BAJRANG LAL SHARMA versus C. K. MATHEW AND ORS.
[2020] 1 S.C.R. 484, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Ratio
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BAJRANG LAL SHARMA
v.
C. K. MATHEW AND ORS.
(Contempt Petition (Civil) Nos. 453-454 of 2012)
JANUARY 23, 2020
[UDAY UMESH LALIT, INDIRA BANERJEE AND
M. R. SHAH, JJ.]
Contempt of Court:
Matter relating to reservation in promotion and consequential
seniority – Supreme Court in **Suraj Bhan Meena Case set aside
notifications providing for consequential seniority in promotion to
SC/ST employees holding that no exercise was undertaken in terms
of Article 16(4-A) of the Constitution, to acquire quantifiable data
regarding inadequacy of representation of SC/ST communities in
public services – Pursuant thereto Bhatnagar Committee constituted
– Committee in its report concluded that backwardness of SC/ST is
established on the basis of quantifiable data – Thereupon by
Notification dated 11.9.2011 Administrative Service Rules were
amended providing that reservation for SC/ST employees with
consequential seniority would continue till roster points are
exhausted and adequacy of promotion is achieved – In Contempt
Petition before High Court, the Court held that Notification dated
11.9.2011 was void – In appeal Supreme Court, in #Salauddin case
did not hold the contemnors guilty of contempt – Present contempt
petition before Supreme Court – Held: The Notification dated
11.9.2011 was not found to be in contempt nor was invalidated for
non-compliance of any binding directions in #Salauddin Case – The
Notification dated 11.9.2011 was
issued in exercise of powers vested
in the authorities concerned – Such issuance cannot be said to be
contumacious to invite any action in contempt jurisdiction –
Contempt petitions are closed.
Closing the contempt petitions, the Court
HELD : 1. The law declared by this Court in *M. Nagraj
which was followed in **Suraj Bhan Meena is clear that in the
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absence of any quantifiable data relating to the issue of
backwardness and inadequacy of representation of the concerned
classes in public employment, no benefit of consequential
seniority could be extended. Therefore, in **Suraj Bhan Meena,
the Notifications dated 28.12.2002 and 25.8.2008 providing for
consequential seniority in promotion to the Members of the SC/
ST communities were set aside. [Para 14] [509-F-G]
2. Since the decision in **Suraj Bhan Meena Case was on
the premise that no such exercise was undertaken to acquire
quantifiable data, the State Government constituted the Bhatnagar
Committee. The Committee went into the issues and made certain
recommendations based on which a Notification was issued by
the State Government on 11.9.2011. High Court by its judgment
and order dated 23.2.2012 found said Notification to be not in
compliance of binding directions and to be invalid. The decision
in #Salauddin Case set aside the view taken by the High Court.
Thus, the issuance of Notification dated 11.9.2011 was not found
to be in contempt nor was it invalidated for being non-compliant
of any binding directions. [Para 15] [510-A-D]
3. The directions issued by this Court in #Salauddin Case
were clear that the State and its authorities were to act in terms
of the report of the Bhatnagar Committee in accordance with the
decisions in *M. Nagraj and **Suraj Bhan Meena. The basic
foundation of the present contempt petitions projecting the
issuance of
Notification dated 11.9.2011 to be in contempt of the
directions issued by this Court, thus, does not survive. In any
case, challenge to said Notification and the report of the Bhatnagar
Committee is still pending consideration before the High court
where the correctness and validity thereof will be gone into in
accordance with law. [Para 16] [510-D-F]
4.  With the decision of this Court in ##Jarnail Singh case,
the matter also stands on a slightly modified footing. As concluded
by this Court in ##Jarnail Singh case, the conclusion in *M.
Nagraj that the State has to collect quantifiable data showing
backwardness of SC/ST, being contrary to the 9 Judges Bench
decision in ***Indra Sawhney case, was held to be invalid. The
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challenge to the recommendations given by the Bhatnagar
Committee and the quantifiable data adverted to by the
Committee will therefore have to be seen by the High Court in
the light of the directions issued by this Court in ##Jarnail Singh
case. [Para 17] [510-F-G]
5. The issuance of Notification dated 11.9.2011 was in
exercise of powers vested in the concerned authorities and if the
approach and the exercise is otherwise incorrect or wrong, the
same can be tested and considered while dealing with the
substantive challenge but such issuance cannot be said to be
contumacious to invite any action in contempt jurisdiction. Thus,
there is no reason to entertain these contempt petitions any
longer. These contempt petitons are directed to be closed.
[Paras 18 and 19] [510-H; 511-A-B]
*M. Nagaraj v. Union of India (2006) 8 SCC 212 :
[2006] 7 Suppl. SCR 336 ; **Suraj Bhan Meena and
another v. State of Rajasthan and others (2011) 1 SCC
467 : [2010] 14  SCR 532 ; ***Indra Sawhney v. Union
of India 1992 Supp (2) SCC 217 : [1992] 2 Suppl.  SCR 
454 ; #Salauddin Ahmed and another v. Samta Andolan
(2012) 10 SCC 235 : [2012] 7 SCR 402 ; ##Jarnail
Singh and others v. Lachhmi Narain Gupta and others
(2018) 10 SCC 396 : [2018] 10 SCR 663 – referred
to.
Case Law Reference
[2010] 14 SCR 532
referred to
Para 1
[2012] 7 SCR 402
referred to
Para 1
[2006] 7 Suppl. SCR 336
referred to
Para 3.1
[2018] 10 SCR 663
referred to
Para 10
[1992] 2
Suppl. SCR 454 
referred to
Para 17
INHERENT JURISDICTION : Contempt Petition (Civil) Nos.
453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012.
Petitions filed for non-compliance of the order dated 29.08.2012
passed in Civil Appeal Nos. 2504-2505 of 2012.
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M. L. Lahoti, Paban K. Sharma, Anchit Sripat, Umesh Pratap
Singh, R. C. Kohli, Advs. for the Petitioner.
Dr. Manish Singhvi, Sr. Adv., Shailja Nanda, Arpit Prakash, D. K.
Devesh, Milind Kumar, Advs. for the alleged contemnors/Respondents.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These Contempt Petitions seek to highlight non-compliance of
directions issued by this Court in its Judgments dated 07.12.2010 in Suraj
Bhan Meena and another  vs.  State of Rajasthan and others1 and
29.08.2012 in Salauddin Ahmed and another  vs.  Samta Andolan2
and seek initiation of contempt proceedings against the alleged
contemnors/respondents.
2. The Contempt Petitioner, a Rajasthan Administrative Officer
of 1982 batch, had preferred DB Civil Writ Petition No.8104 of 2008
before the High Court3 for following reliefs:-
(i)
By an appropriate writ, order or direction the Hon’ble Court
may be pleased to quash and set aside the notification dated
25.04.2008.
(ii)
By further appropriate writ order or direction the Hon’ble
Court may be pleased to direct respondents to strictly adhere
to the “catch-up rule” and revise the seniority of all the
petitioners in comparison to SC/ST candidates after giving
the benefit of regaining of the seniority by the general
category candidates as envisaged by the circular dated
01.04.1997 and provisional seniority list dated 26.06.2000.
(iii)
By further appropriate writ order or direction the Hon’ble
Court may be pleased to
declare the circular dated
20.10.2000 unconstitutional and illegal as the same is not in
accordance with the theory of compartmentalization.
(iv)
By further appropriate writ order or direction the Hon’ble
Court may be pleased to further direct respondents to revise
the seniority list since 1982 as the benefit of seniority given
1 (2011) 1 SCC 467
2 (2012) 10 SCC 235
3 High Court of Rajasthan, Jaipur Bench, Jaipur
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to the reserved category candidates before 1995 in
accordance with the Rule 33 of RAS Rules, 1954 is illegal.
(v)
By further appropriate writ order or direction the Hon’ble
Court may be pleased to restrain the respondents to provide
consequential seniority of SC/ST candidates as the Rules
were not framed in pursuance of Article 16(4-A).  In
alternative if Rule 33 talks about giving benefit of
consequential seniority then that rule be declared
unconstitutional to the extent it provides consequential
seniority to SC/ST employees.
(vi)
By further writ, order or direction the respondents be directed
to strictly adhere to post based roster system as envisaged
by R.K. Sabharwal’s case and respondents be further
directed to bifurcate 53 seats occurring in 2008 because of
the selection to IAS post in their respective years of vacancies
for the sake of holding year wise DPCs for those years.
(vii) By further writ, order or direction the respondents be
restrained to provide the benefit of reservation in promotion
with consequential seniority unless and until they establish
the existence of three compelling reasons as enunciated in
the judgment of M. Nagraj.
(viii) By further writ, order or direction the respondents be directed
to revise the seniority of all the petitioners and they should
be given the benefit of their seniority in pursuance of the
“catch-up rule”.
(ix)
By further writ, order or direction the respondents be
restrained to make any selection for IAS cadre through
promotion till disposal of this writ petition.
3. The High Court by its judgment and order dated 05.02.20104
quashed the notifications dated 25.04.2008 and 28.12.2002 and all
consequential actions.  The challenge to the judgment of the High Court
was considered by this Court and by its decision in Suraj Bhan1 the
view taken by the High Court was affirmed.  The factual background
was considered by this Court as under:-
4 Bajrang Lal Sharma  vs.  State of Rajasthan, WP (C)No.8104 of 2008 (Raj) and other
connected matters
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“4. All the writ petitioners, as also the petitioners in SLP (C) No.
6385 of 2010, are members of the Rajasthan Administrative
Service and are governed by the Rajasthan Administrative Service
Rules, 1954. The writ petitioners in their respective writ petitions
challenged the Notification dated 25-4-2008, issued by the State
of Rajasthan in exercise of its powers conferred by the proviso to
Article 309 of the Constitution of India amending the Rajasthan
“Various Service Rules” with effect from 28-12-2002.
5. According to the writ petitioners, they had been inducted in the
Rajasthan Administrative Service in December 1982, through
selection by the Rajasthan Public Service Commission. Vide notice
dated 26-6-2000, the State Government issued a provisional
seniority list of Rajasthan Administrative Service Selection Grade
as on 1-4-1997, in which Writ Petitioner 1, Bajrang Lal Sharma,
was placed above Suraj Bhan Meena (Scheduled Tribe) and Sriram
Choradia (Scheduled Caste).
6. The said seniority list was published pursuant to the order of
this Court dated 16-9-1999, passed in Ajit Singh (II) v. State of
Punjab5 and another order of the same date in Ram Prasad v.
D.K. Vijay6. Once again provisional seniority lists were published
on 27-11-2003 and 12-5-2008. Subsequently, the State of Rajasthan
published the final seniority lists of super-time scale and selection
scale of the service on 24-6-2008 as on 1-4-1997 and provisional
seniority list dated 2-7-2008 as on
1-4-2008, wherein the name of
Bajrang Lal Sharma was shown below the names of both Suraj
Bhan Meena and Sriram Choradia.
7. The Notification dated 25-4-2008, which was the subject-matter
of challenge in the writ petition was challenged on two grounds. It
was firstly contended that the proviso dated 28-12-2002, which
had been added to the Various Service Rules was subject to the
final decision of this Court in Writ Petition (Civil) No. 234 of 2002
filed in All India Equality Forum v. Union of India, but the
same was yet to be decided. Therefore, during the pendency of
the writ petition before this Court, the respondents had acted
improperly in deleting the abovementioned proviso in the Various
Service Rules by the Notification dated 25-4-2008, which amounted
5 (1999) 7 SCC 209
6 (1999) 7 SCC 251
BAJRANG LAL SHARMA v. C. K. MATHEW AND ORS.
[UDAY UMESH LALIT, J.]
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to giving a consequential seniority to candidates belonging to the
Scheduled Castes and Scheduled Tribes, which could not have
been given without quantifying the figures of Scheduled Caste
and Scheduled Tribe candidates to enable a decision to be arrived
at that reservation was required in promotion and also to show
that the State had to pass such orders for compelling reasons,
such as, backwardness, inadequacy of representation, as held by
this Court in M. Nagaraj v. Union of India7. It was contended
that since the State Government had not complied with the
directions given by this Court in M. Nagaraj case7, the notification
in question was liable to be quashed.
8. It was further urged on behalf of the writ petitioner Bajrang
Lal Sharma, that in Indra Sawhney v. Union of India8, this Court
had held that Article 16(4) of the Constitution of India did not
permit reservations in the matter of promotion. Thereafter, the
Constitution (Seventy-seventh Amendment) Act, 1995, was
enacted and came into force on 17-6-1995. The subsequent special
leave petitions filed in Union of India v. Virpal Singh Chauhan9,
Ajit Singh Januja v. State of Punjab10 [Ajit Singh (I)] and Ajit
Singh (II) v. State of Punjab5, introduced the “catch-up” rule
and held that if a senior general candidate was promoted after
candidates from the Scheduled Castes and Scheduled Tribes have
been promoted to a particular cadre, the senior general candidate
would regain his seniority on promotion in relation to the juniors
who had been promoted against reserved vacancies.”
3.1 After considering the decision of the Constitution Bench of
this Court in M. Nagaraj7 the matter was concluded as under:-
“60. The vital issue which fell for determination was whether by
virtue of the implementation of the constitutional amendments,
the power of Parliament was enlarged to such an extent so as to
ignore all constitutional limitations and requirements.
61. Applying the “width” test and “identity” test, the Constitution
Bench held that firstly, it is the width of the power under the
impugned amendments introducing amended Articles 16(4-A) and
7 (2006) 8 SCC 212
8 1992 Supp. (3) SCC 217
9 (1995) 6 SCC 684
10 (1996) 2 SCC 715
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16(4-B) that had to be tested. Applying the said tests, the
Constitution Bench, after referring to the various decisions of this
Court on the subject, came to the conclusion that the Court has to
be satisfied that the State had exercised its power in making
reservation for Scheduled Caste and Scheduled Tribe candidates
in accordance with the mandate of Article 335 of the Constitution,
for which the State concerned would have to place before the
Court the requisite quantifiable data in each case and to satisfy
the Court that such reservation became necessary on account of
inadequacy of representation of Scheduled Caste and Scheduled
Tribe candidates in a particular class or classes of posts, without
affecting the general efficiency of service.
62. The Constitution Bench went on to observe that the
constitutional equality is inherent in the rule of law. However, its
reach is limited because its primary concern is not with efficiency
of the public law, but with its enforcement and application. The
Constitution Bench also observed that the width of the power and
the power to amend together with its limitations, would have to be
found in the Constitution itself. It was held that the extension of
reservation would depend on the facts of each case. In case the
reservation was excessive, it would have to be struck down.
63. It was further held that the impugned Constitution Amendments,
introducing  Articles  16(4-A)  and  16(4-B), had been inserted
and flow from
Article 16(4), but they do not alter the structure of
Article 16(4) of the Constitution. They do not wipe out any of the
constitutional requirements such as ceiling limit and the concept
of creamy layer on one hand and Scheduled Castes and Scheduled
Tribes on the other hand, as was held in Indra Sawhney case8.
64. Ultimately, after the entire exercise, the Constitution Bench
held that the State is not bound to make reservation for Scheduled
Caste and Scheduled Tribe candidates in matters of promotion
but if it wished, it could collect quantifiable data touching
backwardness of the applicants and inadequacy of representation
of that class in public employment for the purpose of compliance
with Article 335 of the Constitution.
65. In effect, what has been decided in M. Nagaraj case7 is part
recognition of the views expressed in Virpal Singh Chauhan
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[UDAY UMESH LALIT, J.]
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case9, but at the same time upholding the validity of the Seventy-
seventh, Eighty-first, Eighty-second and Eighty-fifth Amendments
on the ground that the concepts of “catch-up” rule and
“consequential seniority” are judicially evolved concepts and could
not be elevated to the status of a constitutional principle so as to
place them beyond the amending power of Parliament.
Accordingly, while upholding the validity of the said amendments,
the Constitution Bench added that, in any event, the requirement
of Articles 16(4-A) and 16(4-B) would have to be maintained and
that in order to provide for reservation, if at  all, the tests indicated
in Articles 16(4-A) and 16(4-B) would have to be satisfied, which
could only be achieved after an inquiry as to identity.
66. The position after the decision in M. Nagaraj case7 is that
reservation of posts in promotion is dependent on the inadequacy
of representation of members of the Scheduled Castes and
Scheduled Tribes and Backward Classes and subject to the
condition of ascertaining as to whether such reservation was at
all required.
67. The view of the High Court is based on the decision in M.
Nagaraj case7 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.
68. Accordingly, the claim of petitioners Suraj Bhan Meena and
Sriram Choradia in Special Leave Petition (Civil) No. 6385 of
2010 will be subject to the conditions laid down in M. Nagaraj
case7 and is disposed of accordingly. Consequently, Special Leave
Petitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the
State of Rajasthan, are also dismissed.”
3.2. Thus, the view taken by the High Court that no exercise was
undertaken in terms of Article 16(4-A) of the Constitution to acquire
quantifiable data regarding inadequacy of the representation of the
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Scheduled Caste (SC) and Scheduled Tribe (ST) communities in public
services, was accepted.
4. On 31.03.2011 the State Government constituted a Committee,
known as Bhatnagar Committee, to look into different aspects relating
to reservation in promotion and consequential seniority in terms of the
Judgment of this Court in M. Nagaraj7.  The Terms of Reference of the
Committee were:-
“1. Collection and analysis of quantifiable data of inadequacy of
representation of SC and ST in matters of their promotions and
consequential seniority.
2. To ascertain the extent of representation of members of the
SC/ST at each level of promotion in the various levels of each
cadre (There are 110 government cadres in the State).
3. Recommend the guiding principles of maintaining administrative
efficiency vis-à-vis reservation in promotion of SC/STs.”
4.1 The Committee submitted its Report to the State Government
on 19.08.2011. Some of the relevant portions of the Report were as
under:-
“10.5. Overall analysis of inadequacy in State and Subordinate
Services as on 1.4.2010
Total Number of State Service 11457
Subordinate 64803
Grand Total 76260
Total number of Levels/Grade Pay State Service 12
Subordinate 13
Total  25
The overall picture after analyzing the position in the Grade Pay
Wise of State and Subordinate Services, in fact, indicates highly
inadequate representation for SC and ST in these services as
further detailed below.
10.5.1.  Inadequacy of Representation in
Subordinate Services.
There are thirteen levels for Subordinate Services as described in
Sections 10.4.13 to 1.4.25 i.e. Grade Pays 1650 to 4800 and among
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[UDAY UMESH LALIT, J.]
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them they represent a total of 64326 employees which is almost
84% of the total of State and subordinate services.  In the first
group taken up for detailed analysis of 6 levels i.e. 2800 to 4800.
It would be seen that one level of 2800 has only 128 posts and can
be left out.  In the remaining five levels it can be seen that out of
20 results each for SC and ST in the five tables above, for the SC
there are results of Alarming Shortage, 5 for Substantial Shortage,
5 for Moderate Shortage and 1 showing Marginal Shortage.  In
two cases the cadres are saturated and excess representation
has been indicated only in 3 cases (2 Moderate and 1 Marginal).
In the case of ST there are 11 results showing Alarming Shortage,
2 showing Substantial Shortage, 3 showing Moderate Shortage
and 2 showing Marginal Shortage.  In the remaining 2 cases cadres
are saturated.  In the remaining seven levels from 1650 to 2400,
four out of them i.e., 1650, 1800, 1850 and 2100 consist of small
numbers are of no consequence.  In the remaining levels at 1900,
2000 and 2400, 12 results each for SC and ST do not show any
case of alarming excess, there are two cases of moderate excess
and 5 cases of marginal excess.  On the contrary, there are 4
cases of alarming shortages, 6 of substantial shortages, five of
moderate shortages and one of marginal shortage.
10.5.2. Inadequacy of Representation in State Services.
Out of 12 levels for state services, the
initial four levels i.e., 4800,
5400, 6000 and 6600 represent 17408 employees, i.e. almost 87%
of the total of state services.  Again out of 15 results each for SC
and ST, in case of SC 6 showing Alarming Shortage, 3 show
Substantial Shortage, 6 show Moderate Shortage and only 1 shows
Marginal Excess.  In the case of ST, there are 11 results showing
Alarming Shortage, 3 showing substantial shortage and 1 showing
Moderate Shortage.  The remaining one result is of Marginal
Excess.  In another group of two levels i.e., 7600 and 8700
representing 2244 employees indicate a mixed picture bordering
towards Inadequacy.  Exactly out of 8 results for SC and ST each
for SC there are 4 results showing Alarming Shortage and 1
showing Marginal Shortage.  There is one case of Substantial
Excess and one each of Moderate and Marginal Excess.
In the case of ST there are 2 results showing Alarming Shortage,
1 result of Marginal Substantial Shortage.  1 case of Moderate
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Shortage and 2 results of Marginal Shortage.  Finally, there is one
case of Marginal Excess.
A third group of two levels i.e., 7000 and 7200 representing only
72 employees indicates saturation levels for both SC and ST.  The
last remaining group consisting of 4 levels i.e., 6800, 8200, 8900
and 10000 representing only 240 employees generally indicate
excess representation.  In fact, nut of a total number of 16 results
for SC and ST each, for SC 3 indicate Alarming Shortage and 1
shows a Marginal Shortage.  In 1 case the result shows saturation
of the cadre.  The remaining 11 results show 3 Alarming Excess,
4 Substantial Excess, 2 Moderate Excess and 2 results are of
Marginal Excess.  In the case of ST there are 6 cases of Alarming
Shortage, 1 case of Substantial Shortage, 1 case of Moderate
Shortage and 2 cases of Marginal Shortage.  In the remaining
cases there are 4 cases of Alarming Excess, 1 case of Marginal
Excess and 1 case of Cadre Saturation.”
4.2. From paragraphs 10.11.4 onwards the Committee considered
figures of excess/shortage of reserved candidates in different grades
and put the concerned data in tabulated form and the conclusions were
summarized as under:-
“16.1. Annual Census of State Government Employees carried
out by Directorate of Statistics.
Figures of years 1997, 2001, 2005 and 2009 of the census indicate
that the representation of SC and ST in public services has
increased from 18.59% to 27.19%.  The Pay Range Wise census
has also
indicated that the existing levels just seem to be reaching
the required percentage in the lowest pay ranges but they are still
far behind in the higher pay ranges. (Section 9.1.2.2.).
…
…
…
16.7. Backwardness of SC and ST well established on the basis
of Quantifiable Data.
The Committee finds that backwardness of SC and ST is well
established on the basis of quantifiable data. (Section 11.5).”
5. On 11.09.2011 a notification was issued in the Gazette amending
the Rajasthan Administrative Service Rules, 1954 as under:-
BAJRANG LAL SHARMA v. C. K. MATHEW AND ORS.
[UDAY UMESH LALIT, J.]
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“DEPARTMENT OF PERSONNEL
(A-Gr.-II)
NOTIFICATIONS
Jaipur, September 11, 2011
G.S.R. 67.- In exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India, the Governor of Rajasthan
hereby makes the following rules further to amend in the Rajasthan
Administrative Service Rules, 1954, namely:-
1.
Short title and commencement.- (1) These rules may be
called the Rajasthan Administrative Service (Amendment)
Rules, 2011.
(2) They shall be deemed to have come into force w.e.f.
1-4-1997.
2.
Amendment of rule 33.- In sub-rule (1) of rule 33 of the
Rajasthan Administrative Service Rules, 1954 after the
existing last proviso, the following new proviso at the next
serial number shall be added, namely:-
“that reservation for Scheduled Castes and Scheduled
Tribes employees, with consequential seniority, shall
continue till the roster points are exhausted; and adequacy
of promotion is achieved.
Once the roster points are complete the theory of
replacement shall thereafter be exercised in promotion
whenever vacancies earmarked for Scheduled Castes/
Scheduled Tribes employees occur.
If on the application of these provisions Scheduled
Castes/Scheduled Tribes employees who had been
promoted earlier and are found in excess of adequacy
level, shall not be reverted and shall continue on ad-hoc
basis, and also any employee who had been promoted in
pursuance to Notification No. F7(1)DOP/A-II/96 dated
1-4-1997
shall not be reverted.
Notification No. F.7(1)DOP/A-II/96 dated 1-4-1997 shall
be deemed to have been repealed w.e.f. 1-4-1997.
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Explanation:- Adequate representation means 16%
representation of the Scheduled Castes and 12%
representation of the Scheduled Tribes in accordance
with the roster point.”
6. In DB Civil Contempt Petition No. 941 of 2010 which was filed
earlier in the High Court seeking implementation of the directions issued
by the High Court in its judgment and order dated 05.02.2010 in DB
Civil Writ Petition No.8104 of 2008, the High Court by its judgment and
order dated 23.02.2012 found the alleged contemnors to be guilty of
violation of the judgment and order dated 05.02.2010.  The High Court
held the notification dated 11.09.2011 to be void holding that the same
did not amount to valid compliance.
7. The matter again reached this Court in the form of challenge to
said decision of the High Court and was dealt with by this Court in its
decision in Salauddin2.
7.1. The submissions in respect of the notification dated 11.09.2011
were noted as under:-
“18. Appearing for the appellants, the learned Attorney General
pointed out that the Notification issued by the State Government
on 11-9-2011, had been declared void by the High Court by holding
that the same did not amount to valid compliance and the
Notification dated 1-4-1997 should be given effect to. The learned
Attorney General submitted that since by the Notification dated
11-9-2011, the earlier Notification dated 1-4-1997 had been
withdrawn, the same could not be given effect to without first
declaring the
Notification dated 11-9-2011 to be ultra vires.
19. The learned Attorney General submitted that the Notification
dated 11-9-2011 could not have been declared ultra vires in the
absence of a substantive writ petition challenging the same, and,
in any event, it could not be questioned in a contempt proceeding
or be declared ultra vires therein, particularly, when the Bhatnagar
Committee had been appointed in terms of the order passed by
this Court in M. Nagaraj case7 and the Notification dated 11-9-
2011 was issued in pursuance of the report of the said Committee.
…
…
…
BAJRANG LAL SHARMA v. C. K. MATHEW AND ORS.
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38. Dr Dhavan fairly conceded that an order may be violated
without any wilful intent to disobey the same. Referring to Para
459 of Halsbury’s Laws of England, dealing with “unintentional
disabilities”, Dr Dhavan pointed out that sometimes it may so
happen that an order of court is breached without any intention on
the part of the offender to do so. Dr Dhavan submitted that this
could be such a case and, accordingly, the contemnors could be
directed to purge themselves of the contempt by withdrawing all
the notifications, including the Notification dated 11-9-2011, and
implementing the order dated 5-2-20104, and also to punish the
contemnors without sentence.”
7.2. The issue whether the State and its authorities were guilty of
willful and deliberate violation of binding directions was considered by
this Court as under:-
“41. Inasmuch as no further action was taken by the State and its
authorities after the said notifications were quashed, the contempt
petition was filed mainly on the ground that the State and its
authorities had by their inaction in complying with the requirements
set out in M. Nagaraj case7, committed contempt of court and
the same was accepted and the appellants herein were found
guilty of having committed contempt of court by such inaction.
42. The next thing that we are required to consider is whether
such inaction was on account of any circumstances which
prevented the State Government and its
authorities from taking
action in terms of the observations made by the Division Bench
of the High Court in its judgment dated 5-2-20104, or whether
such inaction was on account of the deliberate intention of the
State and its authorities not to give effect to the same.
43. The learned Attorney General, who had appeared for the State
of Rajasthan and its authorities, had submitted that the order dated
5-2-20104, was in two parts. While one part dealt with the quashing
of the two notifications, the other was with regard to the
observations made in the said order with regard to the directions
given in M. Nagaraj case7 for collection of the quantifiable data
before giving effect to the provisions of Article 16(4-A) of the
Constitution. The learned Attorney General has also emphasised
that in order to give effect to the second part of the judgment and
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order of the Division Bench of the Rajasthan High Court and the
directions given in para 68 of the judgment in Suraj Bhan Meena
case1, the Government of Rajasthan had appointed the Bhatnagar
Committee to obtain the quantifiable data to comply with the
directions given in the two aforesaid judgments. The learned
Attorney General has also pointed out that directions have been
given to all the different departments on 14-2-2011, to ensure
compliance with the directions contained in Suraj Bhan Meena
case1.
44. Although, it has been urged on behalf of the respondents that
there was a restraint order on the State and its authorities from
giving effect to the observations made in the order passed by the
Division Bench of the High Court on 5-2-20104, or even in the
order passed in Suraj Bhan Meena case1, the State and its
authorities remained inactive on the plea that it had appointed the
Bhatnagar Committee to collect the data necessary in terms of
the judgment and order passed in M. Nagaraj case7, which had
been reiterated by this Court in Suraj Bhan Meena case1.
45. The explanation given on behalf of the State and its authorities
cannot be discounted, since in order to act in terms of the
sentiments expressed by the High Court and this Court, it was
necessary to collect the quantifiable data in respect of the
Scheduled Caste and Scheduled Tribe candidates. For collection
of such data, the State appointed the Bhatnagar Committee which
was entrusted with the
work of obtaining such quantifiable data
so that the provisions of the amended clause (4-A) included in
Article 16 of the Constitution could be given effect to in terms of
the directions given in M. Nagaraj case7, subsequently reiterated
in Suraj Bhan Meena case1.
46. The various submissions advanced by Mr Salve, Dr Dhavan
and Mr Sanjeev Prakash Sharma in support of the decision of the
Division Bench of the High Court, holding the appellants guilty of
contempt of court and, in particular, the alleged inaction to
implement the judgment and orders in M. Nagaraj case7 and
Suraj Bhan Meena case1 are not very convincing, since in order
to comply with the findings in M. Nagaraj case7 and Suraj Bhan
Meena case1, necessary data was required to be collected, in the
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absence of which it was not possible for the State and its authorities
to act in terms of the observations made in M. Nagaraj case7
and in Suraj Bhan Meena case1.
47. Accordingly, we are of the view that despite the fact that
there has been delay on the part of the State and its authorities in
giving effect to the observations made in the two aforesaid cases,
there was no wilful or deliberate intention on their part to defy the
orders of this Court. The very fact that the Bhatnagar Committee
was appointed indicates that the State and its authorities had every
intention to implement the aforesaid observations, though the
progress of such implementation has been tardy. Accordingly, we
are unable to sustain the impugned judgment11 and order of the
Division Bench of the High Court holding the appellants guilty of
contempt of court for purported violation of the order passed by
the Division Bench of the Jaipur Bench of the Rajasthan High
Court on 5-2-20104, while disposing of Civil Writ Petition No. 8410
of 2008. Consequently, the judgment and order under appeal has
to be set aside.
48. We accordingly allow the appeals and set aside the aforesaid
judgment, but with the further direction that the State and its
authorities act in terms of the Report of the Bhatnagar Committee,
in accordance with the decision rendered in M. Nagaraj case7
and in Suraj Bhan Meena case1, within two months from the
date of communication of this
judgment and order. There will be
no order as to costs.”
7.3. It was thus found by this Court in paragraphs 46 and 47 that
there was no willful and deliberate violation; that the State Government
had appointed the Bhatnagar Committee to collect the data necessary in
terms of the Judgment and Order passed by this Court in M. Nagaraj7
case which principles were reiterated in the decision in Suraj Bhan1.
The directions issued by this Court in paragraph 48 were clear that the
State Government and its authorities were to act in terms of the Report
of the Bhatnagar Committee in accordance with the decision rendered
in M. Nagaraj7 case and in the decision in Suraj Bhan1 within two
months from the date of decision of this Court.
11 Bajrang Lal Sharma  vs.  Salauddin Ahmed, Civil Contempt Petitions Nos. 359 and
941 of 2010 in WP(C)No.8104 of 2008, order dated 23-2-2012 (Raj)
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8. The aforesaid decision was rendered by this Court on 29.08.2012
and the instant Contempt Petitions were filed in November, 2012 setting
out the grievance as under:-
“13.  That State of Rajasthan despite the judgment  dated 29.8.2012
passed by this Hon’ble Court, wherein notification dated 11.9.2011
was not accepted as compliance to judgment dated 5.2.2010 &
7.12.2010, had issued a order dated 12.9.2012: whereby direction
was issued to all the departments to publish the seniority lists and
make promotions on the basis of the notification dated 11.9.2011.
…
  …
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14. That the action of the State of Rajasthan of making promotions
on the basis of the Notification dated 11.9.2011 is in blatant
contempt to the directions given by this Hon’ble Court in judgment
dated 29.8.2012 despite of the understanding / conceding of the
State of Rajasthan that after quashing of the Notifications dated
25.4.2008 and 28.12.2002, the Notification dated 1.4.1997 revives.
In order to make compliance of the judgment dated 5.2.2010, as
also required by this Hon’ble Court vide judgment dated 29.8.2012,
the General Category employees  are entitled for their vested and
accrued rights of regained seniority.
…
  …
…
15. That this Hon’ble Court in directions dated 29.8.2012 had
clearly directed the State of Rajasthan to make the compliance of
the judgment in terms of the report of the Bhatnagar Committee,
in accordance with M. Nagraj7 and Suraj Bhan Meena1.  It is
relevant to mention
that Bhatnagar Committee has no where
recommended giving of consequential Seniority to SC/ST w.e.f.
1.4.1997.  It is also to be noted that Bhatnagar Committee conducted
study of only 17 services out of 117 services and out of those 17
services in 16 services there is excessive representation of the
SC/ST employees on promotional posts.  In M. Nagraj7 this Hon’ble
Court observed that study is to be conducted in each case and
where there is adequate or excessive representation that powers
under Article 16(4A) cannot be excercised. … …”
9. Notice was issued by this Court on 09.01.2013 whereafter
pleadings have been exchanged and certain additional documents have
also been placed on record.
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9.1. In the meantime, the notification dated 11.09.2011 and the
Bhatnagar Committee Report were challenged in the High Court in DB
Civil Writ Petition No. 13476 of 2012 and in other connected matters
and the challenge is still pending.  By order dated 20.09.2016 it was
observed:-
“Looking at the facts of the case we are of the view that the writ
petitions, i.e., Civil Writ Nos. 14176, 20799, 13476, 16694 of 2012,
pending in the High Court of Rajasthan should be decided finally
at an early date, preferably within three months from the date of
intimation of this order to the High Court.
Parties to the litigation shall appear before the High Court on 30th
September, 2016, so that the date for final hearing can be fixed by
the High Court on that day.”
9.2. To similar effect was the Order dated 05.12.2017 by which it
was observed:-
“We are informed that pursuant to our order dated 20.09.2016,
Writ Petitions are listed before the Rajasthan High Court after
two weeks.
We request the High Court of Rajasthan to dispose of the Civil
Writ Nos.14176, 20799, 13476, 16694 of 2012 without further
delay.”
9.3. In view of the fact that by Order dated 15.11.201712 a Bench
of three Judges of this Court had referred the matter to a larger Bench
to consider whether the law declared by this Court in M. Nagaraj7
needed to be revisited, the Writ Petitions were deferred by the High
Court.
9.4. The present Contempt Petitions were, therefore,
adjourned
vide Order dated 03.04.2018 with following observations:-
“Post the contempt petitions after the report is received from the
High Court of Rajasthan on the disposal of Writ
Petition(C)No.20119 of 2012 and other connected matters.
The parties are free to bring to the notice of this Court once the
matters are disposed of by the High Court.”
12 (2018) 17 SCC 261
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10. A Constitution Bench of this Court, in Jarnail Singh and
others  vs. Lachhmi Narain Gupta and others13 dealt with the matter
while answering the reference as aforesaid and observed:-
“23. This brings us to whether the judgment in Nagaraj7 needs to
be revisited on the other grounds that have been argued before
us. Insofar as the State having to show quantifiable data as far as
backwardness of the class is concerned, we are afraid that we
must reject Shri Shanti Bhushan’s argument. The reference to
“class” is to the Scheduled Castes and the Scheduled Tribes, and
their inadequacy of representation in public employment. It is clear,
therefore, that Nagaraj7 has, in unmistakable terms, stated that
the State has to collect quantifiable data showing backwardness
of the Scheduled Castes and the Scheduled Tribes. We are afraid
that this portion of the judgment is directly contrary to the nine-
Judge Bench in Indra Sawhney (1)8 Jeevan Reddy, J., speaking
for himself and three other learned Judges, had clearly held:
“[t]he test or requirement of social and educational
backwardness cannot be applied to the Scheduled Castes and
the Scheduled Tribes, who indubitably fall within the expression
“backward class of citizens”.” (See SCC p. 727, paras 796 to
797.)
Equally, Dr Justice Thommen, in his conclusion at para 323(4),
had held as follows: (SCC pp. 461-62)
“323. Summary
*
   *
*
(4) Only such classes of citizens who are socially and
educationally backward are
qualified to be identified as
Backward Classes. To be accepted as Backward Classes for
the purpose of reservation under Article 15 or Article 16, their
backwardness must have been either recognised by means of
a notification by the President under Article 341 or Article 342
declaring them to be Scheduled Castes or Scheduled Tribes,
or, on an objective consideration, identified by the State to be
socially and educationally so backward by reason of identified
prior discrimination and its continuing ill effects as to be
13 (2018) 10 SCC 396
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comparable to the Scheduled Castes or the Scheduled Tribes.
In the case of the Scheduled Castes or the Scheduled Tribes,
these conditions are, in view of the notifications, presumed to
be satisfied.””
24. In fact, Chinnaiah14 has referred to the Scheduled Castes as
being the most backward among the Backward Classes (see para
43). This is for the reason that the Presidential List contains only
those castes or groups or parts thereof, which have been regarded
as untouchables. Similarly, the Presidential List of Scheduled
Tribes only refers to those tribes in remote backward areas who
are socially extremely backward. Thus, it is clear that when
Nagaraj7 requires the States to collect quantifiable data on
backwardness, insofar as Scheduled Castes and Scheduled Tribes
are concerned, this would clearly be contrary to Indra Sawhney
(1)8 and would have to be declared to be bad on this ground.
25. However, when it comes to the creamy layer principle, it is
important to note that this principle sounds in Articles 14 and 16(1),
as unequals within the same class are being treated equally with
other members of that class. The genesis of this principle is to be
found in State of Kerala v. N.M. Thomas15. This case was
concerned with a test-relaxation rule in promotions from lower
division clerks to upper division clerks. By a 5:2 majority judgment,
the said rule was upheld as a rule that could be justified on the
basis that it
became necessary as a means of generally giving a
leg-up to Backward Classes. In para 124, Krishna Iyer, J. opined:
(SCC p. 363)
“124. A word of sociological caution. In the light of experience,
here and elsewhere, the danger of “reservation”, it seems to
me, is threefold. Its benefits, by and large, are snatched away
by the top creamy layer of the “backward” caste or class, thus
keeping the weakest among the weak always weak and leaving
the fortunate layers to consume the whole cake. Secondly, this
claim is overplayed extravagantly in democracy by large and
vocal groups whose burden of backwardness has been
substantially lightened by the march of time and measures of
14 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329
15 (1976) 2 SCC 310 : 1976 SCC (L&S) 227
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better education and more opportunities of employment, but
wish to wear the “weaker section” label as a means to score
over their near-equals formally categorised as the upper
brackets. Lastly, a lasting solution to the problem comes only
from improvement of social environment, added educational
facilities and cross-fertilisation of castes by inter-caste and
inter-class marriages sponsored as a massive State programme,
and this solution is calculatedly hidden from view by the higher
“backward” groups with a vested interest in the plums of
backwardism. But social science research, not judicial
impressionism, will alone tell the whole truth and a constant
process of objective re-evaluation of progress registered by
the “underdog” categories is essential lest a once deserving
“reservation” should be degraded into “reverse discrimination”.
Innovations in administrative strategy to help the really
untouched, most backward classes also emerge from such
socio-legal studies and audit exercises, if dispassionately made.
In fact, research conducted by the A.N. Sinha Institute of Social
Studies, Patna, has revealed a dual society among harijans, a
tiny elite gobbling up the benefits and the darker layers sleeping
distances away from the special concessions. For them, Articles
46 and 335 remain a “noble romance” [As Huxley called it in
“Administrative Nihilism” (Methods and Results, Vol. 4 of
Collected Essays).], the bonanza going to the “higher” Harijans.
I mention
this in the present case because lower division clerks
are likely to be drawn from the lowest levels of Harijan humanity
and promotion prospects being accelerated by withdrawing,
for a time, “test” qualifications for this category may perhaps
delve deeper. An equalitarian breakthrough in a hierarchical
structure has to use many weapons and Rule 13-AA perhaps
is one.”
(emphasis in original)
26. The whole object of reservation is to see that Backward Classes
of citizens move forward so that they may march hand in hand
with other citizens of India on an equal basis. This will not be
possible if only the creamy layer within that class bag all the coveted
jobs in the public sector and perpetuate themselves, leaving the
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rest of the class as backward as they always were. This being
the case, it is clear that when a court applies the creamy layer
principle to Scheduled Castes and Scheduled Tribes, it does not in
any manner tinker with the Presidential List under Articles 341 or
342 of the Constitution of India. The caste or group or sub-group
named in the said List continues exactly as before. It is only those
persons within that group or sub-group, who have come out of
untouchability or backwardness by virtue of belonging to the
creamy layer, who are excluded from the benefit of reservation.
Even these persons who are contained within the group or sub-
group in the Presidential Lists continue to be within those Lists. It
is only when it comes to the application of the reservation principle
under Articles 14 and 16 that the creamy layer within that sub-
group is not given the benefit of such reservation.
27. We do not think it necessary to go into whether Parliament
may or may not exclude the creamy layer from the Presidential
Lists contained under Articles 341 and 342. Even on the assumption
that Articles 341 and 342 empower Parliament to exclude the
creamy layer from the groups or sub-groups contained within these
Lists, it is clear that constitutional courts, applying Articles 14 and
16 of the Constitution to exclude the creamy layer cannot be said
to be thwarted in this exercise by the fact that persons stated to
be within a
particular group or sub-group in the Presidential List
may be kept out by Parliament on application of the creamy layer
principle. One of the most important principles that has been
frequently applied in constitutional law is the doctrine of harmonious
interpretation. When Articles 14 and 16 are harmoniously
interpreted along with other Articles 341 and 342, it is clear that
Parliament will have complete freedom to include or exclude
persons from the Presidential Lists based on relevant factors.
Similarly, constitutional courts, when applying the principle of
reservation, will be well within their jurisdiction to exclude the
creamy layer from such groups or sub-groups when applying the
principles of equality under Articles 14 and 16 of the Constitution
of India. We do not agree with Balakrishnan, C.J.’s statement in
Ashoka Kumar Thakur16 that the creamy layer principle is merely
a principle of identification and not a principle of equality.
16 Ashoka Kumar Thakur v. union of India, (2008) 6 SCC 1 : 3 SCEC 35
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28. Therefore, when Nagaraj7 applied the creamy layer test to
Scheduled Castes and Scheduled Tribes in exercise of application
of the basic structure test to uphold the constitutional amendments
leading to Articles 16(4-A) and 16(4-B), it did not in any manner
interfere with Parliament’s power under Article 341 or Article
342. We are, therefore, clearly of the opinion that this part of the
judgment does not need to be revisited, and consequently, there is
no need to refer Nagaraj7 to a seven-Judge Bench. We may also
add at this juncture that Nagaraj7 is a unanimous judgment of
five learned Judges of this Court which has held sway since the
year 2006. This judgment has been repeatedly followed and applied
by a number of judgments of this Court, namely:
28.1. Anil Chandra v. Radha Krishna Gaur17 (two-Judge Bench)
(see paras 17 and 18).
28.2. Suraj Bhan Meena v. State of Rajasthan1 (two-Judge
Bench) (see paras 10, 50, and 67).
28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar18 (two-Judge
Bench) [see paras 61, 81(ix), and 86].
28.4. S. Panneer Selvam v. State of T.N.19 (two-Judge Bench)
(see paras 18, 19, and 36).
28.5. Central Bank of India v. SC/ST Employees Welfare Assn.20
(two-Judge Bench) (see paras 9 and 26).
28.6. Suresh Chand Gautam v. State of U.P.21 (two-Judge Bench)
(see paras 2 and 45).
28.7. B.K. Pavitra v. Union of India22 (two-Judge Bench) (see
paras 17 to 22).”
10.1 The conclusion arrived at in para 36 of the decision was:-
36. Thus, we conclude
that the judgment in Nagaraj7 does not
need to be referred to a seven-Judge Bench. However, the
conclusion in Nagaraj7 that the State has to collect quantifiable
17  (2009) 9 SCC 454
18 (2012) 7 SCC 1
19 (2015) 10 SCC 292
20 (2015) 12 SCC 308
21 (2016) 11 SCC 113
22 (2017) 4 SCC 620
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data showing backwardness of the Scheduled Castes and the
Scheduled Tribes, being contrary to the nine-Judge Bench in Indra
Sawhney (1)
8 is held to be invalid to this extent.”
11. Thereafter, by way of Interlocutory Application No.17130 of
2019 a copy of order dated 05.10.2018 issued by the Government of
Rajasthan was placed on record.  The relevant portion of said order was
as under:-
“As per the opinion of Law Department in reference to the
judgment dated 09.02.2017 delivered by Hon’ble Supreme Court
in SLP No.2368/2011 B.K. Pavitra  V/s.  Govt. of India, the
notification dated 11.09.2011 is hereby clarified as under:-
As per the provisions of notification dated 11.09.2011 of
Personnel Department, the benefits of consequential seniority
in reservation in promotion for public servants of SC/ST
categories, can only be extended till the achievement of the
condition of adequacy in promotion or till roster point is
completed.  Once the fulfillment of roster point, replacement
theory will be applicable.
As per the principle laid down by Hon’ble Supreme Court in
above judgment dated 09.02.2017 and above provision provided
in notification dated 11.09.2011, in the matter of promotion of
public servants of Scheduled Castes/Scheduled Tribes
categories, where adequacy of representation has been
achieved, the consequential seniority cannot be given and the
public servants of General & OBC categories will regain their
consequential seniority and seniority lists will be issued
accordingly.
Hence all Recruiting Officers/HODs hereby instructed to
implement the above order word by word.”
12. In affidavit dated 17.02.2019 filed on behalf of the State
Government following stand was taken in para 3 of the affidavit:-
“3. A clarification was sought to be issued by the State Government
vide Circular dated 05.10.2018.  However, the Circular dated
05.10.2018 was made inoperative/stayed by the State Government
immediately after the issuance of the Circular dated 05.10.2018
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in the month of October, 2018 itself.  Thus the circular of
05.10.2018 has never been acted upon.  The present government
is seeking re-examine the efficacy of the Circular dated
05.10.2018.  It is reiterated that the Circular of 05.10.2018 is
inoperative.”
13. We heard Mr. M. L. Lahoti, learned Advocate for the contempt
petitioner and Dr. Manish Singhvi, learned Senior Advocate for the alleged
contemnors.
It was submitted by Mr. Lahoti, learned Advocate that the directions
issued by this Court in Suraj Bhan Meena1 were not complied with;
that the Notification dated 11.09.2011 was in contempt of the directions
issued by this Court; that the stand taken in the affidavit dated 17.02.2019
was completely incorrect and more than 50 inter-departmental orders
had been passed implementing Circular dated 05.10.2018; that in the
light of Circular dated 05.10.2018 adequacy level in RAC Cadre having
been achieved the contempt petitioner ought to be extended the benefit
of regaining of seniority along with all consequential benefits of reservation
in promotion from RAS23 to IAS24.
In response, Dr. Singhvi, learned Senior Advocate submitted that
Notification dated 11.09.2011 was found to be in contempt of binding
directions and was specifically held by the High Court to be inoperative;
however, the view taken by the High Court was set aside by this Court;
and that the Notification dated 11.09.2011 cannot therefore be held to be
in contempt of the directions issued by
this Court; that challenge to such
Notification and to the recommendations of the Bhatnagar Committee
was still pending in the High Court; and that one of the pending writ
petitions was that of the contempt petitioner himself.
14. The law declared by this Court in M. Nagraj7, which was
followed in Suraj Bhan Meena1 is clear that in the absence of any
quantifiable data relating to the issue of backwardness and inadequacy
of representation of the concerned classes in public employment, no
benefit of consequential seniority could be extended.  Therefore, in Suraj
Bhan Meena1, the Notifications dated 28.12.2002 and 25.08.2008
providing for consequential seniority in promotion to the Members of the
SC/ST communities were set aside.
23 Rajasthan Administrative Service
24 Indian Administrative Service
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15. Since the decision in Suraj Bhan Meena1 was on the premise
that no such exercise was undertaken to acquire quantifiable data, the
State Government constituted the Bhatnagar Committee.  The Committee
went into the issues and made certain recommendations based on which
a Notification was issued by the State Government on 11.09.2011.
Whether that amounted to contempt or not was a subject matter of
discussion before the High Court which, by its judgment and order dated
23.02.2012 found said Notification to be not in compliance of binding
directions and to be invalid.  The challenge in Salauddin2 was inter alia
to the finding arrived at by the High Court in its contempt jurisdiction and
the submission advanced by the learned Attorney General as recorded
in paras 18 and 19 of the decision in Salauddin2 was that in the absence
of any substantive writ petition challenging the same, said Notification
could not have been questioned in contempt jurisdiction.  The decision in
Salauddin2 set aside the view taken by the High Court.  Thus, the
issuance of Notification dated 11.09.2011 was not found to be in contempt
nor was it invalidated for being non-compliant of any binding directions.
16. As a matter of fact, the directions issued by this Court in para
48 were clear that the State and its authorities were to act in terms of
the report of the Bhatnagar Committee in accordance with the decisions
in M. Nagraj7 and Suraj Bhan
Meena1.  The basic foundation of the
present contempt petitions projecting the issuance of Notification dated
11.09.2011 to be in contempt of the directions issued by this Court, thus,
does not survive.  In any case, challenge to said Notification and the
report of the Bhatnagar Committee is still pending consideration before
the High Court where the correctness and validity thereof will be gone
into in accordance with law.
17. With the decision of this Court in Jarnail Singh13 the matter
also stands on a slightly modified footing.  As concluded by this Court in
Jarnail Singh13 the conclusion in M. Nagraj7 that the State has to
collect quantifiable data showing backwardness of SC/ST, being contrary
to the 9 Judges Bench decision in Indra Sawhney8, was held to be
invalid.  The challenge to the recommendations given by the Bhatnagar
Committee and the quantifiable data adverted to by the Committee will
therefore have to be seen by the High Court in the light of the directions
issued by this Court in Jarnail Singh13.
18. It is, thus, clear that all these issues need to be gone into in a
substantive challenge and will be beyond the scope of contempt
A
B
C
D
E
F
G
H
511
jurisdiction.  The issuance of Notification dated 11.09.2011 was in exercise
of powers vested in the concerned authorities and if the approach and
the exercise is otherwise incorrect or wrong, the same can be tested
and considered while dealing with the substantive challenge but such
issuance cannot be said to be contumacious to invite any action in contempt
jurisdiction.
19. In the circumstances, we see no reason to entertain these
contempt petitions any longer.  These contempt petitions are directed to
be closed.  We, however, request the High Court to consider taking up
all the matters where challenge has been made to the issuance of
Notification dated 11.09.2011 and to the recommendations of the
Bhatnagar Committee and such allied issues as early as possible and
dispose of the same preferably within a period of six months from the
date of this order.
Kalpana K. Tripathy
Contempt petitions closed.
BAJRANG LAL SHARMA v. C. K. MATHEW AND ORS.
[UDAY UMESH LALIT, J.]