Supreme Court of India

U.P.Power Corp.Ltd vs Rajesh Kumar & Ors on 27 April, 2012

Equivalent citations: AIR 2012 SUPREME COURT 2728, 2012 AIR SCW 2791, 2012 LAB. I. C. 2267, 2012 (4) ALL LJ 358, (2012) 5 ADJ 19 (SC), 2012 (2) SERVLJ 307 SC, 2012 (5) ADJ 19, (2012) 2 SERVLJ 307, (2012) 2 KCCR 56, (2012) 06 ADJ 2 (SC), 2012 (4) SCALE 687, 2012 (7) SCC 1, (2012) 4 ALL WC 4136, (2012) 4 KANT LJ 87, (2012) 134 FACLR 692, (2012) 4 LAB LN 1, (2012) 4 SCT 258, (2012) 4 SCALE 687, (2012) 2 ESC 233, 2012 (2) KLT SN 115 (SC)

Author:
Dipak Misra

Bench:
Dipak Misra
,
Dalveer Bhandari

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2608 OF 2011

U.P. Power Corporation Ltd. ... Appellant

Versus

Rajesh Kumar & Ors. … Respondents

WITH

CIVIL APPEAL NO. 4009____ OF 2012
(arising out of SLP (C) No. 10217/2011)
WITH
CIVIL APPEAL NO. _4022___ OF 2012
(arising out of SLP (C) No. 15114/2011)
WITH
CIVIL APPEAL NOS. ___4027-4029_ OF 2012
(arising out of SLP (C) Nos. 20577-20579/2011)
WITH
CIVIL APPEAL NOS. 2605 OF 2011, 2607/2011, 2609/2011, 2610/2011, 2614/2011,
2616/2011, 2629/2011, 2675/2011, 2676/2011, 2677/2011, 2678/2011,
2679/2011, 2729/2011, 2730/2011, 2737/2011
WITH
CIVIL APPEAL NO. 4023 OF 2012
(arising out of SLP(C ) No. 14188 OF 2012 (CC 4420/2011)
WITH
CIVIL APPEAL NO. 4024 OF 2012
(arising out of SLP(C ) No.14189/2012 (CC 4421/2011)
WITH
CIVIL APPEAL NO. 4025 OF 2012
(arising out of SLP(C ) No.14190/2012 (CC 4431/2011)
WITH
CIVIL APPEAL NO. 4691 OF 2011
WITH
CIVIL APPEAL NO. 4697 OF 2011
WITH
CIVIL APPEAL NO. 4699 OF 2011
WITH
CIVIL APPEAL NO.4026 OF 2012
(arising out of SLP(C ) No. 14191 OF 2012 (CC 5070/2011)
WITH
CIVIL APPEAL NO. 4016 OF 2012
(arising out of SLP(C) No.14179/2012 (CC 5580/2011)
WITH
CIVIL APPEAL NO.4021 OF 2012
(arising out of SLP(C ) No.14184/2012 (CC 6362/2011)
WITH
CIVIL APPEAL NO. 4017 OF 2012
(arising out of SLP(C ) No. 14181/2012 (CC 6482/2011)
WITH
CIVIL APPEAL NO. 4018 OF 2012
(arising out of SLP(C ) No. 14182/2012 (CC 7037/2011)
WITH
CIVIL APPEAL NO.4019 OF 2012
(arising out of SLP(C ) No. 14183/2012 (CC 7042/2011)
WITH
CIVIL APPEAL NO. 4020OF 2012
(arising out of SLP(C ) No.14184/2012 (CC 7058/2011)
WITH
CIVIL APPEAL NO.4030 OF 2012
(arising out of SLP(C) No. 30325/2011)
WITH
CIVIL APPEAL NO. 4031 OF 2012
(arising out of SLP(C ) No. 30326/2011)
WITH
CIVIL APPEAL NO.4032 OF 2012
(arising out of SLP(C ) No. 30327/2011)
WITH
CIVIL APPEAL NO.4033 OF 2012
(arising out of SLP(C ) No. 30692/2011
WITH
CIVIL APPEAL NO.4034 OF 2012
(arising out of SLP(C ) No. 30696/2011)

AND

CIVIL APPEAL No. 2622 OF 2011

State of U.P. ... Appellant

Versus

Brij Bhushan Sharma & Anr. … Respondents

WITH

CIVIL APPEAL NO. 2611 OF 2011
WITH
CIVIL APPEAL NO. 2612/2011
WITH
CIVIL APPEAL NO. 2613 OF 2011
WITH
CIVIL APPEAL NO. 2623 OF 2011
WITH
CIVIL APPEAL NO. 2624 OF 2011
WITH
CIVIL APPEAL NO. 2682-2683 OF 2011
WITH
CIVIL APPEAL NO. 2684 OF 2011
WITH
CIVIL APPEAL NO. 2881 OF 2011
WITH
CIVIL APPEAL NO. 2884-2885 OF 2011
WITH
CIVIL APPEAL NO. 2886 OF 2011
WITH
CIVIL APPEAL NO. 2908 OF 2011
WITH
CIVIL APPEAL NO. 2909 OF 2011
WITH
CIVIL APPEAL NOS. 2944-2945 OF 2011
CIVIL APPEAL NO. 66 OF 2012

WITH

CIVIL APPEAL NO.4067/2012
(arising out of SLP(C ) No.14207/2012 (CC 17243/2011)

J U D G M E N T

Dipak Misra, J.

Leave granted in Special Leave Petitions.

2. The controversy pertaining to reservation in promotion for the
Scheduled Castes and Scheduled Tribes with consequential seniority as
engrafted under
Articles 16(4A)
and
16(4B)
and the facet of relaxation
grafted by way of a proviso to
Article 335
of the Constitution of India
being incorporated by the
Constitution (Seventy-seventh Amendment) Act,
, the
Constitution (Eight-first Amendment) Act, 2000
, the
Constitution
(Eighty-second Amendment) Act, 2000
and the
Constitution (Eighty-fifth
Amendment) Act, 2001
at various stages having withstood judicial scrutiny
by the dictum in
M. Nagaraj v. Union of India
[1], the issue of
implementation of the same through existing statutory enactment by the
State Legislature and the subsequent rules framed by the authorities of the
State or concerned corporation of the State of Uttar Pradesh, has, as the
learned counsel appearing for both sides in their astute and penetrating
manner have pyramided the concept in its essentiality, either appeared too
simple that simplification may envy or so complex that it could manifest as
the reservoir of imbalances or a sanctuary of uncertainties. Thus, the net
result commands for an endeavour for a detailed survey of the past and
casts an obligation to dwell upon the controversy within the requisite
parameters that are absolutely essential for adjudication of the lis
emanated in praesenti.

THE FACTUAL EXPOSE’

3. Extraordinary and, in a way, perplexing though it may seem, yet as
the factual scenario pronouncedly reveals, the assail in some of the
appeals of this batch of appeals is to the judgment and order passed by the
Division Bench of the High Court of Judicature at Allahabad in Writ
Petition No. 63217 of 2010 (
Mukund Kumar Srivastava vs. State of U.P. and
Another
) upholding the validity of the provisions contained in Rule 8-A of
the U.P. Government Servants Seniority Rules, 1991 (for brevity ‘the 1991
Rules’) that were inserted by the U.P. Government Servants Seniority (3rd
Amendment) Rules, 2007 by the employees-appellants and in some of the
appeals, the challenge by the State Government and the U.P. Power
Corporation Ltd. (for short ‘the Corporation’) is to the judgment and order
passed by the Division Bench of the High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow, in Writ Petition No. 1389 (S/B) of 2007 (
Prem Kumar
Singh and others v. State of U.P. and others
) and other connected writ
petitions holding, inter alia, that the decision rendered by the Division
Bench in the case of
Mukund Kumar Srivastava
(supra) at Allahabad is per
incuriam and not a binding precedent and further Section 3(7) of the Uttar
Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes
and other Backward Classes) Act, 1994 (for short ‘the 1994 Act’) and Rule
8A of the 1991 Rules, as brought into force in 2007, are invalid, ultra
vires and unconstitutional and, as a necessary corollary, the consequential
orders relating to seniority passed by the State Government deserved to be
quashed and, accordingly, quashed the same and further clarified that in
case the State Government decides to provide reservation in promotion to
any class or classes of posts in the services under the State, it is free
to do so after undertaking the exercise as required under the
constitutional provisions keeping in mind the law
laid down by
this Court
in
M. Nagraj
(supra). It has been directed that till it is done, no
reservation in promotion on any post or classes of posts under the services
of the State including the Corporation shall be made hence forth. However,
the Division Bench observed that the promotions already made as per the
provisions/Rules where the benefit of Rule 8A has not been given while
making the promotion shall not be disturbed.

4. The cleavage has invited immense criticism by the learned senior
counsel appearing for both sides on principles of judicial discipline,
decorum, propriety and tradition. Initially the debate centred around the
concept of precedent and the duties of the Benches but gradually it was
acceded to, absolutely totally being seemly, to decide the controversy on
merits instead of a remit and, accordingly, the learned counsel for the
parties addressed the Court at length. As advised, we shall dwell upon the
merits of the controversy but we shall not abdicate our responsibility to
delve into the first issue, i.e., judicial discipline as we are inclined to
think that it is the duty, nay, obligation in the present case to do so
because despite repeated concern shown by this Court, the malady subsists,
making an abode of almost permanency. Ergo, we proceed to state the facts
on the first issue and our opinion thereon and, thereafter, shall deal with
the assail and attack on both the judgments on merits.

5. One Rajesh Kumar and two others, the private respondents in the
appeal preferred by the Corporation, filed Writ Petition No. 146 (S/B) of
2009 at the Lucknow Bench of the High Court of Judicature at Allahabad
seeking declaration to the effect that Rule 8A of the 1991 Rules and the
resolution passed by the Corporation are ultra vires. That apart, the
assail was to the constitutional validity of Section 3(7) of the 1994 Act
on the foundation that the State Government in gross violation of the
constitutional provisions enshrined under
Articles 16(4A)
and
16(4B)
and
the interpretation placed thereon by the Constitution Bench in
M. Nagraj

(supra) has framed the Rules and the Corporation has adopted the same by
amending its Rules and introduced the concept of reservation in promotion
with accelerated seniority.

6. It was contended before the Lucknow Bench that neither the State
Government nor the Corporation had carried out the exercise as per the
decision in
M. Nagraj
(supra) and in the absence of the same, the
provisions of the Act and the Rules caused discomfort to the constitutional
provisions. The stand and stance put forth by the writ petitioners was
combated by the Corporation contending, inter alia, that the Scheduled
Castes and Scheduled Tribes were inadequately represented in the service
and the chart wise percentage of representation to direct recruitment of
reserved categories incumbents would clearly reflect the inadequacy. We
are not referring to the pleadings in detail as that will be adverted to at
a later stage. Suffice to say at present, in view of the assertions made
by the parties and the records produced the Division Bench framed the
question for determination whether Rule 8-A of the Rules is ultra vires and
unconstitutional.

During the course of hearing of the writ petition, the
Corporation brought to the notice of the Division Bench at Lucknow the
judgment dated 21.10.2010 passed by the Division Bench at Allahabad in Writ
Petition No. 63127 of 2010 (
Mukund Kumar Srivastava v. State of U.P. and
another
). It was urged that the same was a binding precedent and,
therefore, the Division Bench was bound to follow the same.

But, the Bench
hearing the writ petition declared
the said decision
as not binding and per
incuriam as it had not correctly interpreted, appreciated and applied the

ratio
laid down in

M. Nagraj
(supra) and, on that base, declared Section
3(7) of the 1994 Act and Rule 8A of the 1991 Rules as unconstitutional and
issued the directions as have been stated hereinbefore.

7. It is the admitted position at the Bar that certain writ petitions
were filed at Lucknow Bench and they were being heard. They were filed on
earlier point of time and were being dealt with on merits by the concerned
Division Bench. At that juncture, the Division Bench at Allahabad
entertained Writ Petition No. 63127 of 2010. The Bench was of the view
that without calling for a counter affidavit from any of the respondents
the writ petition could be decided. Be it noted, the petitioner therein
was an Executive Engineer in Rural Engineering Service at Sonebhadra
Division and had challenged the seniority list of Executive Engineers of
Rural Engineering Service published vide Office Memorandum No. 2950/62-3-
2010-45-RES/2010 dated 8.9.2010 and further sought declaration of Rule 8A
of the 2007 Rules as unconstitutional.
A prayer for issue of a writ of
mandamus was sought not to proceed with and promote any person on the next
higher post on the basis of the impugned seniority list of Executive
Engineers of Rural Engineering Service. The Bench, as is manifest from the
order, adverted to the facts and then dwelled upon the validity of the
Rules. It scanned Rules 6, 7, 8 and 8A and referred to the decision of
this Court in Indra Sawhney etc. v. Union of India and others[2], Section 3
of the 1994 Act,
Article 335
of the Constitution and quoted in extenso from

M. Nagraj
(supra) and came to hold as follows: -

“The Constitutional validity of
Amending Act
77th Amendment Act
1995 and 85th Amendment Act 2001 whereby clause (4A) has been
inserted after clause (4) under the
Article 16
of the
Constitution has already been upheld by the Constitution Bench
of Hon’ble Apex Court in
M. Nagraj
case (supra) holding that
neither the catch up rule nor the Constitutional seniority is
implicit in Clause (1) and Clause (4) of
Article 16
rather the
concept of catch up rule and consequential seniority are
judicially evolved concepts to control the extent of
reservation. The source of these concepts is in service
jurisprudence. These concepts cannot be elevated to the status
of an axiom, like secularism, constitutional sovereignty,
equality code etc. forming basic structure of the Constitution.
It cannot be said that by insertion of concept of consequential
seniority the structure of
Article 16
stands destroyed or
abrogated. It cannot be said that equality code contained under

Articles 14
, 15
, 16
is violated by deletion of catch-up rule.

We are bound by the aforesaid decision of Hon’ble Apex
Court in
M. Nagraj
case (supra). Therefore, there can be no
scope for doubt to hold that deletion of catch-up rule and
conferring the benefits of consequential seniority upon the
members of SC and ST on account of reservation in promotion in a
particular service or grade or post has any way obliterated the
equality code contained under
Articles 14
, 15
and
of the
Constitution as concept of catch-up rule of seniority does not
directly flow from
Article 16(1)
and
(4)
of the Constitution of
India. We are of the considered opinion that Rule 8A of 1991
Rules has merely effectuated the provisions contained under

Article 16(4A)
of the Constitution of India whereby benefit of
consequential seniority has been given to the members of
scheduled castes and scheduled tribes due to reservation/roster
in promotion by obliterating the concept of catch-up Rule of
seniority. Rule 8A of 1991 Rules specifically stipulates that
if any member of scheduled castes or scheduled tribes is
promoted on any post or grade in service earlier to other
categories of persons, the member of SC/ST shall be treated to
be senior to such other categories of persons who are promoted
subsequently after promotion of members of SC/ST, despite
anything contained in Rules 6, 7 and 8 of 1991 Rules. In our
view Rule 8A of 1991 Rules has constitutional sanctity of

Article 16(4A)
of the Constitution and cannot be found faulty
merely on account of violation of judicially evolved concept of
catch-up rule of seniority which has been specifically
obliterated by
Article 16(4A)
of the Constitution. Likewise the
said rule can also not be held to be unconstitutional or invalid
on account of obliteration of any other judicially evolved
principle of seniority or any other contrary rules of seniority
existing under Rules 6, 7 and 8 of 1991 Rules, as Rule 8A of
1991 Rules opens with non-obstante clause with overriding effect
upon Rules 6, 7 and 8 of 1991 Rules, therefore, we do not find
any justification to strike down the provisions contained under
Rule 8-A of 1991 Rules on the said ground and on any of the
grounds mentioned in the writ petition.”

After so stating, the Division Bench proceeded to observe as follows: -

“27. In this connection, we make it clear that deletion of the
said concept of catch-up Rule of seniority and addition of
consequential seniority due to reservation in promotion on any
post or grade in service are applicable to the member of
scheduled castes and scheduled tribes only, whereas inter-se
seniority of other categories employees shall continue to be
determined according to their existing seniority rules as
contemplated by the provisions of Rules 6, 7 and 8 of 1991
Rules, subject to aforesaid limitations. Thus the concept of
catch-up Rule of Seniority stands obliterated only to the extent
of giving benefit of consequential seniority to the members of
scheduled castes and scheduled tribes on account of their
promotion on any post or grade in service due to reservation,
therefore, the scope of obliteration of concept of catch-up rule
is limited to that extent. In this view of the matter the
petitioner is not entitled to get the relief sought for in the
writ petition questioning the validity of said Rule 8A of 1991
Rules. Thus we uphold the validity of said Rules and the
question formulated by us is answered accordingly.”

It is interesting to note that in paragraph 29 of
the said judgment

the Division Bench expressed thus: -

“29. However, since the petitioner did not challenge the
Constitutional Validity of Law regarding reservation in
promotion in favour of scheduled castes and scheduled tribes
existing in State of Uttar Pradesh which is applicable to the
services and posts in connection of affairs of State of Uttar
Pradesh inasmuch as other services and posts covered by said
Reservation Act 1994, in our opinion, the petitioner shall not
be permitted to raise this question by filing any other writ
petition again. In given facts and circumstances of the case,
we are not inclined to issue any mandamus, commanding the
respondents, not to proceed with impugned seniority list for the
purpose of promotion on the next higher post without expressing
any opinion on the merit of said seniority list. We are also
not inclined to issue any such restraint order, staying any
promotion on the next higher post, if the respondents are
intending to make such promotion on the basis of impugned
seniority list.”

8. We have been apprised at the Bar that it was brought to the notice of
the Division Bench at Allahabad that certain writ petitions, where there
was comprehensive challenge, were part-heard and the hearing was in
continuance at Lucknow Bench, but, as is vivid from the first paragraph of

the said judgment
, the Bench heard the learned counsel for the petitioner
and the standing counsel for the State and caveator and proceeded to decide
the matter without a counter affidavit.

9. Presently, we shall advert to how the Lucknow Bench dealt with this
decision.

10. After stating the basic pleas, the Division Bench at Lucknow
proceeded to state as follows:-

“.......but before we proceed to decide the validity of the
challenge made and the defence put, we find it expedient to
respond to the foremost plea of the respondents that the
aforesaid Rule 8-A of the U.P. Government Servants Seniority
Rules, 1991, (hereinafter referred to as ‘the Rules, 1991), was
challenged before a Division Bench (Hon’ble Sheo Kumar Singh
and Hon’ble Sabhajeet Yadav, JJ) at Allahabad in Writ Petition
No. 63127 of 2010 in re:
Mukund Kumar Srivastava versus State
of U.P. and another
, which writ petition has been dismissed
upholding the validity of the aforesaid Rule 8-A, therefore,
this Court is bound by
the said judgment
passed by a Bench of
equal strength and hence all these petitions need be dismissed
only on this ground.”

Before the said Bench, it was contended that the judgment rendered by
the Division Bench at Allahabad is per incuriam and is not a binding
precedent.

11. Various grounds were urged to substantiate the aforesaid stand. The
Division Bench, after analysing the reasoning of the Allahabad Bench in
great detail and after referring to certain decisions and the principles
pertaining to binding precedent, opined as follows:-

“The Division Bench at Allahabad, did not enter into the
question of exercise of power by the State Government under the
enabling provisions of the Constitution and upheld the validity
of Rule 8-A only for the reason, that there did exist such a
power to enact the Rule, whereas the Apex Court, very clearly
has pronounced, that if the given exercise has not been
undertaken by the State Government while making a rule for
reservation with or without accelerated seniority, such a rule
may not stand the test of judicial review.

In fact, M. Nagraj obliges the High Court that when a
challenge is made to the reservation in promotion, it shall
scrutinize the same on the given parameters and it also casts a
corresponding duty upon the State Government to satisfy the
Court about the exercise undertaken in making such a provision
for reservation. The Division Bench did not advert upon this
issue, nor the State Government fulfilled its duty as enumerated
in M. Nagraj.

The effect of the judgment delivered at Allahabad is also
to be seen in the light of the fact that though the Division
Bench at Allahabad did not adjudicate on the dispute with regard
to the seniority for which the petitioner Mukund Kumar
Srivastava has been relegated to the remedy of State Public
Services Tribunal, but upheld the validity of Rule 8-A, which
could not be said to be the main relief, claimed by the
petitioner.

For the aforesaid reasons and also for the reason, that
the present writ petitions do challenge the very rule of
reservation in promotion, which challenge we have upheld for the
reasons hereinafter stated, because of which the rule of
accelerated seniority itself falls to the ground, we, with deep
respect, are unable to subscribe to the view taken by the
Division Bench at Allahabad and hold that
the said judgment

cannot be considered as binding precedent having been rendered
per incuriam.”

12. We have reproduced the paragraphs from both the decisions in extenso
to highlight that the Allahabad Bench was apprised about the number of
matters at Lucknow filed earlier in point of time which were being part
heard and the hearing was in continuum. It would have been advisable to
wait for the verdict at Lucknow Bench or to bring it to the notice of the
learned Chief Justice about the similar matters being instituted at both
the places. The judicial courtesy and decorum warranted such discipline
which was expected from the learned Judges but for the unfathomable
reasons, neither of the courses were taken recourse to. Similarly, the
Division Bench at Lucknow erroneously treated the verdict of Allahabad
Bench not to be a binding precedent on the foundation that the principles

laid down by
the Constitution Bench in
M. Nagraj
(supra) are not being
appositely appreciated and correctly applied by the Bench when there was
reference to
the said decision
and number of passages were quoted and
appreciated albeit incorrectly, the same could not have been a ground to
treat the decision as per incuriam or not a binding precedent. Judicial
discipline commands in such a situation when there is disagreement to refer
the matter to a larger Bench. Instead of doing that, the Division Bench at
Lucknow took the burden on themselves to decide the case.

13.
In this context, we may profitably quote a passage from
Lala Shri
Bhagwan and another v. Ram Chand and another
[3]:-

“18. .. It is hardly necessary to emphasise that considerations
of judicial propriety and decorum require that if a learned
single Judge hearing a matter is inclined to take the view that
the earlier decisions of the High Court, whether of a Division
Bench or of a single Judge, need to be reconsidered, he should
not embark upon that enquiry sitting as a single Judge, but
should refer the matter to a Division Bench or, in a proper
case, place the relevant papers before the Chief Justice to
enable him to constitute a larger Bench to examine the question.
That is the proper and traditional way to deal with such
matters and it is founded on healthy principles of judicial
decorum and propriety. It is to be regretted that the learned
single Judge departed from this traditional way in the present
case and chose to examine the question himself.”

14.
In
Sundarjas Kanyalal Bhathija and others v. The Collector, Thane,
Maharashtra and others
[4] while dealing with judicial discipline, the two-
Judge Bench has expressed thus:-

“One must remember that pursuit of the law, however, glamorous
it is, has its own limitation on the Bench. In a multi-Judge
Court, the Judges are bound by precedents and procedure. They
could use their discretion only when there is no declared
principle to be found, no rule and no authority. The judicial
decorum and legal propriety demand that where a learned single
Judge or a Division Bench does not agree with the decision of a
Bench of co-ordinate jurisdiction, the matter shall be referred
to a larger Bench. It is a subversion of judicial process not
to follow this procedure.”

The aforesaid pronouncements clearly lay down what is expected from
the Judges when they are confronted with the decision of a Co-ordinate
Bench on the same issue. Any contrary attitude, however adventurous and
glorious may be, would lead to uncertainty and inconsistency. It has
precisely so happened in the case at hand. There are two decisions by two
Division Benches from the same High Court. We express our concern about
the deviation from the judicial decorum and discipline by both the Benches
and expect that in future, they shall be appositely guided by the
conceptual eventuality of such discipline as
laid down by
this Court from
time to time. We have said so with the fond hope that judicial enthusiasm
should not obliterate the profound responsibility that is expected from the
Judges.

15. Having dealt with the judicial dictum and the propriety part, we
shall now proceed to deal with the case on merit as a common consensus was
arrived at the Bar for the said purpose. The affected employees have filed
certain civil appeals against the judgment of the Allahabad High Court and
the employees who are affected by the verdict of the Lucknow Bench have
also preferred appeals. That apart, the State of U.P. and the Corporation
have also challenged the decision as the rules framed have been declared
ultra vires. The main controversy relates to the validity of Section 3(7)
of the 1994 Act and Rule 8A of the 1991 Rules. Thus, we really have to
advert to the constitutional validity of the said provisions.

16. Prior to the advertence in aforesaid regard, it is necessary to have
a certain survey pertaining to reservation in promotional matters. The
question of reservation and the associated promotion with it has been a
matter of debate in various decisions of this Court. After independence,
there were various areas in respect of which decisions were pronounced.
Eventually, in the case of
Indra Sawhney and another v. Union of India and
others
(supra) the nine-Judge Bench, while dealing with the question
whether clause (4) of
Article 16
of the Constitution provides for
reservation only in the matter of initial appointment, direct recruitment
or does it contemplate and provide for reservations being made in the
matter of promotion as well, recorded the submissions of the petitioners in
paragraph 819 which reads as follows: -

“The petitioners’ submission is that the reservation of
appointments or posts contemplated by clause (4) is only at the
stage of entry into State service, i.e., direct recruitment. It
is submitted that providing for reservation thereafter in the
matter of promotion amounts to a double reservation and if such
a provision is made at each successive stage of promotion it
would be a case of reservation being provided that many times.
It is also submitted that by providing reservation in the matter
of promotion, the member of a reserved category is enabled to
leap-frog over his compatriots, which is bound to generate acute
heartburning and may well lead to inefficiency in
administration. The members of the open competition category
would come to think that whatever be their record and
performance, the members of reserved categories would steal a
march over them, irrespective of their performance and
competence. Examples are give how two persons (A) and (B), one
belonging to O.C. category and the other belonging to reserved
category, having been appointed at the same time, the member of
the reserved category gets promoted earlier and how even in the
promoted category he jumps over the members of the O.C. category
already there and gains a further promotion and so on. This
would generate, it is submitted, a feeling of disheartening
which kills the spirit of competition and develops a sense of
disinterestedness among the members of O.C. category. It is
pointed out that once persons coming from different sources join
a category or class, they must be treated alike thereafter in
all matters including promotions and that no distinction is
permissible on the basis of their “birth-mark”. It is also
pointed out that even the Constituent Assembly debates on draft

Article 10(3)
do not indicate in any manner that it was
supported to extend to promotions as well. It is further
submitted that if
Article 16(4)
is construed as warranting
reservation even in the matter of promotion it would be contrary
to the mandate of
Article 335
viz., maintenance of efficiency in
administration.
It is submitted that such a provision would
amount to putting a premium upon inefficiency. The members of
the reserved category would not work hard since they do not have
to compete with all their colleagues but only within the
reserved category and further because they are assured of
promotion whether they work hard and efficiently or not. Such a
course would also militate against the goal of excellence
referred to in clause (j) of
Article 51-A (Fundamental Duties)
.”

Thereafter, the Bench referred to the decisions in General Manager,
S. Rly. v.
Rangachari[5], State of Punjab v. Hira Lal
[6],
Akhil Bharatiya
Soshit Karamchari Sangh v. Union of India
[7] and
Comptroller and Auditor
General v. K.S. Jagannathan
[8] and did not agree with the view stated in

Rangachari
(supra), despite noting the fact that Rangachari has been a law
for more than thirty years and that attempt to reopen the issue was
repelled in
Akhil Bharatiya Soshit Karamchari Sangh
(supra). Thereafter,
their Lordships addressed to the concept of promotion and, eventuall,y
after adverting to certain legal principles, stated thus: -

“831. We must also make it clear that it would not be
impermissible for the State to extend concessions and
relaxations to members of reserved categories in the matter of
promotion without compromising the efficiency of the
administration. The relaxation concerned in
State of Kerala v.
N.M. Thomas
[(1976) 2 SCC 310] and the concessions namely
carrying forward of vacancies and provisions for in-service
coaching/training in Karamchari Sangh are instances of such
concessions and relaxations. However, it would not be
permissible to prescribe lower qualifying marks or a lesser
level of evaluation for the members of reserved categories since
that would compromise the efficiency of administration. We
reiterate that while it may be permissible to prescribe a
reasonably lesser qualifying marks or evaluation for the OBCs,
SCs and STs – consistent with the efficiency of administration
and the nature of duties attaching to the office concerned – in
the matter of direct recruitment, such a course would not be
permissible in the matter of promotions for the reasons recorded
hereinabove.”

In paragraph 859, while summarising the said aspect, it has been
ruled thus: -

“859. We may summarise our answers to the various questions
dealt with and answered hereinabove:

.......... .............. ...........

(7)
Article 16(4)
does not permit provision for reservations
in the matter of promotion. This rule shall, however, have
only prospective operation and shall not affect the
promotions already made, whether made on regular basis or
on any other basis. We direct that our decision on this
question shall operate only prospectively and shall not
affect promotions already made, whether on temporary,
officiating or regular/permanent basis. It is further
directed that wherever reservations are already provided in
the matter of promotion – be it Central Services or State
Services, or for that matter services under any
Corporation, authority or body falling under the definition
of ‘State’ in
Article 12
– such reservations may continue
in operation for a period of five years from this day.

Within this period, it would be open to the appropriate
authorities to revise, modify or re-issue the relevant
rules to ensure the achievement of the objective of
Article
16(4).
If any authority thinks that for ensuring adequate
representation of ‘backward class of citizens’ in any
service, class or category, it is necessary to provide for
direct recruitment therein, it shall be open to it to do so
(Ahmadi, J expresses no opinion on this question upholding
the preliminary objection of Union of India). It would not
be impermissible for the State to extend concessions and
relaxations to members of reserved categories in the matter
of promotion without compromising the efficiency of the
administration.”

17. After
the said decision
, another decision, namely,
Union of India and
others v. Virpal Singh Chauhan and others
[9] came to the field. In the
said case, the two-Judge Bench was concerned with the nature of rule and
reservation in promotions obtaining in the railway service and the rule
concerning the determination of seniority between general candidates and
candidates belonging to reserved classes in the promotional category.

The
Bench referred to the decision in
R.K. Sabharwal v. State of Punjab
[10],
various paragraphs of the Indian Railways Establishment Manual and
paragraphs 692 and 693 of the
Indra Sawhney
(supra) and opined that the
roster would only ensure the prescribed percentage of reservation but would
not affect the seniority. It has been stated that while the reserved
candidates are entitled to accelerated promotion, they would not be
entitled to consequential seniority.

18. Thereafter, in
Ajit Singh Januja and others v. State of Punjab and
others
[11], the three-Judge Bench posed the question in the following
terms: -

“The controversy which has been raised in the present appeals
is: whether, after the members of Scheduled Castes/Tribes or
Backward Classes for whom specific percentage of posts have been
reserved and roster has been provided having been promoted
against those posts on the basis of “accelerated promotion”
because of reservation of posts and applicability of the roster
system, can claim promotion against general category posts in
still higher grade on the basis of their seniority which itself
is the result of accelerated promotion on the basis of
reservation and roster?”

The Bench referred to the decisions in
Virpal Singh Chauhan
(supra),

R.K. Sabharwal
(supra) and
Indra Sawhney
(supra) and ultimately concurred
with the view expressed in Virpal Singh Chauhan by stating as follows: -

“16. We respectfully concur with the view in
Union of
India v. Virpal Singh Chauhan
, that seniority between the
reserved category candidates and general candidates in the
promoted category shall continue to be governed by their panel
position i.e. with reference to their inter se seniority in the
lower grade. The rule of reservation gives accelerated
promotion, but it does not give the accelerated “consequential
seniority”. If a Scheduled Caste/Scheduled Tribe candidate is
promoted earlier because of the rule of reservation/roster and
his senior belonging to the general category is promoted later
to that higher grade the general category candidate shall regain
his seniority over such earlier promoted Scheduled Caste/Tribe
candidate. As already pointed out above that when a Scheduled
Caste/ Tribe candidate is promoted earlier by applying the rule
of reservation/roster against a post reserved for such Scheduled
Caste/Tribe candidate, in this process he does not supersede his
seniors belonging to the general category. In this process
there was no occasion to examine the merit of such Scheduled
Caste/Tribe candidate vis-a-vis his seniors belonging to the
general category. As such it will be only rational, just and
proper to hold that when the general category candidate is
promoted later from the lower grade to the higher grade, he will
be considered senior to a candidate belonging to the Scheduled
Caste/Tribe who had been given accelerated promotion against the
post reserved for him. Whenever a question arises for filling
up a post reserved for Scheduled Caste/Tribe candidate in a
still higher grade then such candidate belonging to Scheduled
Caste/Tribe shall be promoted first but when the consideration
is in respect of promotion against the general category post in
a still higher grade then the general category candidate who has
been promoted later shall be considered senior and his case
shall be considered first for promotion applying either
principle of seniority-cum-merit or merit-cum-seniority. If
this rule and procedure is not applied then result will be that
majority of the posts in the higher grade shall be held at one
stage by persons who have not only entered service on the basis
of reservation and roster but have excluded the general category
candidates from being promoted to the posts reserved for general
category candidates merely on the ground of their initial
accelerated promotions. This will not be consistent with the
requirement or the spirit of
Article 16(4)
or
Article 335
of the
Constitution.”

19.
In
Jagdish Lal and others v. State of Haryana and others
[12], a three-
Judge Bench opined that seniority granted to the Scheduled Caste and
Scheduled Tribe candidates over a general candidate due to his accelerated
promotion does not in all events get wiped out on promotion of general
candidate.

The Bench explained the decisions in
Vir Pal Singh Chauhan

(supra) and
Ajit Singh Januja
(supra).

20.
In Ajit Singh and others (II) v. State of Punjab and others[13], the
Constitution Bench was concerned with the issue whether the decisions in

Vir Pal Singh Chauhan
(supra) and
Ajit Singh Januja
(supra) which were
earlier decided to the effect that the seniority of general candidates is
to be confirmed or whether the later deviation made in
Jagdish Lal
(supra)
against the general candidates is to be accepted. The Constitution Bench
referred to
Articles 16(1)
, 16(4)
and
16(4A)
of the Constitution and
discussed at length the concept of promotion based on equal opportunity and
seniority and treated them to be facets of Fundamental Right under
Article
16(1)
of the Constitution. The Bench posed a question whether
Articles
16(4)
and
16(4A)
guarantee any Fundamental Right to reservation. Regard
being had to the nature of language employed in both the Articles, they
were to be treated in the nature of enabling provisions. The Constitution
Bench opined that
Article 16(1)
deals with the Fundamental Right and

Articles 16(4)
and
16(4A)
are the enabling provisions.

After so stating,
they proceeded to analyse the ratio in
Indra Sawhney
(supra),
Akhil
Bharatiya Soshit Karamchari Sangh
(supra) and certain other authorities in
the field and, eventually, opined that it is axiomatic in service
jurisprudence that any promotions made wrongly in excess of any quota are
to be treated as ad hoc. This applies to reservation quota as much as it
applies to direct recruits and promotee cases. If a court decides that in
order only to remove hardship such roster-point promotees are not to face
reversions, - then it would, in our opinion be, necessary to hold –
consistent with our interpretation of
Articles 14
and
16(1)
– that such
promotees cannot plead for grant of any additional benefit of seniority
flowing from a wrong application of the roster. While courts can relieve
immediate hardship arising out of a past illegality, courts cannot grant
additional benefits like seniority which have no element of immediate
hardship. Ultimately while dealing with the promotions already given
before 10.2.1995 the Bench directed as follows: -

“Thus, while promotions in excess of roster made before 10-2-
1995 are protected, such promotees cannot claim seniority.
Seniority in the promotional cadre of such excess roster-point
promotees shall have to be reviewed after 10-2-1995 and will
count only from the date on which they would have otherwise got
normal promotion in any future vacancy arising in a post
previously occupied by a reserved candidate. That disposes of
the “prospectivity” point in relation to Sabharwal.”

21. At this juncture, it is condign to note that
Article 16(4A)
and

Article 16 (4B)
were inserted in the Constitution to confer promotion with
consequential seniority and introduced the concept of carrying forward
vacancies treating the vacancies meant for reserved category candidates as
a separate class of vacancies. The said Articles as amended from time to
time read as follows: -

“16(4A) Nothing in this Article shall prevent the State
from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes
of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion
of the State, are not adequately represented in the services
under the State.

16(4B) Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved
for being filled up in that year in accordance with any
provision for reservation made under clause (4) or (4A) as a
separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be
considered together with the vacancies of the year in which they
are being filled up for determining the ceiling of fifty per
cent reservation on total number of that year.”

22. The validity of the said Articles were challenged under
Article 32
of
the Constitution of India before this Court and the Constitution Bench in

M. Nagraj
(supra) upheld the validity of the said Articles with certain
qualifiers/riders by taking recourse to the process of interpretation. As
the controversy rests mainly on
the said decision
, we will advert to it in
detail at a later stage.

23. Presently, we shall dwell upon the provisions that were under
challenge before the High Court. The Legislative Assembly of Uttar Pradesh
brought in a legislation, namely, the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and other Backward
Classes) Act, 1994
(UP Act
No. 4 of 1994) to provide for reservation in
public services and posts in favour of the persons belonging to Scheduled
Castes, Scheduled Tribes and other Backward Classes of citizens and for
matters connected therewith or incidental thereto. Section 3(7), which is
relevant for our present purpose, reads as follows: -

“Reservation in favour of Scheduled Castes, Scheduled
Tribes and other Backward Classes. –

...... .......... ..........

(7) If, on the date of commencement of this Act, reservation
was in force under Government Orders for appointment to posts to
be filled by promotion, such Government Orders shall continue to
be applicable till they are modified or revoked.”

Sub-section (7) of Section 3 was the subject-matter of assail before
the High Court.

24. As the factual matrix would reveal, the State of Uttar Pradesh
brought into existence the Uttar Pradesh Government Servants Seniority
(First Amendment) Rules, 2002 on the 18th of October, 2002 in exercise of
the power conferred under
Article 309
of the Constitution whereby after
Rule 8, new Rule 8-A was inserted. The said Rule reads as follows: -

“8-A. Notwithstanding anything contained in Rule s6,7 or 8 of
these rules, a person belonging to the Scheduled Castes or
Scheduled Tribes shall on his promotion by virtue of rule of
reservation/ roster, be entitled to consequential seniority
also.”

25. It is worth noting that on May 13, 2005, by the Uttar Pradesh
Government Servants Seniority (Second Amendment) Rules, 2005, Rule 8-A was
omitted. However, it was provided in the said Rules that the promotions
made in accordance with the revised seniority as determined under Rule 8-A
prior to the commencement of the 2005 Rules could not be affected.
Thereafter, on September 14, 2007, by the Uttar Pradesh Government Servants
Seniority (Third Amendment) Rules, 2007, Rule 8-A was inserted in the same
language which we have already reproduced hereinabove. It has been
mentioned in the said Rule that it shall be deemed to have come into force
on June 17, 1995. It is germane to note here that the U.P. Power
Corporation Limited adopted the said Rules as there is no dispute about the
fact that after the Rules came into existence and have been given effect to
at some places and that is why the challenge to the constitutional validity
of the Act and the Rules was made before the High Court. We have already
indicated how both the Benches have dealt with the said situation.

26. At this stage, we may usefully state that though number of appeals
have been preferred, yet some relate to the assail of the interim orders
and some to the final orders. We may only state for the sake of clarity
and convenience that if Section 3(7) and Rule 8-A as amended in 2007 are
held to be constitutionally valid, all the appeals are bound to be
dismissed and if they are held to be ultra vires, then the judgment passed
by the Lucknow Bench shall stand affirmed subject to any
clarification/modification in our order.

27. As has been noticed hereinbefore, the Allahabad Bench had understood
the dictum in
M. Nagaraj
(supra) in a different manner and the Division
Bench at Lucknow in a different manner. The learned counsel appearing for
various parties have advanced their contentions in support of the
provisions in the enactment and the Rules.

We would like to condense their
basic arguments and endeavour to pigeon-hole keeping in view the facts
which are requisite to be referred to at the time of analysis of
the said
decision
in the backdrop of the verdict in
M. Nagaraj
(supra).

28. Mr. Andhyarujina and Mr. Raju Ram Chandran, learned senior counsel
criticising the decision passed by the Lucknow Bench, have submitted that
the High Court has fallen into grave error by not scrutinising the
materials produced before it, as a consequence of which a sanctuary of
errors have crept into it. If the counter affidavit and other documents
are studiedly scanned, it would be luminescent that opinion has been formed
as regards inadequate representation in promotional posts and, therefore,
it had become an imperative to provide for reservation. The opinion formed
by the Government need not be with mathematical precision to broad spectrum
and such exercise has already been done by the State of U.P., since
reservation in promotional matters was already in vogue by virtue of
administrative circulars and statutory provisions for few decades. It
is urged that the concept of inadequate representation and backwardness
have been accepted by the amending power of the Constitution and,
therefore, the High Court has totally flawed by laying unwarranted emphasis
on the said concepts. The High Court could not have sat in appeal on the
rule of reservation solely on the factual bedrock. The chart brought on
record would reflect department wise how the persons from backward classes
have not been extended the benefit of promotion and the same forms the
foundation for making the enactment and framing the rule and hence, no
fault could have been found with the same. Once an incumbent belongs to
Scheduled Castes/ Scheduled Tribes category, it is conclusive that he
suffers from backwardness and no further enquiry is necessary. It has been
clearly held in the case of
Indra Sawhney
(supra) that the test or
requirement of social and educational backwardness cannot be applied to
Scheduled Castes/ Scheduled Tribes who indubitably fall within the
expression ‘Backward Classes of Citizen’. It is beyond any shadow of
doubt that Scheduled Castes/ Scheduled Tribes are a separate class by
themselves and the creamy layer principle is not applicable to them.

It
has been so held in
Avinash Singh Bagri and Ors. v. Registrar IIT Delhi and
Another
[14].
Article 16 (4A)
uses the phrase ‘in the opinion of’ and the
said word carries a different meaning to convey that it is subjective in
nature rather than objective. The Report of the “Social Justice
Committee” dated 28.06.2001 clearly ascertains the need for implementation
of reservation in promotional matters in public service in U. P. and the
said Report deserves acceptance. The State Government was possessed of
sufficient materials to implement the promotional provisions which are
enabling in nature and the same is justified by the “Social Justice
Committee Report” which has examined the current status of implementation
of Scheduled Castes/ Scheduled Tribes and other backward classes in other
public services with respect to their quota, their participation and
progress in various services, the substantial backlog in promotional posts
in category A, B and C posts and the inadequacy of representation in
promotional posts and various departments and State owned corporations.
The High Court has completely erred specially when there was sufficient
data available with the State Government. Regard being had to the factum
that the said promotions were being given for few decades, a fresh exercise
regarding adequacy was not necessary. The concept of efficiency as
stipulated under
Article 335
of the Constitution is in no way affected if
the reservation does not exceed 50%. The consequential seniority being
vested by the Constitution, it follows as natural corollary and hence, no
further exercise was required to be undertaken. The learned counsel for
the State has drawn the attention of this Court with respect to the
percentage of representation to justify that requisite data was available
and no further exercise was needed and, therefore, the decision of the High
Court is fundamentally fallacious.

29. Mr. P. S Patwalia, learned senior counsel appearing in some appeals
for the corporation, has submitted that the requirement of having
quantifiable data is not a new concept propounded in the case of
M. Nagraj

(supra) but is a reiteration of the earlier view enunciated in
Indra
Sawhney
case (supra) and, therefore, the provision could not have been
declared as ultra vires. The emphasis on backwardness is absolutely
misconceived, for Scheduled Castes/ Scheduled Tribes are duly notified as
such in the Presidential list by virtue of
Articles 341
and
of the
Constitution. Their exclusion from the list can alone be done by the
amendment of the Presidential Order and hence, any kind of collection of
data as regards the backwardness is an exercise in futility.

The concept
of creamy layer principle cannot be applied to Scheduled Castes/ Scheduled
Tribes as has been held in the case of
Ashok Kumar Thakur v. Union of
India
[15].

Learned senior counsel has placed reliance on the decision
in
E. V. Chinniah v. State of Andhra Pradesh
[16] to highlight that there
may be only one list of Scheduled Castes/Scheduled Tribes and this list
constitutes one group for the purpose of reservation and the same cannot be
interfered with, disturbed, re-grouped or re-classified by the State. In
essence, the submission is that there may not be exclusion by engrafting
the principle of backwardness for the purpose of reservation in promotion.

Commenting on the adequacy of representation, it is urged by Mr. Patwalia
that the data was immediately collected after the 1994 Act and thereafter,
no fresh data was necessary to be collected after the decision rendered by
the Constitution Bench in
M. Nagraj
(supra).
It is further submitted by
the learned counsel that even if quantifiable data is not collected, the
State can be asked to do so in view of the order passed by this Court in S.
B Joshi v. State of Karnatka and Others in W.P. 259 of 1994 decided on
13.07.2010. The efficiency of service as encapsuled in
Article 335
of the
Constitution has been duly respected by providing a uniform minimum
standard of the matters of promotion as far as the Corporation is concerned
and, therefore, no fault can be found in that regard.

30. Mr. P. P. Rao, learned senior counsel appearing for some of the
private respondents assailing the decision of the Lucknow Bench, has urged
that when there was no challenge to the orders issued prior the amendment
for reservation in promotion, no quantifiable data is necessary. Section
3 (7) of the 1994 Act does not make any change except recognising the
earlier orders which lay down that they shall continue to be applicable
till it is modified or revoked and, therefore, it has only been conferred
statutory recognition. The High Court has misunderstood the decision in

M. Nagraj
(supra) while stating that the collection of quantifiable data
was not undertaken though
the said decision
clearly lays down that a
collection of quantifiable data showing backwardness for the class would be
required while demonstrating the same in Court to the extent of promotion
when it is under challenge. In the case at hand, the issue is not the
extent of reservation or excessive reservation but reservation in
promotion.

That apart, the principles
laid down in

M. Nagraj
(supra) do
not get attracted if reservation in promotion is sought to be made for the
first time but not for continuing the reservation on the basis of
assessment made by the Parliament in exercise of its constituent powers.

The Constitutional Amendment removed the base of the decision in
Indra
Sawhney
(supra) that reservation in promotion is not permissible and the
Government in its wisdom has carried out the assessment earlier and decided
to continue the policy and, therefore, to lay down the principle that in
view of the decision in
M Nagraj
(supra), a fresh exercise is necessary
would tantamount to putting the concept in the realm of inherent fallacy.

The decision in
Suraj Bhan Meena and Another v. State of Rajasthan &
Ors.
[17] is not a binding precedent inasmuch as it takes note of the
contention (at paragraph 24 at page no. 474-475 of the Report) but does
not deal with it. The 85th Amendment which provides for consequential
seniority wipes out the ‘catch up’ rule ‘from its inception and the
general principle of seniority from the date of promotion operates without
any break and for the same reason the said amendment had been given
retrospective effect’. The intention of the Parliament at the time of
exercise of its constitutional power clearly states that the representation
of Scheduled Castes/ Scheduled Tribes in the services in the States had not
reached the required level and it is necessary to continue the existing
position of providing reservation in promotion in the case of Scheduled
Castes/ Scheduled Tribes. The learned senior counsel has laid immense
emphasis on the intention of the Parliament and the Legislature to continue
the policy and, pyramiding the said submission, he has contended that no
fresh exercise is required. It is propounded by Mr. Rao that
Article 16

basically relates to classes and not backward individuals and therefore, no
stress should be given on the backwardness. Alternatively, the learned
senior counsel has submitted that the matter should be referred to a larger
Bench, regard being had to the important issue involved in the case.

31. Mr. Rakesh Dwivedi, learned senior counsel who represents some of
the petitioners aggrieved by the Lucknow Bench decision, has urged that
backwardness is presumed in view of the nine-Judge Bench decision in
Indra
Sawhney
(supra) and the same has to be regarded beyond any cavil.

The
dictum in
M. Nagraj
(supra) cannot be understood to mandate collection
of quantifiable data for judging the backwardness of the Scheduled Castes/
Scheduled Tribes while making reservation in promotion. But,
unfortunately, the High Court has understood the Judgment in the aforesaid
manner. There is no material produced on record to establish that
Scheduled Castes/ Scheduled Tribes candidates having been conferred the
benefit of promotion under reservation have ceased to be backward.

Though the decision in
Indra Sawhney
(supra) held that the promotion in
reservation is impermissible, yet it continued the reservation in promotion
for a period of five years and, therefore, the Constitution Amendment came
into force in this backdrop Section 3 (7) of the 1994 Act could not have
been treated to be invalid. But the stand that the refixation of seniority
after coming into existence of Rule 8-A of the Rules or the rule by the
corporation is basically fallacious, for persons who were promoted earlier
to the higher post are entitled to seniority from the date of promotion.

The learned senior counsel has contended that after coming into force of
the amendment of the Constitution by inserting
Article 16 (4A)
, the
decisions in Rangachary (supra) and
Akhil Bhartiya Karmachari Sangh
(supra)
have been restored and the concept of ‘catch up’ rule as propounded in Ajit
Singh II (supra) has also been nullified.

Article 16 (4A)
only makes it
explicit what is implicit under service jurisprudence in matters of
promotion and the said benefit was always enjoyed by the Scheduled Castes/
Scheduled Tribes people and
M. Nagraj
(supra) does not intend to affect the
said aspect.

The learned counsel has referred to paragraph 798 of
Indra
Sawhney
(supra) to highlight the scope of judicial scrutiny in matters
which are within the subjective satisfaction of the executive and are to be
tested as per the law
laid down in

Barium Chemicals v. Company Law Board

[18]. In essence, the submission is that in adequacy of representation is
in the domain of subjective satisfaction of the State Government and is to
be regarded as a policy decision of the State.

The learned senior counsel
has distinguished the principle enunciated in
Suraj Bhan Meena
(supra). In
that case, the court was not dealing with an issue where the reservation
had already been made and was in continuance. It is highlighted by Mr
Dwivedi that in the present case the issue is not one where there is no
material on record to justify the subjective satisfaction, but, on the
contrary, there is adequate material to show that the State Government was
justified in introducing the provision in the Act and the Rule.

As regards
the efficiency in administration has mandate under
Article 335
of the
Constitution, the submission of Mr. Dwivedi is that the constitutional
amendment has been made keeping in mind the decision in
Indra Sawhney

(supra) and the amendment of
Article 335
facilitates the reservations in
promotion. The learned senior counsel would contend that maintenance of
efficiency basically would convey laying a prescription by maintaining the
minimum standard and in the case of the Corporation it has been so done.

It has been propounded by him that if backwardness becomes the criterion,
it would bring out the internal conflict in the dictum of
M. Nagraj
(supra)
and then
in that case
it has to be reconciled keeping in view the common
thread of judgment or the matter should be referred to a larger Bench.

In any case,
M. Nagraj
(supra) does not lay down that the quantifiable data
of backwardness should be collected with respect to eligible Scheduled
Castes/ Scheduled Tribes employees seeking promotion.

Mr. Dwivedi has
commended to the decision in
Union of India v. Rakesh Kumar
[19] to
highlight that the proportion of population is the thumb rule as far as the
Scheduled Castes/ Scheduled Tribes are concerned and that should be the
laser beam to adjudge the concept of inadequacy of reservation.
Reservation in promotion involves a balancing act between the national need
to equalise by affirmative action and to do social justice on one hand and
to ensure that equality of opportunity as envisaged under
Article 14
is not
unduly affected by the benefit of promotion which has been conferred by the
Act and Rules on the Scheduled Castes/ Scheduled Tribes as a balancing act
and same has always been upheld by this Court.

32. Mr. Shanti Bhushan, learned senior counsel, has submitted that the
Constitution Bench in
M. Nagaraj
(supra) has clearly laid down certain
conditions, namely, that there must be compelling reasons for making
reservation in promotion; that the State is not bound to make reservation
for Scheduled Castes/ Scheduled Tribes in matters of promotion; that if the
State thinks that there are compelling reasons to make such reservation in
promotion, it is obligatory on the part of the State to collect
quantifiable data showing the backwardness of the class and inadequacy of
representation of that class in public employment and also by making such
reservation in promotion, the efficiency in administration is not affected;
that the exercise is required to be made before making any reservation for
promotion; that the State has not applied its mind to the question as to
what could be regarded as an adequate representation for Scheduled
Castes/Scheduled Tribes in respect of promotion; that the provision for
reservation in matters of promotion has to be considered in any class or
classes of posts not adequately represented in the services under the State
but unfortunately, the exercise in that regard has not at all been taken up
but amendments have been incorporated; that the concept of backwardness and
inadequacy of representation as understood in the case of
M. Nagaraj

(supra) has been absolutely misunderstood and misconstrued by the State
Government as a consequence of which the Rules of the present nature have
come into existence; that the overall efficiency as enshrined under
Article
of the Constitution has been given a total go-bye which makes Section
3(7) of the 1994 Act and Rule 8-A absolutely vulnerable and thereby invites
the frown of the enabling provision and the dictum in
M. Nagaraj
(supra);
that Rule 8-A which confers accelerated seniority would leave no room for
the efficient general category officers which is not the intention of the
framers of the Constitution and also as it is understood by various
decisions of this Court.

33. Dr. Rajeev Dhavan, learned senior counsel, supporting the decision of
the Division Bench which has declared the Rule as ultra vires, has
submitted that if
M. Nagaraj
(supra) is properly read, it does clearly
convey that social justice is an over reaching principle of the
Constitution like secularism, democracy, reasonableness, social justice,
etc.

and it emphasises on the equality code and the parameters fixed by the
Constitution Bench as the basic purpose is to bring in a state of balance
but the said balance is destroyed by Section 3(7) of the 1994 Act and Rule
8-A inasmuch as no exercise has been undertaken during the post
M. Nagaraj

(supra) period.

In
M. Nagraj
(supra), there has been emphasis on
interpretation and implementation, width and identity, essence of a right,
the equality code and avoidance of reverse discrimination, the nuanced
distinction between the adequacy and proportionality, backward class and
backwardness, the concept of contest specificity as regards equal justice
and efficiency, permissive nature of the provisions and conceptual essence
of guided power, the implementation in concrete terms which would not cause
violence to the constitutional mandate; and the effect of accelerated
seniority and the conditions prevalent for satisfaction of the conditions
precedent to invoke the settled principles.

The learned senior counsel
further submitted that
M. Nagaraj
(supra) deals with cadre and the posts
but the State has applied it across the board without any kind of real
quantifiable data after pronouncement of the
M. Nagaraj
(supra). It is
his further submission that after Section 3(7) of the 1994 Act and Rule 8-
A are allowed to stand, the balancing factor which has so far been
sustained by this Court especially pertaining to reservation would stand
crucified.

It is urged by him that the chart supplied by the State only
refers to the number and, seniority of officers but it does not throw any
light on the core issue and further, a mere submission of a chart would not
meet the requisite criteria as specified in
M. Nagaraj
(supra).

34. Mr. Vinod Bobde, learned senior counsel, has submitted that if
accelerated seniority is confirmed on the roster by the promotees, the
consequences would be disastrous inasmuch as the said employee can reach
the fourth level by the time he attains the age of 45 years and at the age
of 49, he would reach the highest level and stay there for nine years
whereas a general merit promotee would reach the third level out of the six
levels at the age of 56 and by the time he gets eligibility to get into the
fourth level, he would reach the age of superannuation. It is urged by him
that if reservation in promotion is to be made, there has to be collection
of quantifiable data, regard being had to the backwardness and inadequacy
of representation in respect of the posts in a particular cadre and while
doing so, the other condition as engrafted under
Article 335
of the
Constitution relating to the efficiency of administration has to be
maintained. It is his further submission that in
M. Nagaraj
(supra),

Articles 16(4A)
and
16(4B)
have been treated to be enabling provisions and
an enabling provision does not create a fundamental right.

If the State
thinks to exercise the power, it has to exercise the power strictly in
accordance with the conditions postulated in the case of
M. Nagaraj

(supra). The State of U.P. has totally misguided itself by harbouring the
notion that merely because there has to be representation of Scheduled
Castes and Scheduled Tribes in the services, the State is obliged to
provide for reservation in promotion under
Article 16(4A).

The learned
senior counsel would vehemently contend that nothing has been brought on
record to show that after pronouncement of
M. Nagaraj
(supra), the State
had carried out an exercise but has built a castle in Spain by stating that
the provision being always there, the data was available.

It is canvassed
that the stand of the State runs counter to the principles
laid down in

M.
Nagaraj
(supra) which makes Section 3(7) and Rule 8-A sensitively
susceptible. The consequential seniority was introduced on 18.10.2002 but
was obliterated on 13.5.2005 and thereafter, it was revived on 14.9.2007
with retrospective effect and the reason is demonstrable from the
order/circular dated 17.10.2007 which is based on total erroneous
understanding and appreciation of the law
laid down by
this Court. It is
argued by him that the Act and the Rules were amended solely keeping in
view the constitutional provision totally ignoring how the said Articles
were interpreted by this Court. It is propounded by Mr. Bobde that the
State has referred to certain data and the “Social Justice Committee
Report” of 2001 but the same cannot save the edifice of the impugned
statutory provision and the Rules as the State could not have anticipated
what this Court was going to say while upholding the constitutional
validity.

35. Mr. Ranjit Kumar, learned senior counsel, has laid immense emphasis
on paragraphs 121 to 123 of
M. Nagaraj
(supra) to buttress the stand that
reservation in promotional matters is subject to the conditions enumerated
in the said paragraphs.

The learned senior counsel has drawn inspiration
from an order dated 11.3.2010 passed by a two-Judge Bench in Writ Petition
(civil) 81 of 2002 wherein the direction was given that the validity may be
challenged and on such challenge, the same shall be decided in view of the
final decision in
M. Nagaraj
(supra).

The learned senior counsel has
placed reliance on
Ashok Kumar Thakur v. Union of India and others
[20] to
highlight that any privilege given to a class should not lead to
inefficiency. Emphasis has also been laid on the term backwardness having
nexus with the reservation in promotion and collection of quantifiable data
in a proper perspective.

He has drawn inspiration from various paragraphs
in
M. Nagaraj
(supra) to show that when an enabling provision is held
valid, its exercise can be arbitrary and in the case at hand, the
provisions are absolutely arbitrary, unreasonable and irrational.

36. To appreciate the rival submissions raised at the bar and the
core controversy, it is absolutely seemly to understand what has been held
in
M. Nagraj
(supra) by the Constitution Bench. While assailing the
validity of
Article 16(4A)
of the Constitution which provides for
reservation in promotion with a consequential seniority, it was contended
that equity in the context of
Article 16(1)
connotes accelerated promotion
so as not to include consequential seniority and as consequential seniority
has been attached to the accelerated promotion, the constitutional
amendment is violative of
Article 14
read with
Article 16(1)
of the
Constitution. Various examples were cited about the disastrous affects
that would be ushered in, in view of the amendment. After noting all the
contentions, the Constitution Bench addressed to the concept of reservation
in the context of
Article 16(4)
and further proceeded to deal with equity,
justice and merit. In that context, the Bench stated thus: -

“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 Scheduled Caste 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 of reservation under
Article 16(4)
as well as

Article 16(4A)
come in the form of
Article 335
of the
Constitution.”

While dealing with reservation and affirmative action, the
Constitution Bench opined thus: -

“48. It is the equality "in fact" which has to be decided
looking at the ground reality. Balancing comes in where the
question concerns the extent of reservation. If the extent of
reservation goes beyond cut-off point then it results in reverse
discrimination. Anti-discrimination legislation has a tendency
of pushing towards de facto reservation. Therefore, a numerical
benchmark is the surest immunity against charges of
discrimination.

49. Reservation is necessary for transcending caste and not for
perpetuating it. Reservation has to be used in a limited sense
otherwise it will perpetuate casteism in the country.

Reservation is under-written by a special justification.
Equality in
Article 16(1)
is individual- specific whereas
reservation in
Article 16(4)
and
Article 16 (4-A)
is enabling.
The discretion of the State is, however, subject to the
existence of "backwardness" and "inadequacy of representation"

in public employment. Backwardness has to be based on objective
factors whereas inadequacy has to factually exist. This is where
judicial review comes in. However, whether reservation in a
given case is desirable or not, as a policy, is not for us to
decide as long as the parameters mentioned in
Articles 16(4)
and

16(4-A)
are maintained. As stated above, equity, justice and
merit (
Article 335
)/efficiency are variables which can only be
identified and measured by the State. Therefore, in each case, a
contextual case has to be made out depending upon different
circumstances which may exist Statewise.”

37. The Bench referred to the cases of
Indra Sawhney
(supra),
R.K.
Sabharwal
(supra),
Vir Pal Singh Chauhan
(supra),
Ajit Singh (I
) (supra)
and Ajit Singh (II) (supra) and opined that the concept of catch-up rule
and consequential seniority are judicially evolved concepts to control the
extent in reservation and the creation of this concept is relatable to
service jurisprudence. Thereafter, the Constitution Bench referred to the
scope of the impugned amendment and the Objects and Reasons and, in
paragraph 86, observed thus: -

“Clause (4-A) follows the pattern specified in Clauses (3) and
(4) of
Article 16.
Clause (4-A) of
Article 16
emphasizes the
opinion of the States in the matter of adequacy of
representation. It gives freedom to the State in an appropriate
case depending upon the ground reality to provide for
reservation in matters of promotion to any class or classes of
posts in the services. The State has to form its opinion on the
quantifiable data regarding adequacy of representation. 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).
Therefore, Clause (4-A)
will 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 come into force. The State can make
provision for reservation only if the above two circumstances
exist. Further in Ajit Singh (II) , this Court has held that
apart from “backwardness” and “inadequacy of representation” the
State shall also keep in mind “overall efficiency” (Article

335). Therefore, all the three factors have to be kept in mind
by the appropriate Government in providing for reservation in
promotion for SCs and STs.”

Thereafter, the Bench referred to the 2000 Amendment Act, the Objects
and Reasons and the proviso inserted to
Article 335
of the Constitution and
held thus: -

“98.
By the Constitution (Eighty-Second Amendment) Act, 2000
, a
proviso was inserted at the end of
Article 335
of the
Constitution which reads as under:

“Provided that nothing in this article shall prevent
in making of any provision in favour of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State.”

99. This proviso was added following the benefit of
reservation in promotion conferred upon SCs and STs alone. This
proviso was inserted keeping in mind the judgment of this Court
in Vinod Kumar which took the view that relaxation in matters of
reservation in promotion was not permissible under

Article 16(4)
in view of the command contained in
Article 335.

Once a separate category is carved out of Clause (4) of

Article 16
then that category is being given relaxation in
matters of reservation in promotion. The proviso is confined to
SCs and STs alone. The said proviso is compatible with the
scheme of
Article 16(4-A)
.”

In paragraph 102, their Lordships have ruled thus: -

“Clause (4) of
Article 16
, however, states that the appropriate
Government is free to provide for reservation in cases where it
is satisfied on the basis of quantifiable data that backward
class is inadequately represented in the services. Therefore, in
every case where the State decides to provide for reservation
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 the State. None of these
limitations have been removed by the impugned amendments. If the
concerned State fails to identify and measure backwardness,
inadequacy and overall administrative efficiency then in that
event the provision for reservation would be invalid. These
amendments do not alter the structure of

Articles 14
, 15
and
16 (equity code).
The parameters mentioned
in
Article 16(4)
are retained. Clause (4-A) is derived from
Clause (4) of
Article 16.
Clause (4-A) is confined to SCs and
STs alone. Therefore, the present case does not change the
identity of the Constitution.”

After so stating, it was observed that there is no violation of the basic
structure of the Constitution and the provisions are enabling provisions.
At that juncture, it has been observed as follows: -

“Article 16(4) is enacted as a remedy for the past historical
discriminations against a social class. The object in enacting
the enabling provisions like
Articles 16(4)
, 16(4-A)
and
16(4-
B)
is that the State is empowered to identify and recognize the
compelling interests. 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. That exercise depends on availability of data. That
exercise depends on numerous factors. It is for this reason that
enabling provisions are required to be made because each
competing claim seeks to achieve certain goals. How best one
should optimize these conflicting claims can only be done by the
administration in the context of local prevailing conditions in
public employment. This is amply demonstrated by the various
decisions of this Court discussed hereinabove. Therefore, there
is a basic difference between “equality in law” and “equality in
fact” (See Affirmative Action by William Darity). If

Articles 16(4-A)
and
16(4-B)
flow from
Article 16(4)
and if

Article 16(4)
is an enabling provision then
Articles 16(4-
A)
and
16(4-B)
are also enabling provisions. As long as the
boundaries mentioned in
Article 16(4)
, namely, backwardness,
inadequacy and efficiency of administration are retained in

Articles 16(4-A)
and
16(4-B)
as controlling factors, we cannot
attribute constitutional invalidity to these enabling
provisions. However, when the State fails to identify and
implement the controlling factors then excessiveness comes in,
which is to be decided on the facts of each case. In a given
case, where excessiveness results in reverse discrimination,
this Court has to examine individual cases and decide the matter
in accordance with law. This is the theory of “guided power”.

We may once again repeat that equality is not violated by mere
conferment of power but it is breached by arbitrary exercise of
the power conferred.”

In paragraph 108, the Bench analyzed the concept of application of the
doctrine of guided power under
Article 335
of the Constitution and, in that
context, opined thus: -

“Therefore, the question before us is - whether the State could
be empowered to relax qualifying marks or standards for
reservation in matters of promotion. In our view, even after
insertion of this proviso, the limitation of overall efficiency
in
Article 335
is not obliterated. Reason is that "efficiency"
is a variable factor. It is for State concerned to decide in a
given case, whether the overall efficiency of the system is
affected by such relaxation. If the relaxation is so excessive
that it ceases to be qualifying marks then certainly in a given
case, as in the past, the State is free not to relax such
standards. In other cases, the State may evolve a mechanism
under which efficiency, equity and justice, all three variables,
could be accommodated. 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 inadequacy, it may
relax the qualifying marks for SCs/STs. These compelling
interests however have to be identified by weighty and
comparable data.”

Thereafter, the Constitution Bench proceeded to deal with the test to
judge the validity of the impugned State Acts and opined as follows: -

“110. As stated above, the boundaries of the width of the power,
namely, the ceiling-limit of 50% (the numerical benchmark), the
principle of creamy layer, the compelling reasons, namely,
backwardness, inadequacy of representation and the overall
administrative efficiency are not obliterated by the impugned
amendments. At the appropriate time, we have to consider the law
as enacted by various States providing for reservation if
challenged. At that time we have to see whether limitations on
the exercise of power are violated. The State is free to
exercise its discretion of providing for reservation subject to
limitation, namely, that there must exist compelling reasons of
backwardness, inadequacy of representation in a class of post(s)
keeping in mind the overall administrative efficiency. It is
made clear that even if the State has reasons to make
reservation, as stated above, if the impugned law violates any
of the above substantive limits on the width of the power the
same would be liable to be set aside.”

In paragraph 117, the Bench laid down as follows: -

“The extent of reservation has to be decided on facts of each
case. The judgment in Indra Sawhney does not deal with
constitutional amendments. In our present judgment, we are
upholding the validity of the constitutional amendments subject
to the limitations. 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.”

In the conclusion portions, in paragraphs 123 and 124, it has been ruled
thus: -

“123. However, in this case, as stated above, the main issue
concerns the "extent of reservation". In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before
making provision for reservation. As stated above, the impugned
provision is an enabling provision. The State is not bound to
make reservation for SCs/STs in matter of promotions. However,
if they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation of
that class in public employment in addition to compliance with

Article 335.
It is made clear that even if the State has
compelling reasons, as stated above, the State will have to see
that its reservation provision does not lead to excessiveness so
as to breach the ceiling-limit of 50% or obliterate the creamy
layer or extend the reservation indefinitely.

124. Subject to the above, we uphold the constitutional
validity of the
Constitution (Seventy-Seventh Amendment) Act,
; the
Constitution (Eighty-First Amendment) Act, 2000
; the

Constitution (Eighty-Second Amendment) Act, 2000
and the

Constitution (Eighty-Fifth Amendment) Act, 2001
.”

38. From the aforesaid decision 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
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
harmonized 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 has to apply the cadre strength as a unit
in the operation of the roster in order to ascertain whether a given
class/group is adequately represented in the service. The cadre
strength as a unit also ensures that 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 regarding
adequacy of representation. Clause (4A) of
Article 16
is an enabling
provision. It gives freedom to the State to provide for reservation
in matters of promotion. Clause (4A) of
Article 16
applies only to
SCs and STs. The said clause is carved out of
Article 16(4A).

Therefore, Clause (4A) will 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 time-scale has to be imposed in the interest of efficiency in
administration as mandated by
Article 335.
If the time-scale 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
, 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 of
representation 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 optimize these
conflicting claims can only be done by the administration in the
context of local 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 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.

39. At this stage, we think it appropriate to refer to the case of
Suraj
Bhan Meena and another
(supra).

In the said case, while interpreting the
case in
M. Nagaraj
(supra), the two-Judge Bench has observed: -

“10.
In
M. Nagaraj
case, this Court while upholding the
constitutional validity of the Constitution (77thAmendment) Act,
1995 and the Constitution (85th
Amendment) Act, 2001
, clarified
the position that it would not be necessary for the State
Government to frame rules in respect of reservation in promotion
with consequential seniority, but in case the State Government
wanted to frame such rules in this regard, then it would have to
satisfy itself by quantifiable data, that there was
backwardness, inadequacy of representation in public employment
and overall administrative inefficiency and unless such an
exercise was undertaken by the State Government, the rule
relating to reservation in promotion with consequential
seniority could not be introduced.”

40.
In the said case, the State Government had not undertaken any
exercise as indicated in
M. Nagaraj
(supra). The two-Judge Bench has noted
three conditions in
the said judgment
.

It was canvassed before the Bench
that exercise to be undertaken as per the direction in
M.Nagaraj
(supra)
was mandatory and the State cannot, either directly or indirectly,
circumvent or ignore or refuse to undertake the exercise by taking recourse
to the
Constitution (Eighty-Fifth Amendment) Act
providing for reservation
for promotion with consequential seniority. While dealing with the
contentions, the two-Judge Bench opined that the State is required to place
before the Court the requisite quantifiable data in each case and to
satisfy the court that the said reservation became necessary on account of
inadequacy of representation of Scheduled Castes and Scheduled Tribes
candidates in a particular class or classes of posts, without affecting the
general efficiency of service. Eventually, the Bench opined as follows: -

“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
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
case as no exercise was undertaken in terms of

Article 16(4-A)
to acquire quantifiable data regarding the
inadequacy of representation of the Schedule 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.”

After so stating, the two-Judge Bench affirmed the view taken by the High
Court of Rajasthan.

41. As has been indicated hereinbefore, 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 jeopardized. 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
(supra).

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

Vir Pal Singh Chauhan
(supra) and Ajit Singh (II) (supra).

We are of the
firm view that a fresh exercise in the light of the judgment of the
Constitution Bench in
M. Nagaraj
(supra) 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(4A)
and

16(4B)
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 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 parameters laid down therein.

42.
In the ultimate analysis, we conclude and hold that Section 3(7) of
the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run
counter to the dictum in
M. Nagaraj
(supra).

Any promotion that has been
given on the dictum of
Indra Sawhney
(supra) and without the aid or
assistance of Section 3(7) and Rule 8A shall remain undisturbed.

43. The appeals arising out of the final judgment of Division Bench at
Allahabad are allowed and the impugned order is set aside. The appeals
arising out of the judgment from the Division Bench at Lucknow is affirmed
subject to the modification as stated hereinabove. In view of the
aforesaid, all other appeals are disposed of. The parties shall bear their
respective costs.

......................................................J.
[Dalveer Bhandari]

......................................................J.
[Dipak Misra]

New Delhi;

April 27, 2012

-----------------------

[1] (2006) 8 SCC 212 : AIR 2007 SC 71
[2] 1992 Supp. (3) SCC 217 : AIR 1993 SC 477
[3] AIR 1965 SC 1767
[4] AIR 1991 SC 1893
[5] AIR 1962 SC 36
[6] (1970) 3 SCC 567
[7] (1981) 1 SCC 246
[8] (1986) 2 SCC 679
[9] (1995) 6 SCC 684
[10] (1995) 2 SCC 745
[11] (1996) 2 SCC 715
[12] AIR 1997 SC 2366
[13] (1999) 7 SCC 209
[14] (2009) 8 SCC 220
[15] (2008) 6 SCC 1
[16] (2005) 1 SCC 394
[17] (2011) 1 SCC 467
[18] (1970) 3 SCC 567
[19] 2010 4 SCC 50
[20] (2008) 6 SCC 1