TaxTMI 
TaxTMI 
2016 (3) TMI 1472
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, directing the Respondents to constitute 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsidering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 (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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. (v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (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 pos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uled Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the Notifications dated 28-12-2002 and 25-4-2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference. 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 consequenti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... commencement of the 2005 Rules could not be affected. Thereafter, on 14.9.2007, by the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007, Rule 8-A was inserted with the same language. It has been mentioned in the said Rule that it 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application 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 C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and hence, it is obligatory on the part of this Court to require it to carry out the procedure so that the constitutional vision is realized. It has been highlighted before us that the concept of "power coupled with duty" comes into play in the instant case and, therefore, the court should issue appropriate 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213. In the said case, the Court was engaged in interpretation of certain rules of Gujarat Minor Mineral Rules, 1966. On behalf of the Appellant therein, reliance was placed on State of Rajasthan v. Harishanker Rajendrapal AIR 1966 SC 296 to advance a contention that 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 committ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the course of such duty. In S.P. Gupta v. Union of India (supra) this Court issued directions to the Union of India to determine, within a reasonable time, the strength of permanent Judges required for disposal of cases instituted in the High Courts and to take tests to fill up the vacancies after making such determination. XXX 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horities and officers to be exercised by them at their discretion and they are couched in permissive language, such as, "it may be lawful", "it may be permissible", "it may be open to do", etc. But in certain situations, such power is coupled with duty and must be exercised. The Court referred to Baker, Re Nichols v. Baker (1890) 44 Ch D 262 (CA), a passage 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....but it has been so often decided as to have become an axiom that in public statutes words only directory, permissory or enabling may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice. Thus, the enabling power cannot be refused to be exercised by the repository of that power, as such refusal would be contrary 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 powe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who 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 disc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....umstances in which it can be issued. 35. In Halsbury's Laws of England, Fourth Edition, Volume 1, it has been stated: 89. Nature of mandamus. The order of mandamus[Lee District Board v. LCC (1989) 82 LT 306; R v. Marshland Smeeth and Fen District Commr. [1920] 1 KB 155, DC] is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, 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 S....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case by a writ of mandamus the said authority must be directed to perform its function. 39. Dr. Dhavan, who has been permitted to argue, has placed reliance on the said decision only to point out that the mandamus sought in the present case does not come in the nature of mandamus that the Court has dealt with, in the aforesaid case. It is his submission that the facts in which directions have been issued are quite different and that apart, the Court has issued 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gation to ensure that the backlog of cases is decreased and efforts are made to increase the disposal of cases. Keeping in view the concept of constitutional silence or abeyance, guidelines were issued in Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241 and for the said purpose, reliance was placed on international Treaties, norms of gender equality and right to life and liberty of working women. Guidelines have been issued in D.K. Basu (supra) to lay down 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 (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise. The aforesaid passage makes its luminescent that existence of a provision for reservation in the matter of selection or promotion is the sine qua non for seeking mandamus. The right accrues in favour of the Scheduled Castes and the Scheduled Tribes candidates when there is a provision. 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 provid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s unconstitutional as no fresh exercise had been undertaken. The submission of the learned Counsel for the Petitioners is that a command should be issued to the State of Uttar Pradesh to collect the data as enshrined in the Constitution Bench decision in M. Nagaraj (supra) so that benefit of reservation in promotion can be given. The relief sought may appear innocuous or simple but when the Court thinks of issue of a writ of mandamus, it has to apprise itself of an existing right or a power 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 ....