Case: B.K. PAVITHRA AND ORS.  Vs. UNION OF INDIA AND ORS

jurisprudence that what cannot be done directly cannot be permitted to be done indirectly. 20. The view of the two judge Bench in Gurdip Singh has been reiterated by this Court in Zahira Habibullah Sheikh v State of Gujarat (2004) 5 SCC 353 , Common Cause v Union of India (2004) 5 SCC 222 , Ram Chandra Singh v Savitri Devi (2004) 12 SCC 713 and APSRTC v Abdul Karim (2007) 3 SCJ 168. 21. Recently, in M C Mehta v Union of India (2019) 2 SCJ 640 , a two judge Bench of this Court rejected an application filed before it seeking a clarification that the applicant is permitted to carry out construction on the land in question in the following terms: …the view expressed by this Court in Gurdip Singh Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequence-what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation. (Emphasis Supplied) 22. The Court noted the growing practice, despite the decision of this Court in Gurdip Singh, of filing applications before this Court with different nomenclatures in order to bypass or circumvent the procedure envisaged for the consideration of the reliefs sought. This Court clarified that the nomenclature of an application is of no consequence and courts must assess the contents and reliefs sought in the application to determine what is the true nature of the application. 23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable. 24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court. 25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 2019. 26. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II. 27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to re-work all promotions on the basis of post based reservations impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj. 28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings. 29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 201926. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to re-work all promotions on the basis of post based reservations impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants.