B. K. PAVITRA & ORS. versus UNION OF INDIA & ORS.
[2017] 1 S.C.R. 631, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2017] 1 S.C.R. 631 
B. K. PAVITRA & ORS. 
v. 
UNION OF INDIA & ORS. 
(Civil Appeal No. 2368of2011) 
FEBRUARY 09, 2017 
(ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.] 
Karnataka Determination of Seniority of the Government 
Servants Promoted on the Basis of Reservation (Io the Posts in the 
Civil Services of the State) Act, 2002 - Providing for grant of 
consequential seniority to the Government servants belonging to 
SC and ST promoted under reservation policy as also protecting 
consequential seniority already accorded from 27. 04.1978 onwards -
Validity of - Held: Exercise for determining 'inadequacy of· 
representation', 'backwardness' and 'overall efficiency', is a must 
for exercise of power u/Art.16(4A) - Mere fact that there is no 
proportionate representation in promotional posts for the population 
of SCs and STs is not by itself enough to grant consequential 
seniority to promotees who are oth~rwise junior and thereby denying 
seniority to those who are given promotion later on account of 
reservation policy - State has 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 instant case, no such exercise 
was undertaken - 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 - Also High 
Court erred in brushing aside the mandatory requirement of 
determining 'inadequacy of representation', 'backwardness' and 
'overall efficiency' in view of the inbuilt mechanism in s. 3 limiting 
the representation to 15% and 3% fur SC and ST respectively -
Thus, the order passed by the Hi:;h Court is set aside - Provisions 
of 2002 Act declared to the extent cf doing away with the 'catch up' 
rule and providing for consequential seni'Jrity to persons belonging 
to SCs and STs on promotion against roster points, ultra vires Arts. 
14 and.16 - Constitution of India - Arts. 14 and 16 - Constitution 
(Eighty-fifth Amendment) Act, 2001. 
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SUPREME COURT REPORTS 
[2017) I S.C.R. 
Allowing the appeals, the Court 
HELD: 1.1 While no doubt in M. Nagaraj 85" Amendment 
was upheld with the 'observation that enabling the State to do 
away with the 'catch up' rule, a judicially evolved concept to 
control the effect of reservations, was valid but the exercise of 
power to do away with the said rule and providing consequential 
seniority in favour of roster point promotees of reserved category 
was subject to the limitation of determining the three factors of 
'backwardness', 'inadequacy of representation' and 'overall 
efficiency'. The High Court brushed aside the said mandatory 
requirement by simply observing that Section 3 provided for an 
inbuilt mechanism as the extent of mechanism was limited to 15% 
and 3% respectively for the SCs .and STs which dispensed with 
any requirement of determining inadequacy of representation or 
backwardness. The High Court further dispensed with the 
requirement of determining overall efficiency by· observing that 
there was no pleading that overall efficiency would be hampered 
by promoting persons belonging to SCs and STs. This reasoning 
in the judgment of the High Court, it is submitted, is contrary to 
the mandate of law as recognized in M. Nagaraj case and the 
view similar to the impugned judgment has been repeatedly 
disapproved in decisions of this Court. There is force in the 
submission. [Para 15) (643-A-D) 
1.2 It is held in M. Nagraj case
that conferment of enabling 
power on State under Article 16(4A) did not by itself violate the 
basic feature of equality. If the affirmative action stipulated under 
Article 16(4A) could be balanced with the need for adequate 
representation for justice to the backwards while upholding equity 
for the forwards and efficiency for the entire system with the 
further observation that the content of a right is defined by the 
Courts and even while the amendment as such could be upheld, 
validity of an individual enactment was required to be gone into. 
If the State wished to exercise its discretion under Article 16(4A), 
it was to collect quantifiable data showing backwardness of the 
class and inadequacy of representation of that class in public 
employment in addition to compliance with Article 335. It was 
made clear that even if the State has compelling reasons, the 
State will have to see that its reservation provision does not lead
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
to excessiveness so as to breach the ceiling limit of 50% or 
obliterate the creamy layer or extend the reservation indefinitely. 
[Para 20] [645-G-H; 646-A-C] 
1.3 The exercise for determining 'inadequacy of 
representation', 'backwardness' and 'overall efficiency', is a must 
for exercise of power under Article 16(4A). Mere fact that there 
is no proportionate representation in promotional posts for the 
population of SCs and STs is not by itself enough to grant 
consequential 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 instant case, no such exercise has been undertaken. The 
High Court erroneously observed that it was for the petitioners 
to plead and prove that the overall efficiency was adversely 
affected by giving consequential seniority to junior persons who 
got promotion on account of reservation. Plea that persons 
promoted at the same time were allowed to retain their seniority 
in the lower cadre is untenable and ignores the fact that a senior 
person may be promoted later and not at same time on account 
of roster point reservation. Depriving him of his seniority affects 
his
further chances of promotion. Further plea that seniority was 
not a fundamental right is equally without any merit in the present 
context. In absence of exercise under Article 16( 4A), it is the 
'catch up' rule which is fully applies. [Para 26] [656-D-G] 
1.4 The impugned judgment is set aside and the provisions 
of the impugned Act is declared 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. The judgment would affect those who have 
already retired and would not affect financial benefits already 
taken. <;:onsequential promotions granted to serving employees, 
based on consequential seniority benefit, wonld be treated as ad 
hoc and liable to be reviewed. Seniority list may be now revised. · 
[Para 27] [656-H; 657-A-B] 
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[2017] I S.C.R. 
A 
M Nagaraj and others v. Union of India and others 
(2006) 8 SCC 212 : 2006 (4) Suppl. SCR 511 - relied 
on. 
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MG Badappanavar v. State of Karnataka (2001) 2 SCC 
666: 2000 (5) Suppl. SCR 302; Ajit Singh Januja v. 
State of Punjab (Ajit Singh I) (1996) 2 SCC 715 : 1996 
(3) SCR 125; Ajit Singh (//) v. State of Punjab (1999) 7 
SCC 209: 1999 (2) Suppl. SCR 521; R.K. Sabharwa/ 
v. State of Punjab (1995) 2 SCC 745: 1995 (2) SCR 
35; Bhakta Ramegowda v. State of Karnataka (1997) 2 
SCC 661: 1997 (1) SCR 535; Union of India v. Virpal 
Chauhan (1995) 6 SCC 684: 1995 (4) Suppl. SCR 158; 
Uttar Pradesh Power Corporation Limited v. Rajesh 
Kumar (2012) 7 SCC 1: 2012 ( 4) SCR 118; Bim/esh 
Tanwar v. State of Haryana (2003) 5 SCC 604: 2003 
(2) SCR 757; Suraj Bhan Meena v. State of Rajasthan 
(2011) 1 SCC 467 : 2010 (14) SCR 532; Pi:em Kumar 
Singh v. State of U.P. (2011) 3 All LJ 343; Mukund 
Kumar Srivastava v. State of UP. (2011) 1 All LJ 428; 
Indra Sawhney v. UOI (1992) Supp. (3) SCC 217: 1992 
( 2) Suppl. SCR 454; Central Bank of India v. SC/ST 
Employees Welfare Association (2015) 12 SCC 308: 
2015 (1) SCR 55; S. Panneer Selvam v. State of Tamil 
Nadu (2015) 1 SCC 292 - referred to. 
Case Law Reference 
2000 (5) Suppl. SCR 302 
referred to 
Paras 
1996 (3) SCR 125 
referred to 
Para 5 
1999 (2) Suppl. SCR 521 
referred to 
Paras 
1995 (2) SCR 35 
. referred to 
ParaS 
1997 (1) SCR 535 
referred to 
Para 6 
1995
(4) Suppl. SCR 158 
referred to 
Para 7 
2012 (4) SCR 118 
referred to 
Para 10 
2003 (2) SCR 757 
referred to 
Para 11 
2010 (14) SCR 532 
referred to 
Para 14
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
635 
2006 (4) Suppl. SCR 511 
relied on 
Para 15, 20 
(2011) 3 All LJ 343 
referred to 
Para 23 
(2011) 1 All LJ 428 
referred to 
Para 23 
1992 (2) Suppl. SCR 454 
referred to 
Para 23 
2015 (1) SCR 55 
referred to 
Para 26 
(2015) 1 sec 292 
referred to 
Para 27 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2368 of 
2011. 
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From the Judgment and Order dated 23.12.20 I 0 of the High Court 
C 
of Karnataka at Bangalore'in Writ Petition No. 14672 of 20 I 0. 
WITH 
C. A. Nos. 2369, 2370-2373, 2374-2377, 2378, 2379, 4320-4327 and 
5280-5286 of201 I. 
Ms. Kiran Suri, Dr. Rajeev Dhavan, Sushi! Kumar Jain, Basava 
Prabhu S.Patil, A. K. Sanghi, Sr. Advs., S. J. Amith, Dr. (Mrs.) Vipin 
Gupta, Ms. Anjana Chandrashekar, Kumar Parimal, Aniruddha P. Mayee, 
G. V. Chandrashekhar, N. K. Verma, Ms. Anjana Chandrasekhar, Puneet 
Jain, Ms. Pratibha Jain, Abhinav Gupta, Ms. Paya! Kirti, Ms. Chhaya 
Kirti, Pankaj Sharma, Abhinav Gupta,V.N. Raghupathy, Parikshit P. 
Angadi, Anirudh Sangareria, Chinmay Deshpande, Ms. Sadhna Sandhu, 
Rakesh Upadhayay, M. K.Maroria, Joseph Aristotle S., Ms. Priya 
Aristotle, Ms. K. Priyadarshini, S. K. Kulkarni, M. Gireesh Kumar, · 
AnkurS. Kulkarni, S. N. Bhat, D. P. Chaturvedi, Ravi Panwar, Ms.Anitha 
Shenoy, Adv. Mr. Anirudh P.Mayee, Advs. for the appearing parties. 
The Judgment of the Court was delivered by 
ADARSH KUMAR GOEL, J. l. These appeals involve the 
question of validity of the Karnataka
Determination of Seniority of the 
Government Servants Promoted on the Basis of Reservation (To the 
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Posts in the Civil Services of the State) Act, 2002 (the impugned Act). 
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The Act inter alia provides for grant of consequential seniority to the 
Government servants belonging to Scheduled Castes and the Scheduled 
Tribes promoted under reservation policy. It also protects consequential 
seniority already accorded from 27'" April, 1978 onwards. 
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[2017] 1 S.C.R. 
2. The validity of the Act was challenged before this Court by way 
of Writ Petition (Civil) No.61 of2002 titled M. Nagaraj and others v. 
Union of India and others. The issue referred to larger Bench in the 
writ petition along with connected matters was decided by this Court on 
l 9'h October, 2006 1• While upholding the constitutional validity of the 
Constitution (seventy-seventh Amendment) Act, 1995; the Constitution 
(Eighty-first Amendment) Act, 2000; the Constitution (Eighty-Second 
Amendment)Act, 2000 and the Constitution (Eighty-fifth Amendment) 
Act, 200 I, individual matters were remitted to the appropriate Bench'. 
Thereafter, the matter was remitted back to the High Court for deciding 
the question of validity of the said enactment'. 
3. The petition was re-numbered by the High Court as Writ Petition 
(Civil) No.14672 of2010. The High Court by the impugned judgment 
has held the Act to be valid. The question framed for determination by 
the High Court is as follows: 
"Whether the State Government has shown the compelling reasons, 
namely, backwardness, inadequacy of representation and overall 
administrative efficiency before making provision for reservation 
for Scheduled Castes and Scheduled Tribes in matters of promotion 
and as to whether the extent of reservation provided for promotion 
in favour of the persons belonging to Scheduled Castes and 
Scheduled Tribes at 15% and 3% respectively, in
Kamataka is ' 
justified? 
4. It will be appropriate to notice the factual matrix relevant to 
determine the controversy. Policy of reservation in promotion was 
_introduced in the State ofKamataka vide Government Order dated 271• 
F April, 1978. The reservation in promotion was provided to the SCs and 
STs to the extent of 15% and 3% respectively but upto and inclusive of 
. the lowest Group-A posts in the cadres where there is no element of 
direct recruitment and where the direct recruitment does not exceed 
66"%. A roster of 33 points was issued applicable to each cadre of 
posts under each appointing authority. Prior to I" April, 1992, there was 
G no carry forward _system of the vacancies. It was introduced on l" 
April, 1992. In the stream of graduate Engineers, the reservation in 
promotion was available upto and inclusive of third level, i.e., Executive 
'(2006) s sec 212 
2 Para 124 of 'M. Nagaraj (supra) 
H 
'Vide order of this Court dated 18'" March. 2010.
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
Engineers upto 1999 and on the date of filing of the petition (in 2002), it 
was available upto second level, i.e. Assistant Executive Engineer. In 
Diploma Engineers, it was available upto third level, i.e. Assistant 
Executive Engineer- Division I!. According to the appellants, Assistant 
Engineers of SC/ST category recruited in the year 1987 were promoted 
to the cadre of Assistant Executive Engineers while in general merit, 
Assistant Engineers recruited in 1976 were considered for promotion to 
the said cadre. The representation of the SC/ST group was as follows: 
EE Cadre 
19.9% 
SE Cadre 
23.95% 
CE Cadre 
4.3% (being a selection post) 
Engineer-in-chief 
44.44% 
5. Thus, according to the appellants, SG/ST candidates got promotion 
early and on account of consequential seniority, percentage of SC/ST 
candidates was much higher than the permitted percentage and all top 
positions were likely to be filled up by SC/ST candidates without general 
merit candidates getting to higher positions. This aspect was considered 
in the judgment of this Court dated 1" December, 2000 in M.G. 
Badappanavar v. State of Karnataka4 • This Court applying the 
principles laid down in Ajit Singh Januja v. State of Punjab (Ajit Singh 
/)"'; Ajit Singh (II) v. State of Punjab' and R.K. Sablwrwal v. State of 
Punjab' issued a direction to the State ofKamataka to redo the seniority 
and take further action in the light of
the said judgments. Pointing out 
the consequence of accelerated seniority to the roster point promotee, it 
has been averred in the writ petition that the roster point promotee would 
reach the third level by the age of 45 and fourth, fifth and sixth level in 
next three, two and two years. The general merit promotee would reach 
the third level only at the age of 56 and retire before reaching the fourth 
level. This would result in reverse discrimination and representation of 
reserved category would range between 36% to I 00%. 
6. Stand of the State and the contesting respondents who have been 
given promotion under the reservation, is that inter se seniority amongst 
persons promoted on any occasion is determined as per Kamataka 
Government Servants (Seniority) Rules, 1957 (1957 Rules). By 
amendment dated l" April, 1992 provision was made to fill-up backlog 
• (2001J2 sec 666 
'(1996)2sec115 
' ( 1999)7 sec 209 
'(1995) 2 sec 745 
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vacancies which was upheld by this Court in B/111kt" R"megowd" v. 
St"te of Karnataka8• On that basis, Government order dated 24'" June, 
1997 was issued for fixation of seniority of SC/ST candidates promoted 
under reservation. Thus, all candidates promoted 'on the same occasion' 
retained their seniority in the lower cadre. This aspect was not considered 
in B"'/app<mavar (supra). Extent of reservation for SC and ST was 
15% and 3% respectively on the basis of census figures of 1951, though 
the population ofSCs and STs has substantially increased. As per census 
figures of 1991 population of SC and ST was 16.38% and 4.26% 
respectively. The stand of the appellants that the SC/ST candidates reach 
level four at 45 years or become Chief Engineers by 49 years or there is 
reverse discrimination has been denied. 
7. In the light of the above pleadings and judgment of this Court in 
M. Nagaraj (supra), the matter was put in issue before the High Court. 
The contention raised on behalf of the appellants was that grant of 
consequential seniority to candidates promoted by way of reservation 
affected efficiency of administration and was violative of Articles 14 
and 16. In spite of85'" Amendment having been upheld, law laid down 
in B"dappanavar (supra), Ajit Singh II (supra) and Union of India 
v. Virpal Chauhan• remained relevant in absence of 'backwardness', 
'inadequacy of representation' and 'overall
administrative efficiency' 
being independently determined. The State Government had not provided 
any material or data to show inadequacy of reservation to the members 
of SC/ST nor the State has given any thought to the issue of overall 
administrative efficiency. 
8. On the other hand, the submission on behalfofthe State was that 
reservation to SCs and STs to the extent of 15% and 3% respectively 
could never be said to be excessive in view of progressive increase in 
population ofSCs and STs. 
9. The High Court referring to this Court's judgment in M. Nagamj 
(supra) observed that concept of "catch up" rule and "consequential 
seniority" are judicially evolved concepts to control the effect of 
reservations. Deleting the said rule cannot by itself be in conflict with 
"equality code" under the Constitution. The 85'" Amendment gave 
freedom to the State to provide for reservation in promotion with 
consequential seniority under Article 16(4-A) if 'backwardness', 
'(1997) 2 sec 661 
'(1995)6SCC684
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
'inadequacy of representation' and 'overall efficiency' so warranted. 
There is no fixed yardstick to identify and measure the above three 
factors. If the State fails to identify and measure the above three factors, 
the reservation can be invalid. Examining whether the State had in fact 
measured the above factors, the High Court observed that Order dated 
27'h April, 1978 was issued by the State of Karnataka after considering 
the statistics available about the representation of SCs and STs in 
promotional vacancies. On 3'' February, l 999, the policy was modified 
to limit reservation in promotion in cadre upto and inclusive of the lowest 
category of Group-A posts in which there is no element ofrecruitment 
beyond 66T' %. The said order was further amended on l3'h April, l 999 
to the effect that reservation in the promotion for SCs and STs will 
continue to operate till their representation. reached 15% or 3% 
respectively and promotion of SCs and STs and against backlog was to 
continue as per order dated 24'h June, l 997 till the said percentage was 
so reached in the total working strength. As per the Karnataka Scheduled 
Castes, Scheduled Tribes and other Backward Classes (Reservation of 
seats in Educational Institutions and of appointments or posts in the 
services under the State) Act, 1994 (the Karnataka Act 43of1994), 
seniority in the lower cadre is maintained in promotional posts for the
persons promoted "on one occasion". Since reservation had not exceeded 
15% and 3% for SCs and STs while population of the said categories 
had increased, there was adequate consideration of the above three 
factors of"backwardness", inadequacy of representation" and "overall 
efficiency". Section 3 of the Act provided for an inbuilt mechanism for 
providing reservation in promotion to the extent of 15% and 3% 
respectively for the SCs and STs. The State Government collects statistics 
every year. The High Court held that co1itention that if all the posts in 
higher echelons may be filled by SCs and STs, the promotional prospects 
of general merit candidates will get choked or blocked could not be 
accepted as reservation in promotion was provided only upto the cadre 
of Assistant Executive Engineers. It was further observed that there 
was no pleading that overall efficiency of service would be hampered 
by promoting persons belonging to SCs and STs. 
I 0. The impugned judgment has been challenged on behalf of the 
appellants mainly relying upon judgment' ' .:1is Court in Uttar Priuleslr 
Power Corporation Limited v. Rajeslr Kum11r10• It was submitted 
that the High Court erroneously held that there was an inbuilt mechanism 
"(2012) 1sec1 
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[2017] I S.C.R. 
under Section 3 of the impugned Act or that the seniority rule maintaining 
lower cadre seniority in respect of persons promoted on a pa1ticular 
occasion was a safeguard against excessive reservation. Similarly, the 
finding that reservation was only upto a particular level and not beyond 
or that accelerated promotion upto that level did not affect further 
promotions was erroneous. It was also submitted that there was no 
provision for excluding the creamy layer which also rendered the Act 
invalid. It was submitted that no exercise whatsoever in terms of M. 
Nagaraj case has been undertaken by the State. 
11. Shri Basava Prabhu S. Patil, learned senior counsel appearing 
on behalf of the State submitted that the Act did not deal with the 
reservation. It only dea It with seniority. Seniority was not a fundamental 
right but a civi I right as held in Bimleslt Tan war vs. Stale of Haryana". 
M. Nagaraj judgment of this Court had dealt with reservation and not 
with consequential seniority. Once reservation is within the prescribed 
limit, there was no bar to consequential seniority being granted. It was 
further submitted that even if seniority is to be struck down, the clock 
cannot be entirely reversed so as to affect seniority of persons who had 
retired or who are about to retire or who had reached higher positions. 
12. Shri S.N. Bhat, learned counsel for the private respondents
supported the impugned judgment and submitted that the Government 
was not required to carry out the exercise of finding out 'backwardness', 
'inadequacy ofrepresentation' and 'overall administrative efficiency' 
for providing consequential seniority to officers on the basis of reservation. 
The said exercise was required to be carried out only for providing 
reservation in promotion. Reservation in promotion was permissible only 
upto Class I posts in Karnataka. Moreover, inter se seniority ofreserved 
category and general category candidates promoted together was not 
disturbed. The roster points ensured that there was no excessive 
representation in different cadres of service. In view of Government 
Order dated 3'' February, 1999 there was enough data available to justify 
continuance of provision for consequential seniority under the impugned 
Act. Data collected by the Department of Statistics with regard to overall 
representation of SCs and STs as on 31" March, 2002 showed that the 
representation of SCs and STs was not above 15% and 3% respectively. 
Section 4 of the Act only protected consequential seniority which was 
already given. Promotions already effected cannot be disturbed. 
"(2003 J s sec 604
B. K. PAVJTRA & ORS. v. UNION OF INDIA & ORS. 
[A.DARSH KUMAR GOEL, J.] 
I3. Reference may now be made to the impugned Act. The 
preamble of the Act refers to policy ofreservation in promotion in favour 
of Government servants belonging to SCs and STs in terms of order 
dated 27'" April, 1978. Para 7 of the said order stipulates that inter se 
seniority amongst persons promoted in accordance with the said order 
has to be determined in the manner provided under Rule 4 or Rule 4A of 
the 1957 Rules. There is further reference to the judgment of this Court 
in Badappanavar (supra) to the effect that there was no specific rule 
permitting seniority to be counted for persons promoted against a reserved 
roster point. It further refers to the Constitution (85'" Amendment) Act, 
200 l pennitting consequential seniority in the case of promotion on the 
basis of reservation. It states that to remove any ambiguity and to clarify 
that government servants belonging to SCs and STs promoted in 
accordance with the reservation in promotion shall be entitled to seniority 
as it is available to government servants belonging to other categories. 
Section 3 of the impugned Act provides that government servants 
belonging to SCs and STs promoted in accordance with the policy 
reservation in promotion shall be entitled to consequential seniority on 
the basis of length of service in a cadre. Proviso to the said section to 
the effect that inter se seniority of government servants belonging to
SCs/STs and those belonging to unreserved category promoted at the 
same time by a common order shall be on the basis of inter se seniority 
in the lower cadre. Section 4 provides for protection of consequential 
seniority already accorded from 27'" April, 1978. Since Sections 3 and 
4 are the key sections, the same are reproduced below : 
"3. Determination of Seniority of the Government Servants 
Promoted on the basis of Reservation.- Notwithstanding 
anything contained in any other law for the time being in force, 
the Government Servants belonging to the Scheduled Castes and 
the Scheduled Tribes promoted in accordance with the policy of 
reservation in promotion provided for in the Reservation Order 
shall be entitled to consequential seniority. Seniority shall be 
determined on the basis of the length of service in a cadre. 
Provided that the seniority inter-se of the Government Servants 
belonging to the Scheduled Castes and the Scheduled Tribes as 
well as those belonging to the unreserved category, promoted to a 
cadre, at the same time by a common 5 order, shall be determined 
on the basis of their seniority inter-se, in the lower cadre. 
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SUPREME COURT REPORTS 
[2017] I S.C.R. 
A 
Provided further that where the posts in a cadre, according to the 
rules ofrecruitment 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 
B 
of recruitment applicable to it shall be calculated; and 
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(ii) The roster shall be applied separately to the number of 
vacancies so calculated in respect of each of those lower cadres; 
Provided also thatthe serial numbers of the roster points specified 
in the Reservation Order are intended only to facilitate calculation 
of the number of vacancies reserved for promo\ion 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." 
14. Question for consideration is whether the impugned Act is 
consistent with Articles 14 and 16 of the Constitution. The said question 
has been gone into by this Court inter a/ia in identical circumstances in 
Suraj Bhan Meena v. State of Rajastlum" and Uttar Pradesh Power 
Corporation Limited (supra) to which we will make a reference at 
appropriate place. 
15. We proceed to deal with the contention that High Comtjudgment 
proceeds on incorrect understanding of the law laid down in M. Nagaraj 
"(2011) I SCC467
B. K. PAVITRA & ORS. ·v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
(supra). While no doubt in M. Nt1gt1mj (supra), 85'h Amendment was 
upheld with the observation that enabling the State to do away with the 
'catch up' rule, a judicially evolved concept to control the effect of 
reservations, was valid but the exercise of power to do away with the 
said rule and providing consequential seniority in favour ofroster point 
promotees of reserved category was subject to the limitation of 
determining the three factors of 'backwardness', 'inadequacy of 
representation' and 'overall efficiency'. The High Court brushed aside 
the said mandatory requirement by simply observing that Section 3 provided 
for an inbuilt mechanism as the extent of mechanism was limited to 15% 
and 3% respectively for the SCs and STs which dispensed with any 
requirement of determining inadequacy of representation or 
backwardness. High Court further dispensed with the requirement of 
determining overall efficiency by observing that there was no pleading 
that overall efficiency would be hampered by promoting persons 
belonging to SCs and STs. This reasoning in the judgment of the High 
Cou1t, it is submitted, is contrary to the mandate oflaw as recognized in 
M. Nt1gt1rt1j (supra) and the view similar to the impugned judgment has 
been repeatedly disapproved in decisions of this Court. 
16. We find considerable force in the submission. The issue is no 
longer res integra and it will be suffice to
refer to the law clearly laid 
down by this Court in this regard. 
17. In M. Nt1gt1rt1j (supra), this Court considered constitutional 
validity of 77'". 81 ", 82"' and 85'h Amendments. In doing so, the Comt 
was concerned with the question whether the amendment infringed the 
basic structure of the Constitution. It was held that equality is part of the 
basic structure but in the present context, right to equality is not violated 
by an enabling provision if exercise of power so justifies. In this regard, 
following·observations are worthwhile to note: 
"31. At the outset, it may be noted that equality, rule oflaw,judicial 
review and separation of powers are distinct concepts. They have 
to be treated separately, though they are intimately connected. 
There can be no rule oflaw ifthere is no equality before the law; 
and rule of law and equality before the law would be empty words 
iftheir violation was not a matter of judicial scrutiny or judicial 
review and judicial relief and all these features would lose their 
significance if judicial, executive and legislative functions were 
united in only one authority, whose dictates had the force of law. 
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A 
The rule of law and equality before the law are designed to secure 
among other things, justice both social and economic ..... . 
32. In Minen'a Mills [0980) 3 SCC 625} Chandrachud, C.J., 
speaking for the majority, observed that Articles I 4 and 19 do not 
B 
confer any fanciful rights. They confer rights which are 
elementary for the proper and effective functioning of democracy. 
They are universally regarded by the Universal Declaration of 
Human Rights. If Articles 14 and 19 are put out of operation, 
Article 32 will be rendered nugatory ..... 
c 
33. From these observations, which are binding on us, the principle 
which emerges is that "equality" is the essence of democracy 
and, accordingly a basic feature of the Constitution ...... . 
o 
34. However, there is a difference between formal equality and 
egalitarian equality which will be discussed later on. 
E 
F 
xxxx 
42 .......... There can be no justice without equality. Article 14 
guarantees the fundamental right to equality before the law on all 
persons. Great social injustice resulted from treating sections of 
the Hindu community as "untouchable" and, therefore, Article 17 
abolished untouchability and Article 25 permitted the State to make 
any law providing for throwing open all public Hindu religious 
temples to untouchables. Therefore, provisions of Part Ill also 
provide for political and social justice. 
18. Considering the right of equality in the context
of reservation/ 
affirmative action it was observed : 
"43 .......... Therefore, the concept of"equality of opportunity" 
in public employment concemsan individual, whether that individual 
G 
belongs to the general category or Backward Class. The conflicting 
claim of individual right under Article 16(1) and the preferential 
treatment given to a Backward Class has to be balanced. Both 
the claims have a particular object to be achieved. The question is 
of optimisation of these conflicting interests and claims." 
H 
19. Thereafter, concepts of 'equity', 'justice' and 'merit' in public
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
employment were referred to and it was held that application of these 
concepts in public employment depends upon quantifiable data in each 
case. It was observed: 
"44 .......... Backward Classes seek justice. General class in 
public employment seeks equity. The difficulty comes in when 
the third variable comes in, namely, efficiency in service. In the 
issue ofreservation, we are being asked to find a stable equilibrium 
between justice to the backwards, equity for the forwards and 
efficiency for the entire system. Equity and justice in the above 
context are hard concepts. However, if you add efficiency to equity 
and justice, the problem arises in the context of the reservation. 
This problem has to be examined, therefore, on the facts of each 
case. Therefore, Article 16(4) has to be construed in the light of 
Article 335 of the Constitution. Inadequacy in representation and 
backwardness of the Scheduled Castes and Scheduled Tribes are 
circumstances which enable the State Government to act under 
Article 16(4) of the Constitution. However, as held by this Court 
the limitations on the discretion of the Government in the matter 
ofreservation under Article 16( 4) as well as Article 16( 4-A) come 
in the form of Article 335 of the Constitution. 
45 .......... The basic presumption, however, remains that it is 
the State who is in the best position to define and measure merit 
in whatever ways it
consider it to be relevant to public employment 
because ultimately it has to bear the costs arising from errors in 
defining and measuring merit. Simi !arty, the concept of "extent of 
reservation" is not an absolute concept and like merit it is context-
specific. 
46 .......... Therefore, "vesting of the power" by an enabling 
provision may be constitutionally valid and yet "exercise of the 
power" by the State in a given case may be arbitrary, particularly, 
if the State fails to identify and measure backwardness and 
inadequacy keeping in mind the efficiency of service as required 
under Article 335." 
20. The above discussion led this Court to hold that conferment of 
enabling power on State under Article 16( 4A) did not by itself violate the 
basic feature of equality. If the affirmative action stipulated under Article 
16( 4A) could be balanced with the need for adequate representation for 
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efficiency for the entire system with the further observation that the 
content of a right is defined by the Courts and even while the amendment 
as such could be upheld, validity of an individual enactment was required 
to be gone into. If the State wished to exercise its discretion under 
Article 16( 4A), it was to collect quantifiable data showing backwardness 
of the class and inadequacy of representation of that class in public 
employment in addition to compliance with Article 335. It was made 
clear that even ifthe State has compelling reasons, as stated above, the 
State will have to see that its reservation provision does not lead to 
excessiveness so as to breach the ceiling limit of 50% or obliterate the 
creamy layer or extend the reservation indefinitely. 
21. It may also be worthwhile to note further observations of this 
Court in the said judgment: 
"49. Reservation is necessary for transcending caste and not for 
perpetuating it. Reservation has to be used in a limited sense 
otherwise it will perpetuate caste ism in the country. Reservation 
is underwritten by a special justification. 
xxxx 
59. Giving the judgment of the Court in Indra ScnPhney [(1992) 
Supp. (3) SCC 217] Jeevan Reddy, J. stated that Article 16(4) 
speaks of adequate representation not proportionate representation 
although proportion of population of Backward Classes to the total 
population would certainly be relevant
........... . 
xxxx 
102. .. .. 
..... ..... 
Therefore, in every case where the State 
decides to provide for reser"ation there must exist two 
circumstances, namely, "backwardness" and "inadequacy of 
representation". As stated above, equity, justice and efficiency 
are variable factors. These factors are context-specific. There is 
no fixed yardstick to identify and measure these three factors, it 
will depend on the facts and circumstances of each case. These 
are the limitations on the mode of the exercise of power by tlie 
State. None of these limitations have been removed by the 
impugned amendments. If the State concerned fails to identify 
and measure backwardness, inadequacy and overall administrative 
efficiency then in that event the provision for reservation would
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
647 
[ADARSH KUMAR GOEL, J.] 
be invalid 
A 
xxxxx 
104. . : ... .. ... As stated above, be it reservation or evaluation, 
excessiveness in either would result in violation of the constitutional 
mandate. This exercise, however, will depend on the facts of each 
case. In our view, the field of exercise of the amending power is 
retained by the impugned amendments, as the impugned 
amendments have introduced merely enabling provisions because, 
as stated above, merit, efficiency, backwardness and inadequacy 
cannot be identified and measured in vacuum. Moreover, Article 
16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) 
and as long as the parameters mentioned in those articles are 
complied with by the States, the provision of reservation cannot 
be faulted. Articles 16( 4-A) and 16( 4-B) are classifications within 
the principle of equality under Article 16( 4). 
xxxxx 
106. 
.. .... According to the Co11stitutio11a/ Law of 
India, by H.M. Seervai, 4th Edn., p. 546, equality is not violated 
by mere conferment of discretionary power. It is violated by 
arbitrary exercise by those on whom it is conferred. This is the 
theory of"guided power''. This theory is based on the assumption 
that in the event of arbitrary exercise by those on whom the power 
is conferred, would be corrected by the cowts ...... 
107. ..... .. .... If the State has quantifiable data to show 
backwardness and inadequacy then the State can
make 
reservations in promotions keeping in mind maintenance of 
efficiency which is held to be a constitutional limitation on the 
discretion of the State in making reservation as indicated by Article 
335. As stated above, the concepts of efficiency, backwardness, 
inadequacy of representation are required to be identified and 
measured .... .. 
108 . ............ Moreover, Article 335 is to be read with Article 
46 which provides that the State shall promote with special care 
the educational and economic interests of the weaker sections of 
the people, and in particular, of the Scheduled Castes and Scheduled 
Tribes, and shall protect them from social injustice. Therefore, 
where the State finds compelling interests of backwardness and 
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A 
inadequacy, it may relax the qualifying marks for SCs/STs. These 
compelling interests however have to be identified by weighty 
and comparable data. 
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xxxxx 
117. 
.. .... Therefore, in each case the Court has got to 
be satisfied that the State has exercised its opinion in making 
reservations in promotions for SCs and STs and for which the 
State concerned will have to place before the Court the requisite 
quantifiable data in each case and satisfy the Court that such 
reservations became necessary on account of inadequacy of 
representation of SCs/STs in a particular class or classes of posts 
without affecting general efficiency of service as mandated under 
Article 335 of the Constitution. 
118. The constitutional principle of equality is inherent in the rule 
of law. However, its reach is I imited because its primary concern 
is not with the content of the law but with its enforcement and 
application. The rule of law is satisfied when laws are applied or 
enforced equally, that is, even-handedly, free of bias and without 
irrational distinction. The concept of equality allows differential 
treatment but it prevents distinctions that are not properly justified. 
Justification needs each case to be decided on case-to-case basis. 
xxxx 
120. At this stage, one aspect needs to be mentioned. Socialjustice 
is concerned with the distribution of benefits and burdens. The 
basis of distribution is the area
of conflict between rights, needs 
and means. These three criteria can be put under two concepts 
of equality, namely, "formal equality" and ·'proportional equality". 
Formal equality means that law treats everyone equal. Concept 
of egalitarian equality is the concept of propo1tional 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 Sml'/mey all the Judbes 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 Sml'hney 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
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
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. The question as 
to the "determinant" of backwardness cannot be gone into by us 
in view of the binding decision. In addition to the above 
requirements this Court in Indra Sawhney has evolved numerical 
benchmarks like ceiling limit of50% based on post-specific roster 
coupled with the concept of replacement to provide immunity 
against the charge of discrimination. 
xxxx 
122. We reiterate that the ceiling limit of 50%, the concept of 
creamy layer and the compelling reasons, namely, backwardness, 
inadequacy ofrepresentation and overall administrative efficiency 
are all constitutional requirements without which the structure of 
equality of oppo11unity in A11icle I 6 would collapse." 
22. Question of application of principles laid down in M. Nagaraj 
(supra) for judging the exercise of enabling power of granting 
consequential seniority and promotion was raised in Surllj Blum Mee1w 
(supra). Therein challenge was to the validity ofnotification dated 25'" 
August, 2008 issued by the State GovernmentofRajasthan under proviso 
to Article 309 of the Constitution, amending the service rules in the State
ofRajasthan w.e.f. 28<h December, 2002. The notification purported to 
give consequential seniority to candidates belonging to SCs and STs who 
got roster point promotions. The challenge to the notification was that 
without quantifying figures ofSCs and STs or showing compelling reasons 
such as 'backwardness', 'inadequacy of representation' and 'overall 
administrative efficiency' as laid down in M. Nagllrllj (supra) the grant 
of consequential seniority was not permissible. The High Court quashed 
the notification providing for consequential seniority on the ground that 
no exercise had been undertaken in terms of Article 16(4A) to acquire 
quantifiable data regarding inadequacy ofrepresentation to SCs and STs 
in public service and to assess whether such reservation was necessary. 
This was upheld by this Court as under: 
"66. The position after the decision in M Nagaraj case is that 
reservation of posts in promotion is dependent on the inadequacy 
of representation of members of the Scheduled Castes and 
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Scheduled Tribes and Backward Classes and subject to the 
condition of asce11aining as to whether such reservation was at 
all required. 
67. The view of the High Co1111 is based on the decision in M. 
Nagaraj case as no exercise was undertaken in terms of Article 
16(4-A) to acquire quantifiable data regarding the inadequacy of 
representation of the Scheduled Caste and Scheduled Tribe 
communities in public services. The Rajasthan High Court has 
rightly quashed the Notifications dated 28-12-2002 and 25-4-2008 
issued by the State of Rajasthan providing for consequential 
seniority and promotion to the members of the Scheduled Caste 
and Scheduled Tribe communities and the same does not call for 
any interference.•· 
23. Again in Uttar Pradesh Power Corporation Limited (supra), 
validity of Rule SA of the U.P. Government Servants Seniority Rules, 
1991, inserted by wayofan amendment in 2007, was put in issue. While 
a Division Bench of Lucknow Bench in Prem Kumar Singh v. State of 
U.P. 13 struck down the said rule, another Division Bench at Allahabad in 
Mukum/ Kumar Srivastava v. State of U.P.u took a contrary view. 
This Court dismissed the appeal filed by the U.P. Power Corporation 
Limited and upheld the view of the Lucknow Bench. Reference was 
made to observations in para 819 in Indra S11w/111ey v. UOI'-' to the 
effect that reservation under Article 16( 4) of the Constitution could only 
. be at
the stage of entry into the State service and not in promotion. 
Reservation in promotion is bound to generate acute heartburning and 
lead to inefficiency in administration. The members of open category 
would think that whatever be their record or performance, members of 
reserved category will steal a march over them irrespective of their 
performance and competence. Once persons coming from different 
sources join a category or class, they must be treated alike for promotion 
and no distinction was permissible on the basis of 'birth-mark'. 
Reservation in promotion will be contrary to the mandate of Article 335, 
viz., maintenance of efficiency in administration and put premium on 
etliciency. Members ofreserved category will not work hard since they 
do not have to compete with their colleagues and because of assured 
"(2011) 3 All LJ 343 
"(2011) 1 All LJ 428 
'' (1992) Supp. (3) sec 217
B. K. PAYITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
promotion, which will be against the goal of excellence under Article 51-
A G). Reference was also made to para 831 in the said judgment to the 
effect that extending concessions and relaxations in the matter of 
promotion to members of reserved category could affect efficiency of 
administration. Reference was then made to the decisions of this Court 
holding that rosteronly ensured percentage ofreservation in promotion 
but could not affect seniority. 16 
24. Reference was then made to the Constitution amendment 
enabling reservation in promotions and consequential seniority which 
was upheld in M. Nagaraj (supra). The said judgment was summarized 
as follows: 
" 81. From the aforesaid decision in M Nagaraj case and the 
paragraphs we have quoted hereinabove, the following principles 
can be carved out: 
(i) Vesting of the power by an enabling provision may be 
constitutionally valid and yet "exercise of power" by the State in 
a given case may be arbitrary, particularly, if the State fails to 
identify and measure the backwardness and inadequacy keeping 
in mind the efficiency of service as required under Article 335. 
(ii) Article 16( 4) which protects the interests of certain sections 
of the society has to be balanced against Article 16( 1) which 
protects the interests of every citizen of the entire society. They 
should be harmonised because they are restatements of the 
principle of equality
under Article 14. 
(iii) Each post gets marked for the particular category of 
candidates to be appointed against it and any subsequent vacancy 
has to be filled by that category candidate. 
(iv) The appropriate Government ha, ro apply the cadre strength 
as a unit in the operation of the roster in order to ascertain whether 
a given class/group is adequately represented in the service. The 
cadre strength as a unit also ensures that the upper ceiling limit of 
50% is not violated. Further, roster has to be post-specific and not 
vacancy based. 
(v) The State has to form its opinion on the quantifiable data 
16 R.K. Sabharwal versus State of Punjab, Ajit Singh Januja versus State of Punjab (Ajit 
Singh I); Ajit Singh (II) versus State of Punjab and Union of India versus Virpal 
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regarding adequacy ofrepresentation. Clause ( 4-A) of Article 16 
is an enabling provision. It gives freedom to the State to provide 
for reservation in matters of promotion. Clause ( 4-A) of Article 
16 applies only to SCs and STs. The said clause is carved out of 
Article 16( 4-A). Therefore, clause ( 4-A) wi II be governed by the 
two compelling reasons-"backwardness" and "inadequacy of 
representation", as mentioned in Article 16(4). If the said two 
reasons do not exist, then the enabling provision cannot be 
enforced. 
(vi) If the ceiling limit on the carry over of unfilled vacancies is 
removed, the other alternative time factor comes in and in that 
event, the timescale has to be imposed in the interest of efficiency 
in administration as mandated by Article 335. If the timescale is 
not kept, then posts will continue to remain vacant for years which 
would be detrimental to the administration. Therefore, in each 
case, the appropriate Government will now have to introduce the 
duration depending upon the fact situation. 
(vii) If the appropriate Government enacts a law providing for 
reservation without keeping in mind the parameters in Article 16( 4) 
and Article 335, then this Court will certainly set aside and strike 
down such legislation. 
(viii) The constitutional limitation under Article 335 is relaxed and 
not obliterated. As stated above, be it reservation or evaluation, 
excessiveness in
either would result in violation of the constitutional 
mandate. This exercise, however, will depend on the facts of each 
case. 
(ix) The concepts of efficiency, backwardness and inadequacy 
ofrepresentation are required to be identified and measured. That 
exercise depends on the availability of data. That exercise depends 
on numerous factors. It is for this reason that the enabling 
provisions are required to be made because each competing claim 
seeks to achieve certain goals. How best one should optimise 
these conflicting claims can only be done by the administration in 
the context oflocal prevailing conditions in public employment. 
(x) Article 16(4), therefore, creates a field which enables a State 
to provide for reservation provided there exists backwardness of 
a class and inadequacy of representation in employment. These
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
are compelling reasons. They do not exist in Article 16(1). It is 
only when these reasons are satisfied that a State gets the power 
to provide for reservation in the matter of employment." 
25. Referring to the "Social Justice Committee Report" relied upon 
by the U.P. Power Corporation, it was observed that the said report was 
in respect of population and vacancies and not in respect of the concepts 
evolved in M. Nagaraj (supra). Therefore, exercise in the light of 
judgment in M. Nagaraj was a categorical imperative. The contention 
that no such exercise was necessary could not be accepted. Accordingly, 
this Court upheld the view that grant of consequential seniority in 
promotion to the persons belonging to SCs and STs who were granted 
promotion against roster points could not be.sustained. Reference may 
be made to the following observations : 
"85. As has been indicated herein before, it has been vehemently 
argued by the learned Senior Counsel for the State and the learned 
Senior Counsel for the Corporation that once the principle of 
reservation was made applicable to the spectrum of promotion, 
no fresh exercise is necessary. It is also urged that the efficiency 
in service is not jeopardised. Reference has been made to the 
Social Justice Committee Report and the chart. We need not 
produce the same as the said exercise was done regard being had 
to the population and vacancies and not to
the concepts that have 
been evolved in M Nagaraj. It is one thing to think that there are 
statutory rules or executive instructions to grant promotion but it 
cannot be forgotten that they were all subject to the pronouncement 
by this Court in Virpa/ Singh Chauhan and Ajit Singh. 
86. We are of the firm view that a fresh exercise in the I ight of 
the judgment of the Constitution Bench in M Nagaraj is a 
categorical imperative. The stand that the constitutional 
amendments have facilitated the reservation in promotion with 
consequential seniority and have given the stamp of approval to 
the Act and the Rules cannot withstand close scrutiny inasmuch 
as the Constitution Bench has clearly opined that Articles 16( 4-
A) and 16(4-B) are enabling provisions and the State can make 
provisions for the same on certain basis or foundation. The 
conditions precedent have not been satisfied. No exercise has 
been undertaken. What has been argued with vehemence is that 
it is not necessary as the concept of reservation in promotion was 
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already in vogue. We are unable to accept the said submission, 
for when the provisions of the Constitution are treated valid with 
certain conditions or riders, it becomes incumbent on the part of 
the State to appreciate and apply the test so that its amendments 
can be tested and withstand the scrutiny on param.eters laid down 
therein. 
87. In the ultimate analysis, we conclude and hold that Section 
3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra 
vires as they run counter to the dictum in M Nagaraj. Any 
promotion that has been given on the dictum of Indra Sawhney 
and without the aid or assistance of Section 3(7) and Rule 8-A 
shall remain undisturbed." 
26. In Central Bank of India v. SC/ST Employees Welfare 
Association", question was whether in absence of a rule ofreservation 
for promotion such reservation was permissible merely because the banks 
were following reservation policy of the Govemmentoflndia. The Madras 
High Court after considering the statistics found that there was no 
adequate representation ofSCs and STs in higher scales. It directed that 
such representation be granted. Plea of the Bank that such reservation 
will affect efficiency in the administration was rejected. This Court held 
that in absence of any specific provision for reservation in promotion, 
the Court could not issue a direction for reservation. It was observed: 
"32. We have already noticed above
that in matters of promotion 
within Group A posts, which carry an ultimate salary of Rs 5700 
per month, there was no provision for any reservation. On a conjoint 
reading of these two Office Memorandums dated 1-11-1990 and 
13-8-1997, in the absence of any other provision or rule evidencing 
such a reservation in the matter of promotions, it cannot be said 
that there was reservation in promotion within Group A posts up 
to the ultimate salary of Rs 5700 per month. The High Court in 
the impugned judgment has gone by the lofty ideals enshrined in 
Articles 15 and 16 of the Constitution as well as the fact that in 
these Banks there is no adequate representation of SC/ST 
category of officers in Group IV and above. That may be so. It 
can only provide justification for making a provision of this nature. 
However, in the absence of such a provision, same cannot be 
read by overstretching the language of the Office Memorandum 
"(2015) 12 sec Jos
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
dated 13-8-1997. It is for the State to.take stock of the ground 
realities and take a decision as to whether it is necessary to make 
provision for reservation in promotions to the aforesaid post as 
\VelJ." 
27. In S. Panneer Se/vam v. State of Tamil Nadu18, question before 
the Court was whether in absence of any policy decision by the State 
for giving consequential seniority to candidates promoted on the basis of 
reservation prior to a senior general category candidate, claim for 
consequential seniority could be accepted. Answering the question in 
the negative, it was held that in absence of provision for consequential 
seniority, 'catch up' rule will be applicable and the roster point promotees 
cannot claim such consequential seniority. The senior general candidates 
will regain their seniority on being promoted. Observations relevant in 
this regard are as follows : 
"34. If we look at the above comparative table of the service 
particulars of the appellants and the respondents, it is seen that 
the contesting respondents U. Palaniappan joined the service 
almost seven years after the appellants, his seniority is 
automatically accelerated at an unprecedented rate and as on 1-
4-2004 his seniority rank as ADE is 150 and seniority of V. 
Appadurai is 120. The appellants who are qualified and senior 
than the contesting respondents are placed much below in rank 'in 
comparison to the person
belonging to the reserved class 
promotees who were promoted following the rule of reservation. 
It is to be noted that the private respondents in the present case 
have been promoted temporarily under Rule 39(a) and Rule 
lO(aX1) of the General Rules with the condition that their inclusion 
in the promotional order shall not confer on them any right 
whatsoever in the service. Determination of seniority is a vital 
aspect in the service career of an employee and his future promotion 
is dependent on this. Therefore, determination of seniority must 
be based on some principles which are just and fair. In the absence 
of any policy decision taken or rules framed by the State ofTamil 
Nadu regarding TalT!il Nadu Highways Engineering Service, 
accelerated promotion given to the respondents following rule of 
reservation in terms of Rule 12 will not give them consequential 
accelerated seniority. 
"(2015) 1 sec 292 
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xxxx 
36. In the absence of any provision for consequential sen.iority in 
the IJlles, the "catch-up rule" will be applicable and the roster-
point reserved category promotees cannot count their seniority in 
the promoted category from the date of their promotion a11d the 
senior general candidates if later reach the promotional level, 
general candidates will regain their seniority. The Division llench 
appears to have proceeded on an erroneous footing that Article 
16( 4-A) of the Constitution of India automatically gives the 
consequential seniority in addition to accelerated promotion to the 
roster-point promotees and the judgment of the Division Bench 
cannot be sustained." 
26. It is clear from the above discussion that exercise for 
determining 'inadequacy ofrepresentation', 'backwardness' and 'overall 
efficiency', is a must for exercise of power under Article 16( 4A). Mere 
fact that there is no proportionate representation in promotional posts 
for the population of SCs and STs is not by itself enough to grant 
consequential seniority to promotees who are otherwise junior and thereby 
denying seniority to those who are given promotion later on account of 
reservation policy. It is for the State to place material on record that 
there was compelling necessity for exercise of such power and decision 
of the State was based on material including the study that overall 
efficiency is not
compromised. In the present case, no such exercise 
has been undertaken. The High Court erroneously observed that it was 
for the petitioners to plead and prove that the overall efficiency was 
adversely affected by giving consequential seniority to junior persons 
who got promotion on account of reservation. Plea that persons promoted 
at the same time were allowed to retain their seniority in the lower cadre 
is untenable and ignores the fact that a senior person may be promoted 
later and not at same time on account of roster point reservation. 
Depriving hin. Dfhis seniority affects his further chances of promotion. 
Further plea that se11iority was not a fundamental right is equally without 
any merit in the present context. In absence of exercise under Article 
16( 4A), it is the 'catch up' rule which is fully applies. It is not necessary 
to go into the question whether the concerned Corporation had adopted 
the rule of consequential seniority. 
27. In view of the above, we allow these appeals, set aside the 
impugned judgment and declare the provisions of the impugned Act to
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 
[ADARSH KUMAR GOEL, J.] 
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. Tlie judgment will not affect those who 
have already retired and will not affect financial benefits already taken. 
Consequential pr0motions granted to serving employees, based on 
consequential seniority benefit, will be treated as ad hoc and liable to be 
reviewed. Seniority list may be now revised in the light of this judgment 
within three months from today. Further consequential action may be 
taken accordingly within next three months. 
Nidhi Jain 
Appeals allowed. 
657 
A 
B 
c