TaxTMI 
TaxTMI 
2019 (5) TMI 1907
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....ernor was pleased to sanction 4% horizontal reservation, for players who were successful at the international/national level, for employment in the services of the State Government, Corporations, Councils, Universities and other Organizations. The benefit of reservation was made available thereby to sportsmen in four different categories which included a medal in the Olympics, Commonwealth Games, All India Inter-Universities Competition etc. The list of games, earmarked for horizontal reservation, were detailed in Annexure 1 of the said proceedings wherein Aatya/Paatya was included at Sl. No. 3 and Karate-do at Sl. No. 22. By proceedings dated 27.02.2009, the Secretary, Government of Uttarakhand informed that the 4% horizontal reservation, admissible to the specific sportspersons mentioned in the G.O. dated 06.10.2006, would be admissible only to domicile specific sportspersons of Uttarakhand for the purpose of employment in State Government/Semi-Government Departments and Educational Institutions. 3. Writ Petition (S/S) No. 897 of 2012 was filed by three sportsmen, from the State of Uttar Pradesh, seeking a writ of mandamus directing the respondents to appoint the petitioners u....
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....reft of any power to provide reservation for any person in any employment available within the State; the Government Order dated 06.10.2006, which was the foundation of the right of the respondents-writ petitioners, was non est as the same was contrary to the express provisions of Article 16 of the Constitution of India; no right flowed therefrom; and, on the basis of the said Government Order dated 06.10.2006, the respondents-writ petitioners could not ask the writ court to issue a mandamus directing that they be appointed under the sports category. While setting aside the order under appeal, the Division Bench also dismissed the Writ Petition. 5. Subsequently another Division Bench of this Court, in its order in Writ Petition (S/B) No. 45 of 2014 dated 07.07.2015, observed that it was brought to their notice that the Government of Uttarakhand had taken a decision to accept the judgment of the Division Bench in Special Appeal No. 162 of 2013 dated 14.08.2013; accordingly no one, including the petitioner in Writ Petition (S/B) No. 45 of 2014, was being considered in the sports quota; and the counsel for the petitioner had contended that he was not a party to the said judgment, a....
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....16(1); and the power to provide reservation, in favour of sportsmen, is traceable to Article 16(1) of the Constitution. 9. On the other hand Mr. Paresh Tripathi, learned Chief Standing Counsel appearing for the State Government, would submit that, while reservation can no doubt be provided for sportsmen under Article 16(1) of the Constitution, no obligation is cast either on the Legislature or the Executive to provide such reservation; it is for them to decide whether or not to provide reservation; the petitioners cannot seek a mandamus either to the State Legislature or to the Government to provide reservation in favour of sportsmen; the earlier Government Order dated 06.10.2006, whereby horizontal reservation was provided in favour of sportsmen, was struck down by a Division Bench of this Court, in its judgment in Special Appeal No. 162 of 2013 dated 14.08.2013, as being non est; the said judgment has attained finality since no appeal has been preferred there-against; it is only if the Legislature or the Executive pass a law or make a rule or frame a policy afresh, providing reservation in favour of sportsmen, can the petitioners then claim the benefit of reservation under the....
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....nd the said differences have a reasonable relation to the object sought to be achieved by such recruitment, the said recruitment can legitimately be sustained on the basis of a valid classification.[ S.G. Jaisinghani v. Union of India AIR 1967 SC 1427; M. Jagdish Vyas (2010) 4 SCC 150). 12. The Constitution does not command that, in all matters of employment, absolute symmetry be maintained. A wooden equality as between all classes of employees is not intended. The maintenance of such a 'classless' and undiscerning 'equality', where in reality glaring inequalities exist, will deprive the guarantee of its practical content. [The General Manager, South Central Railway, Secunderabad and Ors. vs. A.V.R. Siddhantti and Ors. (1974) 4 SCC 335). The equality of opportunity, for purposes of employment, is available only for persons who fall substantially within the same class. The guarantee of equality is not applicable as between members of distinct and different classes. (A.V.R. Siddhantti (1974) 4 SCC 335); State of Jammu and Kashmir v. Triloki Nath Khosla and Ors. AIR 1974 SC 1). 13. Article 16(1) permits reasonable classification, just as Article 14 does (Indira S....
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....(4) of Article 16. (Indira Sawhney 1992 Supp (2) SCC 217). The larger concept of reservation under Article 16(4) also takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations (Indira Sawhney 1992 Supp (2) SCC 217; N.M. Thomas (1976) 2 SCC 310). 16. Article 16(4), which indicates one of the methods of achieving the equality embodied in Article 16(1) (N.M. Thomas (1976) 2 SCC 310), is not an exception thereto, but is merely an emphatic way of stating a principle implicit in Article 16(1) (Indira Sawhney 1992 Supp (2) SCC 217). Clause (4) of Article 16, an instance of classification implicit in and permitted by Clause (1), is a provision which must be read along with, and in harmony with, Clause (1). Even without Clause (4), it would have been permissible for the State to have evolved such a classification, and made a provision for reservation of appointment/posts in favour of the backward classes. Clause (4) merely puts the matter beyond doubt in specific terms. (Indira Sawhney 1992 Supp (2) SCC 217). Article 16(4) is exhaustive of the subject of reservation in favour of the backward cl....
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....er incuriam when the Court has acted in ignorance of a binding precedent. (Punjab Land Development and Reclamation Corporation Ltd. vs. Presiding Officer, Labour Court, Chandigarh & others (1990) 3 SCC 682). 19. The opinion of the Division Bench, in Special Appeal No. 162 of 2013 dated 14.08.2013, that Article 16(4) is exhaustive of all forms of reservation, and that no reservation can be provided under Article 16(1), runs contrary to law declared by the Supreme Court in N.M. Thomas (1976) 2 SCC 310 and Indira Sawhney 1992 Supp (2) SCC 217, and is, therefore, overruled. We are in agreement with the view expressed in the referral order [order in Writ Petition (S/B) No. 45 of 2014 dated 07.07.2015] that the power to make reservation, in favour of sportsmen, is traceable to Article 16(1) of the Constitution of India, subject, of course, that the exercise of power, to provide such reservation, satisfies the twin tests of a valid classification. II. WOULD THE ORDER NOW PASSED BY US, HOLDING THAT THE JUDGMENT IN SPECIAL APPEAL NO. 162 OF 2013 DATED 14.08.2013 IS NOT GOOD LAW, RESULT IN REVIVAL OF THE GOVERNMENT ORDER DATED 06.10.2006? 20. Having answered the question referred to....
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....e precedent, (Girnar Traders (2007) 7 SCC 555), a Larger Bench would only overrule the law declared in the earlier judgment, as a result of which the earlier judgment will cease to be a precedent binding on future cases. While the law declared by the Division Bench in its order in Special Appeal No. 162 of 2013 dated 14.08.2013, that Articles 16(4), (4A) and (4B) are exhaustive of all forms of reservation, stands overruled by this order, the question which necessitates examination is regarding the effect of the said order of the Division Bench, in Special Appeal No. 162 of 2013 dated 14.08.2013, declaring the Government Order dated 06.10.2006, whereby reservation was provided in favour of sportsmen, non est and that no right flowed therefrom. 23. In examining this issue, the distinction between the law laid down in the earlier judgment being declared erroneous, and the decision itself being overruled, must be borne in mind. An order passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, binds the parties or the persons claiming right, title or interest from them. Its validity can be assailed only in an appeal or review. Its validi....
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....ture of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. (Bharat Sanchar Nigam Ltd. and Ors. vs. Union of India and Ors (2006) 3 SCC 1). As the judgment of the Division Bench, in Special Appeal No. 162 of 2013 dated 14.08.2013, has attained finality, no appeal or review having been preferred there against either by the petitioner therein or the Government of Uttarakhand, the said order of the Division Bench, quashing the Government Order dated 06.10.2006 and in holding it non est, cannot be set at naught in collateral proceedings even by a Larger Bench. 26. While the law declared therein can always be, and has in fact been, overruled by a Larger Bench, the Government Order dated 06.10.2006, which has been held non est by the Division Bench, in its order in Special Appeal No. 162 of 2013 dated 14.08.2013, can neither be revived nor resurrected in collateral proceedings. The only consequence of the order now passed by us is that it would now be open to the Uttarakhand State Legislature to make a law, or for the Government of Uttarakhand to make a Rule or frame a policy afresh, providing reservation in favo....
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....nd the legislature. Each has specified and enumerated constitutional powers. The judiciary is assigned the function of ensuring that executive actions accord with the law, and that laws and executive decisions accord with the Constitution. (State of Himachal Pradesh and Ors. vs. Satpal Saini (2017) 11 SCC 195). 29. Legislative power is exercised by the legislature directly or, subject to certain conditions, may be exercised by some other authority on such a power being delegated to them. But exercise of that power, whether by the legislature or by its delegate, is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. [Supreme Court Employees' Welfare Association AIR 1990 SC 334; A.R. Zakki 1992 (1) SCC 548; State of Andhra Pradesh v. T. Gopalakrishna Murthi and Ors. (1976) 1 SCR 1008; Mangalam Organics Ltd. (2017) 7 SCC 221 and Narinder Chand Hem Raj v. Lt. Governor, Admi....