REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.6385 OF 2010
SURAJ BHAN MEENA & ANR. ... PETITIONERS
VERSUS
STATE OF RAJASTHAN & ORS. ... RESPONDENTS
WITH
SLP(C)NOS.7716, 7717, 7826, 7838 of 2010
J U D G M E N T
ALTAMAS KABIR, J.
1. Since common questions of fact and law are
involved, five Special Leave Petitions have been
taken up for hearing and final disposal together.
2
While SLP(C)No.6385 of 2010 has been filed by Suraj
Bhan Meena & Anr., SLP(C)Nos.7716, 7717, 7826 and
7838 of 2010, have all been filed by the State of
Rajasthan.
2. All the petitioners are aggrieved by the
judgment and order dated 5th February, 2010, passed
by the Jaipur Bench of the Rajasthan High Court in
D.B. Civil Special Appeal (Writ) No.618/2009 filed
by the State of Rajasthan & Anr. against Bajrang
Lal Sharma & Ors., D.B. Civil Special Appeal (Writ)
No.3/2010 filed by Suraj Bhan Meena against Bajrang
Lal Sharma & Ors., D.B. Civil Special Appeal (Writ)
No.611/2009 filed by the State of Rajasthan against
Gyan Prakash Shukla, D.B. Civil Special Appeal
(Writ) No.610/2009 filed by the State of Rajasthan
against M.M. Joshi, D.B. Civil Writ Petition
No.8104/2008 filed by Bajrang Lal Sharma & Ors.
against the State of Rajasthan & Ors., D.B. Civil
Writ Petition No.6241/2008 filed by Gyan Prakash
Shukla & Anr. against the State of Rajasthan & Ors.
3
and D.B. Civil Writ Petition No.7775/2009 filed by
M.M. Joshi against the State of Rajasthan & Ors.
As indicated hereinbefore, all the matters were
heard and disposed of by a common judgment passed
by the Division Bench on 5th February, 2010. While
considering the writ petitions along with the writ
appeals, the Division Bench referred to the facts
of D.B. Civil Writ Petition No.8104/2008, against
which SLP(C)No.6385/2010 has been filed by Suraj
Bhan Meena and SLP(C)No.7716/2010 has been filed by
the State of Rajasthan. The other Special Leave
Petitions have been filed against the orders passed
in the Writ Petitions filed by the private
respondents therein.
3. All the writ petitioners, as also the
Petitioners in SLP(C)No.6385/2010, are members of
the Rajasthan Administrative Service and are
governed by the Rajasthan Administrative Service
Rules, 1954. The writ petitioners in their
respective writ petitions challenged the
4
Notification dated 25th April, 2008, issued by the
State of Rajasthan in exercise of its powers
conferred by the proviso to Article 309 of the
Constitution of India amending the Rajasthan
"Various Service Rules" with effect from
28.12.2002.
4. According to the writ petitioners, they had
been inducted in the Rajasthan Administrative
Service in December, 1982, through selection by the
Rajasthan Public Service Commission. Vide notice
dated 26th June, 2000, the State Government issued a
Provisional Seniority List of Rajasthan
Administrative Service Selection Grade as on
1.4.1997, in which the Writ Petitioner No.1,
Bajrang Lal Sharma, was placed above Suraj Bhan
Meena (Scheduled Tribe) and Sriram Choradia
(Scheduled Caste). The said Seniority List was
published pursuant to the order of this Court dated
16.9.1999, passed in the case of Ajit Singh-II &
Ors. Vs. State of Punjab & Ors. [(1999) 7 SCC 209]
5
and another order of the same date in the case of
Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251]. Once
again Provisional Seniority Lists were published on
27.11.2003 and 12.5.2008. Subsequently, the State
of Rajasthan published the final Seniority Lists of
Super Time Scale and Selection Scale of the service
on 24.6.2008 as on 1.4.1997 and Provisional
Seniority List dated 2.7.2008 as on 1.4.2008,
wherein the name of Bajrang Lal Sharma was shown
below the names of both Suraj Bhan Meena and Sriram
Choradia.
5. The Notification dated 25.4.2008, which was the
subject matter of challenge in the Writ Petition
was challenged on two grounds. It was firstly
contended that the proviso dated 28.12.2002, which
had been added to the Various Service Rules was
subject to the final decision of this Court in Writ
Petition (Civil) No.234/2002 filed by the All India
Equality Forum against the Union of India & Ors.,
but the same was yet to be decided. Therefore,
6
during the pendency of the Writ Petition before
this Court, the Respondents had acted improperly in
deleting the above-mentioned proviso in the Various
Service Rules by the Notification dated 25.4.2008,
which amounted to giving a consequential seniority
to candidates belonging to the Scheduled Castes and
Scheduled Tribes, which could not have been given
without quantifying the figures of Scheduled Castes
and Scheduled Tribes candidates to enable a
decision to be arrived at that reservation was
required in promotion and also to show that the
State had to pass such orders for compelling
reasons, such as, backwardness, inadequacy of
representation, as held by this Court in the case
of M. Nagaraj & Ors. vs. Union of India & Ors.
[(2006) 8 SCC 212]. It was contended that since
the State Government had not complied with the
directions given by this court in M. Nagaraj's case
(supra), the Notification in question was liable to
be quashed. It was further urged on behalf of the
7
Writ Petitioner, Bajrang Lal Sharma, that in the
case of Indra Sawhney & Ors. Vs. Union of India &
Ors. [(1992) Supp.(3) SCC 217], this Court had held
that Article 16(4) of the Constitution of India did
not permit reservations in the matter of promotion.
Thereafter, the Constitution (77th Amendment) Act,
1995, was enacted and came into force on 17.6.1995.
The subsequent Special Leave Petitions filed by the
Union of India & Ors. against Virpal Singh Chauhan
& Ors. [(1995) 6 SCC 684], Ajit Singh Januja & Ors.
Vs. State of Punjab & Ors. [(1996) 2 SCC 715] and
Ajit Singh-II & Ors. Vs. State of Punjab & Ors.
[(1999) 7 SCC 209)], introduced the "catch-up" rule
and held that if a senior general candidate was
promoted after candidates from the Scheduled Castes
and Scheduled Tribes have been promoted to a
particular cadre, the senior general candidate
would regain his seniority on promotion in
relation to the juniors who had been promoted
against reserved vacancies.
8
6. The Parliament on 4.1.2002 amended the
Constitution by the Constitution (85th Amendment)
Act, 2001, in order to give the benefit of
consequential seniority to the reserved category
candidates with effect from 17.6.1995. The
constitutional validity of both the said
Constitution Amendment Acts was challenged before
this court in other writ petitions, including the
writ petition filed by M. Nagaraj and All India
Equality Forum. During the pendency of the writ
petitions, this Court passed an interim order
protecting the promotion and seniority of
general/OBC candidates. The Government of
Rajasthan, thereafter, deleted the proviso added
vide Notification dated 1.4.1997.
7. In M. Nagaraj's case (supra), this Court while
upholding the constitutional validity of the
Constitution (77th Amendment) Act, 1995 and the
Constitution (85th Amendment) Act, 2001, clarified
9
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.
8. Despite the decision in M. Nagaraj's case, the
State Government by deleting the proviso, which had
been inserted vide notification dated 1.4.1997 on
the basis of the "catch-up" rule and further
deleting the new proviso added on 28.12.2002 in the
Various Service Rules of the State, had in effect
provided consequential seniority to the Scheduled
Castes and Schedule Tribes candidates, without
10
undertaking the exercise indicated in M. Nagaraj's
case in respect of the three conditions laid down
in the said judgment. It was the case of the
Petitioners that the impugned notification dated
25.4.2008 was liable to be declared ultra vires to
the provisions of the Constitution being contrary
to the decision of this Court in M. Nagaraj's case.
9. As indicated hereinbefore, it was also the case
of the Writ Petitioners that nowhere in Rule 33 of
the Rajasthan Administrative Service Rules has any
provision been made for consequential seniority to
reserved category promotees. As a result, after
the judgment in B.K. Sharma & Anr. Vs. State of
Rajasthan & Ors. [WLC (Raj.) 1998 (2) 583] and in
Ram Prasad's case (supra), consequential seniority
could not have been assigned to reserve promotees
above the senior General/OBC candidates.
10. This was the view which had been taken by this
Bench in the cases of Virpal Singh Chauhan (supra)
11
and Ajit Singh-I (supra) to the effect that reserve
promotees would be entitled for accelerated
promotion, but not accelerated seniority. The same
view was reiterated by a Constitution Bench of this
Court on 16th September, 1999, while deciding Ajit
Singh-II's case (supra). It is only on account of
the judgment in Virpal Singh Chauhan's case (supra)
and in the case of Ajit Singh-I (supra), the State
Government vide notification dated 1.4.1997
inserted the new proviso in the Various Service
Rules.
11. The Constitution (85th Amendment) Act, 2001 was
thereafter passed on 4th January, 2002, with
retrospective effect from 16th September, 1995, with
regard to consequential seniority to reserve
promotees. It was the said amendments which were
the subject matter of challenge in several writ
petitions, including in M. Nagaraj's case and in
the case of All India Equality Forum.
12
12. On behalf of the Petitioners, it was submitted
by Dr. Krishan Singh Chauhan, that the insertion of
the words "with consequential seniority" in clause
IVA of Article 16 of the Constitution after the
words "reservation in promotion", was only an
enabling provision which was under challenge before
this Court and while the matter was sub-judice,
without waiting for the decision of this Court in
M. Nagaraj's case and All India Equality Forum, the
State Government withdrew its earlier notification
dated 1st April, 1997 vide notification dated
28.12.2002. It has to be kept in mind that as in
M. Nagaraj's case (supra), this Court has made it
mandatory on the part of the State Government to
undertake the three exercises in case any rule was
required to be framed by the State for reservation
in promotion with consequential seniority. It was
submitted that the withdrawal of the notification
dated 1.4.1997 by notification dated 28.12.2002
amounted to negating the judgment of this Court in
13
Ram Prasad's case (supra) and, accordingly, the
notification dated 28.12.2002 was also liable to be
quashed by the Court. In short, the question to be
decided in this case is whether the State
Government was reintroducing a concept which had
been replaced pursuant to the orders passed by this
Court, which had been found to be ultra vires the
provisions of the Constitution.
13. It was urged on behalf of the Petitioners,
Suraj Bhan Meena and Sriram Choradia, that till the
decision of this Court in the case of Indra Sawhney
vs. Union of India [(1992) Supp. (3) SCC 217], this
Court had almost uniformly applied the rule of
reservation in promotion with consequential
seniority. In Indra Sawhney's case (supra), this
Court had held that reservation in promotion was
unconstitutional, but permitted such reservation to
continue for a period of five years. It is
pursuant to the said decision in Indra Sawhney's
case (supra), that the Parliament enacted the
14
Constitution (77th Amendment) Act, 1995. A contrary
view was taken in Union of India vs. Virpal Singh
Chauhan [(1995) 6 SCC 684], wherein it was laid
down that the grant of consequential seniority in
cases of reservation in promotion was illegal. The
issue was taken further in the case of Ajit Singh
Januja Vs. State of Punjab [(1996) 2 SCC 715]
holding that the grant of consequential seniority
to reserve category employees, who had got
promotion on the basis of reservation, was
unconstitutional.
14. On 7th May, 1997, another Bench of this Court in
the case of Jagdish Lal Vs. State of Haryana
[(1997) 6 SCC 538] took a diametrically opposite
view upon holding, inter alia, that equality should
not remain mere idle incantation, but it had to
become a vibrant living reality since equality of
opportunity could not simply be judged on the merit
of the marks obtained by him but by taking into
account de facto inequalities which exist in
15
society and to give preference to the socially and
economically disadvantaged persons by inflicting
handicaps on those more disadvantageously placed.
Although such affirmative action might appear to be
discriminatory, it was calculated to bring about
equality on a broader basis by eliminating the de
facto inequalities between the weaker sections and
the stronger sections of the community and placing
them on a footing of equality in relation to public
employment.
15. In view of the opposite stands taken in Jagdish
Lal's case (supra) and in Ajit Singh-I's case
(supra), the matters were referred to the
Constitution Bench which approved the decision in
Ajit Singh Januja's case (supra) and Virpal Singh
Chauhan's case (supra), upon holding that the case
of Jagdish Lal had not been correctly decided. As
a result, the rule of "regain" and "catch-up" was
explained as the correct interpretation of the
rules. As mentioned hereinbefore, by enacting the
16
Constitution (85th Amendment) Act, 2001, the
Parliament constitutionally nullified the principle
of "regain" and "catch-up" by enacting the
Constitution (77th Amendment) Act, 1995 under its
constituent power under Article 368 of the
Constitution. It was sought to be urged by Dr.
Krishan Singh Chauhan, learned Advocate, that the
power which was existing in the Government to make
provision for consequential seniority in promotion
of reservation, which had been eclipsed on account
of the decision of this Court in Virpal Singh
Chauhan's case (supra), stood revived by the
enactment of the Constitution (85th Amendment) Act,
2001, with retrospective effect.
16. Learned counsel for the Petitioners referred to
various decisions on the doctrine of eclipse, which
we will refer to, if necessary.
17. Learned counsel, in addition, contended that
the Respondents had not acquired any vested right
17
since the Constitution Amendment Acts had been
enacted by the Parliament only with the intention
of nullifying the effects of the judgments of this
Court in Virpal Singh Chauhan's case (supra) and
Ajit Singh-II's case (supra). Dr. Chauhan
submitted that the Constitution (85th Amendment)
Act, 2001, given effect to from 17th June, 1995, had
constitutionally nullified the principle of "regain
of seniority" and the principle of "catch-up" which
had been explained by this Court in Virpal Singh
Chauhan's case (supra).
18. Mr. P.P. Rao, learned Senior Advocate,
appearing for the State of Rajasthan, submitted at
the very outset that the reliefs prayed for in the
several writ petitions, which are common in the
Special Leave Petitions, praying for a direction
that the benefit of reservation in promotion with
consequential seniority, should not be given unless
the three compelling conditions as indicated in M.
Nagaraj's case (supra), were fulfilled, was totally
18
misconceived in the absence of any challenge to the
order dated 10th February, 1975, passed by the State
of Rajasthan providing for reservations in favour
of Scheduled Castes and Scheduled Tribes candidates
in promotion. Furthermore, no such prayer had been
granted by the High Court. Mr. Rao submitted that
the reliefs prayed for was based on a complete
misreading of the decision in M. Nagaraj's case
(supra).
19. Mr. Rao urged that the High Court took an
erroneous view that seniority is a vested right in
view of the observations made in paragraph 123 in
M. Nagaraj's case that the State was not bound to
provide for reservation for Scheduled
Castes/Scheduled Tribes candidates in matters of
promotions, but that if it intended to exercise its
discretion and make such provision, it had to
collect quantifiable data showing backwardness of
the class and inadequacy of representation of that
class in public employment in addition to
19
compliance of Article 335 of the Constitution. Mr.
Rao submitted that the High Court, however,
overlooked the opening part of the judgment which
indicated that the main issue involved the extent
of reservation. Mr. Rao submitted that the High
Court erred in proceeding on the basis that
seniority in Government service is a vested right,
since it is now well settled that the seniority of
a Government servant can be interfered with by the
State by making a Rule under the Proviso to Article
309 of the Constitution. In this regard, Mr. Rao
referred to and relied on the decision of this
Court in S.S. Bola & Ors. Vs. B.D. Saldana & Ors.
[(1997) 8 SCC 522], and T. Narasimhulu & Ors. Vs.
State of A.P. & Ors. [(2010) 5 SCALE 730], where
the aforesaid principle was enunciated. It was
urged that even otherwise, a right would accrue
only when an order is issued to a Government
servant. It was further urged that the High
Court's reliance on the observations in M.
20
Nagaraj's case (supra), and the statement of the
Advocate General that the exercise of collection of
quantifiable data was not undertaken, is without
basis on the ground that the collection of
quantifiable data showing backwardness and
inadequacy of representation would only arise when
the State wished to exercise its discretion in
making reservation for Scheduled Tribes and
Scheduled Castes candidates in matters of promotion
and not in a case where reservation had already
been made as far back as on 10.2.1975 and was
allowed to continue uninterruptedly.
20. Mr. Rao submitted that as far as the "Catch-up
Principle" is concerned, the same had been deleted
by the impugned notification dated 25.4.2008. The
first Notification deleted the said rule with
effect from 1.4.1997, while retaining some
reservation in the form of a Proviso which too was
ultimately deleted by the second Notification with
effect from 28.12.2002. Mr. Rao also referred to
21
the observation made in M. Nagaraj's case that it
could not be said that the equality code under
Articles 14, 15 and 16 was violated by the deletion
of the "Catch-up" Rule. Mr. Rao submitted that
this declaration of the Constitution Bench had not
been noticed by the High Court when it held that
the two impugned notifications violated Articles 14
and 16 of the Constitution.
21. Mr. Rao also submitted that the doctrine of
eclipse, as urged on behalf of the Petitioners, was
not applicable to the facts of the case since after
over-ruling the decision in General Manager,
Southern Railway Vs. Rangachari [(1962) 2 SCR 586],
this Court had extended the life of the existing
reservations for a period of five years.
Accordingly, the Government Order dated 10.2.1975
survived the decision in Indra Sawhney's case
(supra) and during the period of extension of five
years, Parliament intervened and inserted Clause
(4-A) in Article 16 empowering the State to
22
continue reservations in promotions already made or
to make such reservations, if not already made.
Mr. Rao urged that the 85th Amendment was enacted
not merely to withdraw the Office Memorandum dated
31.1.1997, which gave effect to the catch-up rule,
but to restore the benefit of consequential
seniority with retrospective effect from 17.6.1995
as if there never was any Catch-up Rule at all in
the eye of law. Mr. Rao submitted that the
contention of the Petitioners that for the purpose
of giving the benefit of consequential seniority,
the State would have to undertake the collection of
quantifiable data in regard to backwardness,
inadequacy of representation and non-impairment of
efficiency, was based on a misunderstanding of the
law declared in M. Nagaraja's case (supra), since
it defeats the intent of Parliament to give
retrospective effect to the Constitution (85th
Amendment) Act.
23
22. In addition, it was pointed out that in
M. Nagaraj's case (supra) it had been categorically
indicated that the concept of consequential
seniority did not violate the equality code under
Articles 14, 15 and 16 by deleting the Catch-up
Principle , as was held in Virpal Singh Chauhan's
case (supra). It was submitted that the instant
case is a simple case of deletion of the Catch-up
Principle in view of the Constitution (85th
Amendment) Act. It was contended that the
provisional seniority list which was quashed by the
High Court could never become the ground for any
accrued right to seniority.
23. Appearing for the Intervenor, Rajasthan Vanijik
Kar Anusuchit Jati-Janjati Mahasangh, hereinafter
referred to as "Mahasangh", Mr. Pallav Shishodia,
learned Senior Advocate, reiterated Mr. Rao's
submissions regarding the observations made by this
Court in paragraph 79 of M. Nagaraj's case that the
concept of "Catch-up Rule" and "consequential
24
seniority" are judicially evolved concepts not
implicit in Clauses (1) and (4) of Article 16 of
the Constitution and with the concept of equality
contained in Articles 14, 15 and 16 stood violated
by the deletion of the "Catch-up Rule". The
Constitution Bench also observed that such concepts
were based on principles which could not be
elevated to the status of constitutional principles
or constitutional limitations. Mr. Shishodia urged
that the deletion of the Proviso added by the
Amendment of 1997 by way of the impugned
Notification of 28.12.2002 and 25.4.2008, merely
gave a quietus to the Catch-up Rule in harmony with
the Constitution (85th Amendment) Act, which was
introduced with the specific object of negating the
effect of the decisions of this Court in Virpal
Singh Chauhan's case (supra), Ajit Singh-I's case
(supra) and in Ajit Singh-II's case (supra). It
was submitted that since the 85th Amendment had been
upheld by the constitution Bench in M. Nagaraj's
25
case (supra) the State was duty bound to restore
the original practice of giving seniority from the
date of substantive appointment, without reference
to the Catch-up Principle.
24. Mr. Shishodia concluded on the note that just
as the repealing of an enactment would not
automatically revive the original Act, on the same
analogy, mere setting aside or quashing of the
impugned Notification dated 28.12.2002 and
25.4.2008 would not revive the "Catch-up" Rule
introduced by Notification dated 1.4.1997. While
the repeal of the two Notifications dated
28.12.2002 and 25.4.2008 removed the eclipse caused
by the judgment in Ajit Singh-I's case (supra), Ram
Prasad's case (supra) and Ajit Singh-II's case
(supra), no fresh right of consequent seniority was
conferred.
25. Mr. M.L. Lahoti, learned Senior Advocate,
appearing for Respondent No.13 in SLP(C)No.6385 of
26
2010, while reiterating the submissions made on
behalf of the other Respondents, submitted that the
question of reservation had been gone into in
detail in Indra Sawhney's case (supra) and it had
been held that if a feeling of complacency relating
to promotion was allowed to prevail amongst
candidates from the reserved categories, it was
bound to generate a feeling of despondency among
candidates from the open categories which would
affect the efficiency of administration. It was
also held that putting the members of the Backward
Class on a fast track would lead to leap-frogging
which could have disastrous effects on the moral of
the candidates from the general candidates.
Learned counsel went on to submit that the 77th and
85th Constitutional Amendments were brought about in
the Constitution after the judgment in Indra
Sawhney's case and provided the Government with
power to provide reservation in promotion and
consequential seniority. Although, the same was
27
challenged in the All India Equality Forum's case,
as also in M. Nagaraja's case, this Court upheld
the constitutional validity of all the amendments,
subject to compelling circumstances being fulfilled
by the States. Mr. Lahoti also referred to the
contents of paragraph 123 of the judgment in M.
Nagaraja's case (supra) which has been referred to
hereinbefore, relating to the "extent of
reservation" to be made by the State Government.
26. Mr. Lahoti submitted that in response to
several applications made under the Right to
Information Act, 2005, little or no information was
supplied with regard to the population, education,
public employment, private employment, self-
employment, below poverty line population and per-
capita income of Scheduled Tribes and Scheduled
Castes for the years 1951, 2001 and 2009. In fact,
the response of the National Commission for
Scheduled Tribes was that they did not have the
requisite data for all the information sought for.
28
27. Mr. Lahoti lastly contended that in the absence
of any data in relation to Scheduled Castes and
Scheduled Tribes, the parameters laid down in M.
Nagaraja's case were not fulfilled and Rule 33 of
the Rajasthan Administrative Service Rules, 1954
providing for consequential seniority, was
unconstitutional as no exercise had been undertaken
by the State pursuant to Article 16(4-A) of the
Constitution, and, as such it was not entitled to
provide consequential seniority to Scheduled Castes
and Scheduled Tribes employees.
28. Mr. M.R. Calla, learned Senior Advocate, who
appeared for the sole Respondent, Mr. O.P. Harsh,
in Special Leave Petition (Civil) No.7838 of 2010,
contended that as far as his client was concerned,
he was the Selection Scale promotee of the year
1991-92 and the judicial decision upholding his
position had attained finality and had nothing to
do with the amendment of the rules or the
29
constitutional amendment with retrospective effect
from 17th June, 1995. It was submitted that in his
case there was no question of any general category
candidate gaining seniority over him once he had
superseded them on the basis of merit in the year
1991-92. In other words, once a general category
candidate, though initially senior to him, failed
to compete against him in merit in the year 1991-
92, he could not regain seniority over his client
even if he had been promoted in any subsequent
year. Mr. Calla urged that when Shri Harsh had
been given the benefit of the "catch-up" rule in
terms of the notification dated 1.4.1997, the
general category candidates, who were senior to him
but had been superseded by him on the basis of
merit in the year 1991-92 for the selection scale,
had been wrongly placed above him. Mr. Calla
further submitted that such an act on the part of
the Respondents having been challenged by Shri
Harsh in Writ Petition No.3136 of 2000, which was
30
allowed on 30th May, 2001 and the subsequent
challenge thereto before the Division Bench having
been dismissed, the order dated 12.9.2001 of the
learned Single Judge had attained finality.
29. Mr. Calla also referred to the decision of this
Court in M. Nagaraj's case (supra) and submitted
that despite the constitutional mandate to the
Government as per the 77th and 85th amendments, to
form an opinion relating to adequate representation
for exercise of the powers under Articles 16(4) and
16(4-A) of the Constitution, no such exercise had
been undertaken by the State before exercising the
enabling power. It was submitted that adequate
representation of candidates cannot be a constant
factor for ever, but was variable for the purpose
of providing adequate representation in the
services, as circumstances had changed after 1975.
Mr. Calla submitted that the exercise for adequate
representation was the most important factor for
the Government to exercise its powers under Article
31
16(4) and 16(4-A) of the Constitution and the same
could not be avoided by the Government and the
failure to follow the said mandate rendered the
exercise of the enabling power invalid. Mr. Calla
submitted that the various data which came to be
disclosed during the hearing of the matter, clearly
show that Scheduled Castes and Scheduled Tribes
candidates were adequately represented and had at
times even exceeded the quota and as such it was
necessary for an exercise to be undertaken to
ascertain the representation of such candidates.
Mr. Calla submitted that, in any event, since no
injustice had been done to Scheduled Castes and
Scheduled Tribes candidates, the petitioners could
have no legitimate cause for grievance with the
order of the High Court.
30. Dr. Rajeev Dhawan, learned Senior Advocate who
appeared for the Respondent No.10 in Special Leave
Petition (Civil) No.7716 of 2010, firstly contended
that the main issue for decision in this case is
32
whether the conditions enumerated in M. Nagaraj's
case (supra) applied to cases of seniority and
promotion after 17th June, 1995, from which date the
amendments were declared to be valid in M.
Nagaraj's case (supra). Dr. Dhawan submitted that
in M. Nagaraj's case (supra) this Court was called
upon to consider the provisions of the Constitution
(77th, 81st, 82nd and 85th Amendment) Acts relating to
reservation in promotion, the principle of carry
over, enabling preservation of principles of
efficiency and providing for consequential
seniority by amending Article 16(4-A) by
substituting the words "in matters of promotion,
with consequential seniority, to any class", in
place of the words "in matters of promotion to any
class". Dr. Dhawan submitted that by the
Constitution (85th Amendment) Act, 2001, the
legislature reintroduced the concept of
consequential seniority to any class in matters of
promotion.
33
31. It was submitted that after the decision in
Virpal Singh Chauhan's case (supra), the provisions
relating to "catch-up" were discontinued and the
protection which had been given against disputes of
seniority by juniors by the notification dated
1.4.1997 was withdrawn, but with a proviso of
maintaining the status-quo that was existing as on
that date.
32. Dr. Dhawan contended that the exercise to be
undertaken as per the directions in M. Nagaraj's
case (supra) was mandatory and admittedly such an
exercise had not been undertaken before grant of
promotion. The Division Bench also held that the
rights which had been preserved by virtue of the
notifications dated 1.4.1997 and 28.12.2002 were
vested rights in favour of the writ petitioners and
by the impugned judgment, the notifications dated
28.12.2002 and 25.4.2008 had been rightly quashed.
Dr. Dhawan urged that by the notifications dated
34
1.4.1997 and 28.12.2002, the Government of
Rajasthan had protected the seniority and merit of
candidates. The decision in M. Nagaraj's case made
a distinction between the existence and the width
of the exercise of power under the amendments and
validates the amendments subject to the exercise
emanating from the above-mentioned principles. Dr.
Dhawan submitted that the decision in M. Nagaraj's
case did not automatically invalidate or validate
any exercise between when the amendments were held
to be valid, and 4.1.2000 from when consequential
seniority was required to be considered in terms of
such amendment.
33. It was submitted that since the State had not
undertaken the exercise which was mandatory in
terms of the judgment in M. Nagaraj's case (supra),
the State could not, either directly or indirectly,
circumvent or ignore or refuse to undertake the
exercise by taking recourse to the Constitution
35
(85th Amendment) Act providing for reservation in
promotion with consequential seniority.
34. Dr. Dhawan urged that the powers conferred on
the State under Articles 16(4), 16(4-A) and 16(1-B)
of the Constitution are enabling in nature and the
expression "consequential seniority" was optional
and not a requirement. Dr. Dhawan also urged that
what was restored by the decision in M. Nagaraj's
case (supra) was merely the enabling power of the
Government and exercise of such power in relation
to consequential seniority by the State of
Rajasthan would still have to be reconsidered in
accordance with the decision in M. Nagaraj's case
(supra).
35. Dr. Dhawan submitted that the seniority of the
candidates who had been promoted on merit was
protected by the notification dated 1.4.1997 and
the same was required to be retained and the
contingent protection given by the notification of
36
28.12.2002 was also required to be retained, though
the contingency in the last sentence of the
notification was liable to be struck down. Dr.
Dhawan also urged that the restoration of
consequential seniority in the notification of
25.4.2002, without conducting the exercise as
contemplated in M. Nagaraj's case (supra), was
liable to be struck down and if the State wanted to
introduce a provision for consequential seniority,
it would have to follow the procedure indicated in
M. Nagaraj's case (supra).
36. The primary question which we are called upon
to answer in these five Special Leave Petitions is
whether the amended provisions of Article 16(4-A)
of the Constitution intended that those belonging
to the Scheduled Castes and Schedule Tribes
communities, who had been promoted against reserved
quota, would also be entitled to consequential
seniority on account of such promotions, or would
the "catch-up" rule prevail.
37
37. The said question has been the subject matter
of different decisions of this Court, but the
discordant note was considered and explained by the
Constitution Bench in M. Nagaraj's case (supra). On
account of reservation those who were junior to
their seniors, got the benefit of accelerated
promotions without any other consideration,
including performance. Those who were senior to the
persons who were promoted from the reserved
category were not overlooked in the matter of
promotion on account of any inferiority in their
work performance. It is only on account of
fortuitous circumstances that juniors who belong to
the reserve category were promoted from that
category before their seniors could be
accommodated.
38. The question relating to reservation in
promotional posts fell for the consideration of
this Court in Indra Sawhney's case (supra) for
38
construction of Article 16(4) of the Constitution
relating to the State's powers for making provision
for reservation of appointments or posts in favour
of any backward class of citizens, which in the
opinion of the State, was not adequately
represented in services under the State. The
further question for determination was whether such
power extended to promotional posts. This Court
answered the questions by holding that Article
16(4) does not permit provision for reservation in
the matter of promotion. Further, such rule was to
be given effect to only prospectively and would not
affect the promotions already made, whether made on
regular basis or on any other basis. Accordingly,
apart from holding that Article 16(4) does not
permit provision for reservation in the matter of
promotion, this Court also protected the promotees
who had been appointed against reserved quotas and
a direction was also given that wherever
reservations are provided in the matter of
39
promotion, such reservation would continue in
operation for a period of five years from the date
of the judgment. In other words, the right of
promotion was protected only for a period of 5
years from the date of the judgment and would cease
to have effect thereafter.
39. The matter did not end there. The Constitution
(77th Amendment) Act, 1995, came into force on 17th
June, 1995. A subsequent question arose in the
case of Union of India vs. Virpal Singh Chauhan,
[(1995) 6 SCC 684], as to whether the benefit of
accelerated promotion through reservation or the
roster system would give such promotees seniority
over general category promotees who were promoted
subsequently. The said question arose in regard to
promotion of Railway Guards in non-selection posts
by providing concession to Scheduled Castes and
Scheduled Tribes candidates and it was sought to be
contended that the reservation provided was not
only at the stage of initial appointment, but at
40
every stage of subsequent promotions. In the said
case, the Petitioners, who were general category
candidates and the Respondents who were members of
the Scheduled Castes and Scheduled Tribes were in
the grade of Guards Grade `A' in the Northern
Railway. On 1st August, 1986, the Chief
Controller, Tundla, promoted certain general
category candidates on ad-hoc basis to Grade `A'
Special. Within less then three months, however,
they were reverted and in their place members of
the Scheduled Castes and Scheduled Tribes were
promoted. Complaining of such action as being
illegal, arbitrary and unconstitutional, Virpal
Singh Chauhan and others moved the High Court, but
the petition was transferred to the Central
Administrative Tribunal. The Tribunal, inter alia,
held that persons who had been promoted by virtue
of the application of roster would be given
accelerated promotion but not seniority, and that
the seniority in a particular grade amongst the
41
incumbents available for promotion to the next
grade would be re-cast each time new incumbents
entered from the lower grade on the basis of
initial Grade `C' seniority. This came to be
recognized as the "catch-up" rule. The matter was
brought to this Court by the Union of India and
this Court confirmed the view taken by the
Tribunal.
40. The same view was reiterated in the case of
Ajit Singh Januja's case (supra) wherein it was
held further that by accelerated promotion
Scheduled Castes/Scheduled Tribes and Backward
Class candidates could not supersede their seniors
in the general category by accelerated promotion,
simply because that their seniors in the general
category had been promoted subsequently. It was
observed that balance has to be maintained vis-`-
vis reservation.
42
41. After the decision rendered in Virpal Singh
Chauhan's case (supra) and in Ajit Singh-I's case
(supra), in which the claim of reserved category
candidates in promotional posts with consequential
seniority was negated, the question surfaced once
again in the case of Jagdish Lal & Ors. Vs. State
of Hayrana & Ors. [(1997) 6 SCC 538], where a Bench
of Three Judges took a different view. Their
Lordships held that the recruitment rules had
provided for fixation of seniority according to
length of continuous service on a post in the
service. Interpreting the said provisions, Their
Lordships held that in view of the said rules those
Scheduled Castes and Scheduled Tribes candidates,
who though junior to others in the general
category, had got promotion earlier than their
seniors in the general category candidates and
would, therefore, be entitled to get seniority with
reference to the date of their promotion. Their
Lordships held that the general candidates by
43
relying on Virpal Singh Chauhan's case (supra) and
Ajit Singh Januja's case (supra) could not derive
any benefit therefrom.
42. This resulted in the vexed question being
referred to the Constitution Bench. Of the several
cases taken up by the Constitution Bench, we are
concerned with the decision rendered in the case of
Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251] and
Ajit Singh-II & Ors. Vs. State of Punjab & Ors.
[(1999) 7 SCC 209]. Differing with the views
expressed in Jagdish Lal's case (supra), the
Constitution Bench in Ajit Singh-II's case (supra)
affirmed the earlier decision in Virpal Singh
Chauhan's case (supra) and Ajit Singh Januja's case
(supra) and overruled the views expressed in
Jagdish Lal's case (supra). The constitution Bench
reiterated the views expressed in Ajit Singh-I's
case (supra) that those who had obtained the
benefit of accelerated promotion should not be
reverted as that would cause hardship to them, but
44
they would not be entitled to claim seniority in
the promotional cadre. Quite naturally, the same
view was expressed in Ram Prasad's case (supra)
which was also decided on the same day. In the
said case, while affirming the decision in Ajit
Singh-I's case (supra), this Court directed
modification of the seniority lists which had been
prepared earlier, to fall in line with the decision
rendered in Ajit Singh-I's case (supra) and Virpal
Singh Chauhan's case (supra).
43. Thereafter, as mentioned hereinbefore, on 4th
January, 2002, the Parliament amended the
Constitution by the Constitution (85th Amendment)
Act, 2001, in order to restore the benefit of
consequential seniority to the reserved category
candidates with effect from 17th June, 1995. The
constitutional validity of both the Constitution
Amendment Acts was challenged in this Court in
several Writ Petitions, including the Writ
Petitions filed by M. Nagaraj and the All India
45
Equality Forum. The Constitution Bench while
considering the validity and interpretation as also
the implementation of the Constitution (77th, 81st,
82nd and 85th Constitutional Amendment) Acts and the
effect thereof on the decisions of this Court in
matters relating to promotion in public employment
and their application with retrospective effect,
answered the reference by upholding the
constitutional validity of the amendments, but with
certain conditions.
44. The vital issue which fell for determination
was whether by virtue of the implementation of the
Constitutional Amendments, the power of Parliament
was enlarged to such an extent so as to ignore all
constitutional limitations and requirements.
Applying the "width" test and "identity" test, the
Constitution Bench held that firstly it is the
width of the power under the impugned amendments
introducing amended Articles 16(4-A) and 16(4-B)
that had to be tested. Applying the said tests,
46
the Constitution Bench, after referring to the
various decisions of this Court on the subject,
came to the conclusion that the Court has to be
satisfied that the State had exercised its power in
making reservation for Scheduled Castes and
Scheduled Tribes candidates in accordance with the
mandate of Article 335 of the Constitution, for
which the State concerned would have to place
before the Court the requisite quantifiable data in
each case and to satisfy the Court that such
reservation became necessary on account of
inadequacy of representation of Scheduled Castes
and Scheduled Tribes candidates in a particular
class or classes of posts, without affecting the
general efficiency of service. The Constitution
Bench went on to observe that the Constitutional
equality is inherent in the rule of law. However,
it's reach is limited because its primary concern
is not with efficiency of the public law, but with
its enforcement and application. The Constitution
47
Bench also observed that the width of the power and
the power to amend together with its limitations,
would have to be found in the Constitution itself.
It was held that the extension of reservation would
depend on the facts of each case. In case the
reservation was excessive, it would have to be
struck down. It was further held that the impugned
Constitution Amendments, introducing Article 16(4-
A) and 16(4-B), had been inserted and flow from
Article 16(4), but they do not alter the structure
of Article 16(4) of the Constitution. They do not
wipe out any of the Constitutional requirements
such as ceiling limit and the concept of creamy
layer on one hand and Scheduled Castes and
Scheduled Tribes on the other hand, as was held in
Indra Sawhney's case (supra). Ultimately, after
the entire exercise, the Constitution Bench held
that the State is not bound to make reservation for
Scheduled Castes and Scheduled Tribes candidates in
matters of promotion but if it wished, it could
48
collect quantifiable data touching backwardness of
the applicants and inadequacy of representation of
that class in public employment for the purpose of
compliance with Article 335 of the Constitution.
45. In effect, what has been decided in M.
Nagaraj's case (supra) is part recognition of the
views expressed in Virpal Singh Chauhan's case
(supra), but at the same time upholding the
validity of the 77th, 81st, 82nd and 85th amendments on
the ground that the concepts of "catch-up" rule and
"consequential seniority" are judicially evolved
concepts and could not be elevated to the status of
a constitutional principle so as to place them
beyond the amending power of the Parliament.
Accordingly, while upholding the validity of the
said amendments, the Constitution Bench added that,
in any event, the requirement of Articles 16(4-A)
and 16(4-B) would have to be maintained and that in
order to provide for reservation, if at all, the
tests indicated in Article 16(4-A) and 16(4-B)
49
would have to be satisfied, which could only be
achieved after an inquiry as to identity.
46. The position after the decision in M. Nagaraj's
case (supra) 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. The
view of the High Court is based on the decision in
M. Nagaraj's case (supra) as no exercise was
undertaken in terms of Article 16(4-A) to acquire
quantifiable data regarding the inadequacy of
representation of the Schedule Castes and Scheduled
Tribes 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 Castes and Scheduled
50
Tribes communities and the same does not call for
any interference. Accordingly, the claim of
Petitioners Suraj Bhan Meena and Sriram Choradia in
Special Leave Petition (Civil) No.6385 of 2010 will
be subject to the conditions laid down in M.
Nagaraj's case (supra) and is disposed of
accordingly. Consequently, Special Leave Petition
(C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed
by the State of Rajasthan, are also dismissed.
47. Having regard to the nature of the facts
involved, each party will bear its own cost.
................................................J.
(ALTAMAS KABIR)
................................................J.
(A.K. PATNAIK)
New Delhi
Dated: December 7, 2010
Saturday, December 11, 2010
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