K PAVITHRA AND ORS. versus UNION OF INDIA AND ORS.
[2020] 4 S.C.R. 1041, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
A
B
C
D
E
F
G
H
1041
B K PAVITHRA AND ORS.
v.
UNION OF INDIA AND ORS.
(M.A. No. 1323 of 2019)
In
(Writ Petition (C) No. 764 of 2018)
MARCH 19, 2020
[UDAY UMESH LALIT AND
DR. DHANANJAYA Y CHANDRACHUD, JJ.]
Supreme Court Rules, 1966: Or.XL – On 10.05.2019,
judgment was rendered in B K Pavitra II whereby constitutionality
of the Reservation Act 2018 was upheld – Government of
Karnataka issued GO dated 15.05.2019 – The Preamble to the GO
noted that on 27.02.2019, instructions were issued for implementing
Reservation Act 2018 subject to judgment that was to be delivered
on the validity of Reservation Act 2018 – Following the judgment
in B K Pavitra II upholding the Reservation Act 2018, the
Government of Karnataka by GO dated 15.05.2019 directed all
appointing authorities to abide by GO dated 27.02.2019 in
implementation of the Reservation Act 2018 – On 24.06.2019, a
circular was issued by the Government of Karnataka noting that
while preparing seniority lists in conformity with GO dated
27.02.2019, meetings were held following which a list of FAQs was
prepared with the answers – Grievance of the applicants is that
until the backlog is cleared, the proportion of Scheduled Castes/
Scheduled Tribes will exceed 15% and 3% – MAs challenging the
action of State Government to carry into effect the provisions of
the Reservation Act, 2018 – Maintainability of – Held: The
judgment 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 instant MAs, though styled
as applications for directions, sought 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 GO dated 15 May 2019
and Circular dated 24 June 2019, both of which are subsequent
   [2020] 4 S.C.R. 1041
1041
A
B
C
D
E
F
G
H
1042
SUPREME COURT REPORTS
[2020] 4 S.C.R.
to the judgment of this Court in  B K Pavitra  II – The remedy,
styled as directions, sought by the applicants cannot lie in the form
of MAs – MAs are in effect a substantive challenge to the actions
of the State Government in implementing the Reservation Act 2018
through GO dated 15.05.2019 and the circular dated 24.06.2019
– If the applicants were aggrieved by the steps which were taken
by the State Government, it was open to them to pursue a
substantive remedy for challenging the steps taken by the State
Government in independent proceedings – MAs of this nature are
not maintainable – Karnataka Extension of Consequential Seniority
to Government Servants Promoted on the Basis of Reservations (to
the posts in the Civil Services of the State) Act 2018.
Supreme Court Rules, 1966: Or.LV r.6 – Exercise of power
under, scope – Held: Or.LV empowers Supreme Court to, for
sufficient cause, excuse parties from compliance with any of the
requirements of 2013 Rules and issue such directions as it
considers just and expedient – r.6 of Or.LV mirrors the constitutional
power conferred under Art.142 of the Constitution which empowers
the Supreme Court to pass such decree or make such order as is
necessary for doing complete justice – Constitution of India –
Art.142 – Supreme Court Rules, 2013.
B K Pavitra & Ors. v. Union of India & Ors. (2019)
16 SCC 129 ; Himachal Pradesh Scheduled Tribes
Employees Federation v. Himachal Pradesh
Samanaya
Varg Karamchari Kalayan Mahasangh  (2013) 10 SCC
308 : [2013] 9  SCR 384 ; Abu Salem Abdul  Qayyum
Ansari v. Central Bureau of Investigation (2013) 12
SCC 1 : [2013] 7 SCR 1061 ; Nagaraj v. Union of
India (2006) 8 SCC 212 : [2006] 7  Suppl.  SCR
336 ; Delhi Administration v. Gurdip Singh Uban
(2000) 7 SCC 296 : [2000] 2 Suppl. SCR 496 ; Zahira
Habibullah Sheikh v. State of Gujarat (2004) 5 SCC
353 : [2004] 2 Suppl. SCR 571 ; Common Cause v.
Union of India (2004) 5 SCC 222 ; Ram Chandra
Singh v. Savitri Devi (2004) 12 SCC 713 ; APSRTC v.
Abdul Karim (2007) 3 SCJ 168 ; M C Mehta v. Union
of India (2019) 2 SCJ 640 – referred to.
A
B
C
D
E
F
G
H
1043
Case Law Reference
(2019) 16 SCC 129
referred to
Para 1
[2013] 9 SCR 384
referred to
Para 8
[2013] 7 SCR 1061
referred to
Para 8
[2006] 7 Suppl. SCR 336
referred to
Para 9
[2000] 2 Suppl. SCR 496
referred to
Para 19
[2004] 2 Suppl. SCR 571
referred to
Para 20
(2004) 5 SCC 222
referred to
Para 20
(2004) 12 SCC 713
referred to
Para 20
(2007) 3 SCJ 168
referred to
Para 20
(2019) 2 SCJ 640
referred to
Para 20
CIVIL ORIGINAL JURISDICTION : Miscellaneous Application
No. 1323 of 2019 in Writ Petition (Civil) No. 764 of 2018.
Under Article 32 of the Constitution of India
With
Miscellaneous Application No. 1325/2019 in Writ Petition (Civil)
No. 850/2018 and Miscellaneous Application No. 1324/2019 in Writ
Petition (Civil) No. 769/2018.
Dr. Rajeev Dhavan, Shekhar Naphade, Ms. Indira Jaising, Dinesh
Dwivedi, Basava Prabhu S. Patil, R. Balasubramaniam, Sr. Advs.,
Kumar Parimal, Smarhar Singh, Anuj Saxena, Mohd. Naved,
Ms. Nehmat Kaur, Prakash Sharma, Rameshwar Prasad Goel,
Ms. Prakrati Raj, Achyut Saxena, Mohd. Naved, Rahul Dev Singh, V.N.
Raghupathy, Ms. Rachitha Hiremath, Chinmay Deshpande, Geet Ahuja,
Mahendra Pal Gupta, Prakash Jadhav, Shubrahanshu Padhi, Ashish
Yadav, Rakshit Jain, Ms. Shraddha Deshmukh, B.V. Balaram Das, S.K.
Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Dinesh Kumar Garg,
Dhananjay Garg, Abhishek Garg, S.J. Amith, Dr. (Mrs.) Vipin Gupta,
Sarbendra Kumar, R.P. Goyal, Kabir Dixit, Joseph Aristotle S., Advs.
for the appearing parties.
B K
PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.
A
B
C
D
E
F
G
H
1044
SUPREME COURT REPORTS
[2020] 4 S.C.R.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. On 10 May 2019, this Court delivered its judgment in B K
Pavitra & Ors. v Union of India & Ors.1 (“B K Pavitra II”),
upholding the constitutional validity of the Karnataka Extension of
Consequential Seniority to Government Servants Promoted on the Basis
of Reservations (to the Posts in the Civil Services of the State) Act
20182. The conclusion which was arrived at by the Court is extracted
below:
“144. For the above reasons, we have come to the conclusion
that the challenge to the constitutional validity of the Reservation
Act 2018 is lacking in substance. Following the decision in B K
Pavitra I, the State government duly carried out the exercise of
collating and analysing data on the compelling factors adverted
to by the Constitution Bench in Nagaraj. The Reservation
Act 2018 has cured the deficiency which was noticed by B K
Pavitra I in respect of the Reservation Act 2002. The
Reservation Act 2018 does not amount to a usurpation of judicial
power by the state legislature. It is Nagaraj and Jarnail
compliant. The Reservation Act 2018 is a valid exercise of the
enabling power conferred by Article 16 (4A) of the Constitution.”
2. 277 applicants are before this Court in three Miscellaneous
Applications3. The reliefs sought in the lead MA are thus:
“(a) Direct the State of Karnataka to implement ‘post based
reservation’ in terms of the
judgment passed by this
Hon’ble Court in R.K. Sabharwal vs State of Punjab –
(1995) 2 SCC 745 and to re-work all promotions on
‘post’ basis before any further action.
(b) Direct the State of Karnataka to apply ‘creamy layer’
and to exclude individuals belonging to the Scheduled
Castes and Scheduled Tribes who no longer require
reservation under Article 16(4-A) of the Constitution
with a further direction to the State to apply creamy
layer at entry level to disqualify those who were creamy
1 (2019) 16 SCC 129
2 “Reservation Act 2018”
3 “MAs”
A
B
C
D
E
F
G
H
1045
layer at that stage and to conduct the exercise from 17th
June, 1995, i.e. the date of the Seventy Seventh
Amendment.
(c) estrain the State and its instrumentalities from taking any
action where, no exercise is undertaken for that service
or cadre on adequacy or where there is adequacy of
representation particular when every specific application
of order in relation to each cadre must be Nagaraj
compliant.”
Similar reliefs have been sought by the applicants in the other
two MAs.
3. Dr Rajeev Dhavan, learned Senior Counsel prefaced his
arguments by submitting that:
(i) The present MA is for directions and not for review of
the recent judgment of this Court in B K Pavitra II;
and
(ii) The directions which have been sought emanate from
the judgment of this Court in B K Pavitra II.
4. The Government of Karnataka issued a Government Order4
on 15 May 20195. The preamble to the GO notes that on 27 February
2019, instructions have been issued for implementing the Reservation
Act 2018 subject to the judgment that would be delivered by this Court
on the validity of the Reservation Act 2018. Subsequently, in pursuance
of an interim order of this Court dated 1 March 2019,6 instructions were
issued in a GO dated 5 March 2019 to the effect that no further action
should be taken for implementing the GO dated 27 February 2019
until further directions. Following the judgment of this Court in B K
Pavitra II upholding the Reservation Act 2018, the Government of
Karnataka,
by the GO dated 15 May 2019 withdrew the earlier GO
dated 5 March 2019 and directed all appointing authorities to abide by
the GO dated 27 February 2019 in the implementation of the Reservation
Act 2018.
5. On 24 June 2019, a circular was issued by the Government
of Karnataka7. The circular notes that while preparing the seniority lists
4 “GO”
5 Government Order No. DPAR 186 SRS 2018, Bengaluru.
6 In IA 36981 of 2019 in Writ Petition (C) No. 764 of 2019
7 No : DPAR 186 SRS 2018
B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
1046
SUPREME COURT REPORTS
[2020] 4 S.C.R.
in conformity with the GO dated 27 February 2019, meetings were held
under the auspices of the Chief Secretary and Additional Chief
Secretary to the Government of Karnataka, following which a list of
Frequently Asked Questions8 has been prepared together with answers.
The annexure to the circular contains a reference to the FAQs and
the answers provided by the Government.
6. Dr Rajeev Dhavan, learned Senior Counsel has more
specifically adverted to items 2 and 3 of the FAQs in the annexure
which are extracted below:
“2.Whether to consider the scheduled caste and scheduled
tribe candidate for promotions for the purpose of
calculating their representation for such of the candidates
who are selected in general merit rather than against the
roaster points under direct recruitment.
Answer: Even though the scheduled caste and scheduled tribe
candidates are selected under general merit rather than against
roaster points under direct recruitment, they shall be considered
against their roaster points for the purpose of calculating their
representation. This has been clearly told in the Government
Order No. DPAR 29 SBC 77 dated 01.06.1978 and the same
point is explained in the form of an example in the Schedule of
the Act 2017.
3. Whether to consider the total no. of post in the
respective cadres while revising the seniority list from
27.04.1978? or to consider the number of Government
employees working in the respective cadre
(Excluding the
vacant post of the cadre strength)
Answer: The consequential seniority is to be given to those
belonging to the reserved category employees who have been
promoted against promotional roaster points at the time of revising
the seniority list from 27.04.1978 to 02.02.1999.
3.1 After the date 3.2.1999, only it is to be revised by considering
on the basis of total number of Government employees in the
respective cadres (Cadre working strength excluding vacant
posts). Thus it is not allowed to calculate the representation on
the basis of total number of posts in the respective cadres. In
8 “FAQs”
A
B
C
D
E
F
G
H
1047
this regard attention is drawn towards Government order number
DPAR 21 SBC 97 dated 03.02.1999 and Government order even
number dated 13.04.1999.”
7. The grievance of the applicants is that until the backlog is
cleared, the proportion of Scheduled Castes/Scheduled Tribes will
exceed 15 per cent and 3 per cent. The principal points which have
been urged in the present MAs are:
(i) The State government has not taken any step to correct
the illegality of following a vacancy-based roaster since
27 April 1978, when the policy of reservation in
promotions was introduced in the State Civil Services
of Karnataka;
(ii) The State government was bound by the statement
contained in its Counter Affidavit filed before this Court
in B K Pavitra II that the reservation policy would be
implemented on the principle of post-based reservations;
(iii) Since reservations in the state are contemplated
retrospectively from 27 April 1978, the State government
is obliged to apply the ‘creamy layer’ principle to
disqualify those who fall within the creamy layer at the
entry level and this exercise should be conducted at least
from 17 June 1995, when the Seventy Seventh
Amendment to the Constitution came into force; and
(iv) Though it was mandatory for the State of Karnataka to
balance Article 16(4-A) against Article 16(1) of the
Constitution and to collect cadre-wise data before
implementing the Reservation Act 2018, the GO dated
15 May 2019 and the circular dated 24 June 2019 are
silent on the above issues as a result of which, the State
government is implementing the Reservation Act 2018
in an arbitrary manner.
8. Dr Dhavan relied on the inherent powers of this Court, as
recognised by Order LV of the Supreme Court Rules 20139 to urge
that the invocation of the jurisdiction of this Court in the form of the
present MAs is based on the recourse to that inherent power. Reliance
9 “2013 Rules”
B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
1048
SUPREME COURT REPORTS
[2020] 4 S.C.R.
in this regard was placed on the decisions of this Court in Himachal
Pradesh Scheduled Tribes Employees Federation v Himachal
Pradesh Samanaya Varg Karamchari Kalayan Mahasangh10 and
Abu Salem Abdul Qayyum Ansari v Central Bureau of
Investigation11.
9. Mr Shekhar Naphade, learned Senior Counsel appearing on
behalf of the applicant in MA 1324 of 201912, submitted that no data
had been collected for the departments in which the applicants have
been engaged as required by the judgment of this Court in Nagaraj v
Union of India13.
10. Mr Basava Prabhu S Patil, learned Senior Counsel and Mr
Dinesh Dwivedi, learned Senior Counsel have opposed the MAs and
urged that:
(i) The prayers in the MAs are not adjunct to the main
decision of this Court in B K Pavitra II; and
(ii) The applicants have sought to challenge the subsequent
directions and clarifications issued by the State
government through the present MAs.
The MAs, it was urged, are not maintainable.
11. Ms Indira Jaising, learned Senior Counsel submitted that:
(i) No provision of law has been invoked while filing the
present MAs;
(ii) This Court, upon delivering its decision on 10 May 2019,
has been rendered functus officio;
(iii) There is a bar contained in Order XII Rule 3 of the 2013
Rules for entertaining such an application, except for
correcting arithmetical errors; and
(iv) A petition for review has been filed by the applicants
and hence the MAs are not
maintainable.
12. Addressing the Court on the reliefs which have been sought
in the MAs, Ms Jaising submitted that:
10 (2013) 10 SCC 308
11 (2013) 12 SCC 1
12 KPTCL General Category Association (Regd.)
13 (2006) 8 SCC 212
A
B
C
D
E
F
G
H
1049
(i) The relief which has been sought in prayer (a) is
founded on a fresh cause of action for re-drafting the
seniority list;
(ii) The nature of the reliefs sought require the filing of a
fresh substantive Writ Petition;
(iii) The relief in prayer (b) was not an issue in the judgment
of this Court in B K Pavitra II since the Court did not
deal with recruitment at the entry level, but with
promotions and consequential seniority thereto; and
(iv) Prayer (c) has been specifically dealt with and
considered in paragraph 96 of the judgment of this Court
in B K Pavitra II.
13. In rejoinder, Dr Dhavan submitted that:
(i) The concern is that the parties should not be required
to go through endless stages of litigation; and
(ii) The judgment delivered by this Court on 10 May 2019
requires directions and even the State government has
thought it fit so as to implement the Reservation Act
2018.
14. The rival submissions fall for consideration.
15. It is necessary for this Court to address at the outset the
preliminary objection raised by the learned counsel opposing the MAs
that, though styled as an application for directions, they seek to lay a
substantive challenge to the subsequent directions and clarifications
issued by the State government in implementing the Reservation Act
2018.
16. Order XII Rule 3 of the Supreme Court Rules provides that:
“3. Subject to the provisions contained in Order XLVII of these
rules, a judgment  pronounced by the Court or by a
majority of
the Court or by a dissenting Judge in open Court shall not
afterwards be altered or added to, save for the purpose of
correcting a clerical or arithmetical mistake or an error arising
from any accidental slip or omission.”
Rule 3 stipulates that, save for the purpose of correcting a clerical
or arithmetical mistake or any error arising from an accidental slip or
B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
1050
SUPREME COURT REPORTS
[2020] 4 S.C.R.
omission, no alteration or addition may be made to a judgment
pronounced by the Court. This is in keeping with the principle of
according finality to a judgment of the Court. The rule is made subject
to Order XLVII of the 2013 Rules which contains provisions for the
filing of a review before this Court. The parameters that guide the
exercise of the review jurisdiction of this Court are contained in Order
XLVII. Subject to the review jurisdiction of this Court, Rule 3 mandates
that the Court “shall not” alter or delete any part of a judgment that
has been pronounced, save for the purposes of minor corrections or
accidental mistakes.
 17. Order LV of the 2013 Rules titled ‘Power to Dispense and
Inherent Powers’ contains provisions that empower this Court to adopt,
notwithstanding anything contained in the Rules, such course as it
considers just and expedient. Order LV, in so far as is relevant provides
thus:
“1. The Court may, for sufficient cause shown, excuse the parties
from compliance with any of the requirements of these rules, and
may give such directions in matters of practice and procedure
as it may consider just and expedient.
…
6. Nothing in these rules shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders as
may be necessary for the ends of justice or to prevent abuse of
the process of the Court.”
Order LV empowers this Court to, for sufficient cause, excuse
parties from compliance with any of the requirements of the 2013 Rules
and issue such directions as it considers just and expedient. Rule 6 of
Order LV clarifies that nothing in the rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to make such orders
as may be necessary for the ends of justice or to prevent the abuse of
the process of the Court. Rule 6 of Order LV mirrors the constitutional
power conferred by Article 142 of the Constitution which empowers
this Court to pass such decree or make such order as is necessary for
doing complete justice.
18. Dr Rajeev Dhavan, learned Senior Counsel has urged that
this Court may issue the directions sought in exercise of its inherent
power. In effect, Order LV of the 2013 Rules has been pressed in aid
A
B
C
D
E
F
G
H
1051
of the submission that this Court may grant the reliefs sought in exercise
of its inherent power to do complete justice.
19. This Court has, on several previous occasions, considered
whether the filing of applications, though styled as applications for
directions/ modification/recall/correction are, in substance, of a different
nature and consequentially not maintainable. In Delhi Administration
v Gurdip Singh Uban14 (“Gurdip Singh”), this Court disapproved of
the practice of filing applications for “clarifications”, “modifications” and
“recall” of final judgments and orders, noting that this was an attempt
to bypass the provisions for review contained in Order XL of the
Supreme Court Rules 1966. The Court observed:
“17. We next come to applications described as applications for
“clarification”, “modification” or “recall” of judgments or orders
finally passed. We may point out that under the relevant Rule
XL of the Supreme Court Rules, 1966 a review application has
first to go before the learned Judges in circulation and it will be
for the Court to consider whether the application is to be rejected
without giving an oral hearing or whether notice is to be issued.
…
In case notice is issued, the review petition will be listed for
hearing, after notice is served. This procedure is meant to save
the time of the Court and to preclude frivolous review petitions
being filed and heard in open court. However, with a view to
avoid this procedure of “no hearing”,
we find that sometimes
applications are filed for “clarification”, “modification” or
“recall” etc. not because any such clarification,
modification is indeed necessary but because the applicant
in reality wants a review and also wants a hearing, thus
avoiding listing of the same in chambers by way of
circulation. Such applications, if they are in substance
review applications, deserve to be rejected straight away
inasmuch as the attempt is obviously to bypass Order XL Rule
3 relating to circulation of the application in chambers for
consideration without oral hearing…
By describing an application as one for “clarification” or
“modification”, — though it is really one of review — a
party cannot be permitted to circumvent or bypass the
14 (2000) 7 SCC 296
B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
1052
SUPREME COURT REPORTS
[2020] 4 S.C.R.
circulation procedure and indirectly obtain a hearing in the
open court. What cannot be done directly cannot be
permitted to be done indirectly.
(Emphasis supplied)
The Court observed that many applications, though styled as
applications for clarification or modification are, in substance,
applications for review. This practice was presumably adopted to bypass
the procedure stipulated for the consideration by this Court of review
petitions. A party, it was held, would not be permitted to circumvent
substantive procedures by filing such applications. With the above
observations, the Court affirmed a fundamental principle of 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
Gujarat15, Common Cause v Union of India16, Ram Chandra Singh
v Savitri Devi17 and APSRTC v Abdul Karim18.
21. Recently, in M C Mehta v Union of India19, 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
15 (2004) 5 SCC 353
16 (2004) 5 SCC 222
17 (2004) 12 SCC 713
18 (2007) 3 SCJ 168
19 (2019) 2 SCJ 640
A
B
C
D
E
F
G
H
1053
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
B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
1054
SUPREME COURT REPORTS
[2020] 4 S.C.R.
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.
30. We consequently dismiss the Miscellaneous Applications, but
leave it open to the applicants to pursue such independent remedies as
may be available in the law. We clarify that no observations have been
made on the merits of the matter.
31. Pending application(s), if any, shall stand disposed of.
Devika Gujral
M.As dismissed.