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)
179. 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 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
180. 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
(iii) In Badappanavar, promotions of reserved candidates based on consequential
seniority which took place before 1 March 1996 were specifically protected.
181. 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.
182. 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
183. 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 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 13th 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
184. 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.
185. 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 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.
186. 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.
———
1 Reservation Act 2018
2 SCs
3
STs
4 Reservation Act 2002
5 (2017) 4 SCC 620
6
(2006) 8 SCC 212
7 The Rules 1957
8
G.O. No. DPAR 29 SBC 77
9
O.M. No. DPAR 29 SBC 77
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
16 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
21
Ibid at page 728
23Clause 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
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
27
Ibid, paragraph 11 at page753
28
(1995) 6 SCC 684
29 10 February 1995
30
(1996) 2 SCC 715
31
G.O. No. DPAR 10 SCBC 97
32 G.O. No. DPAR 21 SBC 97
33
Ibid
34
(1997) 6 SCC 538
35 (1999) 7 SCC 209
36
(2001) 2 SCC 666
37 Ibid at page 672
38 Supra 6 at page 259
39
Ibid at pages 270-271
40 Ibid at pages 276-277
41 Ibid at page 278
42
Ibid at page 272
43 (2011) 1 SCC 467
44
(2012) 7 SCC 1
45 (2015) 10 SCC 292
47 G.O. No. DPAR 182 SeneNi 2011
48 Ratna Prabha Committee report
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
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
52 Supra 49, paragraph 22 at page 422-423
54 Ibid, paragraph 26 at page 425-426
55 (1969) 2 SCC 283

56 (1978) 2 SCC 50
57
G.O. No. DPAR 186 SRS 2018
58 (1995) 6 SCC 16
59
(2003) 5 SCC 298
60 (1996) 2 SCC 449
61 1993 Supp (1) SCC 96 (2)
62
(2015) 4 SCC 400
63 (2018) 11 SCALE 141
64 M.A. Nos. 730-756 of 2017
65
(2007) 2 SCC 1
66 (2002) 8 SCC 182
67 (1985) 3 SCC 661
68
(1983) 4 SCC 45
69 (2016) 8 SSC 1
70 AIR 1960 SC 1186
71
(2008) 8 SCC 612
72 G.O. No. DPAR 29 SBC 77
73 (2017) 1 SCC 283

74 1987 Supp SCC 751
75 (2009) 13 SCC 165
76
In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018
77 (1976) 2 SCC 310
78 OBCs compliance with the conditions precedent to the exercise of the power stipulated in that Article;
79 In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018

80 Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992
81 AIR 1967 SC 295
82
(1969) 1 SCC 325
83 (1970) 1 SCC 248
84 (1996) 3 SCC 253
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.
87 Ibid at page 244
88
Supra 67 at pages 668-669
89 Supra 66 at pages 215-216

92 (1994) 6 SCC 77
93 (1996) 7 SCC 637
94
(2009) 13 SCC 165
95 AIR 1941 FC 16
96 (1964) 1 SCR 897
97
98 (1997) 1 SCC 326
99 Ibid at page 340
100
(2004) 12 SCC 588
101 Ibid at page 616
103
1994 Supp (2) SCC 726
104
Ibid at pages 736-737
106
(2015) 8 SCC 399
108
Supra 5 at page 641
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
113 Burrakur Coal Co. Ltd. v. Union of India : AIR 1961 SC 954 at pages 956-957
115
(1974) 4 SCC 415
117 1980 Supp SCC 249
118
Ibid at page 259
119 (2017) 11 SCC 42
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
120
Ibid at page 47
121
122
Supra 49 at page 430
123
Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B Willnat, Longman Publishers
124
127
Supra 6 at page 261
128 (Volume XI) Debate on 25 August 1949.
129 (Volume XI) Debate on 23 August 1949.
130
(Volume XI) Debate on 23 August 1949.
131 (Volume VII) Debate on 30 May 1948.
132 (Volume VII) Debate on 30 May 1948.
133
(Volume VII) Debate on 30 May 1948.
134 AIR 1964 SC 179
136
Ibid at page 369
137 (1981) 1 SCC 246
139
141 1985 Supp SCC 714
143
Ibid at page 738
144 Supra 139 at paragraph 613
Sen A, Merit and Justice, in Arrow, KJ, MERITOCRACY AND ECONOMIC INEQUALITY (Princeton University Press
145
2000) (Amartya Sen, Merit and Justice).

146
Ibid
147 Ibid
148Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi
1984), cited by Deshpande S, Inclusion v. excellence: Caste and the framing of fair access in Indian higher
education, 40:1 South African Review of Sociology 127-147.
151 (2018) 1 SCC 146
152
(2018) 15 SCC 64
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
156 (2000) 1 SCC 168
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Page 1 Saturday, May 16, 2020

M A No. 1151 of 2018

B.K. Pavitra v. Union of India

2019 SCC OnLine SC 694

In the Supreme Court of India

M A No. 1151 of 2018

“1) Collect information on the cadre-wise representation of Scheduled Castes and

report, in paragraph 2.4, took note of the total number of officials/employees

between reservation in promotion and maintenance of efficiency in administration.

the constitutional validity of the Reservation Act 2018 is lacking in substance.

55 (1969) 2 SCC 283

73 (2017) 1 SCC 283

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

(b) in other States, one House.

91 Supra 74 at page 759

2000) (Amartya Sen, Merit and Justice).

© EBC Publishing Pvt.Ltd., Lucknow.

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