TaxTMI 
TaxTMI 
2016 (3) TMI 1472
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....a Committee or appoint a Commission chaired either by a retired Judge of the High Court or Supreme Court in making: survey and collecting necessary qualitative data of the Scheduled Castes and the Scheduled Tribes in the services of the State for granting reservation in promotion in the light of direction gives by this Court in M. Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC 212. Let it be clarified in the beginning, apart from this prayer, other reliefs sought for in the petitions have not been argued and rightly so, as the said grievances have already been directed to be dealt with in interlocutory applications to be filed in the case of U.P. Power Corporation Limited v. Rajesh Kumar and Ors. (2012) 7 SCC 1. 2. At the commencement of the hearing, Dr. K.S. Chauhan, learned Counsel appearing for the Petitioner in Writ Petition (Civil) No. 715 of 2015, had submitted that the decision in M. Nagaraj (supra) by the Constitution Bench requires reconsideration. For the said purpose, he has made an effort to refer to certain passages from Indra Sawhney and Ors. v. Union of India and Ors. (1992) Supp. 3 SCC 217 and R.K. Sabharwal v. State of Punjab 1995 (2) SCC 745. We are not....
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....d up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. 5. In M. Nagaraj (supra), the Court has encompassed the facts in the following manner: The Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17-6-1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the Petitioners, the impugned amendment reverses the decisions of this Court in Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684, Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715 (Ajit Singh-I), Ajit Singh (II) v. State of Punjab (1999) 7 SCC 209, Ajit Singh (III) v. State of Punjab (2000) 1 SCC 430, Indra....
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....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 (supra), the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal (supra). 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 collapse. 123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs....
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..... The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. (v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, Clause (4-A) will be governed by the two compelling reasons-- "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced. (vi) If the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to intr....
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....ential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference. 9. After referring to the said decision, the Court in Rajesh Kumar's case took note of the Social Justice Committee Report and the chart and opined that the said exercise was done regard being had to the population and vacancies and not keeping in view the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Virpal Singh Chauhan (supra) and Ajit Singh (2) (supra). Being of this view, the Court held that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provi....
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....t shall be deemed to have come into force on 17.6.1995. 13. It is contended by Dr. Chauhan, that the decision in Rajesh Kumar (supra) has a prospective application. To buttress the said submission he has commended us to paragraphs 85 to 87. 14. Placing reliance on the said paragraphs, it is argued by Dr. Chauhan that the provisions of Section 3(7) of the 1994 Act remained in force upto 07.05.2012 as it was omitted by Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Amendment Ordinance, 2012. We do not intend to address to the said facets. Suffice it to say, the Court in Rajesh Kumar (supra) has clearly held that Section 3(7) of the 1994 Act and Rule 8-A are ultra vires. What has been stated in the said judgment is that any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8-A was to remain undisturbed. Thus, the decision has made it distinctly clear what has been stated. 15. The stand that the provisions remained in force till the State omits it by an omission has no force. When the statutory provisions and the rules have been declared ultra ....
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....n of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case No. II (1997) 4 SCC 18. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside. 18. Tested on the aforesaid principles, it is luminescent that the pronouncement in Rajesh Kumar (supra) is by no means prospective. The declaration is clear and the directions are absolutely limpid. The Court has not stated that the entire past promotions shou....
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....ppropriate direction to the State to collect the necessary qualitative data. Reliance has been placed on eleven-Judge Bench decision in Madhav Rao Jivaji Rao Scindia v. Union of India (1971) 1 SCC 85. We have been commended to paragraph 117 from the majority judgment by Justice J.C. Shah, which is to the following effect: 117. There are many analogous provisions in the Constitution which confer upon the President a power coupled with a duty. We may refer to two such provisions. The President has Under Articles 341 and 342 to specify Scheduled Castes and Scheduled Tribes and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits e.g. reservation of seats in the House of the People, and in the State Legislative Assemblies by Articles 330 and 332, and of the numerous provisions made in Schedules V and VI. It may be noticed that Scheduled Castes and Scheduled Tribes are specially defined for the purposes of the Constitution by Articles 366(24) and 366(25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without subst....
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....at the word 'may' is to be read as 'shall' and thereby convey the meaning that it is mandatory. In that context, the Court observed: Often when a public authority is vested with power, the expression "may" has been construed as "shall" because power if the conditions for the exercise are fulfilled is coupled with duty. As observed in Craies on Statute Law, 7th Edn., p. 229, the expression "may" and "shall" have often been subject of constant and conflicting interpretation. "May" is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. As early as 1880 the Privy Council in Julius v. Lord Bishop of Oxford (1880) 5 AC 214 explained the position. Earl Cairns, Lord Chancellor speaking for the judicial committee observed dealing with the expression "it shall be lawful" that these words confer a faculty or power and they do not of themselves do more than confer a faculty or power. But the Lord Chancellor explained there may be something in the nature of the thing empowered to be done, something in the object for which it is to be....
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.... 111. It is, thus, clear that it is the constitutional duty of this Court to ensure maintenance of the independence of judiciary as well as the effectiveness of the justice delivery system in the country. The data and statistics placed on record, of which this Court can even otherwise take judicial notice, show that certain and effective measures are required to be taken by the State Governments to bring down the pendency of cases in the lower courts. It necessarily implies that the Government should not frame any policies or do any acts which shall derogate from the very ethos of the stated basic principle of judicial independence. If the policy decision of the State is likely to prove counterproductive and increase the pendency of cases, thereby limiting the right to fair and expeditious trial to the litigants in this country, it will tantamount to infringement of their basic rights and constitutional protections. Thus, we have no hesitation in holding that in these cases, the Court could issue a mandamus. The extent of such power, we shall discuss shortly hereinafter. The aforesaid decision, in our considered opinion, is quite distinguishable. The Court was referring to certain....
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....ssage from Judicial Review of Administrative Action [De Smith, Judicial Review of Administrative Action, 1995, pp. 300-01] an instructive passage from Administrative Law[Wade & Forsyth, Administrative Law, 9th Edn., p. 233], the authority in Padfield v. Minister of Agriculture, Fisheries and Food [1968] 1 All ER 694 (HL), Commr. of Police v. Gordhandas Bhanji AIR 1952 SC 16 and Municipal Council, Ratlam v. Vardichan (1980) 4 SCC 162 and on that basis, concurred with the view expressed in Julius (supra) and eventually, held that it was obligatory on the Government to constitute a Committee to carry out the purpose and objective of the Act. The import and effect of the aforesaid authorities we shall dwell upon when we will be addressing the issue whether a writ of mandamus can be issued in the present factual matrix regard being had to the nature of constitutional provisions. 24. We will be failing in our duty if we do not take note of another facet of the submissions advanced by the learned Counsel for the Petitioners. It is urged by them that it is the constitutional duty and obligation of the authorities to work out the constitutional provisions to effectuate the affirmative acti....
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....ontrary to the constitutional principles and such action is not permissible under the scheme of the Constitution. 26. Relying on the said decision, learned Counsel would submit the said principle has not been upset by the nine-Judge Bench in Supreme Court Advocates-on-Record (supra). We have been also apprised that the seven-Judge Bench has approved the principle stated in Julius (supra), wherein it has been held thus: there may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. 27. Immense emphasis has been laid on D.K. Basu (supra) wherein the Court was dealing with Section 21 of the Protection of Human Rights Act, 1993 which deals with setting up of State Human Rights Commission. Interpreting the said provision, the Court has observed: A plain reading of the above would show that Parliament has used the word "ma....
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.... have that right, when required on their behalf. 29. As is evident, the Court has referred to number of judgments that the word "may" at times can assume the character of "shall". In the said case, stress was laid on access of justice and in that context, reliance was placed on Imtiyaz Ahmad v. State of U.P. and Ors. (2012) 2 SCC 688. After referring certain recommendations, the Court issued number of directions. 30. Learned Counsel for the Petitioner, as stated earlier, has founded his argument on the principles stated in many authorities which pertain to interpretation of "power coupled with duty". Reference has been made to Breen v. Amalgamated Engineering Union (1971) 2 QB 175, 190 which has been cited by the House of Lords in Padfield (supra) wherein their Lordships considering the discretion of statutory authority under the Agriculture Marketing Act, 1958 (UK) opined: The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations, which is ought not to....
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....ration, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right[R v. Archbishop of Canterbury and Bishop of London (1812) 15 East 117, at 136] ; and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual[R. v. Bank of England (1819) 2 B and Ald 620, at 622; R v. Thomas (1892) 1 QB 426]." 36. This Court in State of Kerala v. A. Lakshmikutt (1986) 4 SCC 632, while dealing with the concept of mandamus, opined thus: It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the perf....
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....ued a writ of mandamus in cases which involved minor discretionary element but not where a major policy decision is involved. It is his submission that when the authority has a discretion to exercise the discretion or not regard being had to many an administrative contingencies, the Court should refrain from issuing a mandamus. It is because at this stage there is neither any semblance of right nor exercise of power coupled with duty. 40. In this regard reference to the decision in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. (2002) 4 SCC 638 would be fruitful. In the said case, a three-Judge Bench of the Court, while dealing with the order of the High Court to issue mandamus, opined: One of the conditions for exercising power Under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It....
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.... the procedure to be followed in case of arrest and detention based on fundamental rights of convicts, prisoners and under trials Under Article 21 of the Constitution. Similarly, in Prakash Singh and Ors. v. Union of India and Ors. (2006) 8 SCC 1, the Court has laid down specific guidelines for police reform so as to insulate the police machinery from political/executive interference and the same is founded on the backdrop of right to life and the enhancement of the criminal justice delivery system. 42. In the case at hand, we are concerned with the enabling power as engrafted Under Articles 16, 16(4-A) and 16(4-B). The said Articles being enabling provisions, there is no power coupled with duty. In Ajit Singh (II) (supra), it has been held that no mandamus can be issued either to provide for reservation or for relaxation. Recently, in Chairman and Managing Director, Central Bank of India and Ors. v. Central Bank of India SC/ST Employees Welfare Association and Ors. 2015 (1) SCALE 169 it has been held thus: In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the St....
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....vision. We are absolute in conscious that the controversy before us is quite different. The relief is not sought on the basis of existence of a provision. The grievance pertains to steps being not taken to collect the quantifiable data as has been envisaged in M. Nagaraj (supra). To appreciate the relief in its quintessence, it is imperative to clearly understand the ratio laid down in M. Nagaraj (supra). The Constitution Bench while opining that Articles 16(4-A) and (4-B) are enabling provisions had observed thus: Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements. After so stating, the larger Bench has clearly held that Article 16(4-A) and 16(4-B) do not alter the structure of Article 16(4). The said Articles are confined to the Scheduled Castes and the Scheduled Tribes and do not obli....
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....to be exercised regard being had to the conception of duty. The concept of power coupled with duty is always based on facts. If we keenly scrutinize the relief sought, the prayer is to issue a mandamus to the State and its functionaries to carry out an exercise for the purpose of exercising a discretion. To elucidate, the discretion is to take a decision to have the reservation, and to have reservation there is a necessity for collection of data in accordance with the principles stated in M. Nagaraj (supra) as the same is the condition precedent. A writ of mandamus is sought to collect material or data which is in the realm of condition precedent for exercising a discretion which flows from the enabling constitutional provision. Direction of this nature, in our considered opinion, would not come within the principle of exercise of power coupled with duty. A direction for exercise of a duty which has inherent and insegretable nexus with the constitutional provision like Article 21 of the Constitution or a statutory duty which is essential for prayer as laid down in Julius (supra) where a power is deposited with a public officer but the purpose of being used for the benefit of person....