Holding

The Supreme Court's prospective overruling of the Mandal judgment for five years is a valid exercise of its constituent power under Article 142, constitutes a majority judgment, and does not violate Articles 13, 14 or 16(1); thus the promotions made within that period remain lawful.

Summary

The petitioners challenged the promotions of several engineers in the Uttar Pradesh Public Works Department, arguing that the Supreme Court's decision in Indira Sawhney (Mandal) that reservation in promotion was unconstitutional could not be postponed for five years. The Court examined whether the right to promotion is a fundamental right, whether the prospective overruling in the Mandal case was valid under Articles 13, 14, 16(1) and 142, and whether the direction to defer the effect of the judgment violated constitutional equality. It held that the power under Article 142 allows the Court to issue prospective directions, which are law under Article 141 and not void. The Court affirmed that the right to promotion is a statutory right, but Article 16(4‑A) together with Articles 14 and 16(1) guarantees a fundamental right to reservation in promotion for Scheduled Castes and Tribes where they are inadequately represented. Consequently, the promotions made between November 1992 and December 1993, saved by the five‑year deferment, were valid and could not be disturbed. The Court also clarified that the prospective overruling in the Mandal case constituted a majority judgment and was not ultra vires. Both the appeal and the writ petition were dismissed.

Issues considered

The validity of the Supreme Court's prospective overruling of reservation in promotion for five years under Article 142.
Whether the right to promotion is a fundamental right or merely a statutory right.
Whether the direction to postpone the effect of the Mandal judgment violates Articles 13, 14 and 16(1).
Whether the prospective overruling constitutes a majority judgment under Article 145(5).
The constitutionality of the Uttar Pradesh Service of Engineers (Public Works Department) (Higher) Rules, 1990 and the Uttar Pradesh Reservation Act, 1994 in light of Article 16(4‑A).

Legislation cited

Constitution (77th Amendment) Act, 1995s. Article 16(4-A)
Constitution of Indias. Article 13, s. Article 14, s. Article 141, s. Article 142, s. Article 145(5), s. Article 16(1), s. Article 16(4), s. Article 16(4-A), s. Article 32

Subjects

reservation in promotionArticle 16(4)Article 16(4-A)prospective overrulingArticle 142equalityservice lawstatutory rightprotective discriminationsocial justice

Judgment

rf

ASHOK KUMAR GUPTA AND ANR. A
v.
STATE OF U.P. AND ORS.

MARCH 21, 1997

[K. RAMASWAMY, S. SAGHIR AHMAD AND B
G.B. PATTANAIK, JJ.]

Constitution of India, Articles 13, 14, 16 (1), 16(4), 16(4-A), 32, 142,
145(5) r/w Uttar Pradesh Service of Engineers (Public Works Depmtment)
(Higher) Rules, 1990-Reseivation in promotion-Whether Supreme Court in C
Manda! Case could validly postpone effect of invalidity of reservation in
promotion till five yem:~ after date of judgment-Held, yes; directions were not
violative of Arlicle 14 read with 16 (1) and were law under Anicle 141; Furlher
held, promotions already made in excess of roster would not be disturbed.

Service Law-Constitution of India, Arlicles J4, 16(1)! 16(4), 16(4-A) D
and 335-Whether right to promotion is a fundamental right-Held, no; it is
a statutory right; Fwther held, Article 16 (4-A) read with Arlicles 16(4) and
14 guarantee a fundamental right to promotion to Dalits and Tribes where
they have inadequate representation co11siste11t with efficiency of administra-
tion. E
. Interpretation of Constitution-Rule of Stare Decisis in -Held, not an
inexorable or rigid ntle-Constitution of India, A1ticles 141, 145(5).

The Uttar Pradesh Service of Engineers (Public Works Department)
(Higher) Rules, 1990 provided for reservation in promotions. The promo- F
lion of the respondents to various posts in the Public Works Department
of the Government of Uttar Pradesh was made between November 17, 1992
and December 11, 1993 and therefore were saved by the directions in Indira
Sawhney v. Unio11 of India, [1992] Supp 3 SCC 217 ('Manda! Case') since
they were made within five years of the date of the judgment. The appel- G
!ants challenged the promotions before the High Court unsuccessfully.

Before this Court the appellants and other writ petitioners con-
tended that the operation of the judgment of the majority in the Mandai
Case that reservation in promotion was unconstitutional could not have
been postponed by prospective overruling of the ratio in The General H
269
270 SUPREME COURT REPORTS (1997) 3 S.C.R.

A Manager, Southem Railway v. Rangachari, [1962] 2 SCR 586 ('Rangachari's
Case'). The direction to postpone the effect of the decision was not the
judgment of the majority of the judges in the Manda! Case and was a void
ab inito. Some of the private Respondents contended that with the insertion
of Article 16 (4-A) by the Constitution (77th) Amendment) Act of 1995
B effective from June 17, 1995, their promotions were validly made.

The question that arose for determination were whether the right to
promotion was a fundamental right and whether the direction regarding
prospective operation of the decision in the Manda/ Case was violative of
Articles 14 and 16 (1) and void under Article 13 (2) of the Constitution.
c Dismissing the appeal and the writ petition, this Court

HELD : 1.1. The power under Article 142 being a constituent power
available only to this Court, the directions given in the Manda! case were
neither violative of rights under Article 14 read with Article 16(1), nor ultra
D vires the power, void or incompatible to or inconsistent with the doctrine
of equality enshrined under Article 14 read with Article 16(1) or the
Constitution. On the other hand, the power was exercised by this Court
under Article 142 read with Articles 32 and the direction postponing the
operation of the decision for a period of five years was a law of the land
E under Article 141. The question of such a law being void abinitio or nullity
or v9idable does not arise. [320-H, 321-A, 318-C]

Indira Sawhney v. U11io11 of I11dia, [1992] Supp. 3 SCC 217, explained.

The Ge11eral Manager, Southern Railway v. Rangachari, [1962] 2 SCR
F 586; A.R. A11tulay v. RS. Nayak, [1988] 2 SCC 602; Delhi Judicial Services
Associatio11, Tis Hazari v. State of Gujarat, [1991] 4 SCC 406; In Re; Vi11ay
Chandra Misra, [1995] 2 SCC 584; Delhi Development Authority v. Skipper
Const1Uctio11 Co. (P) Ltd., [1996] 4 SCC 622; Waman Rao v. Unio11 of India,
[1981] 2 SCR 1; Golaknath v. State of Punjab, [1967] 2 SCR 762;
Keshavana11da Bharati v. State of Kera/a, [1973] Supp. SCR 1; U11ion
G Carbide v. Unio11 of I11dia, [1991] 4 SCC 584; M. Venkateswarnlu v. Govern-
ment of A.P., [1996] 5 SCC 167; U11ion of India v. Madhav, JT (1996) 9 SC
1
320; G.S./.C. Karamachari Union v. Gujarat Small I11dustries Corpon, JT
(1997) 1 SC 384; S. Sathyapriya v. State of A.P., [1996] 9 SCC 466; S.P.
Sampath Kumar v. Union of I11dia, [1987] 1 SCC 124; St. Stephe11 1s College
H v. Delhi University, [1992] 1SCC558; Managing Director, ECIL, Hyderabad
I
A.K. GUPTA v. STATE 271

v. B. Karunakar, [1993] 4 SCC 727; Union of India v. Mohd. Ramzan Khan, A
[1991] 1 SCC 588; Pannalal Bansilal Pitti v. State of Andhra Pradesh,
[1996) 2 SCC 498; Mahendra Lal Jaini v. State of Uttar Pradesh, [1963)
Supp. 1 SCR 912 andAtam Prakash v. State of Haryana, 1986 2 SCC 249,
referred to.

1.2. The promotions of the respondents were legal and valid. Reser- B
vation in promotions had been in vogue in the State of Uttar Pradesh right
from 1973 and the promotions of the respondents came to be made from
1981 onwards. The U.P. Act saved the existing policy of reservation in
promotions. The judgment in the Manda/ Case saved the promotions
already made. In Sabharwal's case also a Constitution Bench upheld the C
validity of the promotion given in excess of the roster and the law became
operative only from the date of the judgment. [321-B-D]

R.K Sabharwal v. State of Punjab, [1995] 2 SCC 745, followed.

1.3. Prospective overruling of Rangachari's Case is a majority D
opinion. [307-D]

Indira Sawhney v. Union of I11dia, [1992] Supp. 3 SCC 217, explained.

The General Manager, Southem Railway v. Ra11gachari, [1962) 2 SCR E
586 and R.K Sabharwal v. State of Pu11jab, [1995] 2 SCC 745, referred to.

2.1. Right to promotion is a statutory right. It is not a fundamental
right. [304-C-D]

The State of lammu & Kashmir v. Triloki Nath Klwsa, AIR (1974) SC p
l;A.K Bhat11agarv. Unio11 of India, [1991] 1SCC544; IndianAdmn. Service
(S.C.S.) Association, U.P. v. U11ion of I11dia, [1993) Supp 1 SCC 730;
A.B.S.K Sang v. Unio11 of India, JT (1996) SC 274; Md. Shujat Ali v. Union
of India, [1975] 1 SCR 449; Md. Bhakar v. Krishna Reddy, 1970 SLR 768;
State of Mysore v. G.B. Purohit, (1967) SLR 753; Ramchandra Shankar
Deodhar v. State of Maharashtra, [1974] 1 SCC 317; Syed Khalid Razvi v. G
Union of India, [1993] 3 SCC 575; State of Kera/a v. N.M. Thomas, [1976]
2 SCC 310; State of Maharashtra v. Chandrabhan Tale, [1983] 3 SCC 387;
Delhi Transpo11 Corporation v. D.T.C. Mazdoor Congress, [1991) Supp. 1
SCC 600 and Comptroller & Auditor General v. K.S. Iaga.nnathan,. AIR
(1987) SC 537, referred to. '.; H
272 SUPREME COURT REPORTS [1997] 3 S.C.R.

A 2.2. Article 16 (4·A) read with Articles 16 (1) and 14 guaranteed a
right to promotion to Dalits and Tribes as fundamental rights where they
did not have adequate representation consistent with the efficiency in ad·
ministration. The Manda/ case directed the decision to be operative after 5
years from the date of the judgment; however, before expiry thereof, Article
16 (4A) came into.force from June 17, 1995. Therefore, the right to promo·
B tion continued as a constitutionally guaranteed fundamental right.
[304-D-E]
2.3. Protective discrimination envisaged in Articles 16 (4) and 16
(4-A) was the armour to establish the equilibrium between equality in law
and equality in results as a fact to the disadvantaged. The principle of
C reservation in promotion provided equality in results. [293-D-E]

A.K Gopalan v.Stateof Madras, [1950] SCR88;R.C. Cooperv. Union
of India, [1970] 1 SCC 248; Ahmedabad St. Xaviers College Society v. State
of Gujarat, [1975] 1SCR173; Dr. Pradeep Jain v. Union of India, [1984) 3
SCC 654; Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College,
D [1990] 3 SCC 130; Maharashtra State Board of Secondary and Higher Secon·
dary Education v. KS. Gandhi, [1991) 2 SCC 716; KC. Vasanth Kumar v.
State of Kamataka, [1985] Supp. SCC 714; Vacher & Sons Ltd. v. Londan
Society of Compositors, (1913) AC 107; The Bengal Immunity Company Ltd.
v. The State of Bihar, [1955) 2 SCR 603; Shri Sitaram Sugar Co. Ltd. v. Union
E of India, [1990) 1 SCR 909; S. Azeez Bash v. Union of India, (1968) 1 S.C.R.
833; Menaka Gandhi v. Union of India, A.I.R. (1978) SC 597; Commissioner
of Commercial Taxes, A.P. Hyderabad v. G. Sethumadhava Rao, [1996] 7
SCC 512; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of
. India, [1981) 1 SCC 246; G.S.I.C. Karamchari Union v. Gujarat Small In-
F dustries Corpn., JT (1997) 1SC384 and Union of India v. Madhav, JT (1996)
9 SC 320, referred to.

2.4. Social Justice is a fundamental right and equally economic
empowerment is a fundamental right to the disadvantaged. [288-D]

Col!Sumer Education & Research Centre v. Union of India, [1995) 3
G SCC 45; Air India Statutory Corporation v. United Labour Union, (1996) 9
Scale 70; Dalmia Cements (Bharat) Ltd. v. Union of India, JT (1996) 4 SC ,.
SSS; C.E.S. C. Limited v. Sub hash Chandra Bose, [1992] 1 SCC 441; Murlid·
har Dayanadeo Kesekar v. Vishwanath Pandu Barde, [1995] Supp. 2 SCC
549; R. Chandevarapa v. State of Kamataka, [1995] 6 SCC 309 and Papaiah
H v. State of Kamataka, [1996) 10 SCC 533, referred to.
/
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 273

V.T. Rajshekar : "Merit, My Foot" (A reply to Anti-Reservation A
Racists), 1996 Published by Dalit Sahitya Academy; Bangalore, referred to.

3. In the interpretation of the Constitution or the concepts embodied
therein, the application of the doctrine of stare decisis is not an inexorable
or rigid rule. It required modulation or adherence based upon the need of
the constitutional command and social imperatives. It would, therefore, be B
entirely within the discretion of the Court when it is called upon to consider
its application to the given set of circumstances. [312-D-E]

State of Kamataka v. Appa Balu, [1995] Supp. 4 SCC 469; Sakal
Papers (P) Ltd. v. Union of India, [1962] 3 SCR 842; Union of India v. C
Raghubir Singh, [1989] 2 SCC 754; State of Bombay v. The United Motors
(India) Ltd.. [1953] SCR 1069, referred to.

United States ofAme1ica v. South Eastem Undeiwriters Association, 322
US 533, referred to.

CIVIL APPELLATE ORIGINAL JURISDICTION : Civil Appeal D
No. 2239 of 1997.

From the Judgement and Order dated 4.8.93 of the Allahabad High
Court in W.P. No. 3088 of 1993.
AND E
Writ Petition (C) No. 511/1995.
· (Under Article 32 of the Constitution of India.)
Raju Ramachandran, P.P. Tripathi, Anil Kumar Gupta, Rakesh
Diwedi, (Adv. General for State), R.B. Misra, Arvind Verma, Prashant F
Kumar, R. Ayyam Perumal, Joseph Pookkatt, Dr. M.P. Raju, T.U. Rajan,
S.P. Sharma and Ms. Mary Searia for the appearing parties.
The Judgment of the Court was delivered by

K. RAMASWAMY, J. Leave granted.
G
This appeal by special leave arises from the judgment dated 4th
August, 1983 of the Allahabad High Court, Lucknow Bench, in Write Peti-
tion No. 3088 of 1993. Tb,e writ petition also arises from the same facts butis
filed by different set of officers challenging the promotion of respondents 2
to ~O (in the Wl)it petition) the 2nd respondent (in the civil appeal) to the post
.of Superintending Engineers, (Civil); Chief Engineer, Level-II (Civil), Chief H
\
274 SUPREME COURT REPORTS [1997] 3 S.C.R.

A Engineer Level-I and Engineer in-Chief in Public Works Department of the
Government of Uttar Pradesh. The petitioners seek a writ of mandamus to
restrain the first respondent from giving effect to the promotions given to
Respondent Nos. 2 to 10. They also seek writ of certiorari to quash the orders
dated March 12, 1981 appointing the second respondent as Superintending
Engineer on ad hoc basis and on regular basis w.e.f. April 10, 1991 as tem-

B ponuy Chlcl EngW= by °'''"''"' No'Omb0< 7,1994 md o'dm prnmot-
ing Harbans Lal and others as Superintending Engineers.
J.;;····.,.
'

The Governor exercising the power under proviso to Article 309 of the
Constitution made the Uttar Pradesh Service of Engineers Public Works
C Department) (Higher) Rules, 1990 effective from October 15, 1990 (for
short, the 'Rules'). they came into force at once by operation of Rule 1(2).
The services comprised thereunder are grouped as Group 'A' posts, consist-
ing of various posts. Under sub-rule (1) of Rule 4 which speaks of "Cadre of
the Service'', the strength of the service and of each category of the posts
shall be such as may be determined by the Government from time to time.
D Sub-rule (2) gives power to determine the strength of service and of each
category of posts until they are ordered to be varied. The posts of Executive
Engineer (Civil), Executive Engineer (Electrical and Mechanical), Superin-
tending Engineer (Civil), Superintending Engineer (Electrical and Mechani-
cal), Chief Engineer Level-II (Civil), Chief Engineer Level-II (Electrical and
E Mechanical, Chief Engineer Level-I (Civil), and Engineer-in-Chief have
been specified under two categories, viz., the permanent and temporary
cadre and strength in the respective cadres has been enumerated. In Part III, ·
Rule 5 provides method of recruitment by way of promotion from the sub-
stantive posts of Assistant Engineers to the post of Executive Engineers and
recruitment by promotion from amongst substantive posts of Executive En-
F gineers to the posts of Superintending Engineers; from the Executive to
Superintending Engineer Level-II and from Chief Engineer Level-II to Chief
Engineer Level-I and from Chief Engineer Level-I to Engineer-in-Chief
respectively. Rule 6 prescribes reservation for the candidates belonging to
Scheduled Castes (for short, 'Dalits') and Scheduled Tribes (for short,
'Tribes') and other categories in accordance with the orders of the Govern-
G ment .in force at the time of the recruitment. The qualifying service in the
lower cadrefor promotion.to higher cadre is also prescribed. The procedure
for determination of the vacancies to be reserved under Rule 6 for Dalits,
Tribei; and other categories has been provided in Rule 7.

H Rule 8 adumbrates that recruitment to the post of Executive Engineer
f

AK.GUPTA v. STATE[K.RAMASWAMY,J.] 275

(Civil) shall be made on the basis of seniority subject to rejection of unfit A
and to the post of Superintending Engineer and above shall be made on
the basis of merit through a Selection Committee to be constituted of
officials specified thereunder. Recruitment to the post of Chief Engineer
Level-II is by the process of screening and selection. The details thereof are
not material, hence omitted. Rule 9 empowers the Government to appoint the
selected candidates in the order of seniority. If more than one persons are B
recruited in one selection by a committee appointed in their behalf, a com-
bined order indicating the names of persons has to be issued in the seniority
order as it stood in the earlier cadre. The procedure has been prescribed in
Rule 10 for declaration of the probation etc. Rule 11 empowers the Govern-
ment to confirm the appointee at the end of the probation or the extended C
probation. Rule 12 prescribes procedure for determination of seniority. The
other details are not material, hence are omitted. Rule 18 is saving provision
which provides that nothing in this rule shall affect reservations and other
concessions required to be provided for Dalits, Tribes and other special
categories of persons in accordance with the orders of the Government issued
from time to time in that regard. D
By proceedings dated March 8, 1973, the Government had provided
percentage in reservation for Dalits and Tribes @ 18% and 2% respectively
in all services or posts to be filled .in by promotion through process of
selection either by direct recruitment or by competitive examination or E
limited departmental examination. The said percentage has been increased
to 21% for Dalits and retained 2% for the Tribes under the U.P. Service
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994 (for short, the 'U.P. Act') that came into force with
effect from December 11, 1993. It has provided for the first time reserva-
tion @ 27% to the other Backward Classes. 1973.Rules provided that if p
sufficient number of suitable candidates belonging to Dalits and Tribes
were not available against reserved vacancies at the time of selection and
if the vacancies were required to be filled up in the public interest, general
category employees could be appointed on ad hoc basis. It had to be so
mentioned in their orders of appointment that the provision/appointments
were ad hoc and conferred no rights and that the vacancies would be G
carried forward to the following year. Carried forward vacancies could not ·
exceed 45% of the total of such vacancies etc. Under Rule 3 of 1973 Rules,
for suitability purpose, Dalits and Tribes were treated to be same as the
general candidates, i.e., the standard of suitability was same for all the
candidates. The Dalits and Tribes who fulfilled the minimum required H
\
276 SUPREME COURT REPORTS [1997) 3 S.C.R.

A standard of merit would be selected upto the limit of reservation. Under
Rule 4, when Dalits and Tribes were promoted substantively or temporarily ..
to the above reserved vacancies for the first time, their confirmation would
be done under normal rules. The rule of the reservation was not applicable
again for confirmation in their case.

B . Though the Government omitted under 1973 Rules reservation in the
posts pursuant to which required .recruitment by promotion on the prin-
ciple of seniority subject to rejection of unfit, by the rules issued on March
20, 1974, the Government amended the same and restored recruitment by
promotion to the posts on the prescribed percentage. The reservation was
C limited to those services only where direct recruitment was not more than
50%. The promotion thereafter was to be done according to rules and
regulations under those provisions of reservation. The candidates who were
eligible and suitable on the basis of seniority and were not found unfit,
would be selected upto the reservation limit. Rule 2 of 1974 Rules provides
for promotion to the posts where merit was also the consideration. The
D selected candidates from amongst the Dalits and Tribes and the general
candidates would be shown in separate eligibility lists to each category. The
selected candidates were to be placed according to their inter se seniority
of the original post. Afterwards, all the three lists were to be compiled
according to the inter se seniority and promotion were to be given against
the vacancies accordingly and common seniority list was to be maintained.
E By orders issued on December 27, 1974, it was further clarified that "after
reconsideration, the Government has withdrawn the restriction i.e. this
reservation will be limited to those services only where direct recruitment
is not more than 50%. The above referred G.O. will be treated to be
modified accordingly." Thus, the Dalits and Tribes were to get reservation
in promotion on all posts/services. By proceedings dated July 5, 1984, it
F
was further amplified, vis-a-vis that these orders referred to hereinbefore
thus: "The Government after reconsideration feels it necessary to clarify
the process of preparation of separate eligibility lists in this regard".

Rule 2 of the 1984 order provided that:
G
"The total vacancies for promotion on the basis of seniority subject
to rejection of unfit arises in any department/office at any time
shall be divided into general candidates and SC/ST candidates on
the basis of G.Os. issued from time to time for reservation in
H promotions for these special categories. Each category shall be
/

I

AK.GUPTA v. STATE[K.RAMASWAMY,J.) 277

prepared separately in the order of their inter se seniority for A
available vacancies for each category and selection have been done
from such eligibility list for each category on the basis of seniority
subject to rejection of unfit. A combined list shall be prepared
after selection of candidates from each category according to their
inter se seniority.
B
For ad hoc promotion also the above principle was made applicable.
In this legal backdrop, it would, thus, be seen that preceding 1990, promo-
tions in State Service were regulated by above instructions and from 1990
Rules, they formed statutory base. The rule of reservation in promotion at
all levels has, thus, been provided for the Dalits and Tribes. Under the U.P. C
Act it was extended to the OBCs only in direct recruitment.

When respondents 2 to 10 were considered and recruited as
promotees from the cadre of Executive Engineer to that the Superintend-
ing Engineer and above cadres on the basis of merit, the appellants came D
to challenge their appointments.' It was contended in the High Court and
reiterated by the learned counsel, M/s. Prag P. Tripathi and Anil Kumar
Gupta that in Indira Sawhney & Ors. v. Union of India & Ors., [1992) supp.
3 SCC 217, known as Mandal's case, eight of the nine Judges, per majority
[Ahmadi, J. as he then was, having not participated on this issue] held that
appointment by promotion under Articles 16(1) and 16(4) of the Constitu- E
tion is unconstitutional. In particular, they placed strong reliance on the
judgments of Jeevan Reddy, J. Speaking for three Judges) and Sawant, J.
(for himselt) in that behalf. They referred to question No. 7 framed by the
Bench and contended that the finding has been recorded in paras 859 (7)
and 860 (8) by Jeevan Reedy, J., in paras 242-431 (10) by Pandian, J., in p
paras 323-24-D by Thommen, J. and by Kuldip Singh, J. in para 381, by
Sawant, J. in para 553-553 and by Sahai, J. in paras 623-625. On that
premise, it was contended that the 1996 Rules are ultra vires and the
promotion of the respondents is unconstitutional. It is also contended that
having declared the promotions under Articles 16 (1) and 16 (4) of the
Constitution as unconstitutional, overruling the judgment of a Bench of five G
judges of this Court in The General Manager, Southern Railway v. Ran-
gachari [1962] 2 SCR 586 the same being not correct in law. Jeevan Reddy,
J. with whom Kania, CJ. and Venkatachaliah, J., as he then was, had
concurred, and Pandian, J. having also concurred, expressly overruled
prospectively the applicability of the rule of reservation in promotion H
\
278 SUPREME COURT REPORTS [1997) 3 S.C.R.

A operative for a period of five years November 16, 1992 i.e., the date of the
judgment. The contention of the petitioners is that it is only a minority view.
The ratio, therefore, is unconstitutional. Under Article 145 (5) of the
Constitution, it does not constitute majority judgment.

Having declared that the reservation in promotion as unconstitution-
B al, it is void ab initio under Article 13 (2) of the Constitution. It bear~-
thereby, no legal or constitutional existence. The promotion made
res pendents 2 to 10 at all levels, therefore, is unconstitutional. The opera- '-
tion of the unconstitutional direction cannot be postponed by prospective I
overruling of Rangachari's ratio. The judgment of Jeevan Reedy, J. con-
C curred by Pandian, J. being minority judgment, cannot operate prospec-
tively. Even if it is assumed that it is a majority judgment, it is inconsistent
with and eontrary to the constitutional scheme of Articles 14 and 16
violating the fundamental rights of the appellants/petitioners and, there-
fore, the power under Article 142 of the Constitution cannot be exercised
D to curtail the fundamental rights guaranteed in Part III of the Constitution.

There is a distinction between the conclusions and directions. Justice
Pandian and Justice Sawant expressed their concurrence on the con-
clusions and not with directions given by Jeevan Reddy, J. The direction
for prospective overruling of Rangachari's case and for operation of
E Mandal's ratio after five years is only by a minority of four judges. It being
inconsistent with and contrary to the scheme of the Constitution in exercise
of the power of judicial review, the Court cannot postpone the operation
of the judgment to a future date, which violates their fundamental rights.
In support thereof, they placed strong reliance on the judgment in A.R.
p Antulay v. R.S. Nayak & Anr., [1988] 2 SCC 602, para 15 and Delhi Judicial
Services Association, Tis Hazari v. State of Gujarat & Ors., [1991] 4 SCC
406, para 37. Having declared the reservation in promotions as void, the
prospective over-ruling is illegal as it is no part of the doctrine of stare
decisis. In support thereof, they placed reliance on Waman Rao & Ors. v.
Union of India & Ors., [1981] 2 SCR 1. Postponement of operation of the
G judgment amounts to judicial legislation which is inconsistent with the
power of judicial review which empowers only to declare the law to be
unconstitutional and not to make the law.

It is further contended that the exercise of Article 142 to postpone
H the opera.tion of the judgment after five years amounts to perpetration of
AK.GUPTA v. STATE(K.RAMASWAMY,J.], 279

void action and is violative of the appellants' fundamental rights guaranteed A
under Articles 14 and 16 (1) of the Constitution. The order under Article
142, being only a remediiil measure to do complete justice, cannot operate
as a substantive right. The direction to operate the scheme of reservation
in promotion for five years is inconsistent with and in derogation of the
substantive right to equality guaranteed under Articles 14 and 16 (1). B
Therefore, the scheme is unconstitutional. Prospective operation of
Mandal's case amounts to judicial legislation and amounts to temporary
amendment to the Constitution or an addition in the form of a proviso to
Articles 16 (1) or 16 ( 4) of the Constitution.

Shri Rakesh Dwivedi, learned Additional Advocate General, con- C
tended that the Micro Lexicon Surgery conducted by the counsel for the
appellants-petitioners to make distinction between conclusions and direc-
tions requires no detailed examination. The end result is that five out of
eight learned Judges, who opined in the negative on the issue of reservation
in promotion directed that reservation, from that date, will continue for D
five years, while giving liberty to the appropriate .Government to make
suitable legislative amendments. In fact, the right to promotion is a facet
of right to recruitment to a post or an office under the State. No express
provision is required in this behalf in Article 16 (1) or 16 (4) of the
Constitution. After the judgment in Mandal's case, however, the Constitu-
tion (77th AmendmentfAct was enacted by the Parliament which has come E
into force w.e.f. June 17, 1995 from which date Article 16 (4A) was brought
into the Constitution. It provides that "nothing in this Article shall prevent
the State from making any provision for reservation in matters of promo-
tion of any class or classes of posts in the services under the State in favour
of Scheduled Castes and Scheduled Tribes which, in the opinion of the p
State, are not adequately represented in the services under the State".
Thereby, the Parliament has re-manifested its policy that the right to
reservation in promotion is a part of the constitutional scheme or public
policy in order to accord socio-economic empowerment and dignity of
person and status to the Dalits and Tribes. The right to reservation in
promotions would be available to Dalits and Tribes in any, class or classes, G
of posts in the services under the State which in the opinion of the State
does not get adequate representation of Dalits & Tribes. This is due to the
historical evidence that the Dalits and Tribes are socially, educationally and
economically deprived, denied and disadvantaged sections of the society.
To make their right to equality meaningful, they are equally entitled to the H
\
280 SUPREME COURT REPORTS [1997] 3 S.C.R ..

A facilities and opportunities, by way of reservation in promotions, and the
State in compliance of the mandate of the Preamble, Articles, 14, 21, 38,
46 and 335 of the Constitution, has provided them with the right to equality
of opportunity in all posts or classes of posts in the services under the State.
Therefore, the majority sections of the society are r.equired to reconcile to
B and accept the equal fundamental rights of Dalits and Tribes guaranteed
under Articles 16 and 14 of the Constitution. The right to reservation in
promotions is not an anathema to right to equality enshrined to other
general candidates. The competing rights of both should co-exist and
consistently be given effect by balancing the abstract doctrine of equality
and the distributive justice would fill in the gap. Only upholding of affirm-
C ative action of the State by pragmatic interpretation under rule of law
would enable the State to harmonise competing rights of all sections of the
society.

There is no dichotomy or distinction between the conclusion and
D directions. Paragraph 860 (8) should be read with the conclusions of
Sawant, J. in paragraphs 552 and 555 and, therefore, the opinions of Kania,
. CJ, Venkatachaliah, Pandian, Sawanl and Jeevan Reddy JJ., as the issue
of reservation in promotion constitute majority of five Judges under Article
145 (5) of the Constitution. The opinion expressed by Jeev::in Reddy, J.
postponing the operation of the judgment for five years, unless expressly
E dissented by other Judges, is law declared by majority under Article 145
(5) of the Constitution. Prospective over- ruling is a part of constitutional
policy. For its application, different perceptions would be considered and
given effect while over-ruling the prior decision. Rangachari's ratio had
operated as constitutional law for over three decades and rights were
p settled on that basis. Therefore, with a view to enable the appropriate
Government to amend the law in that behalf, ~e operation of the judgment
was postponed for five years. It is, therefore; not a judicial legislation but
a part of the declaration granted by the Court. In pith and substance, it is
a facet of suspending the operation of the judgment for five years so that
the constitutional objective of providing reservation in promotions to Dalits
G and Tribes would operate without any hiatus. The decision in R.K Sabhar-
wal v. State of Punjab, [1995] 2 SCC 745 by a Constitution Bench re-affirms
. that the decision in Mandal's case on promotion was by a majority. Ob-
viously Sabharwal's ratio had upheld the principle of reservation in promo-
tions and applied "running account theory" put forth by the State to give
H practical content to equality in results applying the roster points earmarked
f
AK. GUPTA v. STATE [K. RAMASWAMY, J.] 281

for the Dalits and Tribes, apart from equal opportunity to them to compete A
with the general candidates for general posts. The employees from general
sections and dalits and Tribes are integrated in the roster system to
harmonise the competing interests. The Dalits and Tribes selected for
promotion on merit in open competition are not to be treated as part of
reserved quota. That contemporaneous understanding of the operation of B
law is in accordance with the law laid in para 860 (8) of Manda.l's case. So,
it is a valid direction.

The reservation in promotions in all the services or posts under the
State of Uttar Pradesh was in vogue from March 1973. The legislature of
Uttar Pradesh reiterated the need for continuance of the reservation not C
only in direct recruitment but also its continuance, as mentioned in the
U.P. Act. The U.P. Act came into force w.e.f. December 11, 1993. The
judgment in Mandal's case was delivered on November 16, 1992. All the
promotions made prior to that date were held valid in Mandal's case.

D
The impugned judgment of the High Court was rendered on August
4, 1993 while the Constitution (77th Amendment) Act of 1995 came into
force on June 17, 1995. The promotions of respondents came to be made
between November 17, 1992 and December 11, 1993, i.e., within five years
of the directions in para 860 (8) in Mandal's case and agreed to by other
learned Judges. Therefore, it was contended that the promotions to and E
appointment of the private respondents is constitutional.

He further contended that right to promotion is not a fundamental
right to general candidates while it is so in the case of Dalits and Tribes.
It is subject to rules. The policy of the Government as per the constitutional F
objectives is that the Dalits and Tribes should be given adequate repre-
sentation in all posts or classes of posts and services under the State.
Reservation in promotion is one of the policies under the Constitution and
the statutory share in the governance makes no discrimination nor offend .
Article 14 as the rights of general and reserved employees are to be
mutually balanced. The law is always presumed to be constitutional until it G
is declared otherwise. The Rules and the Act are constitutionally valid. By
operation of Article 13 (1), pre-constitutional law, if declared void, is void
only from the date of the Constitution, namely, from January 26, 1950 and
though the post-constitutional law may be void from its inception. To adjust
the competing rights of the general and Dalit and Tribe employees, there H
282 SUPREME COURT REPORTS [1997) 3 S.C.R.

A is no prohibition for this Court to postpone the operation of the judgment
in Mandal's case or to so prospectively over-rule Rangachari's ratio as to
-
be operative from expiry of five years from the date of judgment. The
intention behind the direction appears to be that the law in the transition,
as per the constitutional scheme .:if reservation in promotions, would be
smooth and operate as a continuous scheme. If the Government makes no
B
amendment to the statute, after expiry of five years, the operation of the
scheme of reservation in promotion would come to a stop. By Constitution
(77th Amendment) Act, 1995, the scheme of reservation in promotions is
continued without any need to bring about amendment to the statutory
rules since Article 16(4A) itself provided constitutional operation of reser-
C vation in promotion obviating the necessity to amend all statutory rules.

The prosp.ective operation of law for 5 years is consistent with the
doctrine of stare decisis as the declaratory law becomes operative there-
after. The ratio of Antu/e's case has no application. Therein, the appellant-
D Antule was meted out with a hostile discrimination denying him the normal
trial and right of appeal and he was subjected to special trial by the High
Court, depriving him of the statutory appeal violating his fundamental right
to equality. Therefore, this Court had held that the direction given under
Article 142 to constitute a separate Tribunal presided over by a High Court
Judge was inconsistent with the fundamental right to equality guaranteed
E by Article 14. From that perspective, it was held therein that the exercise
of power under Article 142 should be consistent with the constitutional
scheme. In Golaknath v. State of Punjab, [1967) 2 SCR 762 at 808, it was
held that the power of this Court under Article 142 is very wide and it
cannot be controlled by any statutory prohibition. In Union Carbide v.
F Union of India, [1991) 4 SCC 584 at 634 paragraph 83, this Court held that
the competing rights are required to be adjusted by balancing them. The
Court in Mandal's case, being conscious of the consequences and pervasive
effect of its declaration on the policy of reservation in promotions, by the
arm of the judicial review, extended the time to enable the executive to
suitably amend its law. This Court, therefore, set the time limit upto which
G existing law would remain in operation, as the selection procedure is a
continuous process to fill up existing or anticipated vacancies each year.
The gap between equality in law and equality in results was bridged by
Article 16 (4A). It is not a case of hostile discrimination meted out to any
section of the citizens but one of adjustment balancing the competing rights
H of two groups of the citizens of the country. The directions issued, in
- AK.GUPTA v. STATE[K.RAMASWAMY,J.] 283

exercise of the power under Article 142, therefore, was not in violation of A
the fundamental rights of the employees belonging to the general category.
The direction issued under Article 142 is, therefore, neither unconstitution-
al nor contrary tu the law. In fact, the direction is to prevent injustice as
is provided in Article 46 of the Constitution. In M. Venkateswarnlu & Ors.
v. Government of A.P. & Ors., [1996] 5 SCC 167, Union of India & Anr. v. B
Madhav s/o Gajanan Chaubal & Anr., JT (1996) 9 SC 320, G.S.l.C. Karam-
chari Union & Ors. Gujarat Small Industries Corpn. & Ors., JT (1997) 1 SC
384 and S. Sathyapriya & Ors. v. State of A.P. & Ors., JT (1996) 9 SCC 466,
this Court held that the Constitution (77th Amendment) Act, 1995 has
given effect to the law laid. down in Rangachari's case as enshrined in
Articles 14 and 16 (1) of the Constitution. C

Shri Raju Ramachandran, learned senior counsel appearing for
private respondents, while adopting the arguments of Shri Rakesh Dwivedi,
argued that the prospective over-ruling of Rangachari' ratio, the distinction
of stare decisis and the constitutional invalidation of a legislative enactment D
may be kept in view. The ratio in Rangachari's case having prevailed the
field for over three decades, majority in Mandal's case opined that the ratio
in Rangachari's case would remain operative for a further period of five
years. Exercise of the power of judicial review and power under Article
142 are the judicial tools given to this Court to prevent injustice. By judicial
craftsmanship, the directions came to be issued to elongate the constitu- E
tional and public policy of reservation in promotion, until appropriate
amendments are brought on statute within five years. He cited instances of
staying the operation of the judgments by the High Court, pending grant
of leave under Article 136. The decision to postpone the effect of Mandal's
case is a legal policy as a part of the inherent power preserved in this Court F
by Article 142. The Court, by prospective operation of a statute or opera-
tion of a judgment has not sanctioned any unconstitutional scheme but
intended to postpone the operation of the declaration of law to a future
date. (iv) In Sampath Kumar v. Union of India, [1987] 1 SCC 124, this
Court, with a view to void constitutional crisis in dispensation of service
dispute between public servants and the appropriate Government or in- G
strumentality, by the administrative Tribunals constitut.ed under the Ad-
ministrative Tribunals Act, instead of declaring the Act ultra vires, issued
mandamus to make suitable amendments to the Tribunals Ad so as to be
consistent with the constitutional scheme. The judicial creativity, therefore,
cannot be cribbed or crabbed by any set proposition or standard formula- H
284 SUPREME COURT REPORTS [1997] 3 S.C.R.

A tion. They are required to be modulated depending upon the fact situation
in a given case on hand and the consequences of the judgment under
consideration. Rangachari's ratio having held the field for three decade&,
the conclusions and the directions which are integral part of para 860 (8)
of Mandal's judgment are part of ratio decidendi and are intended to be
B operative after a period of five years from the date of the judgment unless,
by then, suitable amendments are brought out.

Dr. M.P. Raju, learned counsel appearing for the intervener, con-
tended that the Dalits and the Tribes have equal constitutional rights. The
Constitution has provided in their favour protective and positive dis-
C crimination by providing for reservation in promotions as part of equality
of opportunity, status, social and economic justice, dignity of person which <qi
were given effect to by the Constitution (77th Amendment) Act, 1995.
Reservation in promotion itself is a fundamental right to the Dalits and
Tribes. They claim equality of opportunity at all levels of promotions to the
D respective cadres/grade/categories of posts. The right to reservation in
promotion is required to be balanced with competing right to equality of
the general employees. Article 16 (4A) gives effect to that balancing
competing right. In St. Stephen College v. Delhi University, (1992] 1 SCC 558
in para 102, this Court worked out the competing claims by a schemes
directing minority institutions to fill up 50% of admissions by the general
E candidates while ensuring to the minorities their constitutional right under
Article 30 (1) to admit the students belonging to minority community with
balance 50% seats. Such declaration is consistent not only with the scheme
of the Constitution but also special protection of the rights of the
minorities. Reservation in promotions in Article 16 (4A) also requires same
F interpretation. If so viewed, there would be no violation of Article 14 or
unconstitutionality of the .scheme of resentation in promotion or voidity
under Article 13 (2). The prospective over-ruling of Rangachari's ratio in
Mandal's case, is constitutional and fulfils competing equality between
sections of the society.

G Shri Parag Tripathi, in reply, contended that Article 145(5) requires
that for a judgment to be majority judgment, concurrence of the majority
learned Judges constituting the Bench is necessary. There was no need for
four other Learned Judges to, express their concurrence with Jeevan
Reddy, J. as they felt that the reservation in promotion is void from the
H inception, by operation of Article 13 (2). Unless th@y agreed to the view
A.K. GUPTA v. STATE [K. RAMASWAMY, J.) 285

.... expressed by Jeevan Reddy, J., it could not be a majority judgment. The A
separate judgments of the learned Judges are self- operative from the date
of the judgment in the absence of their express concurrence for prospective
over-ruling of Rangachari ratio. The prospective over-rnling evolved under
Arlicle 142 is inconsistent with the ratio in Waman Rao's case which had
held that an amendment to the Constitution violating the fundamental B
right, unless the act receives protective umbrella of Schedule IX, is void
from inception. The ratio in Mandal's case laid by Jeevan Reddy, J. and
agreed to by other three Judges does not amount to a statutory law nor it
receives any protective umbrella under Schedule IX but is one declared
1.
under Article 141. Therefore, Mandal's ratio of prospective over-ruling of
Rangachari's case is unconstitutional and void ab initio. Article 142, there- C
fore, does not save its voidity; nor can the void order be given effect to or
saved by Article 142.

In The State of Jammu & Kashmir v. Triloki Nath Khosa & Ors. AIR
(1974) SC 1, a Constitution Bench had held that the code of equality and D
equal opportunity is a charter for equals; equality of opportunity in matters
of promotion means an equal promotional opportunity for persons who
fall, substantially, within the same class. A classification of employees can,
therefore, be made for first identifying and then distinguishing members of
one class from those of another. Classification on the basis of educational
qualifications made with a view to achieving· administrativ_e efficiency was E
upheld.

In service jurisprudence, a distinction between right and interest has
always been maintained. Seniority is a facet of interest. When the Rules
prescribe the method of selection/recruitment, seniority is governed by the p
ranking given and governed by such rules as was held by a Bench of three
judges inA.K Bhatnagar & Ors. v. Union of India & Ors., [1991) 1 SCC 544.
In Indian Admn. Service (S.C.S.) Association, U.P. & Ors. v. Union of India
& Ors., (1993] Supp. 1 SCC 730 in paras 14 & 15, another Bench of three ·
Judges had held that no one has a ·vested right to promotion or seniority
but an officer has an interest to seniority acquired by working out the rules. G
lnA.B.S.K Sangh v. Union of India & Ors., JT (1996) SC 274, a Bench to
which two of us, K.. Ramaswamy & G.B. Pattanaik, JJ., were members,
following the above ratio, held that no one has a "vested right to promotion
or seniority but an officer has an interest to seniority acquired by working
out the rules". It could be taken away only by operation of valid law. In H
286 SUPREME COURT REPORTS [1997] 3 S.C.R.

A Md. Slzujat Ali & 'Ors. v. Union of India & Ors., [1975] 1 SCR 449 a
Constitution Bench had held that Rule 18 of the Andhra Pradesh En-
gineering Service Rules which confers a right of actual promotion or a right
to be considered for promotion is a rule prescribing conditions of service.
In Md. Blzakar v. Krishna Reddy, (1970) SLR 768, another Bench of three
B Judges had held that any rule which affects the promotion of a person
relates to conditions of service. In State of Mysore v. G.B. Purohit, (1967)
SLR 753 a Bench of two judges had held that the rule which merely affects
chances of promotion cannot be regarded as varying a condition of service.
Chances of promotion are not condition of service. In Ramchandra
Shankar Deodhar v. State of Maharashtra, [1974) 1SCC317, a Constitution
C Bench had held that a rule which merely affects the chances of promotion
.does not amount to change in the conditions of service. In Syed Khalid Rizvi
& Ors. v. Union of India & Ors. [1993] supp. 3 SCC 575, a Bench of three
Judges following the above ratio, with approval, had held at ·page 602 para
. 31, that no employee has a right to promotion but he has only the right to
D be considered for promotion according to rules. Chances of promotion are
not conditions of service and are defeasible in accordance with the law.
...
In the light of this normal run of service jurisprudence, the question
emerges whether the right to promotion is a fundamental right and the
direction of prospective operation of the decision in Manda/ judgment,
E after five years, violates equality enshrined in Articles 14 and 16(1) and is
void under Article 13(2) of the Constitution? Right to reservation itself is
a fundamental right under Article 16(1) as was laid in State of Kerala v.
N.M. Thomas, (1976] 2 SCC 310 which was reiterated in Mandal's case.
The permanent bureaucracy in Part XIV of the Constitution is an integral
p scheme of the Constitution to aid and assist the political executive in the
governance of the country. Abraham Lincoln, one of the greatest Presi-
dents of the United States of America, a noble soul, who laid his life in
giving right to equality to the Blacks, a living truth enshrined in 14th
Amendment, had stated that democracy, is by the people, of the people
and for the people. Democracy governed by rule of law brings about
G change in the social order only through rule of law. Every citizen or group
of people has right to a share in the governance of the State. The Dalits
and Tribes equally being dtizens have a right to a share in the governance
of the State and in the permanent democracy service conditions are assured
under Articles 309 to 312A of the Constitution subject to the pleasure of
H the P~esident under Article 310 and also the express exclusion of its
I
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 287

applicability to the specified services in Articles 33 and 34. The right to A
seek equality of opportunity to an .office or a post under the State is a
guaranteed fundamental right to all citizens alike under Article 16(1), the
specie of Article 14, the genus. In State of Maharashtra v. Chandrabhan
Tale, [1983) 3 SCC 387 it was held that public employment opportunity is
a national wealth and all citizens are equally entitled to share it. In Delhi B
Transport C01poratio11 v. D.T.C. Mazdoor Congress and Ors., [1991] Supp.
1 sec 600 at 737 para 271 it was held that law is a social engineering to
remove the existing imbalance and to further the progress, serving the
needs of the Socialist Democratic Bharat under the rule of law. The
prevailing social conditions and actualities of life are to be taken into
account in adjudging whether or not the impugned legislation would sub- C
serve the purpose of the society.

The historical evidence of disabilities worked against the Dalits and
the Tribes received acknowledgment in Articles 17 which provides for
abolition of practice of untouchability, Article 15 (2) which provides D
prohibition of access to public places and Article 29 (2) which provides for
prohibition of denial of admission into educational institutions. So social,
educational and economic protection is provided to them under Article 46
of the Constitution. Article 335 which is part of the scheme of equality of
opportunity in governance of the State in Chapter XVI, by a special
provision, enjoins the State that the claims of the members of the Dalits E
and the Tribes shall be taken into consideration consistently with the
efficiency of administration in the making of appointment to service and
post in connection with the affairs of the Union or of a State. In Comptroller
& Auditor General v: KS. Jagannathan, A.LR. (1987) SC 537 in paras 21
and 23 a Bench of three judges had held that Article 335 is to be read with F
Article 46 which enjoins that the State shall promote with special care the
educational and economic interests of the weaker sections, in particular,
the Dalits and the Tribes and shall protect them from social injustice.
Article 38 of the Constitution enjoins the State to secure and protect a
social order in which justice, social economic and political shall inform all
the institutions o~~ national life. The State shall, in particular, strive to G
minimise the 1uoqtlaiities in income, and. endeavour to eliminate ine-
qualities in status; "facilities" and "opportunities", not only amongst in-
dividuals but also amongst groups of people residing in different areas or
engaged in different vocations. The Preamble of the Constitution assures
to every citizen justice, social, economic and political and "equality of H
288 SUPREME COURT REPORTS (1997] 3 S.C.R.

A status" and opportunity assuring dignity of the individual to integrate all
sections of the society in an integrated Bharat.

In Consumer Education & Research Centre & Ors. v. Union of India
& Ors., (1995] 3 sec 45 and Air India Statut01y C01poration etc. V. United
Labour Union & Ors. Etc., (1996] 9 SCALE 70 and Dalmia Cements
B (Bharat) Ltd. & Anr. v. Union of India & 01~·., JT (1996) 4 SC 555 social
justice was held by three-Judge Benches to be a fundamental right approv-
ing the view taken in C.E.S.C. Ltd. & Ors. v. Subhash Chandra Bose & Ors.,
(1992] 1 SCC 441. In Murlidhar Dayanadeo Kesekar v. Vishwanath Pandu
Barde & Anr. (1995] Supp. 2 SCC 549; R. Chandevarapa & Ors. v. State of
c Kamataka & Ors., (1995] 6 sec 309 and Papaiah V. State of Kamataka &
Ant., (1996] 10 SCC 533 right to economic empowerment was held by the
two-Judges Benchs of this Court to be a fundamental right.

It is now settled legal position that social justice is a fundamental
D right and equally economic empowerment is a fundamental right to the
disadvantaged. Article 51A G) enjoins that it shall be the duty of every
citizen to strive towards excellence in all spheres of individual and collec-
tive activities so lhat the nation constantly rises to higher levels of en-
deavour and achievement. Equality of status and dignity of the individual
will be secured when the employees belonging to Dalits and Tribes are
E given an opportunity of appointment by promotion in higher echelons of
service so that they will have opportunity to strive towards excellence
individually and collectively with other employees in improving the efficien-
cy of administration. Equally they get the opportunity to improve their
efficiency and opportunity to hold offices of responsibility at hierarchical
F level.

In A.K Gopalan v. State of Madras, (1950] SCR 88, per majority, the
Constitution Bench had held that the operation of each Article of the
Constitution and its effect on the protection of fundamental rights is
required to be measured independently and not in conjoint consideration
G of all the relevant provisions. The above ratio was overruled by a Bench of
11 Judges in R.C. Cooper v. Union of India, [1970] 1 SCC 248. This Court
had held that all the provisions of the Constitution conjointly be read on
the effect and operation of fundamental right of the citizens when the State
action infringes the right of the individual. In D. T.C. case (supra) (1991]
H supp. 1 sec 600 at 750-51, paras 297 and at 298 it was held that:
r
;I

AK GUPTA v. STATE[KRAMASWAMY,J.] 289

"It is well settled constitutional law that different articles in the A
chapter on Fundamental Rights and the Directive Principles in
Part IV of the Constitution must be read as an integral and .
incorporeal whole with possible overlapping with the subject mat-
ter of what is to be protected by its various provisions particularly
the Fundamental Rights.
B
...........The nature and content of the protection of the fun-
damental rights is measured not by the operation of the State
action, must be adjudged in the light of its operation upon the
rights of the individuals or groups of the individual in all their
dimensions. It is not the object of the authority making the law C
impairing the right of the citizen nor the form of action taken that
determines the protection he can claim; it is the effect of the law
and of the action upon the right which attract the jurisdiction of
the court to grant relief. In MineTVa Mills Ltd. v. Union of India,
[1980] 3 sec 625 the fundamental rights and directive principles D
are held to be the conscience of the Constitution and disregard of
either would upset the equibalance built up therein. In Maneka
Gandhi case it was held that different articles in the chapter of
fundamental rights of the Constitution must be read as an integral
whole, with possible overlapping of the subject matter of what is
sought to be protected by its various provisions particularly by E
articles relating fundamental rights of the Constitution must be
read as an integral whole, with possible overlapping of the subject
matter of what is sought to be protected by its various provisions
particularly by articles relating to fundamental rights contained in
Part III of the Constitution do not represent entirely separate F
streams of rights which do not mingle at many points. They are all
parts of an integrated scheme in the Constitution. Their waters
must mix to constitute that grand flow of unimpeded and impartial
justice; social, economic and political, and of equality of status and
opportunity which imply absence of unreasonable or unfair dis-
crimination between individuals or groups or classes. The fun- G
damental rights protected by Part III of the Constitution, out of
which Articles 14, 19 and 21 are the most frequently invoked to
test the validity of executive as well as legislative actions when these
actions are subjected to judicial scrutiny. Fundamental rights are
necessary means to develop one's own personality and to carve out H
\
290 SUPREME COURT REPORTS [1997) 3 S.C.R.

A one's own life in the manner one likes best, subject to reasonable
restrictions imposed in the paramount interest of the society and
to a just, fair and reasonable procedure. The effect of restriction
or deprivation and not of the form adopted to deprive the right is
the conclusive test. It is already seen that the right to a public
employment is a constitutional right under Article 16(1). All mat-
B
ters relating to employment include the right to continue in service
till the employee reaches superannuation or his service is duly
terminated in accordance with just, fair and reasonable procedure
prescribed under the provisions of the Constitution or the rules
made under proviso to Article 309 of the Constitution or the
c statutory provision or the rules, regulations or instructions having
. statutory favour made thereunder. But the relevant provisions must
be conformable to the rights guaranteed in Parts III and IV of the
Constitution. Article 21 guarantees the right to live which includes
right to livelihood, to a many the assured tenure of service is the
source, the deprivation thereof must be in accordance with the
D
procedure prescribed by law conformable to the mandates of
Articles 14 and 21 as be fair, just and reasonable but not fanciful,
oppressive or at vagary. The need for the fairness, justness or
reasonableness of the procedure was elaborately considered in
Maneka Gandhi case and it hardly needs reiteration."
E
It would, therefore, be necessary to consider the effect of reservation
in promotion to the Dalits and the Tribes vis-a-vis the employees belonging
to the general categories; it is a balancing right to equality in results and
adjusting the competing rights of all sections. In Ahmedabad St. Xaviers
p College Society & Anr. v. State of Gujarat & Anr., [1975] 1 SCR 173 at 252
through a Bench of nine Judges, this Court pointed out that to establish
equality, It would require absolute identical treatment of both the minority
and majority. That would result only in equality in law but inequality in
fact. The distinction need not be elaborated. It is obvious that equality in
law precludes discrimination of any kind whereas equality in fact may
G · involve .the necessity of differential treatment in order to attain a result
which establishes an equilibrium between different situations. To give
adequate representation to the Dalits and Tribes in all posts or classes of
posts or services, a reality and truism, facilities and opportunities, as
enjoined in Article 38 are requirc.d to be provided to thel!l to achieve the
H equality of representation in real content. In Dr. Pradeep Jain & Ors. v.
I
AK. GUPTA v. STAIB [K. RAMASWAMY, J.] 291

Union of India & Ors., (1984] ·3 SCC 654 a three-Judge Bench of this Court A
considered the concept of equality under Articles 14 and 15 (1) of the
Constitution and had held in para 13 at page 676 thus:

"Now the concept of equality under the Constitution is a dynamic
concept. It takes within its sweep every process of equalisation and B
protective discrimination. Equality must not remain mere idle
incantation but it must become a living reality for the large masses
of people. In a hierarchical society with an indelible feudal stamp
and incurable actual inequality, it is absurd to suggest that progres-
sive measures to eliminate group disabilities and promote collec-
tive equality are antagonistic to equality on the ground that every C
individual is entitled to equality of opportunity based purely on
merit judged by the marks obtained by him. We cannot coun-
tenance such a suggestion, for to do so would make the equality
clause "sterile and perpetuate existing inequalities. Equality of
opportunity is not simply a matter of legal equality. Its existence D
depends not merely on the absence of disabilities but on the
presence of abilities. Where, therefore, there is inequality, in fact,
,.
legal equality always tends to accentuate it. What the famous poet
William Blake said graphically is very true, namely, "One law for
the Lion and the OX is oppression". Those who are unequal, in
fact, cannot be treated by identical standards; that may be equality E
in law but it would certainly not be real equality. It is, therefore,
necessary to take into account de facto inequalities which exist in
the society and to take affirmative action by way of giving
preference to the socially and economically disadvantaged persons
or inflicting handicaps on those more advantageously placed, in F
order to bring about real equality. Such affirmative action though
apparently discriminatory is calculated to produce equality on a
broader basis by eliminating de facto inequalities and placing the
weaker sections of the community on a footing of equality with the
stronger and more powerful sections so that each member of the
community, whatever is his birth, occupation or social position may G
enjoy equal opportunity of using to the full his natural endowments
of physique, of character and of intelligence".

In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College &
Ors., [1990] 3 SCC 130 at 138 a Constitution Bench to which one of us, K. H
292 SUPREME COURT REPORTS (1997] 3 S.C.R.

A Ramaswamy, J., was a member, had held in para 8 thus:
•
"Therefore, reservation in favour of Scheduled Castes and
Scheduled Tribes for the purpose of advancement of socially and
educationally backward citizens to make them equal with other
segments of community in educational or job facilities is the
B mandate of the Constitution. Equality is the dictate of our Con-
stitution. Article 14 ensures equality in its fullness to all our
citizens. State is enjoined not to deny to any persons equality
before law and equal protection of the law within the territory of
India. Where it is necessary, however, for the purpose of bringing
c about real equality of opportunity between those who are unequals,
certain reservations are necessary and these should be ensured.
Equality under the Constitution is a dynamic concept which must
cover every process of equalisation. Equality must ~ecome a living
reality for the large masses of the people. Those who are unequal,
in fact, cannot be treated by identical standards; that may be
D
equality in law but it would certainly not be real equality. Existence
of equality of opportunity depends not merely on the absence of
disabilities but on presence of abilities. It is not simply a matter of
legal equality. De jure equality must ultimately finds its raison
d'etre in de facto equality. The State must, therefore, resort to
E compensatory State action for the purpose of making people who
are factually unequal in their wealth, education or social environ-
ment, equal in which exist in the society and to take affirmative
action by way of giving preference and reservation to the socially
and economically disadvantaged persons or inflicting handicaps on
those more advantageously placed, in order to bring about real
F
equality. Such affirmative action though apparently discriminatory
is calculated to produce equality on a broader basis by eliminating
de facto inequalities and placing the weaker sections of the com-
munity on a footing of equality with the stronger and more power-
ful sections so that each member of the community, whatever is
G his birth, occupation or social position may enjoy equal opportunity
of using to the full his natural endowments of physical, of character
and of intelligence".

By abstract application of equality under Article 14, every citizen is
H treated alike without there being any discrimination. Thereby, the equality
AK. GUPTA v. STATE [K. RAMASWAMY, J.] 293

in fact subsists. Equality prohibits the State from making discrimination A
among citizens on any ground. However, inequality in fact without differen-
tial treatment between the advantaged and disadvantaged subsists. In order
to bridge the gap between inequality in results and equality in fact, protec-
tive discrimination provides equality. of opportunity. Those who are une-
quals cannot be treated by identical standards. Equality in law certainly B
would not be real equality. In the circumstances, equality of opportunity
depends not merely on the absence of disparities but on the presence of
abilities and opportunities. De jure equality must ultimately find its raison
d'etre in de facto equality. State must, therefore, resort to protective dis-
crimination for the purpose of making people, who factually unequal, equal
in specific areas. It would, therefore, be necessary to take into account de C
· facto inequality in which exists the society and to take affirmative action by
giving preferences and making reservation in promotions in favour of the
Dalits and Tribes or by "inflicting handicaps on those more advantageously
placed", in order to bring about equality. Such affirmative action, though
apparently discriminatory, is calculated to produce equality on a broader D
basis by eliminating de facto inequality and placing Dali ts and Tribes on
the footing of equality with non-tribal employees so as to enable them to
enjoy equal opportunity and to unfold their full potentiality. Protective
discrimination envisaged in Articles 16 (4) and 16 (4-A) is the armour to
establish the said equilibrium between equality in law and equality in
results as a fact to the disadvantaged. The principle of reservation in E
promotion provides equality in results.

From this backdrop, the socio-econom~c justice assured by Article
46, the Preamble and Article 39 would get practical content and effect so
that the dignity of person and equality of status assured to them would F
become meaningful and real. Harmonious interpretation of all these
provisions should, therefore, pave way for the target/goals. So they need to
be conjointly read so that every provision/clause/concept in different Ar-
ticles of the Constitution is given full play, effect and flesh and blood are
infused in their dry bones.
G
In Mandal's case, admittedly, the two Government Memorandums
provided for reservation to OBCs. in initial direct recruitment in central
services. The question of reservation in promotion was a non-issue as
conceded in that case itself and across the bar; but the learned Judges, with
all due respect and deference to their learned views, decided a non-issue, H
294 SUPREME COURT REPORTS [1997] 3 S.C.R.

A though objected to on the ground that counsel appearing for the parties
had put their heads together and framed the issue and reference was made
to a larger Bench so that the issue was decided on that premise. Though
it is settled constitutional law that constitutional issues cannot be decided
unless the issue directly arises for decision, with due respect, the Bench
decided a non-issue on a constitutional law affecting 22% of the national
B
population and held that Article 16 (1) read with Article 16 (4) provides
right to reservation in initial recruitment. The framers of the Constitution
did not intend to provide for reservation in promotion. Since Article 335
speaks of efficiency of administration, reservation in promotion to the
Dalits and Tribes, without competition with non-reserved employees would
C affect efficiency in service is unconstitutional. It i~n admitted case that as
there was no issue, nor was any evidence adduced to prove whether
efficiency of administration was deteriorated due to reservation in promo-
tion; nor was it pointed out from the facts of any case.

D In Maharashtra State Board of Secondary and Higher Secondary
Education v. K.S. Gandhi & Ors., [1991) 2 SCC 716 at 748 para 37 a Bench
of two judges had held that to prove a fact, inference must be drawn on
the basis of the evidence and circumstances. They must be carefully distin-
guished from conjectures or speculation. The mind is prone to take
pleasure to adapt circumstances to one another and even in straining them
E a little to force them to form parts of one connected whole. There must be
evidence direct or circumstantial to deduce necessary inferences in proof
of the fact in issue. There can be no inferences unless there are objective
facts, direct or circumstantial, from which the other fact which is sought to
establish can be inferred. In some cases, the other facts can be inferred, as
p much as is practical, as if they had been actually observed. In other cases,
the inferences do not go beyond reasonable probability. If there are no
positive proved facts, oral, documentary or circumstantial from which the
inferences can be made, the method of inference fails and what is left is
mere speculation or conjecture. Therefore, for an inference of proof that
a fact in dispute has been held established, there must be some material
G facts or circumstances on record from which such an inference could be
drawn." In the absence of any issue and facts and proof thereof, the
inference that reservation in promotion deteriorates the efficiency of ad-
ministration remains only a conjecture or an opinion based on no evidence.
As seen, it is constitutional mandate of the State under Article 335 that to
H render socio-economic justice and to prevent injustice to the Dalits and
AKGUPTAv. STATE[KRAMASWAMY,J.) 295

Tribes, facilities and opportunities of reservation in promotion should be A
provided consistently with the efficiency of administration.

The question then is: what is the meaning of the phrase "efficiency
of administration"? In D.T.C. case, it was observed in para 275 that "the
term efficiency is an elusive and relative one to the adept capable to be B
applied in diverse circumstances. If a superior officer develops liking
towards sycophant, though corrupt, he would tolerate him'and find him to
be efficient and pay encomiums and corruption in such cases stand no
impediment. When he finds a sincere, devoted and honest ?fficer to be
inconvenient, it is easy to cast him/her off by writing confidential reports
with delightfully vague language imputing to be 'not up to the mark', C
'wanting public relations' etc. At times they may be termed to be "security
risk" (to their activities). Thus they spoil the career of the honest, sincere
and devoted officers. Instances either way are galore in this regard. There- ·
fore, one would be circumspect, pragmatic and realistic to these actualities
of life while angulating constitutional validity of wide, arbitrary, uncanalised D
and unbridled discremionary power of dismissal."

V.T. Rajshekar "Merit, My Foot" (A reply to Anti-Reservation
Racists), 1996 published by Dalit Sahitya Academy, Bangalore, has stated
that nowhere in the world 'merit and efficiency' are given so such impor-
tance as in India which is now pushed to the 120th position-virtually the E
last among different countries in the world. Upper caste rulers of India
keep the country's vast original inhabitants-the Untouchables, Tribals,
Backward Castes and 'religious minorities' -permanently as slaves with the
help of this 'merit' mantra. By 'merit and efficiency', they mean the birth.
Merit goes with the highborn-the blue blood. This is pure and simple F
racism.· That birth and skin-colour have nothing to do with 'merit and
efficiency' (brain) is a scientifically proved fact". "But the ruling class
nowhere in the wodd is concerned with science because science stands for
progress. And those interested in progress will have to be human. That is
not so in India. If one has to see man's inhumanity to man in its most naked
form he must come to India, the original home of racism and inequality. G
So the 'merit theory' beautifully suits its ruling class or caste". At page 10,
he states that scientist have identified two forces which are perpetually and
constantly at work to influence the character, growth and development of
the features of every living being in the universe including animals and
plants : (1) heredity and (2) environment. Each species produces only its H
296 SUPREME COURT REPORTS [1997] 3 S.C.R.

A own species. Biology is founded on the cell theory. Cells live and die. At
page 11, he states that 'Merit and efficiency' are not inherited. They are an
acquired quality that has not reached the germ plasma. So, to say that a
Brahmin's son alone is a Brahmin and hence has the 'merit' to become a
temple priest (archaka) has no scientific basis. Some other influence acts
B in combination with heredity and that is environment. With right environ-
ment-food, education, free atmosphere-Untouchables can prove better
than Brahmins". At page 12, he states that genetic factors only provide the
potential for human development whereas it is the environmental factors
that translate this inherent potential into the full flowering of the per-
sonality. Experiments through selective breeding and studies on identical
C twins have established to a large extent the influence of genetics on
behaviours. But what ultimately determines the personality is the interac-
tional influences of heredity and environment. At page 15, he states that
heredity is fixed by parentage but is is not an ideal environment. Oppor-
tunity is necessary on merit and efficiency. A genius is only 10% inspiration
D and 90% perspiration. There is nothing like a born genius. Ramanujam,
Indian prodigy on mathematics was given opportunity by the British to
prove his genius and was provitled with the right ,environment. Though he
was born genius without opportunities, he could not have got recognition.
Rajshekar states that "all ruling classes built a theory suited to their needs
and try to give a 'scientific' backing to it. Merit and efficiency is a pure
E Aryan invention, aimed at maintaining their monopoly''. He states that
"human rights are due to blending of the forces of heredity and the more
important environment. The White meritocrats made us believe that the
'Black Negro' is a backward race".

Justice 0. Chinnappa Reddy, in K. C. Vasanth Kumar & Anr. v. State
F
of Kamataka, [1985] Supp. SCC 714 at 738-740 had stated thus:

"Efficiency is very much on the lips of the privileged whenever
reservation is mentioned. Efficiency, it seems, will be impaired if
the total reservation exceeds 50%; efficiency, it seems, will suffer
G if the 'carry forward' rule is adopted; efficiency, it seems, will be
injured if the rule of reservation is extended to promotional posts.
From the protests against reservation exceeding 50% or extending
to promotional posts and against the carry forward rule, one would
think that the civil service is a Heavenly Paradise into which only
H the archangels, the chosen of the elite, the very best may enter and
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 297

may be allowed to go higher up the ladder. But the truth is A
otherwise. The truth is that the civil service is no paradise and the
upper echelons belonging to the chosen classes area not necessarily
models of efficiency. The underlying assumption that those belong-
ing to the upper castes and classes, who are appointed to the
non-reserved posts will, because of their presumed ·merit, B
'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
elitists classes. There is neither statistical basis nor expert evidence
to support these assumptions that efficiency will necessarily be C
impaired if reservation exceeds 50%, if reservation is carried
forward or if reservation is extended to promotional posts. Argu-
ments are advanced and opinions are expressed entirely on an ad
hoc presumptive basis. The age long contempt with which the
'superior' or 'forward' castes have treated the 'inferior' or D
'backward' castes is now transforming and crystallising itself into
an unfair prejudice, conscious and subconscious, ever since the
'inferior' castes and classes started claiming their legitimate share
of the cake, which naturally means, for the 'superior' castes, parting
with a bit of it. Although in actual practice their virtual monopoly E
on elite occupations and posts is hardly threatened, the forward
casts are nevertheless increasingly afraid that they might lose this
monopoly in the higher ranks of government service and the
profession. It is so difficult for the 'superior' castes to understand
and rise above their prejudice and it is so difficult for the inferior
castes and classes to overcome the bitter prejudice and opposition F
which they are forced to face at every stage. Always one hears the
word 'efficiency' as if it is sacrosanct and the sanctorum has to be
fiercely guarded. 'Efficiency' is not a Mantra which is whispered
by the Guru in the Sishya's year. The mere securing of high marks
at an examination may not necessarily mark out a good ad- G
ministrator. An efficient administrator, one takes it, must be one
who possesses among other qualities the capacity to understand
with sympathy and, therefore, to tackle bravely the problems of a
large segment of population constituting the weaker sections of the
people. And, who better than the ones belonging to those very H
298 SUPREME COURT REPORTS [1997] 3 S.C.R.

A sections? Why not ask ourselves why 35 years after independence,
the position of the Scheduled Castes, etc. has not greatly im-
proved? Is it not a legitimate question to ask whether things might
have been different, had the District Administrators and the State
and Central Bureaucrats been drawn in larger numbers from these
classes? Courts are not equipped to answer these questions, but
B the courts may not interfere with the honest endeavours of the .
Government to find answers and solutions. We do not mean to say
that efficiency in the civil service is unnecessary or that it is a myth.
All that we mean to say is that one need not make a fastidious
fetish of it. It may be that for certain posts, only the best may be
c appointed and for certain courses of study only the best may be
admitted. If so, rules may provide for reservation for appointment
to such posts and for admission to such courses. The rules may
provide for no appropriate method of selection. It may be that
certain posts require a very high degree of skill or efficiency and
certain courses of study require a high degree of industry and
D
intelligence. If so, the rules may prescribe a high minimum qualify-
ing standard and an appropriate method of selection. Different
minimum standards and different modes of selection may be
prescribed for different posts and for admission to different cour-
ses of study and having regard to the requirements of the posts
E and the courses of study. No one will suggest that the degree of
efficiency required of a general medical practitioner. Similarly, no
one will suggest that the degree of industry and intelligence ex-
pected of a.candidate seeking admission to an ordinary arts degree
course. We do not, therefore, mean to say that efficiency is to be
altogether discounted. All that we mean to say is that it cannot be
F
permitted to be used as a camouflage to let the upper classes in
its name and to monopolise the services, particularly the higher
posts and the professional institutions. We are afraid we have to
rid our minds of many cobwebs before we arrive at the core of the
problem. The quest for equality is self-elusive, we must lose our
G illusions, though not our faith. It is the dignity of man to pursue
the quest for equality. It will be advantageous to quote at this
juncture R.H. Tawney in his 'classic work Equality' where he says.

The truth is that it is absurd and degrading for men to make
H much of their intellectual and moral superiority to each other and
AK. GUPTA v. STATE [K. RAMASWAMY, J.] 299

still more of their superiority in the arts which bring wealth and A
power, because, judged by their place in any universal scheme, they
are infinitely great or infinitely small... ..The equality which all these
thinkers emphasise as desirable is not equality of capacity or
attainment but of circumstances, and institutions, and man.ner of
life. The equality which they deplore is not the inequality of the B
personal gifts, but of the social and economic environment. ...Their
views, in short, is that, because men are men, social institutions-
property rights, and the organisation of industry, and the system
of public health and education-should be planned, as far as is
possible to emphasise and strengthen, not the class differences
which divide but the common humanity which unite, them. ... " C

Pandit Jawaharlal Nehru, the first Prime Minister of India in his
"Independence and After That" (Collection of Speeches 1946-49) Publica-
tion Division, Government of India [1949 Edn.] at page 28, has stated that
"social equality in the widest sense and equality of opportunity for every D
one, every man and woman must have the opportunity to develop to the
best of his or her ability. However, merit must come from ability and hard
work and not because of cast or birth or riches." This was followed in Air
India Statutory Corporation case (supra) in para 53 where it was held that
"social equality would develop the sense of fraternity among the members
of a social groups where each would consider the other as his equal, not E
higher or lower. A society, which does not treat each of its members as
equals, forfeits its right of being called a democracy. All are equal partners
in the freedom. Every one of our ninety four hundred million people must
have equal right to opportunities and blessings that freedom of India has
to offer. To bring freedom in a comprehensive sense to the common man, p
material resources and opportunity for appointment be made available to
secure socio-economic empowerment which would ensure justice and full-
ness of life to workmen, i.e., every man and woman." In para 43, it was
held that "(I)n a developing society like ours, steeped with unbridgeable
and ever-widening gaps of inequality in status and of opportunity, law is a
catalyst, rubicon to the poor etc. to reach the ladder of social justice. What G
is due cannot be ascertained by an absolute standard which keeps chang-
ing, dep~nding upon the time, place and circumstance. The constitutional
concern of social justice as an elastic continuous process is to accord justice
to all sections of the society by providing facilities and opportunities to
remove handicaps and disabilities due to which the poor, the workmen etc. H
300 SUPREME COURT REPORTS (1997] 3 S.C.R.

A are languishing and to secure dignity ·of their person. The Constitution,
therefore, mandates the State tO accord justice to all members of the
society in all facets of human activity. The concept of social justice embeds
equality to flavour and enliven the practical content of life. Social justice
and equality are complementary to each other so that both should maintain
their vitality. Rule of law, therefore, is a potent instrument of social justice
B to bring about equality in results."

Efficiency in service attracts the well-known parable that insanity
cannot be cured until married and marriage cannot be celebrated till
insanity is cured. Unless one is given opportunity and facility by promotion
C to hold an office or a post with responsibilities, there would be no oppor-
tunity to prove efficiency in the performance or discharge of the duties.
Without efficiency one cannot be promoted. How to synthesise both an give
effect to the Constitutional animation to effectuate the principle of ade-
quacy of representation in all posts or classes posts in all cadres, service
D or grade is the nagging question. From that perspective, one is required to
examine whether reservation in promotion is constitutionally valid. It is
seen that the rules provide promotion from Assistant Engineer to Execu-
tive Engineer on the principle of "seniority subject to rejection of unfit"
and from Superintending Engineers onward, 'merit' is the consideration.
In other words, the promotion is based on the aforesaid principles. Even
E employees from Dalits or Tribes get promoted only on satisfying the above
test. Appointment by promotion is a facet of recruitment to a service or
cadre/grade/class or classes of posts. In fairness on the part of the appel-
lants/petitioners and their learned counsel, none impugned nor alleged that
the private respondents are not meritorious or inefficient. No such
p evidence is placed on record.

The fundamental requisites to all employees area honesty, integrity
and character, apart from hard work, dedication and willingness to apply
assiduously to the responsibilities attached to the office or pc;ist and also
inclination to achieve improved excellence. What Dalits and Tribe
G employees need is an opportunity and fair chance of promotion to higher
posts and offiees earmarked for them in the roster where they are not
adequately represented. In a clash cif competing claims between general
category employees on the one hand and Dalits and Tribes on the other,
what the authorities need to take into consideration is the aforesaid factors
H and their service record with an objective and dispassionate assessment.
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 301

When the authorities have a power coupled with the constitutional duty, A
the doctrine of full faith and credit under Article 261 gets due acceptance
when done truly and sincerely with an honest, objective and dispassionate
assessment by the appropriate authority. Their claims need to be con-
sidered in that perspective; they should be given promotion, if found
eligible, to the posts or classes of posts in the higher cadre, grade, class or B
category etc. The selecting officer/officers need to eschew narrow, sec-
tarian, caste, religion or regional consideration or prejudices which are
deleterious to fraternity, unity and integrity and integration of the nation
as unified Bharat. What needs to be achieved by the Dalits and Tribal
officers so promoted is that they should, on par with others assiduously
devote themselves with character, integrity and honesty in the discharge of C
the duties of the posts with added willingness and dedication to improve
excellence. Thereby the efficiency of administration would automatically
get improved and the nation constantly rises to higher levels of achieve-
ment. Therefore, it cannot be held that reservation in promotion is bad in
law or unconstitutional.
D
As stated earlier, Article 16 (4A) has come into force w.e.f. 17th
June, 1995. The appellants/petitioners have sought amendment of the
pleadings challenging the vires of Article 16 (4A) of the Constitution and
in fairness on the part of the learned counsel, they did not press for
consideration thereof obviously for the reason that its objects are men- E
tioned in the Statement of Objects and Reasons as under:

"The Scheduled Castes and the Scheduled Tribes have been
enjoying the facility of reservation in promotion since 1955. The
Supreme Court in its judgment dated 16th November, 1992 in the p
case of Indira Sawhney and Others v. Union of India & Others,
however, observed that reservation of appointments or posts under
article 16 (4) of the Constitution is confined to initial appointment
and cannot extend to reservation in the matter of promotion. This
ruling of the Supreme Court will adversely affect the interests of
the Scheduled Castes and the Scheduled Tribes. Since the repre- G
sentation of the Scheduled Castes and the Scheduled Tribes in
services in the States have not reached the required level, it is
necessary to continue the existing dispensation of providing reser-
vation in promotion in the case of the Scheduled Castes and the
Scheduled Tribes. In view of the commitment of the Government H
•
302 SUPREME COURT REPORTS [1997] 3 S.C.R.

A to protect the interests of the Scheduled Castes and the Scheduled
Tribes, the Government have decided to continue the existing
policy of reservation in promotion for the Scheduled Castes and
the Scheduled Tribes. To carry out this, it is necessary to amend
article 16 of the Constitution by inserting a new clause (4A) in the
said article to provide for reservation in promotion for the
B
Scheduled Castes and a the Scheduled Tribes."

. Lord Macnaughten in Vacher & Sons Ltd. v. London Society of
Compositors, (1913) AC 107 at 118 has laid that a judicial tribunal has
nothing to do with the policy of any Act which it may be called upon to
C interpret. That may be a matter for private judgment. The duty of the
Court, and its only duty, is to expound the language of the Act in accord-
ance with the settled rules of construction. The above principle was fol-
lowed by this Court in 17ze Bengal Immunity Company Ltd. v. 17ze State of
Bihar & Ors., [1955] 2 SCR 603.
D
This Court in Shri Sitaram Sugar Co. Ltd. & Anr. v. Union of India
& Ors., [1990) 1 SCR 909 at 936 and 942 through a Constitution Bench,
had held that legislative policy is beyond the pale of assailment on the anvil
of violation of the fundamental rights. In S. Azeez Bash & Anr. v. Union of
India, [1968) 1 SCR 833 at 845 another Constitution Bench had held that
E it is not the function of the Court to consider the policy underlying the
amendment made to the Act nor the Court proposed to go into the merits
of the amendment made by that Act (the Constitutionality of the underlying
policy of the Aligarh Muslim University (Amendment) Act of 1965 was
questioned but the Court did not go into the underlying policy except the
F constitutionality of the Act itself which was upheld by this Court. Though
the doctrine of original intent was given effect to in Gopalan 's case, this
Court had not accepted the same in R.C. Coopar's case and the later was
followed in Menaka Gandhi v. Union of India, AIR (1978) SC 597 etc.
Therefore, though the doctrine of original intent of reservation in promo-
G tion does not expressly find place in the speech of Dr. Ambedkar, as
supported inMandal's case, it found place in statutory policy engrafted in
the rules issued under proviso to article 309 of the Constit11tion, which is
legislative in character, adopted and explained in the Statement of Objects
and Reasons of the Constitution (77th Amendment) Act, 1995, which was
declared as constitutional in Rangachari's case. After Mandcil's case, the
H Parliament has given effect to the legislative policy of reservation in promo-
/

AK GUPTA v. STATE[KRAMASWAMY,J.] 303

tion as constitutional scheme. This Court in Commissioner of Commercial A
Taxes, A.P., Hyderabad & Anr. v. G. Sethumadhava Rao & Ors., [1996] 7
SCC 512 through a three-Judge Bench, has held that the intention behind
introduction of Article 16 ( 4A) was to remove the defect as pointed out
by this Court in Mandal's case. By legislative judgment, the Parliament
upheld the ratio in Rangachari's case. T7wmas's case and Akhil Bharatiya B
Soshit Karamchari Sangh (Railway) v. Union of India & Ors., [1981] 1 SCC
246 upholding the rule of reservation in promotion. The interpretation put
up therein was given acceptance by legislative amendment. It was, there-
fore, held that Article 16 (4A) would establish that the interpretation put
up in Rangachari's case etc. received Parliament's approval. It would thus
be clear that the principle of rule of reservation is applicable not only to C
Jlli;o---
initial recruitment nut also in promotions where the State is of the opinion
that the Dalits and Tribes are not adequately represented in promotional
posts in a class or classes of services under the State. In G.S.I.C,
Karamachari Union & Ors. v. Gujarat Small Industries Copn. & Ors. JT
(1997) 1 SC 384 another Bench of three Judges has held that "the question D
of retrospectivity of the policy does not arise; what is being done is to give
effect to the constitutional policy of providing adequate representation to
the members of Scheduled Castes and Scheduled Tribes in all classes of
service or posts where they are not adequately represented. Therefore, the
question of arbitrariness does not arise since it is part of the scheme of the
Constitution. Unless adequate representation is given to the employees E
belonging to Scheduled Castes and Scheduled Tribes in promotions also,
the adequacy of representation in all classes and grades of service, where
there is no element of direct recruitment, cannot be achieved. Obviously,
therefore, Article 16 (4-A) was brought in the Constitution by Constitution
(77th Amendm~nt) Act, after the majority judgment of this Court by a p
Bench of nine Judges in Indira Sawhney v. Union of India & Ors., [1992)
Supp. 3 SCC 210. So, the policy of reservation is part of socio-economic
justice enshrined in the Preamble of the Constitution, the fundamental
rights under Articles 14, 15 (1), 15 (4), 16 (1), 16 (4), 16 (4A), 46 and 335
and the other related Articles, to give effect to the above constitutional
objectives. In Union of India & Anr. v. Madhav s/o Gajanan Chaubai & G
Anr. JT (1996) 9 SC 320 a there-Judge Bench, to which two of us, K.
Ramaswamy and G.P. Pattanaik, JJ. were members, also considered the
same question and held in paragraph 6 that "Government evolved reser-
vation in P,osts or offices under the State as one of the modes to give effect
to socio-economic justice to Dalits and Tribes. Appointment to an office H
304 SUPREME COURT REPORTS [1997] 3 S.C.R.

A or post into a service under the State is one of the means to render
socio-economic justice. Constitution (77th Amendment) Act, 1995 has
resuscitated the above objective to enable the Dalits and Tribes-employees
to improve excellence in higher echelons of service and a source of equality
of opportunity, social and economic status guaranteed by the Preamble to
B the Constitution. As a consequence, the Parliament has removed the lacuna
pointed out by this Court in Mandal's case. Thus, it would be seen that the
legal position held by this Court in Rangachari's case and followed in other
cases has been restored and reservation of appointment by promotion
would be available to the members of the Scheduled Castes and Scheduled
Tribes under 50% quota as is maintained by this Court in Indira Sawhney's
C case".

It would thus be clear that right to promotion is a statutory right. It
is not a fundamental right. The right to promotion to a post or a class of
posts depends upon the operation of the conditions of service. Article 16
D (4A) read with Articles 16 (1) and 14 guarantees a right to promotion to
Dalits and Tribes as fundamental right where they not have adequate
representation consistently with the efficiency in administration. The
Mandal's case, has prospectively overruled the ratio in Rangachari's case,
i.e., directed the decision to be operative after 5 years from the date of the
judgment; however, before expiry thereof, Article 16 (4A) has come into
E force from June 17, 1995. Therefore, the right to promotion continues as
a constitutionally guaranteed fundamental right. In adjusting the competing
rights of the Dalits and Tribes on the one had and the employees belonging
to the general category on the other; the balance is required to be struck
by applying the egalitarian protective discrimination in favour of the Dalits
F and Tribes to give effect to the Constitutional goals, policy and objectives
referred to herein before.

In R.K Sabhanval's & Ors. v. State of Punjab & Ors., [1995] 2 SCC
745, the Constitution Bench was called upon to consider whether the
reservation in promotion as per the roster was correct in law and, there-
G fore, constitutional and whether the employees belonging to Scheduled
Castes have right to be considered for promotion in their own merits, if so
how they are required to be adjusted in the roster prescribed by the
Government. The Constitution Bench has pointed out that when percent-
age of reservation is fixed in respect of a particular cadre and the roster
H indicates the reserved points, it has to be taken that the posts shown at the
AK. GUPTA v. STAIB [K. RAMASWAMY, J.) 305

reserved points are to be filled from amongst the members of the reserved A
categories. The candidates belonging to the general category are not
entitled to be considered for the reserved posts. On the other hand, the
reserved category candidates can compete for the non-reserved posts .
.'
In the event of their appointment to the said posts, their number cannot
be added and taken into consideration for working out the percentage .B
of reservation. When the State Government after doing the necessary
exercise makes reservation and provides the extent of percentage of
posts to be reserved for the said backward class,_ then the percentage
has to be followed strictly. The prescribed percentage cannot be varied
or changed simply because some of the members of the backward class
have already been appointed or promoted against the general seats. The C
fact that considerable number of members of the backward classes have
been appointed/promoted against the general seats in the State may be
a relevant factor for the State Government to review the question of
continuing reservation for the said class but so long as the instruc-
tions/rules providing certain percentage of reservations for the back- D
ward classes are operative, the same have to be followed. Jt was further
held that the reserved vacancies were required to be filled according to
the roster like a running account. When the reserved quota is full in the
cadre then application of rule of reservation would be stopped until
vacancies as per the roster arise and operate. It was also held following
Mandal's case that the judgment therein could be operative prospectively E
from that date, viz., February 10, 1995 and all the promotions which
became settled rights due to reservation in promotion could not be
unsettled. As seen earlier. "right to equality'', "equality or status and
opportunity"; duty to "improve excellence"; "opportunities and
facilities to remove inequality in status" and "social justice", all should p
be given their due and full play under rule of law to bring about
equality in results to establish an egalitarian social order. It would,
therefore, be clear that reservation in promotion is constitutionally
valid; the posts earmarked for Dalits and Tribes shall be filled up and
adjusted with them. The D.alits and Tribes selected in open competi-
tion for posts in general quota should be considered appointees to the G
general posts in the roster as general candidates. The promotions
given in excess of the quota prior to the judgment in Sabharwal's case
should not be disturbed.

The further question is: whether the judgment in Mandal's case in H
306 SUPREME COURT REPORTS (1997] 3 S.C.R.

A paragraph 860 (8) by Jeevan Reddy, J. prospectively overruling the ratio
in Rangachari's case is a majority judgment? In this connection, we may,
at the outset, refer to Article 145 (5) of the Constitution. It postulates that
"(No) judgment and no such opinion shall be delivered by the Supreme
Court, save with the concurrence of a majority of the Judges present at the
B hearing of the case, but nothing in this clause shall be deemed to prevent
·a Judge who does not concur from delivering a dissenting judgment or
opinion". It would, therefore, be manifest that unless majority Judges
comprised in the Bench concur on the opinion or the decision, it would
not be a judgment and no such opinion shall be delivered by the Supreme
Court. In Mandal's case, on the question of reservation in promotion, eight
C of the nine Judges participated in the opinion. Of them, Jeevan Reddy;J.
spoke for himself, Kania, CJ.I. and Venkatachaliah, J. as he then was.
Pandian and Sawant, JJ. also agreed with them. There is a considerable
debate on Micro Lexicon Surgery conducted by the learned counsel for
the appellants/petitioners drawing a distinction between conclusions and
D directions contained in paragraph 860 (8) and the language used in the
concurrent opinions of Pandian and Sawant, JJ. In support thereof, they
have placed strong reliance on the wording used by Sawant, J. in para-
graphs 552 and 555 on the conclusions and the absence of concurrence
with directions. Pandian, J. has expressly agreed in his conclusions and
directions. Equally, there was absence of concurrence by other learned
E Judges. They have also drawn our attention to the dictionary meaning of
those words. Having given due consideration, we area of the view that the
Micro Lexicon Surgery of the distinction between conclusions and direc-
tions leads us nowhere to reach satisfactory solution. One needs to adopt
pragmatic approach to understand the conclusions reached and the direc-
F tions given as part of the judgment in that behalf. Even if rule of strict
interpretation is to be applied, as is sought by the learned counsel, Sawant,
J. in paragraph 555 has indicated his concurrence with the conclusions of
.Jeevan Reddy, J. in paragraph 860 (8) which includes directions contained
therein. We have, to our benefit, the contemporaneous understanding that
directions in paragraph 860 (8) given by Jeevan Reddy, J. is a majority
G judgment and it gets reinforced from the approval thereof, as followed by
the Constitution Bench, in R.K Sabharwal's case. The presiding Judge
therein, viz;, Kuldip Singh, J., who was one of the nine Judges inMandal's
case, participated in the majority opinion on the issue of reservation in
promotion. However, no opinion was expressed on the conclusions and
H directions of Jeevan Reddy, J. in para 860, the Constitution Bench having
/
AK.GUPTA v. STATE(K.RAMASWAMY,J.] 307

upheld the rule of reservation in promotion, proceeded to apply the law A
and worked out the rights of the Dalits in promotions in R.K. Sabharwal's
case. The same do support out conclusion that the Constitution Bench
equally understood that the directions contained in paragraph 860 (8)
constituted majority judgment. Otherwise, the Constitution Bench in R.K
Sabharwal's case would not have proceeded to consider the right to promo- B
tion of the Dalits and question of giving effect to the roster system and the
question of percentage of reservation provided in promotions would not
have been give effect. The Constitution Bench in that case would have
declared that in the light of the majority judgment the reservation in
promotions were void ab initio under Article 13 (2) and that, therefore, the
question of application of the roster would not have arisen. It is true that C
there is no positive indication or a finding to that effect in Sabharwal's case
but the fact that the presiding Judge therein was one of the members of
the nine-Judge Bench in Mandal's case, and that the Constitution Bench
considered and upheld the right to reservation in promotion to the Dalits
and Backward Classes and applied the roster points to such promotions, D
itself goes to point out and reassure us that prospective overruling of
Rangachari's case by .Teevan Reddy, J. is a majority opinion. In that view
of the matter, the Micro Lexicon Surgery fails.

The next questions are: whether the prospective over-ruling of
Rangachari's case, to be operative after five years from the date of Mandal's E
case, amounts to judicial legislation? Is it void ab initio under Article 13
(2) of the Constitution? Whether it is violative of the fundamental rights
of the appellant-petitioners and whether the exercise of the power by this
Court under Article 32 (4) and 142 of the Constitution is inconsistent with
and derogatory to the fundamental rights of the appellants-petitioners and, p
if so, what would be the consequence? It is settled constitutional principle
that to make the right to equality to the disadvantaged Dalits and Tribes
meaningful, practical contents of results would be secured only when
principles of distributive justice ~nd protective discrimination are applied,
as a facet of right to equality enshrined under Article 14 of the Constitu-
tion. Otherwise, right to equality will be a teasing illusion. Right to promo- G
tion is a method of recruitment from one cadre to another higher cadre or
class or category or grade of posts or classes of posts or offices, as the case
may be. Reservation in promotion has been evolved as a facet of equality
where the appropriate Government is of the opinion that the Dalits and
Tribes are not adequately represented in the class or classes of posts in H
308 SUPREME COURT REPORTS [1997] 3 S.C.R.

A diverse cadres, grade, category of posts or classes of posts. The discrimina-
tion, therefore, by operation of protective discrimination and distributive
justice is inherent in the principle of reservation and equality too by way
of promotion but the same was evolved as a part of social and economic
justice assured in the Preamble and Articles 38, 46, 14, 16 (1), 16 (4) and
16(4A) of the Constitution. The right to equality, dignity of person ~d
B
equality of status and of opportunity are fundamental rights to bring the
Dalits and the Tribes in the mainstream of the national life. It would,
therefore, be an imperative to evolve such principle to adjust the competing
rights, balancing the claims, rights and interest of the deprived and disad-
vantaged Dalits and Tribes on one had and the general section of the
C society on the other.

The Constitution, unlike other Acts, is intended to provide an endur-
ing paramount law and a basic design of the structure and power of the
State and rights and duties of the citizens to serve the society through a
D long lapse of ages. It is not only designed to meet the needs of the day
when it is enacted but also the needs of the altering conditions of the
future. It contains a framework of mechanism for resolution of constitu-
tional disputes. It also embeds its ideals of establishing an egalitarian social
order to accord socio-economic and political justice to all sections of the
society assuring dignity of person and to integrate a united social order
E assuring every citizen fundamental rights assured in Part III and the
directives in Part IV of the Constitution. In the interpretation of the
Constitution, words of width are both a framework of concepts and means
to the goals in the Preamble. Concepts may keep changing to expand and
elongate the rights. Constitutional issues are not solved by mere appeal to
F the meaning of the words without an acceptance of the line Qf their growth.
The intention of the Constitution is, rather, to outline principles than to
engrave details. In State of Kamataka v. Appa Balu, [1995] Supp. 4 SCC
469 at 485-86 a two-Judge Bench of this Court, to which one of us, K.
Ramaswamy, J. was a member, while interpreting Articles 17 and 15 (2)
and the Civil Rights Protection Act, held that "(Judiciary) act as a bastion
G of the freedom and of the rights of the people. Jawaharlal Nehru, the
architect of Modern India as early as in 1944 stated that the spirit of the
age is in favour of equality though the practice denies it almost everywhere,
yet the spirit of the age triumphs. The judge must be atune with the spirit
of his/her times. Power of judicial review, a constituent power has, there-
H fore, been conferred upon the judiciary which constitutes one of the most
(

AK.GUPTA v. STATE[K.RAMASWAMY,J.] 309

important and potent weapons to protect the citizens again•t violation of A
social, legal or constitutional rights. The judges are participants in the
living stream of natural life, steering the law between the dangers of rigidity
on the one had and formlessness on the other hand in the seamless web
of life. The great tides and currents which engulf the rest of the men do
not turn aside in their course and pass the judges idly by. Law should
B
subserve social purpose. Judge must be a jurist endowed with the
legislator's wisdom, historian's search for truth, prophet's vision, capacity
to respond to the needs of the present, resilience to cope with the demands
of the future and to decide objectively disengaging himself/herself from
every personal influence or predilections. Therefore, the judges should
adopt purposive interpretation of the dynamic concepts of the Constitution c
and the Act with its interpretative armoury to articulate the felt necessities
of the time. The judge must also bear in mind that social legislation is not
a document for fastidious dialects but a means of ordering the life of the
people. To construe law one must enter into its spirit, its setting and
history. Law should be capable of expanding freedoms of the people and D
the legal order can, weighed with utmost equal care, be made to provide
the underpinning of the highly inequitable social order. The power of
judicial review must, therefore, be exercised with insight into social values
to supplement the changing social needs. The existing social inequalities
or imbalances are to be removed and social order readjusted through rule
of law, lest the force of violent cult gain ugly triumph. Judges are sum- E
moned to the duty of shaping the progress of the law to consolidate society
and grant access to the Dalits and Tribes to public means or places
dedicated to public use or places of amenities open to public etc. The law
which is the resultant product is not found but made. Public policy of law,
as determined by new conditions, would enable the courts to recast the F
changing conceptions of social values of yesteryears yielding place to the
changed conditions and environment to the common good. The courts are
to search for light from among the social elements of every kind that are
the living forces behind the factors they deal with. By judicial review, the
glorious contents and the trite realisation in the constitutional words of
width must be made vocal and audible giving them continuity of life, G
expression and force when they might otherwise be forgotten or ignored
in the heat of the moment or under sway of passions or emotions remain
aroused, that the rational faculties get befogged and the people are ad-
dicted to take immediate for eternal, the transitory for the permanent and
the ephemeral for the timeless, it is in such transitory for the permanent H
."-,
'

310 SUPREME COURT REPORTS [1997] 3 S.C.R.

A and the ephemeral for the timeless. It is in such surging situation the
presence and consciousness and the restraining external force by judicial
review ensures stability and progress of the society. Judiciary does not
forsake the ideals enshrined in the Constitution, but makes them meaning-
ful and mades the people realise and enjoy the rights.

B The judges, therefore, should respond to the human situations to
meet the felt necessities of the time and social needs; make meaningful the
right to life and give effect to the Constitution and the will of the legisla-
ture. The Court as the vechicle of transforming the nation's life should·
respond to the nations's needs, interpret the law with pragmatism to further
C public welfare to make the constitutional animations a reality and interpret
the Constitution broadly and liberally enabling the citizens to enjoy the
rights.

In Sakal Papers (P) Ltd. & Ors. v. 171e Union of India, [1962] 3 SCR
D 842 at 857 it was held by another Constitution Bench thus:
"It must be borne in mind that the Constitution must be interpreted
in a broad way and not in a narrow and pedantic sense. Certain
rights have been enshrined in our Constitution as fundamental and,
therefore, while considering the nature and content of those rights
E ·the Court must not be took astute to interpret the language of the
Constitution in so literal a sense as to whittle them down. On the
other hand, the Court must interpret the Constitution in a manner
which would enable the citizen to enjoy the rights guaranteed by
it is the fullest measure subject, of course, to permissible restric-
F tions."

Common sense has always served in the c.ourt's ceaseless striving as
a voice of reason to maintain the blend of change and continuity of order
which the sine qua non for stability in the process of change in a parliamen-
tary democracy.
G
Therefore, it is but the duty of the Court to supply vitality, blood and
flesh, to balance the competing rights by interpreting the principles, to the
language or the words contained in the living and organic Constitution,
broadly and liberally. The judicial function of the Court, thereby is to build
H up, by judicial statesmanship the judicial review, smooth social change
AK GUPTA v. STATE[KRAMASWAMY,J.] 311

under rule of law with a continuity of the past to meet the dominant needs A
and aspirations of the present. This Court, as sentinel on the qui vive, has
been invested with more freedom, in the interpretation of the Constitution
than in the interpretation of other laws. This Court, therefore, is not bound
to accept an interpretation which retards the progress or impedes social
integration; it adopts such interpretation which would bring about the B
ideals set down in the Preamble of the Constitution aided by Part III and
Part IV-a truism meaningful and a living reality to all sections of the society
as a whole by making available the rights to social justice and economic
empowerment to the weaker sections, and by preventing injustice to them.
Protective discrimination is an armour to realise distributive justice. Keep- C
ing the above perspective in the backdrop of our consideration, let us
broach whether the rights of the employees belonging to the general
category are violative of Article 14; inconsistent with and derogatory to
right to equality and are void ab initio.

In Union of India & Anr. v. Raghubir Singh (Dead) by LRs. Etc., D
[1989] 2 SCC 754 at 766, a Constitution Bench had held that like all
principles evolved by man for the regulation of the social order, the
doctrine of binding precedent is circumscribed in its governance by per-
ceptible limitations, arising by reference to the need for re-adjustment in
a changing society, a re-adjustment of legal norms demanded by a changed E
social context. This need for adapting the law to new urges in society brings
home that truth that the life of the law has not been logic, but it has been
experienced. The law is forever adopting new principles from life at one
end and "solughing off' old ones at the other. The choice is between
competing legal propositions rather than by the operation of logic upon F
existing legal propositions that the growth of law tends to the determined.
Interpretation of the Constitution is a continuous process. The concepts
engraved therein keep changing with the demands of changing needs and
time.

The doctrine of stare decisis is ordinarily a wise rule of action, G
because in most matters, it is more important that the applicable rule of
law be settled right. The rule of stare decisis, though one tending to keep
consistency and uniformity of decisions, is not an inflexible rule. Whether
it shall be followed or departed from is a question entirely within the
discretion of the Court and it does not deter the court to depart from it. H
312 SUPREME COURT REPORTS (1997) 3 S.C.R.

A State decisis is not, like the rule of res judicate, a universal, inexorable
command. Whether it would be desirable to continue the decision in
constitutional questions is one of the choice between competing rights. In
the Be11gal Immunity Company Ltd. case, consideriQg the question whether
the decision of a Constitution Bench referred in.the State of Bombay v. The
B U11io11 Motors (/11dia) Ltd. (1953] SCR 1069, a majority of seven Judges
following the descending judgment of Stone, CJ in U11ited States of America
v. South-Eastem U11derwriters Associatio11 (322 US 533), had held that the
Court has never committed itself to any rule or policy that it will not bow
to the lessons of experience and the force of better reasoning by overruling
C a mistaken precedent. The doctrine of stare decisis should not be rigidly
applied to be constitutional as well as to other laws in the case of private
import, the chief desideratum is that the law remained certain, and, there-
fore, whether a rule has been judicially declared and private rights created
thereunder, the courts will not, except in the clearest cases of error, depart
D from the doctrine of Stare decisis. When, however, public interest are
involved, and especially, when the question is one of constitutional con-
struction, the matter is otherwise. Accordingly the Bench overruled the
majority decision. It would, thus, be settled law that in the interpretation
of the Constitution or the concepts embodied therein, the application of
the doctrine of stare decisis is not an inexorable or rigid rule. It requires
E modulation or adherence based upon the need of the constitutional com-
mand and social imperatives. It would, therefore, be entirely within the
descretion of the Court when it is called upon to consider it application to
the given set of circumstances.

F It is settled principle right from Golak Nath ratio that prospective
over-ruling is a part of the principles of constitutional canon of interpreta-
tion. Though Gokal Nath ratio of unamendability of fundamental rights
under Article 368 of the Constitution was over-ruled in Keshavnanda
Bharati's case, (1973) Supp. SCR 1 the doctrine of prospective over-ruling
G was upheld and followed in several decisions. This Court negatived the
contention in Gokal Nath's case that prospective over-ruling amounts to
judicial legislation. Explaining the Blackstoniam theory of law, i.e., Judge
discovers law and does not make law, and the efficacy of prospective over-
ruling at page 808 placitum D to H, this Court by a Bench of eleven Judges
H had held that the doctrine of prospective over-ruling is a modern doctrine
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 313

'
and is suitable for a fast moving society. It does not do away with the A
· doctrine of stare decisis but confines it to past transactions. While in strict
theory, it may be said that he dqctrine involves the making of law, what a
Court really does is to declare the law, but refu_ses to give retrospectivity
to it. It is really a pragmatic solution reconciling the two conflicting
doctrines, namely, that Court finds law and that it does make the law. B
It fmds the law but restricts its operation to the future. It enables the
Courts to bring about a smooth transition by correcting the errors
.without disturbing the impact of those errors on past transactions. By
implication of this doctrine, the past may be preserved and the future
protected. The Constitution does not expressly or by necessary implica- C
tion speak against the doctrine of prospective over-ruling. Articles 32
(4) and 142 are designed with words of Width t_o enable this Court to
,declare the law and to give such direction or pass such orders as are
'
necessary to do complete justice. Declaration of law under Article 141
i is wider than words found or made. The law declared by this Court is D
the law of the land. So, there is no acceptable reason as to why the Court
in dealing with the law in supersession of the law declared by it earlier
:could not restrict the operation of law, as declared, to the future and
save the transactions, whether statutory or otherwise, that were effected
on the basis of the earlier law. This Court is, therefore, not impotent to E
adjust the competing rights of parties by prospective over-ruling of the
previous decision in Rangachari ratio. The decision in Mandal's case
postponing the operation for five years from the date of the judgment is
an instance of, and an extension to the principle of prospective over-ruling
following the principle evolved in Golak Nath case. In Managing Director, F
ECIL, Hyderabad & Ors. v. B. Karunakar & Ors., [1993] 4 SCC 727, a
Constitution Bench of this 'court, while over-ruling Union of India v. Mohd.
Ramzan Khan [1991) 1 SCC 588 had held that benefit of the decisions
would be given only to the parties to the cases pending before the
authorities from the date of the judgment but not to the actions already G
taken by the date of that judgment. In that behalf in separate but partly
dissenting judgment to a limited extent, on the issue of the need ,to give
benefit to the party that approaches the Court in that case, one of us, K.
Ramaswamy, J. had held that as a matter of constitutional law retrospective
operation of an overruling decision is neither required nor prohibited by H
314 SUPREME COURT REPORTS (1997] 3 S.C.R.
'
A the Constitution; It is a matter of Judicial attitude depending on the facts
and circumstances in each case; the nature and purpose the particular
over-ruling decision seeks to serve are required to be taken into considera-
tion. The Court would look into the justifiable reliance on the over-ruled
case by the administration. All the factors, viz., ability to effectuate the new
B rule adopted in the over-ruling case, without doing injustice and whether
,
the likelihood of its operation substantially burdens the administration or
retards the purpose, are to be taken into account, while over-ruling the
earlier decision or laying down a new principle. Equally, no distinction
could be made between claims involving constitutional rights, statutory
C right or common law right. The Court is required to adjust the competing
rights taking into consideration the prior history of the rule in question, its
purpose and effect and to find out whether retrospective operation will
accelerate or retard its operation. Therefore, evolving of the appropriate
rule to give effect to the decision of the Court over-ruling its previous
D precedent, is one of judicial craftsmanship with pragmatism and judicial
statesmanship as a useful outline to bring about smooth transition of the
operation of law without unduly affecting the rights of the people who
acted upon the law operated prior to the date of the judgment over-ruling
the previous law.
E
The question, therefore, is: whether such a decision is void when it
offends the fundamental rights under Article 13 (2) of the constitution?
The doctrine of voidity was dealt with in the Administrative law by Wade
(Seventh Edition) at page 342, and it is stated that "the truth of the matter
is that the Court would invalidated an order only if the right remedy is
F sought by the right person in the right proceedings and circumstances". The
terms "void ab initio" or "nullity'' or "voidable" are descriptive of the status
of the legislation or subordinate legislation alleged to be ultra vires for
patent or for latent defects before its validity has been pronounced by a
Court of competent jurisdiction. It would, therefore, be of necessity to
G consider in each case, the effect of the declaration granted by the Court
before labelling it as void, nullity or voidable, as the case may be.

It is seen that Article 13 (2) envisages a situation where the State
action, be it legislative or executive, violates the fundamental rights in Part
H III of the Constitution; such law is declared as void but when the previous
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 315

over-ruled decision and the new rule laid down, by the Court as a stare A
decisis operates prospectively from a given date, namely, either the date of
the judgment or extended date. Judgment or order is not a legislative Act
which is void under Article 13 (2) but judicial tool by which the effect of
the judgment was given. Therefore, the judgment of this Court in Mandal's
case declaring that Rangachari ratio did not correctly interpret Articles B
16(1) and 16 (4) of the Constitution is a declaratory law under Article 141
of the Constitution. It is true that Article 13 (1) deals with pre-constitu-
tional law and if it is inconsistent with fundamental rights, it becomes void
from January 26, 1950, the date on which the Constitution of India came
into force and if a post-constitutional law governed by Article 13 (2) C
violates fundamental rights, it becomes void from its inception. Either case
deals with statue law and not the law declared by this Court under Article
141 and direction/order under Article 142.

The question then is: whether such a declaration is inconsistent with
the Constitution or in derogation of the fundamental rights? As held D
earlier, both the disadvantaged and advantaged sections of the society have
equal competing fundamental rights in Part III, i.e., Chapter of Fundamen-
tal Rights. The Court in Mandal's case had obviously recognised the need
to adjust the competing rights of both sections of citizens and, therefore,
it postponed the operation of that judgment of five years from that date E
giving and option to the Executive to have the law amended appropriately.

In Union Carbide Corpn. & Ors. v. Union of India & Ors., [1991] 4
SCC 584, a Constitution Bench was to consider the scope, ambit and
limitation of the exercise of the power under Article 142. Therein, the
F
contention raised was that the direction issued was contrary to the statutory
provision violating Article 21 of the Constitution and that, therefore, the
power under Article 142 could not be exercised in that backdrop. This
Court explaining the interplay of inference of prohibition or limitation on
the constitutional power and as to when need to its exercise the same under
Article 142 arises, had pointed out in para 83 thus: G

"It is necessary to set at rest certain misconceptions in the argu-
ments touching the scope of the powers of this Court under Article
142 (1) of the Constitution. These issues are matters of serious
public importance. The proposition that a provision in, any ordinary H
316 SUPREME COURT REPORTS [1997) 3 S.C.R.

A law irrespective of the importance of the public policy on which it
-
is founded, operates to limit the powers of the apex Court under
Article 142 (1) is unsound and erroneous. In both Garg as well as
Antulay cases the point was one of violation of constitutional
provisions and constitutional rights. The observations as to the
effect of inconsistency with statutory provisions were really un-
B necessary in those case as the decisions in the intimate analysis
turned on the breach of constitutional rights. We agree with Shri
Nariman that the power of the court under Article 142 insofar as
quashing of criminal proceedings are concerned is not exhausted
by Section 320 or 321 or 482 Cr. PC or all of them put together.
c The power under Article 142 is at an entirely different level and
of a different quality. Prohibitions or limitations or provisions
contained in ordinary laws cannot, ipso facto, act as prohibitions
or limitations on the constitutional powers under Article 142. Such
prohibitions or limitations in the statutes might embody and reflect
the scheme of a particular law, taking into account the nature and
D status of the authority or the court on which conferment of powers-
limited in some appropriate may-is contemplated. The limitations
may not necessarily reflect or be based on any fundamental con-
siderations of public policy. Shri ~abjee, learned attorney
General, referring to Garg case, said that limitation on the powers
under Article 142 arising from "inconsistency with express statutory
E
provisions of substantive law'' must early means and be understood
as some express prohibition contained in any substantive statutory
law. He suggested that if the expression 'prohibition' is read in
place of 'provision' that would perhaps convey the appropriate
idea. But we think that such prohibition should also be shown to
F be based on some underlying fundamental and general issues of
public policy and not merely incidental to a particular statutory
scheme or pattern. It will again be wholly incorrect to say that
powers under Article 142 are subject to such express statutory
prohibitions. That would convey the idea that statutory provisions
override a constitutional provision. Perhaps, the proper way of
G expressing the idea is that in exercising powers under Article 142
and in assessing the needs of "complete justice" of a cause or
matter, the apex Court will take note of the express prohibitions
in any substantive statutory provision based on some fundamental
principles of public policy and regulate the exercise of its power
H and discretion accordingly. The proposition does not relate to the
/

AK.GUPTA v. STATE[K.RAMASWAMY,J.] 317

powers of the Court under Article 142, but only to what is or is A
not 'complete justice' of a cause or matter and in the ultimate
analysis of the propriety of the exercise of the power. No question
of lack of jurisdiction or of nullity can arise."

In Delhi Judicial Se1vice Association, Tis Hazari Court, Delhi v. State
of Gujarat & Ors., [1991) 4 SCC 406 and ln Re: Vijay Chandra Mishra, B
[1995) 2 SCC 584, this Court considered its paramount power and duty to
protect limbs of administration of justice from those whose actions created
interference with or obstruction to the course of justice. It was held that
the failure to exercise the power with such situations, when it is invested
specifically for the purpose, is a failure to discharge the duty. The first case C
deals with a case when the judicial officer in Gujarat was assaulted by the
police and in the latter when a practicing advocate assaulted a Judge of
the High Court, this Court took suo motu action and passed appropriate
orders, in spite of absence of specific power to deal with or despite the
disciplinary power available under the Advocates Act. In Delhi Develop- D
ment Authority v. Skipper Constrnction Co. (p) Ltd. & Anr., [1996] 4 SCC
622, a Bench of two judges exercised the power under Articles 129 and 142
of the constitution and not only punished the defrauding party but also
directed restoration of the benefits illegally derived to the persons
defrauded. The imposition of the punishment, it was held, does not denude E
the power of the Court; it could issue directions to remedy the wrong done
by the contemner including directions to refund the amounts wrongfully
derived by the contemner to the rightful persons.

It would be seen that there is no limitation under Article 142 (1) on
the exercise of the power by this Court. The necessity to exercise the Power F
is to do "complete justice in the cause or matter". The inconsistency with
statue law made by Parliament arises when this Court exercise power under
Article 142 (2) for the matters enumerated therein. Inconsistency in ex-
press statutory provisions of substantive law would mean and be under-
stood as some express prohibition contained in any substantive statutory G
law. The power under Article 142 is constituent power transcendental to
statutory prohibition. Before exercise of the power under Article 142 (2),
the Court would take that prohibition into consideration before taking
steps under Article 142 (2) and we find no limiting words to could the relief
or when this Court takes appropriate decision to met out justice or to H
318 SUPREME COURT REPORTS [1997] 3 S.C.R.

A remove injustice. The phrase "complete justice" engrafted in Article 142 (1)
is the word of width couched with elasticity to meet myriad situation
created by human ingenuity or cause or result of operation of statue law
or law declared under Article 32, 136 and 141 of the Constitution and
cannot be cribbed or crabbed within any limitations or phraseology. Each
B case needs examination in the light of its backdrop and the indelible effect
of the decision. In the ultimate analysis, it is for this Court to exercise its
power to do complete justice or prevent injustice arising from the exigen-
cies of the cause or matter before it. The question of lack of jurisdiction
or nullity of the order of this Court does not arise. As held earlier, the
C power under Article 142 is a constituent power within the jurisdiction of
this court. · So, the question of a law being void ab initio or nullity or
voidable does not arise.

Admittedly, the Constitution has entrusted this salutary duty to this
Court with power to remove injustice or to do complete justice in any cause
D or matter before this Court. The Rangachari ratio was in operation for well
over three decades under which reservation in promotio4:s were given to
several persons in several services, grade or cadre of the Union of India
or the respective State Governments. This Court, with a view to see that
there would not be any hiatus in the operation of that law and, as held
E earlier, to bring about smooth transition of the operation of law of reser-
vation in promotions, by a judicial creativity extended the principle of
prospective over-ruling applied in Gokal Noath case in the case of statutory
law and of the judicial precedent in KOTU11akaran's case and further elon-
gated the principle postponing the operation of the judgment in Mandal's
p case for five years from the date of the judgment. This judicial creativity is
not anathema to constitutional principle but an accepted doctrine, as an
extended facet of stare decisis. It would not be labelled as provjso to Article
16 (4) as contended for.

G In S.P: Sampat Kumar v. Union of India & Ors., [1987) 1 SCC 124,
while noticing that the administrative Tribunal Act suffered from constitu-
tional invalidity, instead of declaring the Act as invalid, declared that its
invalidity would be removed by making necessary suggested amendments
there to so that the law will become consistent with the Constitution. In St.
H Stephen College case (supra), while holding that the orders issued by Delhi
/

AK.GUPTA v. STATE[K.RAMASWAMY,J.] 319

University were violative of Article 30 (1) of the Constitution, this Court A
declared that admission by the minority institutions in the ratio of 50:50
between minority students and the general students was constitutional
which is another facet of judicial creativity. In Pannalal Bansilal Pitti v.
State of Andhra Pradesh, [1996] 2 SCC 498, this Court instead of declaring
that abolition of hereditary trusteeship of the founder of the temper to B
manage a temple was unconstitutional, declared the law reading it down
that the institutions would be managed by a Committee of the non-
hereditary and hereditary trustees presided over by the hereditary trustee
so as to be conducive to proper and efficient management of the endow-
ment or institutions. At the same time, this Court unhealed the power to C
remove hereditary trustees who mismanaged the endowment or committee
for acts of misfeasance or malfeasance, as valid. It is settled legal principle
of reading down the provisions of a statute by so interpreting them as to
make the Act consistent with the constitutional principles. Instances, there-
fore, are many under which this Court has evolved the appropriate prin- D
ciple to sustain the legislative or executive actions consistent with the
constitutional philosophy or principles. Mahendara Lal Jaini v. The State of
Uttar Pradesh & Ors., (1963] Supp. (1) SCR 912, relied on by the petitioners,
is of no assistance to the facts of this case. Therein, the distinction between
the post-constitutional and pre-constitutional law which violated the fun- E
) damental rights and the effect thereof under Article 13 (1) and 13(2) was
considered. The doctrine of eclipse was pressed into service and explaining
the circumstances which the voidity of the pre-constitutional law and the
validity of the post -constitutional law was declared, this Court held that the
post-constitutional law violating the fundamental rights was still-born and F
that, therefore, was void from its inception, while the preconstitutional law

' is effective from inception but its voidity supervened when the Constitu-
tions came into force. Therefore, it would be void only from January 26,
1950 and the previous operation of the law remained unaffected. The ratio
therein, therefore, has no application to the facts in this case. Similarly, the G
ratio in Atam Prakash v. State of Hmyana & Ors., (1986] 2 SCC 249 is
equally inapplicable to the facts of this case. Therein, it was declared that
the justification of right of pre-emption of different classes enumerated in
'
Section· 15 of the Punjab Promotion Act was declared Ultra vires and
inconsistend with the modern concept of equality. Therefore, it was held H
320 SUPREME COURT REPORTS [1997] 3 S.C.R.

A that the law was not valid. Equally, the ratio in Wama11 Rao's case (supra),
is equally inapplicable. Therein, it was held that a law violating the fun-
damental rights was void but it remained valid under the protective
umbrella of Schedule IX of the Constitution and, therefore, though it was
void, it cannot be declared to be void and remained to be valid law. But a
B post-constitutional Kasava11a11da Bharati law which did not receive the
protective umbrella of Schedule IX ts void from its inception. We are not
concerned, as stated supra, with statute law in this case. Under those
circumstances, the ratio therein is inapplicable to the facts in this case. A.R.
A11tule's case is inapplicable to the facts in this case. Therein, though this
C Court had directed under Article 142 trial of the appellant by a High Court
Judge, it was held that such direction was inconsistent with fundamental
rights of equality under Article 21 read with Article 14 with the trial of
other similarly circumstances offenders by a properly constituted Court
with a right of appeal while the order passed under Article 142 denied him
D of the equality of trial process. This Court accepted that contention and
held that the direction issued on earlier occasion was invalid in law. In that
context, the observations came to be made in para 50. The ratio therein is
also inapplicable to the facts in this case. In Delhi Judicial Service Associa-
tio11 v. State of Gujarat, (1991] 4 SCC 406 at 452, para 37, it was held that
E the powers under Articles 32, 136, 141 and 142 are basic structures of the
Constitution and cani;iot be curtailed by statute law. Equally, the same
position was reiterated in para 51 therein. The ratio also is inapplicable to
the facts in this case as we have already held that the direction in Mandal's
case postponing the operation of the judgment of reservation in promotion
F for a period of five years is a part of the scheme of judicial review being
an innovative device to mete out justice to the Dalits and Tribes giving
breathing time to the executive to bring about suitable legislative measures,
if they so desired and if no action was taken by amending the law, on expiry
of five years, the judgment in Manda/ case would become operative.
G Thereafter reservation in promotion would be unconstitutional which in-
validity was remedied. As held earlier this being one of the tools of judicial
craftsmanship adopted by exercising the power under Article 142, which is
available only to this Court, the directions given are not violative of rights
under Article 14 read with Article 16 (1), not ultra vires the power nor void,
H nor incompatible to or inconsistent with the doctrine of equality enshrined
AK.GUPTA v. STATE[K.RAMASWAMY,J.] 321

under Article 14 read with Article 16 (1) of the Constitution. On the other A
hand, the power was exercised by this Court under Article 142 read with
Articles 32 and the direction postponing the operation of the decision for
a period of five years is a law of the land under Article 141.

It is already seen that the rule of reservation in promotions was in B
vogue in the State of Uttar Pradesh. right from 1973 and the promotions
came to be made from 1981 onwards to the respondents 2 to.10. The U.P.
Act sa~es the existing policy of reservation in promotions. The judgment
in Manda/ case saves the promotions already made. In Sabharwal's case
also a Constitution Bench has upheld the validity of the promotions given
in excess of the roster; otherwise also those promoted on their own merit C
were held to be validly promoted. Even excess promotions remained
undisturbed and the law became operative only from the date of the
judgment. This Court upheld the previous promotions, though in excess of
the roster system, as constitutional and valid. Therefore, we hold that the
promotions of the respondents are legal and valid and they do not become D
void or unconstitutional as contended.

Both, the appeal and the writ petition are accordingly dismissed with
no order as to costs.

S.M. Appeal and petition dismissed. · E