TaxTMI 
TaxTMI 
2019 (5) TMI 1908
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....enacting the Reservation Act 2018 E.2 The Ratna Prabha Committee report F Substantive v. formal equality F.1 The Constituent Assembly's understanding of Article 16 (4) F.2 The Constitution as a transformative instrument G Efficiency in administration H The issue of creamy layer I Retrospectivity J Over representation in KPTCL and PWD K Conclusion A The constitutional challenge 1. The principal challenge in this batch of cases is to the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018^1. The enactment provides, among other things, for consequential seniority to persons belonging to the Scheduled Castes^2 and Scheduled Tribes^3 promoted under the reservation policy of the State of Karnataka. The law protects consequential seniority from 24 April 1978. 2. The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Ac....
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.... collection exercise by the government, which precedes the enactment of the law, may be reviewed by the Court is a seminal issue. B.K. Pavitra I involved a situation where this Court invalidated a law on the ground that no exercise of data collection was carried out by the State of Karnataka. In the present batch of cases, (herein referred to as B.K. Pavitra II), there is a constitutional challenge to the validity of a law enacted after the State had undertaken the exercise of collecting quantifiable data. Whether that exercise of data collection and the enactment of the new law which has emerged on its foundation takes away the basis of or the cause for the invalidation of the Reservation Act 2002 in B.K. Pavitra I is an essential question for our consideration. In this background, we set out the significant facts, in the chequered history of the present case. 5. In exercise of the power conferred by the proviso to Article 309 of the Constitution, the Governor of Karnataka framed the Karnataka Government Servant (Seniority Rules) 1957^5. Rules 2 and 4 provide for seniority on the basis of the period of service in a given cadre. There was no specific Rule governing seniority ....
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.... the Appointing Authority making the selection, in consultation with Public Service Commission where such consultation is necessary. [Explanation-For purposes of this rule, "several cadres or classes of post" shall be deemed to include cadres or classes of post of different grades from which recruitment is made in any specified order of priority in accordance with any special Rules of recruitment.]. 6. Reservation for persons belonging to SCs and STs in specified categories of promotional posts was introduced by a Government Order^6 dated 27 April 1978 of the Government of Karnataka. Reservation in promotional posts for SCs was set at 15 per cent and for STs at 3 per cent in all cadres up to and inclusive of the lowest category of Class I posts in which there is no element of direct recruitment or where the direct recruitment does not exceed 662/3 per cent. A 33 point roster was applicable to each cadre of posts under appointing authorities. Inter-se seniority amongst persons promoted on any occasion was to be determined in accordance with Rules 4 and 4-A, as the case may be, of the Rules 1957. It also stipulated that vacancies would not be carried forward. 7. On 1 J....
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....years from the date of the judgment^13; (iii) The creamy layer can be and must be excluded. Justice B P Jeevan Reddy held: 792....While we agree that Clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the 'class' a truly backward class and would more appropriately serve the purpose and object of Clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).^14 (iv) The adequacy of the representation of a backward class of citizens in services "is a matter within the subjective satisfaction of the State"^15, since the requirement in Article 16 (4) is preceded by the words "in the opinion of the State". The basis of the standard of judicial review was formulated thus: 798....This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should sho....
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....to operate^19; (ii) The percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation^20; and (iii) The interpretation placed on the working of the roster shall operate prospectively^21 from 10 February 1995. 13. On 1 October 1995, a two judge Bench of this Court held in Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 ("Virpal Singh") that the state could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of reservation and on the application of the roster, this would entitle such a person to seniority over a senior belonging to the general category in the feeder cadre. However, a senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over the reserved candidate who was promoted earlier. This Rule came to be known as the catch-up rule. The two judge Bench directed that the above principle would be followed with effect from the date in the judgment in Sabharwal^22. 14. Six months after the decision in Virpal Singh, on 1 March....
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....xtent of 15 per cent and 3 per cent of the total working strength. 16. In Jagdish Lal v. State of Haryana (1997) 6 SCC 538, ("Jagdish Lal") a three judge Bench of this Court took a view contrary to the decision in Ajit Singh I. The decision in Jagdish Lal held that by virtue of the principle of continuous officiation, a candidate belonging to a reserved category who is promoted earlier than a general category candidate due to an accelerated promotion would not lose seniority in the higher cadre. This conflict of decisions was resolved by a Constitution Bench in Ajit Singh v. State of Punjab (1999) 7 SCC 209 ("Ajit Singh II"). The Constitution Bench held that Article 16 (4A) is only an enabling provision for reservation in promotion. In consequence, roster point promotees belonging to the reserved categories could not count their seniority in the promoted category from the date of continuance officiation in the promoted post in relation to general category candidates who were senior to them in the lower category and who were promoted later. Where a senior general candidate at the lower level is promoted later than a reserved category candidate, but before the further promotion of....
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....uary 1995 need not be reverted. 19. The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with effect from 17 June 1995. Article 16 (4A), as amended, reads thus: 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. (Emphasis supplied) The purpose of the amendment was to enable the grant of consequential seniority to reserved categories promotees. The significance of the date on which the eighty-fifth amendment came into force-17 June 1995-is that it coincides with the coming into force of the seventy-seventh amendment which enabled reservations in promotions to be made for the SCs and STs. 20. In 2002, the Karnataka State Legislature enacted the Reservation Act 2002. The law came into force on 17 June 1995. It provided for consequential seniority to roster point promotes based on the length of service in a cadre, making the catch-up Rule prop....
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.... (i) The backwardness of the class; (ii) The inadequacy of the representation of that class in public employment; and (iii) The general efficiency of service as mandated by Article 335 would not be effected. 23. The principles governing this approach emerge from the following extracts from the decision: 107. ...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...^28 ... 117. ... 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 par....
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....ower of the state to enact such a law is preserved. The exercise of the power to legislate is conditioned by the existence of "compelling reasons" namely; the existence of backwardness, the inadequacy of representation and overall administrative efficiency. Elsewhere in the decision, the Constitution Bench treated these three parameters as "controlling factors" for making reservations in promotions for SCs and STs. They were held to be constitutional requirements crucial to the preservation of "the structure of equality of opportunity" in Article 16. The Constitution Bench left the validity of the individual enactments of the states to be adjudicated upon separately by Benches of this Court. 24. In B.K. Pavitra I, a two judge Bench of this Court considered a challenge to the Reservation Act 2002 providing for consequential seniority on the ground that the exercise which was required to be carried out in Nagaraj had not been undertaken by the State and there was no provision for the exclusion of the creamy layer. The validity of the Reservation Act 2002 had been upheld by a Division Bench of the Karnataka High Court. In B.K. Pavitra I, this Court struck down Sections 3 and 4 of t....
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....been undertaken. The High Court erroneously observed that it was for the Petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise Under Article 16(4-A), it is the "catch-up" Rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the Rule of consequential seniority.^32 The Court clarified that the decision will not affect those who have already retired and availed of financial benefits. It was further directed that promotions granted to existing employees based on consequential seniority are liable to be reviewed and that the seniority list be revised in terms....
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....nataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Bill 2017. The Bill was passed by the Legislative Assembly on 17 November 2017 and by the Legislative Council on 23 November 2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for the consideration of the President of India Under Article 200 of the Constitution. The Bill received the assent of the President on 14 June 2018 and was published in the official Gazette on 23 June 2018. 30. Sections 3, 4 and 5 of the Reservation Act 2018 provides as follows: 3. Determination of Seniority of the Government Servants Promoted on the basis of Reservation. Notwithstanding anything contained in any other law for the time being in force, the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order shall be entitled to consequential seniority. Seniority shall be determined on the basis of the length of service in a cadre: Provided that the seniority inter-se of the Government....
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....quent to such a review, wherever it is found that Government Servants belonging to the Scheduled Castes and Scheduled Tribes were promoted against reservation and backlog vacancies in excess or contrary to extent of reservation provided in the reservation orders shall be adjusted and fitted with reference to the roster points in accordance with the reservation orders issued from time to time by assigning appropriate dates of eligibility. In case, if persons belonging to the Scheduled Castes and the Scheduled Tribes who have already been promoted against reservation or backlog vacancies in excess or contrary to the extent of reservation provisions cannot get adjusted and fitted against the roster points they shall be continued against supernumerary posts, to be created by the concerned administrative department presuming concurrence of Finance Department, in the cadres in which they are currently working, till they get the date of eligibility for promotion in that cadre. Section 9 provides for the validation of action taken in respect of promotions since 27 April 1978: 9. Validation of action taken under the provisions of this Act.-Notwithstanding anything contained in a....
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.... and STs contrary to the nine judge Bench decision in Indra Sawhney; (ii) The creamy layer principle was not applied to SCs and STs in Indra Sawhney; and (iii) In applying the creamy layer principle, Nagaraj conflicts with the decision in EV Chinnaiah v. State of AP (2005) 1 SCC 394 ("Chinnaiah"). 34. In Jarnail, the Constitution Bench held that: (i) The decision in Chinnaiah holds, in essence, that a state law^35 cannot further sub-divide the SCs into sub categories. Such an exercise would be violative of Article 341(2) since only an Act of Parliament and not the state legislatures can make changes in the Presidential list. Chinnaiah did not dwell on any aspect on which the constitutional amendments were upheld in Nagaraj. Hence, it was not necessary for Nagaraj to advert to the decision in Chinnaiah. Chinnaiah dealt with a completely different problem and not with the constitutional amendments, which were dealt with in Nagaraj^36; (ii) The decision of the Constitution Bench in Nagaraj, insofar as it requires the state to collect quantifiable data on backwardness in relation to the SCs and STs is contrary to Indra Sawhney and would have to be....
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....icating upon the challenge to the constitutional validity of the Reservation Act 2018, we have heard the erudite submissions of Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the Petitioners. Prefacing his submissions, Dr Rajeev Dhavan has adverted to the following issues which arise for the determination of this Court: A Is the Reservation Act 2018 valid? (a) Does it not peremptorily overrule the decision of this Court in B.K. Pavitra I without altering the basis of the decision? (b) Does it violate the law laid down by this Court in Badappanavar on seniority? (c) Does the background to the enactment to the Reservation Act 2018 reveal a manifest intent to overrule the decision in B.K. Pavitra I? (d) Was the reference of the Bill by the Governor of Karnataka to the President Under Article 200 of the Constitution and the subsequent events which took place constitutionally valid? In this context, could the Bill have been brought into force without the assent of the Governor? B Is the Reservation Act 2018 compliant with the principles enunciated in the Constitution Bench decisions in Nagaraj and Jarnail? Does the r....
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.... (i) There was no compelling necessity to overrule B.K. Pavitra I "except political necessities"; (ii) A comparison of the provisions of the Reservation Act 2002 with the Reservation Act 2018 indicates that: (a) The Reservation Act 2018 is substantively the same as the Reservation Act 2002; (b) The change in the basis of the decision in B.K. Pavitra I is on the factum of the Ratna Prabha Committee report; (c) "Compelling necessities" are mentioned but their existence is not demonstrated; (d) The title of the Reservation Act 2018 is limited to consequential seniority which is not mentioned in the law; (e) Section 5 allows for an unlimited backlog and the creation of supernumerary posts for SCs and STs; (f) Section 5 presumes the permission of the Finance Department and visualizes an "excess", which will invalidate the law; and (g) Section 9 brazenly overrules and goes beyond the date of 17 June 1995 and postulates that in future a review of the cases is forbidden. B Violation of the separation of powers 41. Separation of powers postulates a constitutional division between legislative and judicial ....
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....tension of time and on 20 March 2018, while disposing of certain contempt petitions and other applications, one month's time was granted to take consequential action. On 25 April 2018, this Court directed the State to file a further affidavit (by 1 May 2018) indicating that promotions and demotions have been duly effected. On 9 May 2018, this Court directed the State to file an affidavit to the effect that the judgment in B.K. Pavitra I had been fully complied with and the hearing was posted for 4 July 2018. On 28 June 2018, the State of Karnataka informed this Court that the "further process have been stalled because of the enactment of the new legislation and its publication in the Gazette on 23 June 2018". On 7 August 2018, the State of Karnataka filed an interim application seeking permission of this Court to implement the Reservation Act 2018. It has been urged that contrary to what was stated by the state Government, there was no compliance of the decision in B.K. Pavitra I. In this background, it has been submitted that the state has undertaken an exercise to overrule B.K. Pavitra I which constitutes a clear usurpation of judicial power. C Lack of compliance with Naga....
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....ature; (vii) The representation in Public Works Department ("PWD") and Karnataka Power Transport Corporation Limited ("KPTCL") is adequate; (viii) The data collected is with respect to the availability of vacancies and not posts, contrary to the requirements laid out in Sabharwal's case; (ix) The data is on sanctioned posts and not posts which have been filled; (x) The data is not cadre based but based on grades A, B, C and D even though Jarnail requires the data to be on the basis of cadre; (xi) The report erroneously assumed that grades A, B, C and D correspond to cadres; (xii) The report candidly admits that "in some departments, corporations like PWD and KPTCL there may be over representation of the percentage mandated"; (xiii) On administrative efficiency: (a) The data is based on general considerations such as economic development; (b) The efficiencies adverted to in matters of administrative, policy and service are general; and (c) Reliance which has been placed is on performance reports. (xiv) The state has followed a strange method of back door entry by filling up vacanci....
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....5 ("Hoechst Pharmaceuticals Ltd") and Nabam Rebia and Bamang Felix v. Deputy Speaker Arunachal Pradesh Legislative Assembly (2016) 8 SSC 1 ("Nabam Rebia"). Dr. Dhavan urged that: (i) There was no valid reference by the Governor in the absence of specificity on the matter of reference; (ii) The State government consistently indicated that there was no reason to refer the Bill to the President; (iii) The Union Government could not have created a reference where none existed; and (iv) The reference was unconstitutional and the assent of the Governor was not obtained. E Seniority including consequential seniority 49. The submissions of Dr Dhavan are: (i) Seniority is determined by the Seniority Rules 1957; (ii) The decision in Badappanavar held that there was no specific Rule providing for consequential seniority in the Seniority Rules 1957; (iii) The amendments in the Seniority Rules 1957 on 18 August 2006 did not effect any change to unsettle the decision in Badappanavar; (iv) The Reservation Act 2002 attempted to overrule Badappanavar and was eventually invalidated in B.K. Pavitra I; (v) The Re....
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....phade, learned Senior Counsel submitted that: (i) The decision in B.K. Pavitra I has attained finality and a subsequent change in law cannot abrogate the principle of res judicata; (ii) As held in the decision of this Court in Pandit M.S.M. Sharma v. Dr. Krishna Sinha AIR 1960 SC 1186, whether an earlier judgment is right or wrong is not material to the applicability of the doctrine of res judicata; (iii) The subsequent decision in Jarnail is not a ground for review and, in any event, a review of B.K. Pavitra I by the state will not lie; (iv) In view of the explanation to Order XLVII of the Code of Civil Procedure, a reversal on a question of law in a subsequent decision of a superior court is not a ground for review; (v) An error of law is no ground for review (State of West Bengal v. Kamal Sengupta (2008) 8 SCC 612); (vi) The Reservation Act 2018 is based on a report which furnishes factual data: this could have been furnished in the earlier round. The legislature has taken recourse to exercise of judicial power; (vii) The provisions of the Reservation Act 2018 are virtually the same as those of the Reservation Act 20....
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.... (iii) The fact that the eighty-fifth amendment has been made retrospective from 17 June 1995 cannot enable the state to make a provision for the first time by exercising powers retrospectively and consequently taking away vested rights which legitimately accrued upon the general category employees. C.2 Submissions for the Respondents and intervenors 53. Appearing for the State of Karnataka, Mr. Basava Prabhu S. Patil, learned Senior Counsel submitted thus: A The basis of B.K. Pavitra I has been altered (i) The Reservation Act 2018 has taken away the basis of the judgment in B.K. Pavitra I and the protection of seniority with retrospective effect which is permissible in law: (a) The Reservation Act 2018 does not seek to overrule or nullify simpliciter the decision in B.K. Pavitra I. The law was enacted to provide consequential seniority for roster point promotees after collecting data showing the existence of the compelling reasons of: (i) backwardness; (ii) inadequacy of representation; and (iii) overall efficiency. Hence, the Reservation Act 2018 removes the basis of the decision in B.K. Pavitra I; (b) The state legislature is competent t....
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....e invalidity of a legislation noticed in a judicial decision is taken away by a subsequent law; and (b) Madan Mohan Pathak in fact, notices that in the case of a declaratory judgment holding an action to be invalid, validating legislation to remove the defect is permissible. (iii) The collection of data by the State must demonstrate the presence of compelling reasons namely, (a) inadequacy of representation; (b) backwardness; and (c) overall administrative efficiency as enunciated in Nagaraj and B.K. Pavitra I; (iv) The decision in Indra Sawhney holds that the question as to whether a backward class of citizens is not adequately represented in the services under the state is a matter of subjective satisfaction; (v) Nagaraj also notices the position that there is a presumption that the state is in the best position to define and measure merit and that there is no fixed yardstick to identify and measure the three factors on which quantifiable data has to be collected; (vi) The decision in Jarnail also holds that the test of determining the adequacy of representation in promotional posts is left wisely to the states; and ....
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.... of administration is not adversely impacted; and (iii) On promotion, a candidate is required to serve a statutory period of officiation before being confirmed in service. This applies to all candidates including roster point promotees and ensures that the efficiency of administration is not adversely affected. C The challenge on the ground that the Reservation Act 2018 does not exclude the benefit of consequential seniority in respect of the creamy layer in terms of the decision in Jarnail is baseless: (i) Creamy layer as a concept can be applied only at the entry level or at appointment and has no application while granting reservations in promotion and allowing for consequential seniority. The Reservation Act 2018 provides only for consequential seniority and the extent of reservation granted to SCs and STs at the entry level/in appointment is not under challenge; (ii) Even assuming that the concept of creamy layer can be applied at the stage of promotion, it is inapplicable to the conferment of consequential seniority. Consequential seniority is not an additional benefit but a consequence of promotion; (iii) Appointment to a post or progre....
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....(ii) declare the withholding of assent; or (iii) reserve a Bill for consideration of the President. The power of the Governor to reserve a Bill for consideration of the President is not subject to the existence of a repugnancy Under Article 254 (2). The action of the Governor is non-justiciable. (Hoechst Pharmaceuticals Ltd.) F The assent of the Governor is not contemplated once the President has given assent to a Bill. Neither Article 200 nor Article 201 contemplates that the Bill should be presented again before the Governor after it has been assented to by the President. Section 5(1)(iv) of the Karnataka General Clauses Act 1899 postulates that an Act passed by the Karnataka legislature shall come into operation on the day on which the assent of the Governor or, as the case may be, of the President is granted and is first published in the Official Gazette. Hence, once the assent of the President is granted, the necessity of a further assent by the Governor is obviated. G The submission that in Karnataka Power Transport Corporation Limited, as a consequence of the reservation in seniority in the cadre of Superintending Engineer and Engineer-in-Chief, there was over repre....
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....e 46 of the Constitution; (iii) Article 16 (4A) is an enabling provision which empowers the State to frame Rules or enact a legislation granting reservations in promotions with consequential seniority subject to the fulfilment of the conditions laid down in Nagaraj and modified by Jarnail. Following the decision in Jarnail, the state is required to show data only on the inadequacy of representation and efficiency of administration. The State of Karnataka, in exercise of the enabling power Under Article 16 (4A) enacted the Reservation Act 2018 in compliance with the conditions precedent to the exercise of the power stipulated in that Article; (iv) The decision in Sabharwal lays down that in determining the inadequacy of representation of SCs and STs in promotional posts, the state may take the total population of a particular class and its representation in the service. The State has studied the extent of reservation in posts for SCs and STs in a 'group' which is a collection of cadres. Hence, it cannot be said that the state failed to collect quantifiable data on the representation of SCs and STs in promotional posts. Without the grant of consequential sen....
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....eniority Under Article 16 (4A) inserted by the Constitution (Eighty-fifth Amendment) Act 2001 violated the basic structure of the Constitution. The decision in Nagaraj was concerned with reservations in promotion and did not equate reservation in promotion with the grant of consequential seniority. In this view, the four controlling factors, namely (i) backwardness; (ii) adequacy of representation; (iii) elimination of the creamy layer; and (iv) efficiency of administration have relevance only to the exercise of the enabling power Under Article 16 (4A) for making reservation in promotion and not the exercise of the enabling power to grant consequential seniority; (ii) Reservation in promotion was introduced in the State of Karnataka by the Government Order dated 27 April 1978 and continues to be in operation. The Reservation Act 2018 stipulates the grant of consequential seniority which is premised on the prior existence and operation of reservation in promotion. Absent a challenge to the Government Order dated 27 April 1978 in the present proceedings, the Petitioner is precluded from challenging the grant of consequential seniority in the Reservation Act 2018; (i....
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....by the four controlling factors in Nagaraj and Jarnail have been satisfied prior to the enactment of the Reservation Act 2018. The satisfaction of the state in this regard cannot be subjected to review by this Court. 56. Mr. Lakshminarayana, learned Senior Counsel has submitted thus: (i) The issue as to whether reservation Under Article 16 (4A) can be provided by an executive order was answered in the affirmative in the judgment of Justice BP Jeevan Ready speaking for a plurality of judges in Indra Sawhney. The word 'provision' in Article 16 (4) was interpreted in contrast with the word 'law' in Clauses (3) and (5) of Article 16. The word 'any' and the word 'provision' in Article 16 (4) must be given their due meaning. Article 16 (4) is exhaustive as a special provision in favour of the backward class of citizens. Backward classes having been classified by the Constitution as a class deserving special treatment and the Constitution itself having specified the nature of the special treatment, it should be presumed that no further classification or special treatment is permissible in their favour outside Article 16 (4). In light of the deci....
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....arnataka inserted the proviso to Rule 8 in the Rules 1977 which reads as follows: 8. Provision for reservation of appointments or posts.- Appointments or posts shall be reserved for the members of the Scheduled Castes, Scheduled Tribes, and Other Backward Classes to such extent and in such manner as may be specified by the government under Clause (4) of Article 16 of the Constitution of India. Proviso to Rule 8 ^44[Provided that, notwithstanding anything in the Rules of Recruitment specially made in respect of any Service or Post, the backlog vacancies in the promotional quota shall be determined and implemented with effect from 27th April, 1978. Note.-The backlog vacancy means the extent of the number of vacancies available under the roster system up to the level of lowest category in Group-A post calculated from 27th April, 1978.]. The above Rule was upheld in Bhakta Ramegowda; (viii) The Government Order dated 24 June 1997 provided additional roster points to cover up backlog promotional roster points, both in promotion and direct recruitment. Clauses (iv) and (v) of para 8 of the Government Order dated 24 June 1997 ....
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....ppointed or promoted on merit as general candidates cannot be included in calculating adequacy of representation of backward classes in operating the roster points. Only reserved candidates promoted against roster points are to be taken into account in considering the adequacy of representation; (xii) A cadre includes different grades and reservation can be provided in different grades within the cadre. The reservation policy contained in the Government Order dated 27 April 1978 has been re-issued on 17 April 1993 and 11 May 1993 after the decision in Indra Sawhney; (xiii) Both Clauses (1) and (4) of Article 16 operate in the same field. Both are directed towards achieving equality of opportunity in services under the State. The formation of opinion by the State on the adequacy of representation is a matter of subjective satisfaction and the test is whether there was some material before the State to justify its opinion. In the exercise of judicial review, the court would extend due deference to the judgment and discretion of the executive. Even if there are some errors on the part of the State Government, that would not in any way result in the invalidation of th....
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.... state' in Article 16 (4A) supports this contention. The decisions in Sabharwal and Nagaraj clarify that cadre strength is to be applied in the operation of the roster. The reference to 'entire cadre strength' in Sabharwal adverted to the fact that the entire cadre strength should be taken into account in determining whether reservation up to the quota limit has been reached. In this view, 'entire cadre strength' is the reference point to (i) ascertain the position of representation in the entire service; (ii) determine whether reservation up to the quota limit has been reached in the application of the roster; and (iii) the cadre strength has been applied in the operation of the roster. It was urged that if the percentages were calculated on the basis of vacancies, the actual appointments made may exceed the prescribed quota. Reliance has been placed on the decisions of this Court in Indra Sawhney, Nagaraj, and Jarnail; (iii) The decision in Indra Sawhney does not deal with SCs and STs in regard to the creamy layer principle. In any case, even if the principle applies to SCs and STs, it would only be applicable at the stage of appointments and not for ....
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....201. When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to Article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration. Upon a Bill being passed by the Houses of the legislature (or by the sole House where there is only a legislative assembly), it has to be presented to the Governor. The Governor can (i) assent to the Bill; (ii) withhold assent; or (iii) reserve the Bill for the consideration of the President. 62. Where a Bill is not a Money Bill, the Governor may return the Bill for reconsideration upon which the House or Houses, as the case m....
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....s of the game--whether it is in relation to the Executive (aid and advice of the Council of Ministers) or the Legislature (Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly). This is not to say that the Governor has no powers--he does, but these too are delineated by the Constitution either specifically or by necessary implication...^47 63. The framers carefully eschewed defining the circumstances in which the Governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories. Exigencies may arise in the working of the Constitution which justify a recourse to the power of reserving a Bill for the consideration of the President. They cannot be foreseen with the vision of a soothsayer. The power having been conferred upon a constitutional functionary, it is conditioned by the expectation that it would be exercised upon careful reflection and for resolving legitimate concerns in regard to the validity of the legislation. The entrustment of a constitutional discretion to the Governor is premised on the trust that the exercise of authority would be governed....
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....reason why his assent is sought if, there is any special reason for doing so. If the assent is sought and given in general terms so as to be effective for all purposes, different considerations may legitimately arise. But if, as in the instant case, the assent of the President is sought to the Law for a specific purpose, the efficacy of the assent would be limited to that purpose and cannot be extended beyond it.^48 66. A similar principle was adopted in Kaiser-I-Hind Pvt. Ltd. The case concerned rent legislation in Maharashtra and the Public Premises (Eviction of Unauthorized Occupants) Act 1971 enacted by Parliament. This Court held that where the assent was given after considering the repugnancy between the Bombay Rent Act, the Transfer of Property Act and the Presidency Small Cause Courts Act, it was not correct to hold that the state law would prevail over another parliamentary enactment for which no assent had been sought. In that context, the Court held: 65.... 2. (a) Article 254(2) contemplates "reservation for consideration of the President" and also "assent". Reservation for consideration is not an empty formality. Pointed attention of the President is require....
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....the description set out in the second proviso, the Governor may legitimately refer a Bill for consideration of the President upon entertaining a legitimate doubt about the validity of the law. By its very nature, it would not be possible for this Court to reflect upon the situations in which the power Under Article 200 can be exercised. This was noticed in the judgment of this Court in Hoechst. Excluding it from judicial scrutiny, the Court held: 86. ...There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitution....
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....the Constitutional interpretation involved in the matter, I deem it appropriate to reserve the matter for the consideration of the President. Accordingly, the Bill is reserved for the consideration of the President Under Article 200 of the Constitution of India. 70. The state government, in the course of its clarifications, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights. All procedural requirements under the Constitution were according to the government duly complied with. This objection of the state government cannot cast doubt upon the grant of assent by the President. The law having received the assent of the President, the submissions which were urged on behalf of the Petitioners cannot be countenanced. E Does the Reservation Act 2018 overrule or nullify B.K. Pavitra I 71. The foundation of the decision in B.K. Pavitra I is the principle enunciated in Nagaraj that in order to sus....
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....sion. 73. These principles have consistently been reiterated in a line of precedents emerging from this Court. In Utkal Contractors and Joinery (P) Ltd., this Court held: 15....The legislature may, at any time, in exercise of the plenary power conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law. There is no prohibition against retrospective legislation. The power of the legislature to pass a law postulates the power to pass it prospectively as well as retrospectively. That of course, is subject to the legislative competence and subject to other constitutional limitations. The rendering ineffective of judgments or orders of competent courts by changing their basis by legislative enactment is a well-known pattern of all validating acts. Such validating legislation which removes the causes of ineffectiveness or invalidity of action or proceedings cannot be considered as encroachment on judicial power. The legislature, however, cannot by a bare declaration, without more, directly overrule, reverse or set aside any judicial decision...^51 (See also in this context: Bhubaneshwar Singh v. Union of India ....
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....f the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect.^53 The same principle was formulated in the decision of this Court in Virender Singh Hooda v. State of Haryana (2004) 12 SCC 588: 59....vested rights can be taken away by retrospective legislation by removing the basis of a judgment so long as the amendment does not violate the fundamental rights. We are unable to accept the broad proposition... that the effect of the writs issued by the courts cannot be nullified by the legislature by enacting a law with retrospective effect. The question, in fact, is not of nullifying the effect of writs which may be issued by the High Court or this Court. The question is o....
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....oceeds to enact a new law on the subject, the issue in essence is whether the re-enacted law has taken care to remove the infractions of the fundamental rights on the basis of which the earlier law was held to be invalid. The true test therefore is whether the legislature has acted within the bounds of its authority to remedy the basis on which the earlier law was held to suffer from a constitutional infirmity. 77. The Petitioners have placed a considerable degree of reliance on the decision in Madan Mohan Pathak, where a law-The Life Insurance Corporation (Modification of Settlements) Act 1976 was enacted by Parliament to render ineffective a settlement which was arrived at between LIC and its employees for the payment of bonus. The law was challenged by the employees. In that case, there was a judgment of the Calcutta High Court which had given effect to the right of the employees to an annual cash bonus under an industrial settlement, by the issuance of a writ of mandamus. The mandamus bound the parties to the dispute. It was in this backdrop that the Constitution Bench observed that the effect of the mandamus issued by the High Court could not simply be nullified by enacting....
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....d the basic fact that the settlement between the Corporation and its employees was not based upon any statute or statutory provision. Sub-sections (1) and (3) of Section 18 of the Industrial Disputes Act provide merely the binding nature of such settlements; they do not constitute the basis of the settlements. The settlement between the parties was directed to be implemented by the High Court. In other words, it was not a case where the High Court either struck down a statutory provision nor was it a case where a statutory provision was interpreted in a particular manner or directed to be implemented. It was also not a case where the statutory provision, on which the judgment was based, was amended or altered to remove/rectify the defect.^56 (Emphasis supplied) (ii) Indian Aluminium Co, where it was held that: 49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC 50: 1978 SCC (L&S) 103: (1978) 3 SCR 334]... From the observations made by Bhagwati, J. per majority, it is clear that this Court did not intend to lay down that Parliament, under no circumstance, has power to amend the law removing the vice pointed out by the court. Equally, the observatio....
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....lity code contained in Articles 14 and 16. E.1 Is the basis of B.K. Pavitra I cured in enacting the Reservation Act 2018 82. The Statement of Objects and Reasons of the Reservation Act 2018 refers to the legislative history preceding its enactment. The Ratna Prabha Committee was constituted after the Reservation Act 2002 was held to be invalid in B.K. Pavitra I on the ground that no compelling necessity had been shown by the state to provide for reservation in matters of promotion for SCs and STs by collecting and analysing relevant data to satisfy the requirements laid out in Nagaraj. The constitution of the Ratna Prabha Committee was consequent upon the Reservation Act 2002 having been held to be invalid in B.K. Pavitra I. 83. The Statement of Objects and Reasons is extracted below, insofar as it is material: The Hon'ble Supreme Court of India in its judgment dated: 09.02.2017 in the case of B.K. Pavitra and Ors. v. Union of India and Ors. in Civil Appeal No. 2368 of 2011 and connected matters while dealing with the issue of consequential seniority provided to the Scheduled Castes and Scheduled Tribes, having regard to the ratio of the decision of the Consti....
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.... extending reservation in promotion to the Scheduled Castes and Scheduled Tribes in the state and continuance of reservation in promotion within the limits will not affect or hamper overall efficiency of administration; 84. The first principle of statutory interpretation guides us towards the view that undoubtedly, the Statement of Objects and Reasons: (i) Cannot be used for restricting the plain meaning of a legislation^60; (ii) Cannot determine whether a provision is valid^61; and (iii) May not be definitive of the circumstances in which it was passed^62. [See in this context Welfare Association v. Ranjit (2003) 9 SCC 358]. 85. The preamble to a law may be a statutory aid to consider the mischief which the law seeks to address. While it cannot prevail over the provisions of the statute, it can be an aid to resolve an ambiguity^63. 86. In the course of his submissions, Dr Dhavan has emphasized the "new provisions" contained in the Reservation Act 2018. These according to him, are: (i) Section 2 (d) which defines 'backlog'; (ii) Section 5 under which the appointing authority is to revise and redraw the existing seniority....
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....oked the power of judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the constitutional validity of successive constitutional amendments to Article 16 conditional upon the existence of compelling reasons which must be demonstrated by the State by collecting and analysing relevant data. It is submitted that the flaws in the report of the Ratna Prabha Committee would indicate that the compelling reasons which constitute the foundation for the exercise of the enabling power contained in Article 16 are absent, which must result in the invalidation of the Reservation Act 2018. 91. Before we deal with the merits of the attack on the Ratna Prabha Committee report, it is necessary to set down the parameters on which judicial review can be exercised. Essentially, the exercise which the Petitioners require this Court to undertake is to scrutinize the underlying collection of data by the State on two facets laid out in Nagaraj, as now clarified by Jarnail: (i) the adequacy of representation; and (ii) impact on efficiency in administration. Clause (4) of Article 16 contains an enabling provision to empower the State to make reservations in appointments or posts in ....
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.... represents the collective will of the people through their elected representatives. The presumption of constitutionality of a law enacted by a competent legislature traces itself to the fundamental doctrine of constitutional jurisprudence that the legislature is accountable to those who elect their representatives. Collectively, the executive and the legislature are entrusted with the constitutional duty to protect social welfare. This Court explained in Amalgamated Tea Estates Co. Ltd. v. State of Kerala (1974) 4 SCC 415, the rationale for the principles of constitutionality: 11. The reason why a statute is presumed to be constitutional is that the Legislature is the best judge of the local conditions and circumstances and special needs of various classes of persons. "(T)he Legislature is the best judge of the needs of particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist.^65 This principle was reiterated in V.C. Shukla v. State (Delhi Administration) (1980) Supp SCC 249: 11. ...Furthermore, the legislature which is in the best position to understand the needs and requirements of the peo....
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....eservation in Article 16 (4) and Article 16(4A) 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 (4A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. ... 102...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.^68 (Emphasis supplied) 94. The element of discretion vested in the state governments to determine adequacy of representation in promotional posts is once again emphasized in the following extract from the decision in Jarnail: 35. ...According to us, Nagaraj has wisely left th....
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....yees in various cadres of Karnataka Civil Services. 2) The total number of sanctioned posts as per the data of 2016 is 7,45,593 of which 70.22 percent or 5,23,574 are filled up across 31 Departments. 3) The vacancies or posts are filled up through Direct Recruitment (DR) and Promotions including consequential promotion. 4) The overall representation of the SC and ST employees of all 31 Departments in comparison with total sanctioned posts comprises of 10.65 per cent and 2.92 per cent respectively. This proves inadequacy of representation of SCs and STs. 5) On an average the representation in Cadre A for SCs is at 12.07 per cent and STs 2.70 per cent which sufficiently proves the inadequacy of representation. 6) The extent of representation in Cadre B is on an average of 9.79 per cent and 2.34 per cent for ST for all the years of the study period. 7) It is observed that on an average 3.05 per cent of SC representation is inadequate in the Cadre 'C' whereas, 0.05 per cent excess representation is seen for ST. 8) On an average of 2 per cent and 1 per cent over representation of employees of SCs and STs is found in ....
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....rch. Normative analysis without an empirical foundation can lead to value judgments that are out of touch with reality. Empirical analysis in the absence of sensitivity to normative concerns, on the other hand, can lead to the collection of observations whose significance we are not prepared to understand fully. The objective in undertaking political inquiry is to draw upon both types of analysis-empirical and normative-so as to maximize not only our factual knowledge, but also our ability to use the facts we discover wisely. 98. In supporting the methodology which has been adopted by the Ratna Prabha Committee, Ms. Indira Jaising, learned Senior Counsel emphasized that: (i) Save and except where a national census is proposed to be conducted, data collection is based on valid sampling methods on which conclusions are drawn; (ii) Research methodology can be qualitative as well as quantitative-the present case deals with the collection of quantitative data; (iii) Quantitative data is also collected on the basis of sample surveys. In this case, the purpose of the study was to collect data on the adequacy of representation in promotional posts and....
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....he State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B.K. Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record. 102. The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy. The Constitution Bench noticed this in Sabharwal, where it observed: 4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for....
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....eservation in promotion for SCs and STs proportionate to their representation in the general population. 103. One of the submissions which has been urged on behalf of the Petitioners is that the quota has to be reckoned with reference to posts which are actually filled up or the working strength and not with reference to sanctioned posts. This submission is answered by the decision in Sabharwal, which holds that the percentage of reservation has to be worked out in relation to the number of posts which form part of the cadre strength. The Constitution Bench held: 6. The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in re....
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....erved category candidates are entitled to compete for posts in the general category. In several group D posts, such as municipal sweepers, the sobering experience of administration is that the overwhelmingly large segment of applicants consists of persons belonging to the SCs and STs. Over representation in group D posts as a result of candidates belonging to the general category staying away from those posts cannot be a valid or logical basis to deny promotion to group D employees recruited from the reserved category. F Substantive v. formal equality 106. The core of the present case is based on the constitutional content of equality. 107. For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the Rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born. If Article 16(1) merely postulates the principle of formal equality of opportunity, then Article 16(4) (by enabling reservations due to existing inequalities) becomes an exception to the....
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....ft Article 10), certain members of the Assembly recognised that in order to give true effect to the principle of equality of opportunity, the Constitution had to expressly recognise the existing inequalities. For example, Shri Phool Singh noted: ... Much has been made of merit in this case; but equal merit pre-supposes equal opportunity, and I think it goes without saying that the toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people from the villages to compete with those city people is asking a man on bicycle to compete with another on a motorcycle, which in itself is absurd. Then again, merit should also have some reference to the task to be discharged...^76 (Emphasis supplied) Similarly, P. Kakkam stated, ... If you take merit alone into account, the Harijans cannot come forward. I say in this house, that the Government must take special steps for the reservation of appointment for the Harijans for same years. I expect the government will take the necessary steps to give more appointments in police and military services also....^77 (Emphasis supplied) 109. By recognising that for....
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....ifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations... Another view mostly shared by a Section of the House is that, if this principle is to be operative--and it ought to be operative in their judgment to its fullest extent--there ought to be no reservations of any sort for any class or community at all... Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration... The view of those who believe and hold that there shall be equality of opportunity, has been embodied in Sub-clause (1) of Article 10. It is a generic principle. At the same time....
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....he main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article. 113. Subsequently, in N.M. Thomas, the Constitution Bench adopted an interpretation of Articles 15 and 16 which recognized these provisions as but a facet of the doctrine of equality Under Article 14. Justice K.K. Mathew observed: 78. ...Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and Scheduled Tribes. If equality of opportunity guaranteed Under Article 16 (1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even up to the point of making reservation.^78 In his own distinctive style, Justice Krishna Iyer observed: 139. It is platitudinous constitutional law that Articles 14 to 16 are a common code....
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....f the society within the framework of liberal democracy.^82 Social justice, in other words, is a matter involving the distribution of benefits and burdens. G Efficiency in administration 116. Critics of affirmative action programs in government services argue that such programs adversely impact the overall competence or "efficiency" of government administration. Critics contend that the only method to ensure "efficiency" in the administration of government is to use a "merit" based approach-whereby candidates that fulfil more, seemingly "neutral", criteria than others are given opportunities in government services. The constitutional justification for this "efficiency" argument is centred around Article 335. 335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: [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 rela....
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....iciency of administration". Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grou....
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....Judge held: 36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned... One would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil service is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlying assumption that those belonging to the upper castes and classes, who are appointed to the non-reserved posts will, because of their presumed merit, "naturally" perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes...^84 121. The substantive right to equality is for all segments of society. Articles 15 (4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. While, we are conscious of the fact that the decision in Indra Sawhn....
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.... dependence on the concept of "the good" in the relevant society. This basic contrast is made more intense by the tendency, in practice, to characterise "merit" in inflexible forms reflecting values and priorities of the past, often in sharp conflict with conceptions that would be needed for seeing merit in the context of contemporary objectives and concerns... Even though the typical "objective functions" that are implicitly invoked in most countries to define and assess what is to count as merit tend to be indifferent to (or negligent of) distributive aspects of outcomes, there is no necessity to accept that ad hoc characterisation. This is not a matter of a "natural order" of "merit" that is independent of our value system.... (Emphasis supplied) 124. Once we understand "merit" as instrumental in achieving goods that we as a society value, we see that the equation of "merit" with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value. 125. For example, performance in standardised examinations (distinguished from administrative efficienc....
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....n with an objective function that inter alia, attaches some weight to lower inequality levels.^25 (Emphasis supplied) 126. The Proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If the government's sole consideration in appointments was to appoint individuals who were considered "talented" or "successful" in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these Sections of society and having a diverse administration would be undermined. Thus, a "meritorious" candidate is not merely one who is "talented" or "successful" but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration. 127. It is well settled that existing inequalities in society can lead to a seemingly "neutral" system discriminating in favour of privileged candidates. As Marc Galanter notes, three broad kinds of reso....
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....ept of creamy layer is inapplicable to the SCs and STs. This submission which has been urged by the learned Counsel is founded on two hypotheses which we have extracted below from the written submissions: (i) This Court in Indra Sawhney seems to suggest that the creamy layer should be excluded, however there was no unanimity for determining what is creamy layer. Some judges took the view that the criteria for creamy layer exclusion is social advancement (i.e. based on social basis, educational, and economical basis) and Ors. took the view that it will be economic basis alone. It is submitted that it must be kept in mind that the said judgment related only to OBCs; and (ii) Jarnail is not an authority for the proposition that the creamy layer principle applies to SCs and STs. It dealt only with the competence of the Parliament to enact a law in relation to creamy layer without affecting Articles 341 and 342. 132. Dr Dhavan, learned Senior Counsel in his response has urged that the above submissions are incorrect because: (i) Indra Sawhney decided the issue of creamy layer as a principle of equality; and (ii) Jarnail affirmed that if Na....
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....m Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration Under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385], the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwa [ (1995) 2 SCC 745: 1995 SCC (L&S) 548: (1995) 29 ATC 481]. 122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would coll....
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.... in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament Under Articles 341 and 342. The learned Attorney General also argued that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212: (2007) 1 SCC (L&S) 1013] does not indicate any test for determining adequacy of representation in service. According to him, it is important that we lay down that the test be the test of proportion of Scheduled Castes and Scheduled Tribes to the population in India at all stages of promotion, and for this purpose, the roster that has been referred to in R.K. Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745: 1995 SCC (L&S) 548] can be utilised. Other counsel who argued, apart from the learned Attorney General, have, with certain nuances, reiterated the same arguments.^91 The decision in Jarnail specifically addressed the issue of creamy layer: 28. Therefore, when Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212: (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic st....
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....ackward Classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class... Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4). We shall examine the validity of Sections 3, 4 and 6 in the light of the above principle. (Emphasis in original)^93 Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create sub-categories among the Presidential lists Under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds that the creamy layer princip....
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....ate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. I Retrospectivity 140. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force "at once" as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with ....
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....ent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well. K Conclusion 144. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act 2018 is lacking in substance. Following the decision in B.K. Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B.K. Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature. It is Nagaraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution. 145. We therefore find no merit in the batch of writ petitions as the constitutional validity of the Reservation Act 2018 has been upheld. They shall stand dismissed. Accordingly, the review petitions and miscellaneous applications shall also stand dismissed in view of the judgment in the pres....
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.... 30Ibid at page 278 31Ibid at page 272 32Supra 6 at page 641 33G.O. No. DPAR 182 SeneNi 2011 34Ratna Prabha Committee report 35The court was considering the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of Reservations) Act 2000 36Supra 49, paragraph 22 at page 422-423 37Ibid, paragraph 24 at page 424 38Ibid, paragraph 26 at page 425-426 39G.O. No. DPAR 186 SRS 2018 40M.A. Nos. 730-756 of 2017 41In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018 42OBCs 43In I.A. No. 102966 of 2018 in W.P. (C) No. 791 of 2018 44Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992 45Article 168. (1) For every State there shall be a Legislature which shall consist of the Governor, and-- (a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra], [Karnataka], [[Tamil Nadu, Telangana]] [and Uttar Pradesh], two Houses; (b) in other States, one House. (2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative....