Holding

The Karnataka Reservation Act, 2018 is constitutionally valid as it cures the deficiency identified in *B K Pavitra I*, complies with the requirements of *Nagaraj* and *Jarnail*, and does not usurp judicial power.

Summary

The Karnataka government enacted the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Act, 2018 to grant consequential seniority to SC/ST promotees, after the earlier 2002 Act was struck down in *B K Pavitra I* for lacking the data required under *M. Nagaraj*. The state collected quantifiable data on backwardness, inadequate representation and administrative efficiency through the Ratna Prabha Committee, passed the 2018 Act, and obtained presidential assent. Petitioners challenged the Act on grounds that it usurped judicial power, overrode *B K Pavitra I*, violated the creamy‑layer principle, and was retrospectively arbitrary. The Court examined whether the Act satisfied the "compelling necessity" test of *Nagaraj* and *Jarnail*, whether the creamy‑layer concept applied to consequential seniority, and the validity of the Governor’s reservation of the Bill. Finding that the Act cured the defect identified in *B K Pavitra I*, complied with the constitutional requirements, and did not encroach on judicial power, the Court upheld its validity and dismissed the writs.

Issues considered

The constitutionality of the Karnataka Reservation Act, 2018 under Articles 16(4A) and 335 of the Constitution
Whether the 2018 Act overrules or nullifies the decision in *B K Pavitra I*
Whether the Act amounts to an usurpation of judicial power by the legislature
Whether the Ratna Prabha Committee report satisfies the "compelling necessity" requirements of *M. Nagaraj* and *Jarnail*
Whether the creamy‑layer principle applies to the grant of consequential seniority
Validity of the Governor’s reservation of the Bill and the President’s assent
Whether the retrospective operation of the Act is arbitrary or unconstitutional
Whether alleged over‑representation in KPTCL and PWD violates the reservation quota

Legislation cited

Subjects

reservationconsequential seniorityArticle 16(4A)equalitycurative legislationcreamy layerjudicial reviewKarnataka

Judgment

1086 [2019]
SUPREME COURT 7 S.C.R. 1086
REPORTS [2019] 7 S.C.R.

A B K PAVITRA AND ORS.
v.
THE UNION OF INDIA AND ORS
(M. A. No. 1151 of 2018)
B in
(Civil Appeal No. 2368 of 2011)
MAY 10, 2019
[UDAY UMESH LALIT AND
C
DR. DHANANJAYA Y CHANDRACHUD, JJ.]
Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the
Posts in the Civil Services of the State) Act, 2018:
D Validity of – Held: Reservation Act 2018 is constitutionally
valid – Reservation Act 2018 has cured the deficiency noticed by
*B K Pavitra I in respect of the Reservation Act 2002 – Reservation
Act 2018 does not amount to usurpation of judicial power by the
state legislature – The Act is a valid exercise of the enabling power
conferred by Art. 16 (4A) – Karnataka Determination of Seniority
E of the Government Servants Promoted on the Basis of Reservation
(to the Posts in the Civil Services of the State) Act, 2002 – Constitution
of India – Art. 16 (4A).
2018 Act, if overruled or nullified B K Pavitra I case – In
B K Pavitra I case, the Reservation Act 2002 was held to be
F unconstitutional since the State did not collect the quantifiable data
on the three parameters enunciated in Nagaraj case-inadequacy of
representation, backwardness and overall efficiency, before
providing for reservation in promotion and consequential seniority
– Thereafter, enactment of 2018 Act – Held: Following the decision
in *B K Pavitra I, the State government duly carried out the exercise
G
of collating and analysing data on the compelling factors adverted
to in Nagaraj case – State legislature of Karnataka, by enacting
the Reservation Act 2018, has not nullified the judicial decision in
*B K Pavitra I, but taken care to remedy the underlying cause which
led to a declaration of invalidity in the first place – Thus, the
H
1086
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1087

Reservation Act 2018 cured the deficiency noticed A
by *B K Pavitra I in respect of the Reservation Act 2002 – Such a
law is valid because it removes the basis of the decision – Karnataka
Determination of Seniority of the Government Servants Promoted
on the Basis of Reservation (to the Posts in the Civil Services of the
State) Act, 2002.
B
s. 4 – Protection of consequential seniority already accorded
from 27.04.1978 onwards – Provision in regard to retrospectivity,
whether arbitrary or unconstitutional – Held: Provisions are neither
arbitrary or unconstitutional – Section 4 stipulates that the
consequential seniority already granted to government servants
belonging to the SCs and STs in accordance with the reservation C
order with effect from 27.04.1978 shall be valid and shall be
protected – Since decision in Virpal Singh held that the catch-up rule
would be applied only from 10.02.1995, decision in Ajit Singh II
specifically protected the promotions granted before 01.03.1996
without following the catch-up rule; and in Badappanavar’s case, D
promotions of reserved candidates based on consequential seniority
which took place before 01.03.1996 were specifically protected, it
was logical for the legislature to protect consequential seniority –
Object of the Reservation Act 2018 is to accord consequential
seniority to promotees against roster points.
Constitution of India: E
Arts. 200 and 201 – Assent to the Bill – Reservation of the
Bill( which led to Reservation Act, 2018) by the Governor for the
consideration of the President – Power u/Art. 200 – Exercise of –
Held: Once the Bill was reserved by the Governor for the
consideration of the President, it was for the President to either F
grant or withhold assent to the Bill – President having assented to
the Bill, the requirements of Art. 201 were fulfilled – Validity of the
assent by the President is non-justiciable – State Government, was
of the view that there was no necessity of reserving the Bill for the
consideration of the President, since in its view, the Governor had
G
not recorded a finding that it was unconstitutional, or fell afoul of
existing central legislation on the subject or that it was beyond
legislative competence or derogated from the fundamental rights –
This objection of the State Government cannot cast doubt upon the
grant of assent by the President – Karnataka Extension of
Consequential Seniority to Government Servants Promoted on the H
1088 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Basis of Reservation (to the Posts in the Civil Services of the State)
Act, 2018.
Art. 16(4A) and (4B) – Ratna Prabha Committee report –
Collection of data by State on adequacy of representation and impact
on efficiency – Exercise of judicial power on propriety and
B sufficiency – Held: Court should recognize the circumspection with
which judicial power must be exercised – Judicial review must
traverse conventional categories by determining as to whether the
Ratna Prabha Committee considered material which was irrelevant
or extraneous or had drawn a conclusion which no reasonable
body of persons could have adopted.
C
Art. 16(4A) and (4B) – Ratna Prabha Committee report –
Report, commissioned to collect information on cadre wise
representation of SC and ST employees in all government
departments and on backwardness of SCs and STs; and study the
effect on the administration due to the promotion of SCs and STs –
D Report, whether constituted an adequate and appropriate basis to
support the validity of the Reservation Act and its implementation –
Held: Ratna Prabha Committee report is valid – After the decision
in *B K Pavitra I, the Ratna Prabha Committee was correctly
appointed to carry out the required exercise – Committee has not
E based its conclusions on any extraneous or irrelevant material – In
adopting recourse to sampling methodologies, the Committee has
not acted arbitrarily – The exercise cannot be invalidated only on
the ground that data pertaining to a particular department or of
some entities was not analysed – State analysed the data which is
both relevant and representative, before drawing its conclusions –
F Even if there were some errors in data collection, that would not
justify the invalidation of a law which the competent legislature
was within its power to enact – Furthermore, there is no merit in the
challenge to the Ratna Prabha Committee report on the ground that
the collection of data was on the basis of groups A, B, C and D as
G opposed to cadres – Collection of data on the basis of groups A to
D does not by its very nature exclude data pertaining to cadres –
Since, the group includes posts in all the cadres in that group, it
can logically be presumed that the State has collected quantifiable
data on the representation of SCs and STs in promotional posts in
the cadres as well – Karnataka Extension of Consequential Seniority
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1089

to Government Servants Promoted on the Basis of Reservation (to A
the Posts in the Civil Services of the State) Act, 2018.
Art. 16(1) and (4) – Equality – Substantive versus formal
equality – Constitutional content of – Held: For equality to be truly
effective or substantive, the principle must recognise existing
inequalities in society to overcome them – Reservations are not an B
exception to the rule of equality of opportunity, rather the true
fulfilment of effective and substantive equality by accounting for
the structural conditions into which people are born.
Interpretation of the Constitution – Held: Constitution is a
transformative document – Realization of its transformative potential C
rests ultimately in its ability to breathe life and meaning into its
abstract concepts – Constitution was intended by its draftspersons
to be a significant instrument of bringing about social change –
Realisation of the transformative potential of the Constitution has
been founded on the evolution of equality away from its formal
underpinnings to its substantive potential. D

Art. 335 proviso – Claims of Scheduled Castes and Scheduled
Tribes to services and posts – Constitutional justification for
efficiency in administration – Held: Under Art. 335 consideration
of the claims of SCs and STs in making appointments to services
and posts in connection with the affairs of the Union or of a State is E
to be in a manner consistent with maintaining the efficiency of
administration – Proviso to Art. 335 specifically protects provisions
in favour of the SCs and STs for relaxing qualifying marks in an
examination; lowering the standards of evaluation; or reservation
in matters of promotion – Proviso recognises that special measures F
need to be adopted for considering the claims of SCs and STs in
order to bring them to a level playing field – Proviso is not a
qualification to the substantive part of Art. 335 but it embodies a
substantive effort to realise substantive equality – Need to maintain
the efficiency of administration cannot be construed as a fetter on
adopting these special measures designed to uplift and protect the G
welfare of the SCs and STs.
Art. 335 – Phrase “efficiency of administration” – Definition
of – Held: Constitution does not define the phrase “efficiency of
administration” – Art. 335 cannot be construed on an assumption
H
1090 SUPREME COURT REPORTS [2019] 7 S.C.R.

A that roster point promotees drawn from SCs and STs are not efficient
or that efficiency is reduced by appointing them – Benchmark for
the efficiency of administration is not the performance of a qualified
open category candidate – Efficiency of administration in the affairs
of the Union or of a State must be defined in an inclusive sense,
where diverse segments of society find representation as a true
B
aspiration of governance by and for the people – Inclusion together
with the recognition of the plurality and diversity of the nation
constitutes a valid constitutional basis for defining efficiency –
Hence, while interpreting Art. 335, it is necessary to liberate the
concept of efficiency from a one sided approach which ignores the
C need for and the positive effects of the inclusion of diverse segments
of society on the efficiency of administration – Since inclusion is
inseparable from a well governed society, there is, no antithesis
between maintaining the efficiency of administration and
considering the claims of the SCs and STs to appointments.
D Arts. 335, 16(4) and 46 – Reservation for SCs and STs –
Principal of meritocracy – Held: Providing of reservations for SCs
and the STs is not at odds with the principle of meritocracy – “Merit”
must not be limited to narrow and inflexible criteria such as one’s
rank in a standardised exam, but rather must flow from the actions
a society seeks to reward, including the promotion of equality in
E society and diversity in public administration – Proviso to Art. 335
allows for provisions to be made for relaxing the marks in qualifying
exams in the case of candidates from the SCs and the STs – If the
government’s sole consideration in appointments was to appoint
individuals who were considered talented or successful in
F standardised examinations, by virtue of the inequality in access to
resources and previous educational training (existing inequalities
in society), the stated constitutional goal of uplifting these sections
of society and having a diverse administration would be undermined
– Thus, a “meritorious” candidate is not merely one who is “talented”
or “successful” but also one whose appointment fulfils the
G constitutional goals of uplifting members of the SCs and STs and
ensuring a diverse and representative administration.
Arts. 16 (4A), (4B), 16(1) and 14 – Reservation – Concept of
creamy layer – Applicability to SCs and STs – Plea that concept of
creamy layer is inapplicable to the SCs and STs; and that the SCs
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1091

and STs cannot be split or bifurcated and the adoption of the creamy A
layer principle would amount to a split in the homogenous groups
of the SCs and STs – Held: Cannot be accepted – Creamy layer
principle sounds in Arts. 14 and 16(1) – Creamy layer principle is a
principle of equality.
Arts. 16 (4A) and (4B) – Reservation – Concept of creamy B
layer – Application of the concept of creamy layer in assessing the
validity of the Reservation Act 2018 – Held: Concept of creamy
layer has no application in assessing the validity of the Reservation
Act 2018 which is designed to protect consequential seniority upon
promotion of persons belonging to the SCs and STs – Reservation
Act 2018 adopts the principle that consequential seniority is not an C
additional benefit but a consequence of the promotion which is
granted to the SCs and STs – Concept of creamy layer has no
relevance to the grant of consequential seniority – Consequential
seniority is a concept purely based in service jurisprudence – Thus,
incorporation of consequential seniority would not violate the D
constitutional mandate of equality – Protection of consequential
seniority as an incident of promotion does not require the application
of the creamy layer test – Arts 16 (4A) and 16 (4B) were held to not
obliterate any of the constitutional limitations and to fulfil the width
test – Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to the E
Posts in the Civil Services of the State) Act, 2018.
Arts 16(4A) and (4B) – Reservation in promotion – Plea that
over representation for SCs and STs in Karnataka Power Transport
Corporation Limited and PWD due to reservation in seniority in the
cadre of Superintending Engineer and Engineer in Chief – Held: F
Cannot be accepted in view of the report of the Ratna Prabha
Committee collected data from thirty one departments of the State
Government of Karnataka, which was taken as representative of
the position in public employment under the State – KPTCL and
PWD fall within the administrative control of one of the departments. G
Legislation: Curative legislation – Scope and permissibility
of – Held: Curative legislation is constitutionally permissible – It is
not an encroachment on judicial power – Legislature has the plenary
power to enact a law, both with prospective and retrospective effect
– Where a law has been invalidated by the decision of a H
1092 SUPREME COURT REPORTS [2019] 7 S.C.R.

A constitutional court, the legislature can amend the law
retrospectively or enact a law which removes the cause for
invalidation – Legislature cannot overrule a decision of the court
on the ground that it is erroneous or is nullity – However, it can
either amend an existing law or to enact a law which removes the
basis on which a declaration of invalidity was issued in the exercise
B
of judicial review – Declaration by a court that a law is
constitutionally invalid does not fetter the authority of the legislature
to remedy the basis on which the declaration was issued by curing
the grounds for invalidity – Legislature cannot simply override the
declaration of invalidity – It has to remedy basis on which it was
C held to be ultra vires – Law may have been held to be invalid on the
ground that the legislature which enacted the law had no legislative
competence on the subject matter of the legislation, or a law may
have been declared invalid on the ground that there was a breach
of the fundamental rights contained in Part III of the Constitution.
D The constitutional validity of the Karnataka Determination
of Seniority of the Government Servants Promoted on the Basis
of the Reservation (to the Posts in the Civil Services of the State)
Act 2002 providing for consequential seniority was challenged in
B K Pavitra v Union of India case (*B K Pavitra I). This Court
invalidated the Reservation Act 2002 since no exercise of data
E collection was carried out by the State of Karnataka as mandated
by the M Nagraj case, to provide for consequential seniority to
the scheduled castes and scheduled tribe candidates. Thereafter,
the Government of Karnataka constituted the Ratna Prabha
Committee to submit report on backwardness and inadequacy of
F representation of SCs and STs in the State Civil Services and the
impact of reservation on overall administrative efficiency in the
State of Karnataka. On the basis of the report, the State of
Karnataka enacted the Karnataka Extension of Consequential
Seniority to Government Servants Promoted on the Basis of
Reservation (to the Posts in the Civil Services of the State) Act
G 2018, wherein section 3 provides for reservation in promotion
and section 4 provides for protection of consequential seniority
from 27 th April 1978 onwards. Hence, the instant matters
challenging the validity of the Reservation Act, 2018.

H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1093

Dismissing the Writ Petitions, Review Petitions and A
Miscellaneous Applications, the Court
HELD : 1.The challenge to the constitutional validity of
the Karnataka Extension of Consequential Seniority to
Government Servants Promoted on the Basis of Reservation (to
the Posts in the Civil Services of the State) Act, 2018 is lacking B
in substance. Following the decision in *B K Pavitra I, the State
government duly carried out the exercise of collating and
analysing data on the compelling factors adverted to by the
Constitution Bench in Nagaraj. The Reservation Act 2018 has
cured the deficiency which was noticed by * B K Pavitra I in
respect of the Reservation Act 2002. The Reservation Act 2018 C
does not amount to a usurpation of judicial power by the state
legislature. It is Nagaraj and Jarnail compliant. The Reservation
Act 2018 is a valid exercise of the enabling power conferred by
Art. 16(4A) of the Constitution. The constitutional validity of the
Reservation Act 2018 is upheld. [Para 144-145] [1218-C-E] D
M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]
7 Suppl. SCR 336 - followed.
*B K Pavitra v Union of India (2017) 4 SCC 620 :
[2017] 1 SCR 631 ; Jarnail Singh v Lachhmi Narain
Gupta 2018 (10) SCC 396 - relied on. E

Assent to the Bill
2.1 The framers carefully eschewed defining the
circumstances in which the Governor may reserve a Bill for the
consideration of the President. By its very nature the conferment F
of the power cannot be confined to specific categories. Exigencies
may arise in the working of the Constitution which justify a
recourse to the power of reserving a Bill for the consideration of
the President. They cannot be foreseen with the vision of a
soothsayer. The power having been conferred upon a constitutional
functionary, it is conditioned by the expectation that it would be G
exercised upon careful reflection and for resolving legitimate
concerns in regard to the validity of the legislation. The
entrustment of a constitutional discretion to the Governor is
premised on the trust that the exercise of authority would be
H
1094 SUPREME COURT REPORTS [2019] 7 S.C.R.

A governed by constitutional statesmanship. In a federal structure,
the conferment of this constitutional discretion is not intended
to thwart democratic federalism. The state legislatures represent
the popular will of those who elect their representatives. They
are the collective embodiments of that will. The act of reserving
a Bill for the assent of the President must be undertaken upon
B
careful reflection, upon a doubt being entertained by the Governor
about the constitutional legitimacy of the Bill which has been
passed. [Para 63] [1168-F-G; 1169-A-B]
2.2 Article 254(1) postulates inter alia, that in a matter which
is governed by the Concurrent List, a law which has been enacted
C by the legislature of a state shall be void to the extent of its
repugnancy with a law enacted by the Parliament. Clause (2) of
Article 254 obviates that consequence where the law has been
reserved for the consideration of the President and has received
assent. Article 254(1) is made subject to Clause (2), thereby
D emphasizing that the assent of the President will cure a
repugnancy of the state law with a law enacted by the Parliament
in a matter falling in the Concurrent List. The assent of the
President should be sought in relation to a repugnancy with a
specific provision contained in a Parliamentary legislation so as
to enable due consideration by the President of the ground on
E which assent has been sought. Article 200 contains the source of
the constitutional power which is conferred upon the Governor
to reserve a Bill for the consideration of the President. Article
254 (2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the state legislature for
F consideration of the President in a specified situation-where it is
repugnant to an existing law or to a Parliamentary legislation on
a matter falling in the Concurrent List. The eventuality which is
specified in Article 254 (2) does not exhaust the ambit of the
power entrusted to the Governor under Article 200 to reserve a
Bill for the consideration of the President. Apart from a
G repugnancy in matters falling in the Concurrent List between
state and Parliamentary legislation, a Governor may have sound
constitutional reasons to reserve a Bill for the consideration of
the President. Article 200, in its second proviso mandates that a

H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1095

Bill which derogates from the powers of the High Court must be A
reserved for the consideration of the President. Apart from Bills
which fall within the description set out in the second proviso,
the Governor may legitimately refer a Bill for consideration of
the President upon entertaining a legitimate doubt about the
validity of the law. By its very nature, it would not be possible for
B
this Court to reflect upon the situations in which the power under
Article 200 can be exercised. [Para 67] [1170-F-H; 1171-A-E]
2.3 Once the Bill (which led to the Reservation Act 2018)
was reserved by the Governor for the consideration of the
President, it was for the President to either grant or withhold
assent to the Bill. The President having assented to the Bill, the C
requirements of Article 201 were fulfilled. The validity of the
assent by the President is non-justiciable. [Para 69] [1172-D-E]
2.4 The State Government, in the course of its clarifications,
was of the view that there was no necessity of reserving the Bill
for the consideration of the President, since in its view, the D
Governor had not recorded a finding that it was unconstitutional,
or fell afoul of existing central legislation on the subject or that it
was beyond legislative competence or derogated from the
fundamental rights. All procedural requirements under the
Constitution were according to the government duly complied E
with. This objection of the State Government cannot cast doubt
upon the grant of assent by the President. [Para 70] [1173-B-C]
Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4
SCC 45 : [1983] 3 SCR 130 - relied on.
Nabam Rebia and Bamang Felix v Deputy Speaker F
Arunachal Pradesh Legislative Assembly (2016) 8
SCC 1 : [2016] 6 SCR 1 ; Gram Panchayat of Village
Jamalpur v Malwinder Singh (1985) 3 SCC 661 ;
Kaiser-I-Hind Pvt Ltd v National Textile Corporation
Ltd (2002) 8 SCC 182 : [2002] 2 Suppl. SCR 555 G
- referred to.
Does the Reservation Act 2018 overrule or nullify B K
Pavitra I

H
1096 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 3.1 The foundation of the decision in B K Pavitra I is the
principle enunciated in Nagaraj that in order to sustain the
exercise of the enabling power contained in Article 16 (4A), the
state is required to demonstrate a “compelling necessity” by
collecting quantifiable data on: (i) inadequacy of representation;
(ii) backwardness; and (iii) overall efficiency. The judgment in B
B
K Pavitra I held that no such exercise was undertaken by the
State of Karnataka before providing for reservation in promotion
and providing for consequential seniority. On the ground that
the state had not collected quantifiable data on the three
parameters enunciated in Nagaraj, the Reservation Act 2002 was
C held to be unconstitutional. The Constitution Bench in Nagaraj
upheld the validity of Article 16 (4A) on the basis that before
taking recourse to the enabling power the state has to carry out
the exercise of collecting quantifiable data and fulfilling the three
parameters noted above. B K Pavitra I essentially held that there
was a failure on the part of the state to undertake this exercise,
D
which was a pre-condition for the exercise of the enabling power
to make reservations in promotions and to provide for
consequential seniority. [Para 71] [1173-D-G]
M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]
7 Suppl. SCR 336 - followed.
E
*B K Pavitra v Union of India (2017) 4 SCC 620 :
[2017] 1 SCR 631 - relied on.
3.2 The decision in B K Pavitra I did not restrain the state
from carrying out the exercise of collecting quantifiable data so
F as to fulfil the conditionalities for the exercise of the enabling
power under Article 16 (4A). The legislature has the plenary
power to enact a law. That power extends to enacting a legislation
both with prospective and retrospective effect. Where a law has
been invalidated by the decision of a constitutional court, the
legislature can amend the law retrospectively or enact a law which
G removes the cause for invalidation. A legislature cannot overrule
a decision of the court on the ground that it is erroneous or is
nullity. But, it is certainly open to the legislature either to amend
an existing law or to enact a law which removes the basis on

H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1097

which a declaration of invalidity was issued in the exercise of A
judicial review. Curative legislation is constitutionally permissible.
It is not an encroachment on judicial power. In the instant case,
state legislature of Karnataka, by enacting the Reservation Act
2018, has not nullified the judicial decision in B K Pavitra I, but
taken care to remedy the underlying cause which led to a
B
declaration of invalidity in the first place. Such a law is
valid because it removes the basis of the decision. [Para 72]
[1173-G-H; 174-A-C]
*B K Pavitra v Union of India (2017) 4 SCC 620 :
[2017] 1 SCR 631 - relied on.
C
Utkal Contractors & Joinery (P) Ltd v State of Orissa
(1987) Supp. SCC 751 : 1988 SCR 314 ;
Bhubaneshwar Singh v Union of India (1994) 6 SCC
77 : [1994] 1 Suppl. SCR 639 ; Indian Aluminium Co v
State of Kerala (1996) 7 SCC 637 ; State of Himachal
Pradesh v. Narain Singh (2009) 13 SCC 165 : [2009] D
10 SCR 821 ; Cheviti Venkanna Yadav v State of
Telangana (2017) 1 SCC 283 : [2016] 7 SCR 689
– referred to.
3.3 The legislature has the power to validate a law which is
found to be invalid by curing the infirmity. As an incident of the E
exercise of this power, the legislature may enact a validating law
to make the provisions of the earlier law effective from the date
on which it was enacted. [Para 74] [1175-A-B]
The United Provinces v Mst Atiqa Begum AIR 1941 FC
16 ; Rai Ramkrishna v State of Bihar (1964) 1 SCR F
897 ; Shri Prithvi Cotton Mills Ltd v Broach Borough
Municipality (1969) 2 SCC 283 : [1970] 1 SCR 388 ;
State of T N v Arooran Sugars Ltd (1997) 1 SCC 326 :
[1996] 8 Suppl. SCR 193 ; Virender Singh Hooda v
State of Haryana (2004) 12 SCC 588 : [2004] 5 Suppl. G
SCR 720 – referred to.
3.4 A declaration by a court that a law is constitutionally
invalid does not fetter the authority of the legislature to remedy
the basis on which the declaration was issued by curing the
H
1098 SUPREME COURT REPORTS [2019] 7 S.C.R.

A grounds for invalidity. While curing the defect, it is essential to
understand the reasons underlying the declaration of invalidity.
The reasons constitute the basis of the declaration. The
legislature cannot simply override the declaration of invalidity
without remedying the basis on which the law was held to be
ultra vires. A law may have been held to be invalid on the ground
B
that the legislature which enacted the law had no legislative
competence on the subject matter of the legislation. Obviously,
in such a case, a legislature which has been held to lack legislative
competence cannot arrogate to itself competence over a subject
matter over which it has been held to lack legislative competence.
C However, a legislature which has the legislative competence to
enact a law on the subject can certainly step in and enact a
legislation on a field over which it possesses legislative
competence. Apart from legislative competence, a law may have
been declared invalid on the ground that there was a breach of
the fundamental rights contained in Part III of the Constitution.
D
In that situation, if the legislature proceeds to enact a new law on
the subject, the issue in essence is whether the re-enacted law
has taken care to remove the infractions of the fundamental rights
on the basis of which the earlier law was held to be invalid. The
true test therefore is whether the legislature has acted within
E the bounds of its authority to remedy the basis on which the earlier
law was held to suffer from a constitutional infirmity. [Para 76]
[1176-G-H; 1177-A-B; D-E]
Madan Mohan Pathak v Union of India (1978) 2 SCC
50 : [1978] 3 SCR 334 – distinguished.
F Sri Ranga Match Industries v Union of India 1994 Supp.
(2) SCC 726 ; Indian Aluminium Co v State of Kerala
(1996) 7 SCC 637 ; Agricultural Income Tax Officer v
Goodricke Group Ltd (2015) 8 SCC 399 : [2015] 3
SCR 612 - referred to.
G Is the basis of B K Pavitra I cured in enacting the
Reservation Act 2018
4. The Statement of Objects and Reasons of the
Reservation Act 2018 refers to the legislative history preceding
its enactment. The Ratna Prabha Committee was constituted after
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B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1099

the Reservation Act 2002 was held to be invalid in B K Pavitra I A
on the ground that no compelling necessity had been shown by
the state to provide for reservation in matters of promotion for
SCs and STs by collecting and analysing relevant data to satisfy
the requirements laid out in Nagaraj. The Statement of Objects
and Reasons, cannot be used for restricting the plain meaning of
B
a legislation; cannot determine whether a provision is valid; and
may not be definitive of the circumstances in which it was passed.
The preamble to a law may be a statutory aid to consider the
mischief which the law seeks to address. While it cannot prevail
over the provisions of the statute, it can be an aid to resolve an
ambiguity. [Para 82, 84, 85] [1180-F-G; 1181-A; 1182-E-G] C
Bhaiji v Sub-Divisional Officer, Thandla (2003) 1 SCC
692 : [2002] 5 Suppl. SCR 116 ; A Manjula Bhashini v
A P Monen’s Coor. Finance Corp. Ltd. (2009) 8 SCC
431 : [2009] 10 SCR 634 ; Kerala State (Electricity)
Board v Indian Aluminum (1976) 1 SCC 466 : [1976] 1 D
SCR 552 ; K S Paripoornan v State of Kerala (1994) 5
SCC 593 : [1994] 3 Suppl. SCR 405 ; Welfare
Association v Ranjit (2003) 9 SCC 358 : [2003] 2 SCR
139 ; Burrakur Coal Co. Ltd. v Union of India AIR
1961 SC 954 : 1962 SCR 44 ; Indra Sawhney v Union
of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR E
454 ; M Nagaraj v Union of India (2006) 8 SCC 212 :
[2006] 7 Suppl. SCR 336 ; Jarnail Singh v Lachhmi
Narain Gupta 2018 (10) SCC 396 - referred to.
The Ratna Prabha Committee report
F
5.1 The Ratna Prabha Committee report was commissioned
to collect information on cadre wise representation of SC and ST
employees in all government departments; collect information
on backwardness of SCs and STs; and study the effect on the
administration due to the promotion of SCs and STs. [Para 88]
[1183-F-G] G
5.2 It is relevant for this Court to recognize the
circumspection with which judicial power must be exercised on
matters which pertain to propriety and sufficiency, in the context
of scrutinizing the underlying collection of data by the State on
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1100 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the adequacy of representation and impact on efficiency. The
Court, is above all, considering the validity of a law which was
enacted by the State legislature for enforcing the substantive right
to equality for the SCs and STs. Judicial review must hence
traverse conventional categories by determining as to whether
the Ratna Prabha Committee report considered material which
B
was irrelevant or extraneous or had drawn a conclusion which no
reasonable body of persons could have adopted. In this area, the
fact that an alternate line of approach was possible or may even
appear to be desirable cannot furnish a foundation for the
assumption by the court of a decision making authority which in
C the legislative sphere is entrusted to the legislating body and in
the administrative sphere to the executive arm of the government.
[Para 95] [1188-E-G]
5.3 The collection of data and its analysis are governed by
varying and often divergent approaches in the social sciences.
D The methodology which was adopted by the Ratna Prabha
Committee has not been demonstrated to be alien to conventional
social science methodologies. It cannot be said that the
Committee has based its conclusions on any extraneous or
irrelevant material. In adopting recourse to sampling
methodologies, the Committee cannot be held to have acted
E arbitrarily. If, sampling is a valid methodology for collection of
data, the necessary consequence is that the exercise cannot be
invalidated only on the ground that data pertaining to a particular
department or of some entities was not analysed. The data which
was collected pertained to thirty one departments which are
F representative in character. The State has analysed the data which
is both relevant and representative, before drawing its
conclusions. There are limitations on the power of judicial review
in entering upon a factual arena involving the gathering, collation
and analysis of data. [Para 97, 99] [1190-C; 1191-F-H; 1192-A]
G Empircal Political Analysis – Quantitative and
Qualitative Research Methods Ninth Edn. Richard C.
Rich, Craig Leonard Brians, Jarol B Manheim and
Lars B Willnat, Longman Publishers – referred to.

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5.4 Once an opinion has been formed by the State A
Government on the basis of the report submitted by an expert
committee which collected, collated and analysed relevant data,
it is impossible for the Court to hold that the compelling reasons
which Nagaraj requires the State to demonstrate have not been
established. Even if there were to be some errors in data
B
collection, that will not justify the invalidation of a law which the
competent legislature was within its power to enact. After the
decision in B K Pavitra I, the Ratna Prabha Committee was
correctly appointed to carry out the required exercise. Once that
exercise has been carried out, the Court must be circumspect in
exercising the power of judicial review to re–evaluate the factual C
material on record. The adequacy of representation has to be
assessed with reference to a benchmark on adequacy.
Conventionally, the State and the Central governments have
linked the percentage of reservation for the SCs and STs to their
percentage of population, as a measure of adequacy. Thus, it is
D
open to the State to make reservation in promotion for SCs and
STs proportionate to their representation in the general
population. [Para 101, 102] [1192-D-G; 1193-A]
5.5 The submission that the quota must be reckoned on
the basis of the posts which are actually filled up or the working
strength and not the sanctioned posts cannot be accepted. The E
percentage of reservation has to be worked out in relation to
number of posts which form part of the cadre strength. There is
no merit in the challenge to the Ratna Prabha Committee report
on the ground that the collection of data was on the basis of groups
A, B, C and D as opposed to cadres. For one thing, the expression F
‘cadre’ has no fixed meaning ascribed to it in service
jurisprudence. But that apart, Nagaraj requires the collection of
quantifiable data inter alia, on the inadequacy of representation
in services under the State. Clause 4A of Article 16 specifically
refers to the inadequacy of representation in the services under
the State. The collection of data on the basis of groups A to D G
does not by its very nature exclude data pertaining to cadres.
The State has studied in the instant case the extent of reservation
for SCs and STs in groups A to D, consisting of several cadres.

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1102 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Since, the group includes posts in all the cadres in that group, it
can logically be presumed that the State has collected quantifiable
data on the representation of SCs and STs in promotional posts
in the cadres as well. [Para 103, 104] [1194-G-H; 1195-A-C]
5.6 In Indra Sawhney’s case, it was observed that
B reservation under Article 16 (4) does not operate on communal
grounds. Hence, if a member belonging to a reserved category
is selected in the general category, the selection would not count
against the quota prescribed for the reserved category. The
decision in Sabharwal also noted that while candidates belonging
to the general category are not entitled to fill reserved posts,
C reserved category candidates are entitled to compete for posts
in the general category. In several group D posts, such as
municipal sweepers, large segment of applicants consists of
persons belonging to the SCs and STs. Over representation in
group D posts as a result of candidates belonging to the general
D category staying away from those posts cannot be a valid or logical
basis to deny promotion to group D employees recruited from
the reserved category. [Para 105] [1195-D-F]
Amalgamated Tea Estates Co Ltd v State of Kerala (1974)
4 SCC 415 : [1974] 3 SCR 820 ; V C Shukla v State
E (Delhi Administration) (1980) Supp SCC 249 : 1980
SCR 500 ; State of Himachal Pradesh v Satpal Saini
(2017) 11 SCC 42 : [2017] 1 SCR 658 ; Indra Sawhney
v Union of India 1992 Supp (3) SCC 217 : [1992] 2
Suppl. SCR 454 ; Barium Chemicals Ltd. v Company
Law Board AIR 1967 SC 295 : 1966 SCR 311 ; M
F Nagaraj v Union of India (2006) 8 SCC 212 : [2006] 7
Suppl. SCR 336 ; Jarnail Singh v Lachhmi Narain
Gupta 2018 (10) SCC 396 ; Sabharwal v State of
Punjab (1995) 2 SCC 745 : [995] 2 SCR 35 - referred
to.
G Substantive versus formal equality
6.1 For equality to be truly effective or substantive, the
principle must recognise existing inequalities in society to
overcome them. Reservations are thus not an exception to the

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B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1103

rule of equality of opportunity. They are rather the true fulfilment A
of effective and substantive equality by accounting for the structural
conditions into which people are born. If Article 16(1) merely
postulates the principle of formal equality of opportunity, then
Article 16(4) (by enabling reservations due to existing
inequalities) becomes an exception to the strict rule of formal
B
equality in Article 16(1). However, if Article 16(1) itself sets out
the principle of substantive equality (including the recognition of
existing inequalities) then Article 16(4) becomes the enunciation
of one particular facet of the rule of substantive equality set out
in Article 16 (1). One method of overcoming the inequalities in
the society is reservations for the SCs and STs in the legislatures C
and state services. Therefore, for the members of the Constituent
Assembly who supported reservations, a key rationale for
incorporating reservations for SCs and STs in the Constitution
was the existence of inequalities in society based on discrimination
and prejudice within the caste structure. This is evidenced by
D
the statements in support of reservations for minorities by
members. By recognising that formal equality of opportunity will
be insufficient in fulfilling the transformative goal of the
Constitution, these members of the Assembly recognised that
the conception of equality of opportunity must recognise and
account for existing societal inequalities. Members debated draft E
article 10 (which would go on to become Article 16 of the
Constitution). In these debates, some members understood sub-
clause (4) (providing for reservations) as an exception to the
general rule of formal equality enunciated in sub-clause (1). [Paras
107, 109] [1195-G-H; 1196-A-B; D-E; 1197-F-G; 1198-A]
F
The Constitution as a transformative instrument
7. The Constitution is a transformative document. The
realization of its transformative potential rests ultimately in its
ability to breathe life and meaning into its abstract concepts. For,
above all, the Constitution was intended by its draftspersons to G
be a significant instrument of bringing about social change in a
caste based feudal society witnessed by centuries of oppression
of and discrimination against the marginalised. As our
constitutional jurisprudence has evolved, the realisation of the

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A transformative potential of the Constitution has been founded on
the evolution of equality away from its formal underpinnings to
its substantive potential. [Para 111] [1199-E-F]
T Devadasan v The Union of India AIR 1964 SC 179 :
1964 SCR 680 ; State of Kerala v N M Thomas (1976)
B 2 SCC 310 : [1976] 1 SCR 906 ; ABS Sangh (Railways)
v Union of India (1981) 1 SCC 246 : [1981] 2 SCR
185 ; Indra Sawhney v Union of India 1992 Supp (3)
SCC 217 : [1992] 2 Suppl. SCR 454 ; M Nagaraj v
Union of India (2006) 8 SCC 212 : [2006] 7 Suppl.
SCR 336 - referred to.
C
Efficiency in administration
8.1 The substantive part of Article 335 contains a mandate:
a requirement to take into consideration the claims of SCs and
STs in making appointments to services and posts in connection
D with the affairs of the Union or of a State. Consideration is much
broader in its ambit than reservation. The consideration of their
claims to appointment is to be in a manner consistent with
maintaining the efficiency of administration. The proviso
specifically protects provisions in favour of the SCs and STs for
relaxing qualifying marks in an examination; lowering the
E standards of evaluation; or reservation in matters of promotion.
Reservation is encompassed within the special provision but the
universe of the latter is wider. The proviso recognises that special
measures need to be adopted for considering the claims of SCs
and STs in order to bring them to a level playing field. Centuries
F of discrimination and prejudice suffered by the SCs and STs in a
feudal, caste oriented societal structure poses real barriers of
access to opportunity. The proviso contains a realistic recognition
that unless special measures are adopted for the SCs and STs,
the mandate of the Constitution for the consideration of their
claim to appointment will remain illusory. The proviso is an aid of
G fostering the real and substantive right to equality to the SCs
and STs. It protects the authority of the Union and the States to
adopt any of these special measures, to effectuate a realistic (as
opposed to a formal) consideration of their claims to appointment

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in services and posts under the Union and the States. The proviso A
is not a qualification to the substantive part of Article 335 but it
embodies a substantive effort to realise substantive equality. The
proviso also emphasises that the need to maintain the efficiency
of administration cannot be construed as a fetter on adopting
these special measures designed to uplift and protect the welfare
B
of the SCs and STs. [Para 117, 118] [1202-G-H; 1203-A-F]
8.2 The Constitution does not define what the framers meant
by the phrase “efficiency of administration”. Article 335 cannot
be construed on the basis of a stereotypical assumption that roster
point promotees drawn from the SCs and STs are not efficient or
that efficiency is reduced by appointing them. This is stereotypical C
because it masks deep rooted social prejudice. The benchmark
for the efficiency of administration is not some disembodied,
abstract ideal measured by the performance of a qualified open
category candidate. Efficiency of administration in the affairs of
the Union or of a State must be defined in an inclusive sense, D
where diverse segments of society find representation as a true
aspiration of governance by and for the people. If, as it is held,
the Constitution mandates realisation of substantive equality in
the engagement of the fundamental rights with the directive
principles, inclusion together with the recognition of the plurality
and diversity of the nation constitutes a valid constitutional basis E
for defining efficiency. Our benchmarks will define the outcomes.
If this benchmark of efficiency is grounded in exclusion, it will
produce a pattern of governance which is skewed against the
marginalised. If this benchmark of efficiency is grounded in equal
access, our outcomes will reflect the commitment of the F
Constitution to produce a just social order. Otherwise, the past
will haunt the inability of our society to move away from being
deeply unequal to one which is founded on liberty and fraternity.
Hence, while interpreting Article 335, it is necessary to liberate
the concept of efficiency from a one sided approach which ignores
the need for and the positive effects of the inclusion of diverse G
segments of society on the efficiency of administration of the
Union or of a State. Establishing the position of the SCs and STs
as worthy participants in affairs of governance is intrinsic to an

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A equal citizenship. Equal citizenship recognizes governance which
is inclusive but also ensures that those segments of our society
which have suffered a history of prejudice, discrimination and
oppression have a real voice in governance. Since inclusion is
inseparable from a well governed society, there is, no antithesis
between maintaining the efficiency of administration and
B
considering the claims of the SCs and STs to appointments to
services and posts in connection with the affairs of the Union or
of a State. [Para 119] [1203-F-H; 1204-A-E]
8.3 The substantive right to equality is for all segments of
society. Articles 15 (4) and 16 (4) represent the constitutional
C aspiration to ameliorate the conditions of the SCs and STs. An
assumption implicit in the critique of reservations is that awarding
opportunities in government services based on “merit” results
in an increase in administrative efficiency. Administrative
efficiency is an outcome of the actions taken by officials after they
D have been appointed or promoted and is not tied to the selection
method itself. The submission that one selection method produces
officials capable of taking better actions than a second method
must be empirically proven based on an evaluation of the
outcomes produced by officials selected through both methods.
Secondly, arguments that attack reservations on the grounds of
E efficiency equate “merit” with candidates who perform better than
other candidates on seemingly “neutral” criteria, e.g.
standardised examinations. Thus, candidates who score beyond
a particular “cut–off point” are considered “meritorious” and
others are “non–meritorious”. However, this is a distorted
F understanding of the function “merit” plays in society.
[Para 121,122] [1205-E; -FG; 1206-A-B]
K C Vasanth Kumar v State of Karnataka (1985) Supp.
SCC 714 : 1985 Suppl. SCR 352 ; Indra Sawhney v
Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl.
G SCR 454 – referred to.
8.4 Once “merit” is understood as instrumental in achieving
goods that we as a society value, the equation of “merit” with
performance at a few narrowly defined criteria is incomplete. A

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B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1107

meritocratic system is one that rewards actions that result in the A
outcomes that we as a society value. Based on the text of Articles
335, 16 (4) and 46, it is evident that the uplifting of the SCs and
STs through employment in government services, and having an
inclusive government are other outcomes that the process of
appointments in government services seeks to achieve. Thus,
B
the providing of reservations for SCs and the STs is not at odds
with the principle of meritocracy. “Merit” must not be limited to
narrow and inflexible criteria such as one’s rank in a standardised
exam, but rather must flow from the actions a society seeks to
reward, including the promotion of equality in society and diversity
in public administration. [Para 124, 125] [1207-B-D; 1208-A-B] C
Sen A, Merit and Justice, in Arrow, KJ, Meritocracy
and Economic Inequality (Princeton University Press
2000) (Amartya Sen, Merit and Justice) - referred to.
8.5 The proviso to Article 335 seeks to mitigate this risk
by allowing for provisions to be made for relaxing the marks in D
qualifying exams in the case of candidates from the SCs and the
STs. If the government’s sole consideration in appointments was
to appoint individuals who were considered “talented” or
“successful” in standardised examinations, by virtue of the
inequality in access to resources and previous educational training E
(existing inequalities in society), the stated constitutional goal of
uplifting these sections of society and having a diverse
administration would be undermined. Thus, a “meritorious”
candidate is not merely one who is “talented” or “successful”
but also one whose appointment fulfils the constitutional goals of
uplifting members of the SCs and STs and ensuring a diverse and F
representative administration. [Para 126]
8.6 Existing inequalities in society can lead to a seemingly
“neutral” system discriminating in favour of privileged candidates.
It is stated that three broad kinds of resources are necessary to
produce the results in competitive exams that qualify as indicators G
of “merit”. These are economic resources (for prior education,
training, materials, freedom from work etc.); social and cultural
resources (networks of contacts, confidence, guidance and advice,

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1108 SUPREME COURT REPORTS [2019] 7 S.C.R.

A information, etc.); and intrinsic ability and hard work. The first
two criteria are evidently not the products of a candidate’s own
efforts but rather the structural conditions into which they are
born. By the addition of upliftment of SCs and STs in the moral
compass of merit in government appointments and promotions,
the Constitution mitigates the risk that the lack of the first two
B
criteria will perpetuate the structural inequalities existing in
society. [Para 127, 128] [1208-G-H; 1209-A-C]
Galanter M, Competing Equalities: Law and the
Backward Classes in India, (Oxford University Press,
New Delhi 1984), cited by Deshpande S, Inclusion
C versus excellence: Caste and the framing of fair access
in Indian higher education, 40:1 South African Review
of Sociology 127 - 147 – referred to.
8.7 The Ratna Prabha Committee report considers the
relationship between reservation in promotion and maintenance
D of efficiency in administration. Moreover, even in a formal legal
sense, promotions, including those in respect of roster points,
are made on the basis of seniority–cum–merit and a candidate to
be promoted has to meet this criteria. A candidate on promotion
has to serve a statutory period of officiation before being
E confirmed. This rule applies across the board including to
roster point promotees. This ensures that the efficiency of
administration is, in any event, not adversely affected. [Paras 129,
130] [1209-C; E-G]
The issue of creamy layer
F 9.1 It cannot be said that Jarnail is not per curium on the
issue of creamy layer. For one thing, Jarnail specifically examined
the decision in Indra Sawhney, noticing that eight of the nine
Judges applied the creamy layer principle as a facet of the larger
equality principle. In fact, the decision in Indra Sawhney II
G summarised the judgments in Indra Sawhney I on the aspect of
creamy layer. The judgment in Jarnail approved Indra Sawhney
II when it held that the creamy layer principle sounds in Articles
14 and 16 (1). Jarnail discussed the decision in Chinnaiah and
held that it dealt with the lack of legislative competence on the
part of the State legislatures to create sub–categories among the
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B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1109

Presidential lists under Articles 341 and 342. The decision in A
Jarnail therefore held that Chinnaiah did not deal with any of the
aspects on which the constitutional amendments were upheld in
Nagaraj and hence it was not necessary for Nagaraj to refer to
Chinnaiah at all. In this view of the matter, it is held that Jarnail,
on a construction of Indra Sawhney holds that the creamy layer
B
principle is a principle of equality. [Para 137] [1214-D-E;
125-C-D]
9.2 The challenge in the instant case is to the validity of
the Reservation Act 2018 which provides for consequential
seniority. In other words, the nature or extent of reservation
granted to the SCs and STs at the entry level in appointment is C
not under challenge. The Reservation Act 2018 adopts the
principle that consequential seniority is not an additional benefit
but a consequence of the promotion which is granted to the SCs
and STs. In protecting consequential seniority as an incident of
promotion, the Reservation Act 2018 constitutes an exercise of D
the enabling power conferred by Article 16 (4A). The concept of
creamy layer has no relevance to the grant of consequential
seniority. Progression in a cadre based on promotion cannot be
treated as the acquisition of creamy layer status. The decision in
Jarnail rejected the submission that a member of an SC or ST
who reaches a higher post no longer has a taint of untouchability E
or backwardness. [Para 138] [1215-E-H]
9.3 In sustaining the validity of Articles 16(4A) and 16(4B)
against a challenge of violating the basic structure, Nagaraj
applied the test of width and the test of identity. The Constitution
Bench ruled that the catch–up rule and consequential seniority F
are not constitutional requirements. They were held not to be
implicit in clauses (1) to (4) of Article 16. Nagaraj held that they
are not constitutional limitations or principles but are concepts
derived from service jurisprudence. Hence, neither the
obliteration of those concepts nor their insertion would violate G
the equality code contained in Articles 14, 15 and 16. The principle
postulated in Nagaraj is that consequential seniority is a concept
purely based in service jurisprudence. The incorporation of
consequential seniority would hence not violate the constitutional
mandate of equality. This being the true constitutional position,
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1110 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the protection of consequential seniority as an incident of
promotion does not require the application of the creamy layer
test. Articles 16 (4A) and 16 (4B) were held to not obliterate any
of the constitutional limitations and to fulfil the width test. In view
thereof, it is evident that the concept of creamy layer has no
application in assessing the validity of the Reservation Act 2018
B
which is designed to protect consequential seniority upon
promotion of persons belonging to the SCs and STs. [Para 139]
[1216-C-F]
Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC
396 – Explained and followed.
C
Indra Sawhney v Union of India 1992 Supp (3) SCC
217 : [1992] 2 Suppl. SCR 454 ; Indra Sawhney II v
Union of India (2000) 1 SCC 168 : [1999] 5 Suppl.
SCR 229 ; M Nagaraj v Union of India (2006) 8 SCC
212 : [2006] 7 Suppl. SCR 336 ; E V Chinnaiah v State
D of AP (2005) 1 SCC 394 : [2004] 5 Suppl. SCR 972 ;
State of Tripura v Jayanta Chakraborty (2018) 1 SCC
146 : [2017] 11 SCR 247 ; State of Maharashtra v Vijay
Ghogre (2018) 15 SCC 64 - referred to.
Retrospectivity
E
10. Sections 3 and 4 of the Reservation Act 2018 came into
force on 17 June 1995. The other provisions came into force “at
once” as provided in Section 1(2). Section 4 stipulates that the
consequential seniority already granted to government servants
belonging to the SCs and STs in accordance with the reservation
F order with effect from 27 April 1978 shall be valid and shall be
protected. The decision in Virpal Singh held that the catch-up
rule would be applied only from 10 February 1995 which was the
date of the judgment in Sabharwal; The decision in Ajit Singh II
specifically protected the promotions which were granted before
G 1 March 1996 without following the catch-up rule. In
Badappanavar, promotions of reserved candidates based on
consequential seniority which took place before 1 March 1996
were specifically protected. Since promotions granted prior to 1
March 1996 were protected, it was logical for the legislature to
protect consequential seniority. The object of the Reservation
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B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1111

Act 2018 is to accord consequential seniority to promotees against A
roster points. In this view of the matter, there is no reason to
hold that the provisions in regard to retrospectivity in the
Reservation Act, 2018 are either arbitrary or unconstitutional.
The benefit of consequential seniority has been extended
from the date of the Reservation Order 1978 under which
B
promotions based on reservation were accorded. [Paras 140–
142] [1216-G-H; 1217-A-E]
Union of India v Virpal Singh Chauhan (1995) 6 SCC
684 : [1995] 4 Suppl. SCR 158 ; R K Sabharwal v State
of Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ; Ajit
Singh Januja v State of Punjab (1996) 2 SCC 715 : C
[1996] 3 SCR 125 ; M G Badappanavar v State of
Karnataka (2001) 2 SCC 666 : [2000] 5 Suppl. SCR
302 – referred to.
Over representation in KPTCL and PWD
D
11. The Ratna Prabha Committee collected data from thirty
one departments of the State Government of Karnataka. The
corporations such as KPTCL and other public sector
undertakings fall within the administrative control of one of the
departments of the State government. The position in thirty one
departments was taken as representative of the position in public E
employment under the State. The over representation in KPTCL
and PWD has been projected by the petitioners with reference
to the total number of posts which have been filled. On the other
hand, the quota is fixed and the roster applies as regards the
total sanctioned posts as held in Sabharwal and Nagaraj’s case. F
On the contrary, the data submitted by the State of Karnataka
indicates that if consequential seniority is not allowed, there would
be under representation of the reserved categories. Under the
Government Order dated 13.04.1999, reservation in promotion
in favour of SC’s and ST’s has been provided until the
representation for these categories reaches 15 per cent and 3 G
per cent, respectively. The State has informed the Court that the
said Government Order is applicable to KPTCL and PWD.
[Para 143] [1217-F-H; 1218-A-B]

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1112 SUPREME COURT REPORTS [2019] 7 S.C.R.

A R K Sabharwal v State of Punjab (1995) 2 SCC 745 :
[995] 2 SCR 35 ; M Nagaraj v Union of India (2006) 8
SCC 212 : [2006] 7 Suppl. SCR 336 ; Bhakta
Ramegowda v State of Karnataka (1997) 2 SCC 661 :
[1997] 1 SCR 535 ; Jagdish Lal v State of Haryana
(1997) 6 SCC 538 ; Suraj Bhan Meena v State of
B
Rajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532 ;
Uttar Pradesh Power Corporation Ltd v Rajesh Kumar
(2012) 7 SCC 1 : [2012] 4 SCR 118 ; S Panneer Selvam
v State of Tamil Nadu (2015) 10 SCC 292 ; S R Bhagwat
v State of Mysore (1995) 6 SCC 16 : [1995] 3 Suppl.
C SCR 545 ; Bakhtawar Trust v M D Narayan (2003) 5
SCC 298 : [2003] 1 Suppl. SCR 1 ; Delhi Cloth &
General Mills Co. Ltd v State of Rajasthan (1996) 2
SCC 449 : [1996] 1 SCR 518 ; Re Cauvery (1993) Supp
(1) SCC 96 : [1991] 2 Suppl. SCR 497 ; S T Sadiq v
State of Kerala (2015) 4 SCC 400 : [2015] 3 SCR
D
287 ; Medical Council of India v State of Kerala (2018)
11 SCALE 141 : 2018 SCR 213 ; I R Coelho v State of
TN (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Pandit M S M
Sharma v Dr Krishna Sinha AIR 1960 SC 1186 ; State
of West Bengal v Kamal Sengupta (2008) 8 SCC
E 612 : [2008] 10 SCR 4 ; Rohtas Industries v S D
Agarwal (1969) 1 SCC 325 : [1969] 3 SCR 108 ;
Rustom Cavasjee Cooper v Union of India (1970) 1
SCC 248 : [1970] 3 SCR 530 ; Ritesh Sah v Y L Yamul
(1996) 3 SCC 253 : [1996] 2 SCR 695 – referred to.
F Case Law Reference
[1997] 1 SCR 535 referred to Para 8
(1997) 6 SCC 538 referred to Para 16
[2010] 14 SCR 532 referred to Para 25
G [2012] 4 SCR 118 referred to Para 25
(2015) 10 SCC 292 referred to Para 25
[1995] 3 Suppl. SCR 545 referred to Para 42
[2003] 1 Suppl. SCR 1 referred to Para 42
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1113

[1996] 1 SCR 518 referred to Para 42 A
[1991] 2 Suppl. SCR 497 referred to Para 42
[2015] 3 SCR 287 referred to Para 42
2018 SCR 213 referred to Para 42
[2007] 1 SCR 706 referred to Para 45 B
AIR 1960 SC 1186 referred to Para 51
[2008] 10 SCR 4 referred to Para 51
[1969] 3 SCR 108 referred to Para 57
C
[1970] 3 SCR 530 referred to Para 57
[1996] 2 SCR 695 referred to Para 57
[2016] 6 SCR 1 referred to Para 62
[2002] 2 Suppl. SCR 555 referred to Para 66
D
(1985) 3 SCC 661 referred to Para 65
[1983] 3 SCR 130 relied on Para 69
[2017] 1 SCR 631 referred to Para 71, 72, 78, 81,
82, 87, 88, 101,
E
relied on. Para 71, 72, 144
[2006] 7 Suppl. SCR 336 followed Para 71, 144
referred to Para 72, 82, 87, 90,
91, 93, 101, 104, F
15, 132, 134,137,
139, 143,
[2016] 7 SCR 689 referred to Para 73
[1988] SCR 314 referred to Para 73 G
[1994] 1 Suppl. SCR 639 referred to Para 73
[2009] 10 SCR 821 referred to Para 73
(1996) 7 SCC 637 referred to Para 73, 79
AIR 1941 FC 16 referred to Para 74 H
1114 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (1964) 1 SCR 897 referred to Para 74
[1970] 1 SCR 388 referred to Para 74
[1996] 8 Suppl. SCR 193 referred to Para 75
[2004] 5 Suppl. SCR 720 referred to Para 75
B [1978] 3 SCR 334 distinguished Para 78
1994 Supp. (2) SCC 726 referred to Para 79
[2015] 3 SCR 612 referred to Para 79
[2002] 5 Suppl. SCR 116 referred to Para 84
C
[2009] 10 SCR 634 referred to Para 84
[1976] 1 SCR 552 referred to Para 84
[1994] 3 Suppl. SCR 405 referred to Para 84
[2003] 2 SCR 139 referred to Para 84
D
[1962] SCR 44 referred to Para 85
[1992] 2 Suppl. SCR 454 referred to Para 87, 91, 93, 105,
114, 121, 132, 134,
137
E
2018 (10) SCC 396 referred to Para 87, 91, 94, 132,
134-136, 144
[1974] 3 SCR 820 referred to Para 91

F [1980] SCR 500 referred to Para 91
[2017] 1 SCR 658 referred to Para 92
[1966] SCR 311 referred to Para 93
[1995] 2 SCR 35 referred to Para 102, 103, 105,
G 140, 143
[1964] SCR 680 referred to Para 112
[1981] 2 SCR 185 referred to Para 113
[1976] 1 SCR 906 referred to Para 113, 115
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1115

[1985] Suppl. SCR 352 referred to Para 120, 121 A
[2017] 11 SCR 247 referred to Para 135
(2018) 15 SCC 64 referred to Para 135
[2004] 5 Suppl. SCR 972 referred to Para 137
(2018) 10 SCC 396 explained B
and followed Para 137, 138
[1999] 5 Suppl. SCR 229 referred to Para 137
[1995] 4 Suppl. SCR 158 referred to Para 140
C
[1996] 3 SCR 125 referred to Para 140
[1999] 2 Suppl. SCR 521 referred to Para 140
[2000] 5 Suppl. SCR 302 referred to Para 140
CIVIL APPELLATE / INHERENT / ORIGINAL
JURISDICTION : Miscellaneous Application No. 1151 of 2018 in Civil D
Appeal No. 2368 of 2011.
From the Judgment and Order dated 23.12.2010 of the High
Court of Karnataka at Bangalore in Writ Petition No. 14672 of 2010.
With
E
Review Petition (C) Diary Nos. 7833, 10240, 10258, 10859, 12622,
12674, 13047, 14563, 16896 of 2017, M.A. No. 1152 of 2018 in
C.A. No. 2369 of 2011, Writ Petition (C) Nos. 764, 769, 791, 823, 827,
850, 875, 872, 901, 879 1209 of 2018.
Devadatt Kamat, AAG, Dr. Rajeev Dhavan, Basava Prabhu Patil, F
Ms. Indira Jaising, V. Lakshminarayana, Dinesh Dwivedi, Nidhesh Gupta,
Sr. Advs., Kumar Parimal, Smarhar Singh, Ms. Siddhi Padia, V.N.
Raghupathy, Ms. Rachitha Herimath, Chinmay Deshpande, Parikshit P.
Angadi, Geet Ahuja, Anuj Saxena, Ms. Nehmat Kaur, Ms. Ajita Sharma,
Rameshwar Prasad Goyal, Dinesh K. Garg, Dhananjay Garg, Abhishek
Garg, Deepak Mishra, Krishnam Mishra, Yasharth Kant, Nishant Singh, G
Mohd. Naved, Sarbendra Kumar, Ms. Payal Gaikwad, Prakash Sharma,
Ms. Prakrati Raj, Ms. Ila Gandhi, Satpal Singh, Puneet Jain, Ms. Christi
Jain, Abhinav Gupta, Harsh Jain, Ms. Arpita Gupta, Dr. K.S. Chauhan,
Ajit Kumar Ekka, Ravi Prakash, Chand Kiran, S.P. Singh, Anand Sanjay
H
1116 SUPREME COURT REPORTS [2019] 7 S.C.R.

A M. Nuli, Dharm Singh, Nanda Kumar K.B. (for M/s. Nuli & Nuli), Naveen
R. Nath, Rahul Jain, Darpan K.M., Siddharth Agarwal, S.K. Kulkarni,
M. Gireesh Kumar, Ankur S. Kulkarni, Joseph Aristotle S., Ms. Priya
Aristotle, Shiva P., R. Balasubramanian, Ms. Shraddha Deshmukh, B.V.
Balaram Das, Sharanagouda Patil, Shirish K. Deshpande, Ms. Shraddha
Deshmukh, B.V. Balram Das, M/s. Devasa & Co., S. N. Bhat, Pulkit
B
Tare, Ms. Anagha S. Desai, E.C. Vidya Sagar, Dr. (Ms.) Vipin Gupta,
Sudhir Nagar, Kabir Dixit, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
C This judgment has been divided into sections to facilitate analysis.
They are
A. The constitutional challenge
B. The constitutional backdrop to reservations in Karnataka
D C. Submissions
C.I Petitioners
C.2 Submissions for the respondents and intervenors
D. Assent to the Bill
E E. Does the Reservation Act 2018 overrule or nullify
B K Pavitra I
E.I Is the basis of B K Pavitra I cured in enacting the
Reservation Act 2018

F E.2 The Ratna Prabha Committee report
F. Substantive versus formal equality
F.I The Constituent Assembly’s understanding of Article
16 (4)
F.2 The Constitution as a transformative instrument
G
G. Efficiency in administration
H. The issue of creamy layer
I. Retrospectivity
J. Over representation in KPTCL and PWD
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1117
[DR. DHANANJAYA Y CHANDRACHUD, J.]

K. Conclusion A
A. The constitutional challenge
1. The principal challenge in this batch of cases is to the validity
of the Karnataka Extension of Consequential Seniority to Government
Servants Promoted on the Basis of Reservation (to the Posts in the Civil
Services of the State) Act 20181. The enactment provides, among other B
things, for consequential seniority to persons belonging to the Scheduled
Castes2 and Scheduled Tribes3 promoted under the reservation policy of
the State of Karnataka. The law protects consequential seniority from
24 April 1978.
2. The Reservation Act 2018 was preceded in time by the C
Karnataka Determination of Seniority of the Government Servants
Promoted on the Basis of the Reservation (to the Posts in the Civil
Services of the State) Act 20024. The constitutional validity of the
Reservation Act 2002 was challenged in B K Pavitra v Union of India5,
(“B K Pavitra I”). A two judge Bench of this Court (consisting of D
Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and
4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the
Constitution on the ground that an exercise for determining “inadequacy
of representation”, “backwardness” and the impact on “overall
efficiency” had not preceded the enactment of the law. Such an exercise
was held to be mandated by the decision of a Constitution Bench of this E
Court in M Nagaraj v Union of India6 (“Nagaraj”).
In the absence of the State of Karnataka having collected
quantifiable data on the above three parameters, the Reservation Act
2002 was held to be invalid.
F
3. The legislature in the State of Karnataka enacted the
Reservation Act 2018 after this Court invalidated the Reservation Act
2002 in B K Pavitra I. The grievance of the petitioners is that the state
legislature has virtually re-enacted the earlier legislation without curing
its defects. According to the petitioners, it is not open to a legislative
body governed by the parameters of a written constitution to override a G
1
Reservation Act 2018
2
SCs
3
STs
4
Reservation Act 2002
5
(2017) 4 SCC 620
6
(2006) 8 SCC 212 H
1118 SUPREME COURT REPORTS [2019] 7 S.C.R.

A judicial decision, without taking away its basis. On the other hand, the
State government has asserted that an exercise for collecting “quantifiable
data” was in fact carried out, consistent with the parameters required
by the decision in Nagaraj. The petitioners question both the process
and the outcome of the exercise carried out by the state for collecting
quantifiable data.
B
B. The constitutional backdrop to reservations in Karnataka
4. The present case necessitates that this Court weave through
the body of precedent which forms a part of our constitutional
jurisprudence on the issue of reservations. In many ways, the issues
C before the Court are unique. For, in the post Nagaraj world which governs
this body of law, the State government defends its legislation on the
ground that it has fulfilled the constitutional requirement of collecting
quantifiable data before it enacted the law. If such an exercise has been
carried out, the Court will need to address itself to the standard of judicial
review by a constitutional court of a legislation enacted by a competent
D legislature. The extent to which a data collection exercise by the
government, which precedes the enactment of the law, may be reviewed
by the Court is a seminal issue. B K Pavitra I involved a situation
where this Court invalidated a law on the ground that no exercise of
data collection was carried out by the State of Karnataka. In the present
E batch of cases, (herein referred to as B K Pavitra II), there is a
constitutional challenge to the validity of a law enacted after the State
had undertaken the exercise of collecting quantifiable data. Whether
that exercise of data collection and the enactment of the new law which
has emerged on its foundation takes away the basis of or the cause for
the invalidation of the Reservation Act 2002 in B K Pavitra I is an
F essential question for our consideration.
In this background, we set out the significant facts, in the
chequered history of the present case.
5. In exercise of the power conferred by the proviso to Article
G 309 of the Constitution, the Governor of Karnataka framed the Karnataka
Government Servant (Seniority Rules) 19577. Rules 2 and 4 provide for
seniority on the basis of the period of service in a given cadre. There
was no specific rule governing seniority in respect of roster promotions.

7
The Rules 1957
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1119
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Rule 2 inter alia, provides as follows: A
“2. Subject to the provisions hereinafter contained the seniority of
a person in a particular cadre of service or class of post shall be
determined as follows:-
(a) Officers appointed substantively in clear vacancies shall
be senior to all persons appointed on officiating or any B
other basis in the same cadre of service or class of post;
(b) The seniority inter se of officers who are confirmed shall
be determined according to dates of confirmation, but
where the date of confirmation of any two officers is the
same, their relative seniority will be determined by their C
seniority inter se while officiating in the same post and if
not, by their seniority inter se in the lower grade.
(c) Seniority inter se of persons appointed on temporary basis
will be determined by the dates of their continuous
officiation in that grade and where the period of officiation D
is the same the seniority inter se in the lower grade shall
prevail.”
Rule 4 provides for the determination of seniority where promotions
are made at the same time on the basis of seniority-cum-merit to a class
of posts or cadre: E
“4. When promotions to a class of post or cadre are made on the
basis of seniority-cum-merit at the same time, the relative seniority
shall be determined.-
(i) if promotions are made from any one cadre or class of
F
post, by their seniority inter se in the lower cadre or class
of post;
(ii) if promotions are made from several cadres or classes of
posts of the same grade, by the period of service in those
grades;
G
(iii) if promotions are made from several cadres or classes of
posts, the grades of which are not the same, by the order
in which the candidates are arranged by the authority
making the promotion, in consultation with Public Service
Commission where such consultation is necessary, taking
H
1120 SUPREME COURT REPORTS [2019] 7 S.C.R.

A into consideration the order in which promotions are to be
made from those several cadres or classes of post.”
Rule 4-A provides for the determination of the seniority where
promotion is made by selection:
“4-A When promotions to a class of post or cadre are made
B by selection at the same time either from several cadres or classes
of post or from same cadre or class of post by the order in which
the candidates are arranged in order of merit by the Appointing
Authority making the selection, in consultation with Public Service
Commission where such consultation is necessary.
C [Explanation – For purposes of this rule, “several cadres or classes
of post” shall be deemed to include cadres or classes of post of
different grades from which recruitment is made in any specified
order of priority in accordance with any special rules of
recruitment.].”
D 6. Reservation for persons belonging to SCs and STs in specified
categories of promotional posts was introduced by a Government Order8
dated 27 April 1978 of the Government of Karnataka. Reservation in
promotional posts for SCs was set at 15 per cent and for STs at 3 per
cent in all cadres up to and inclusive of the lowest category of Class I
E posts in which there is no element of direct recruitment or where the
direct recruitment does not exceed 662/3 per cent. A 33 point roster was
applicable to each cadre of posts under appointing authorities. Inter-se
seniority amongst persons promoted on any occasion was to be
determined in accordance with Rules 4 and 4-A, as the case may be, of
the Rules 1957. It also stipulated that vacancies would not be carried
F forward.
7. On 1 June 1978, the State government issued an Official
Memorandum9 providing guidelines and clarifications for implementing
the Government Order dated 27 April 1978. The Official Memorandum
stipulated that after promotion, seniority among candidates promoted on
G the basis of seniority-cum-merit shall, on each occasion, be fixed in
accordance with Rule 4 of the Rules 1957. In other words, seniority
would be governed by the inter se seniority in the cadre from which
candidates were promoted. For candidates promoted by selection,
8
G.O. No. DPAR 29 SBC 77
9
O.M. No. DPAR 29 SBC 77
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1121
[DR. DHANANJAYA Y CHANDRACHUD, J.]

seniority would be governed by Rule 4-A : the ranking would be as A
assigned in the list of selected candidates by the appointing authority.
The Official Memorandum dated 1 June 1978 thus provided, what can
be described as the principle of consequential seniority to reserved
category candidates.
8. By a notification10 dated 1 April 1992, a proviso was inserted to B
Rule 8 of the Karnataka Civil Services (General Recruitment) Rules
197711 which provided that vacancies not filled by SCs and STs would
be treated as a backlog and would be made good in the future. This
provision was upheld by a two judge Bench of this Court in Bhakta
Ramegowda v State of Karnataka12 (“Bhakta Ramegowda”).
C
9. On 16 November 1992, a nine judge Bench of this Court
delivered judgment in Indra Sawhney v Union of India13 (“Indra
Sawhney”). The issue as to whether reservations of promotional posts
were contemplated by Article 16 (4)14 - when it used the expression
‘appointment’ was among the issues dealt with. Justice B P Jeevan Reddy
speaking for a plurality of four judges held that: D

(i) Reservations contemplated by Article 16 (4) of the
Constitution should not exceed 50 per cent15. While 50 per
cent shall be the rule, “it is necessary not to put out of
consideration certain extraordinary situations inherent in the
great diversity of this country and the people”16. But, any E
relaxation of the strict rule must be with extreme caution
and on a special case being made out17;

10
No. DPAR 13 SRR 92
11
The Rules 1977 F
12
(1997) 2 SCC 661
13
1992 Supp (3) SCC 217
14
Clauses (1) and (4) of Article 16 provide:
(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
… G
(4) Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the
services under the State.
15
Supra 13, paragraph 809 at page 735
16
Ibid, paragraph 810 at page 735
17
Ibid, paragraph 810 at page 735 H
1122 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (ii) Reservations under Article 16 (4) could only be provided at
the time of entry into government service but not in matters
of promotion. However, this principle would operate only
prospectively and not affect promotions already made.
Moreover, reservations already provided in promotions shall
continue in operation for a period of five years from the date
B
of the judgment18;
(iii) The creamy layer can be and must be excluded. Justice B P
Jeevan Reddy held :
“792…While we agree that clause (4) aims at group
C backwardness, we feel that exclusion of such socially
advanced members will make the ‘class’ a truly backward
class and would more appropriately serve the purpose and
object of clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case
of Scheduled Tribes and Scheduled Castes).”19
D
(iv) The adequacy of the representation of a backward class of
citizens in services “is a matter within the subjective satisfaction
of the State”20, since the requirement in Article 16 (4) is
preceded by the words “in the opinion of the State”. The
basis of the standard of judicial review was formulated thus:
E
“798…This opinion can be formed by the State on its own,
i.e., on the basis of the material it has in its possession already
or it may gather such material through a Commission/
Committee, person or authority. All that is required is, there
must be some material upon which the opinion is formed.
F Indeed, in this matter the court should show due deference
to the opinion of the State, which in the present context
means the executive. The executive is supposed to know
the existing conditions in the society, drawn as it is from
among the representatives of the people in Parliament/
G Legislature. It does not, however, mean that the opinion
formed is beyond judicial scrutiny altogether. The scope
and reach of judicial scrutiny in matters within subjective

18
Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771
19
Ibid at page 725
20
H Ibid, paragraph 798 at page 728
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1123
[DR. DHANANJAYA Y CHANDRACHUD, J.]

satisfaction of the executive are well and extensively stated A
in Barium Chemicals v. Company Law Board [1966 Supp
SCR 311 : AIR 1967 SC 295] which need not be repeated
here. Suffice it to mention that the said principles apply
equally in the case of a constitutional provision like Article
16(4) which expressly places the particular fact (inadequate
B
representation) within the subjective judgment of the State/
executive.”21
(v) The backward class of citizens cannot be identified only and
exclusively with reference to an economic criterion22. It is
permissible to identify a backward class of citizens with
reference to occupation, income as well caste. C

10. In view of the decision of this Court in Indra Sawhney, the
provisions for reservation in matters of promotion under the Government
Order of 1978, as clarified by the Official Memorandum dated 1 June
1978 were saved for a period of five years from 16 November 1992.
Promotions already made were saved. D

11. On 17 June 1995, Parliament acting in its constituent capacity
adopted the seventy-seventh amendment by which clause (4A) was
inserted into Article 16 to enable reservations to be made in promotion in
favour of the SCs and STs23. The amendment came into force on 17
June 1995, before the expiry of five years from 16 November 1992 (the E
date on which the decision in Indra Sawhney was pronounced). As a
result of the decision in Indra Sawhney and the seventy-seventh
amendment to the Constitution, the provision for reservations made by
the Government of Karnataka under the Government Order of 1978
stood saved and continued to operate. F
12. On 10 February 1995, a Constitution Bench of this Court
rendered a judgment in R K Sabharwal v State of Punjab 24
(“Sabharwal”) and held that:

21
Ibid at page 728
22
Ibid, paragraph 799 at page 728
G
23
Clause 16 (4A) : Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not adequately represented in the services under
the State.
24
(1995) 2 SCC 745 H
1124 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (i) Once the prescribed percentage of posts is filled by reserved
category candidates by the operation of the roster, the
numerical test of adequacy is satisfied and the roster would
cease to operate25;
(ii) The percentage of reservation has to be worked out in relation
B to the number of posts which form the cadre strength. The
concept of vacancy has no relevance in operating the
percentage of reservation26; and
(iii) The interpretation placed on the working of the roster shall
operate prospectively27 from 10 February 1995.
C 13. On 1 October 1995, a two judge Bench of this Court held in
Union of India v Virpal Singh Chauhan28 (“Virpal Singh”) that the
state could provide that even if a candidate belonging to the SC or ST is
promoted earlier on the basis of reservation and on the application of the
roster, this would entitle such a person to seniority over a senior belonging
D to the general category in the feeder cadre. However, a senior belonging
to the general category who is promoted to a higher post subsequently
would regain seniority over the reserved candidate who was promoted
earlier. This rule came to be known as the catch-up rule. The two judge
Bench directed that the above principle would be followed with effect
from the date in the judgment in Sabharwal29.
E
14. Six months after the decision in Virpal Singh, on 1 March
1996, a three judge Bench of this Court in Ajit Singh Januja v State of
Punjab30 (“Ajit Singh I”), adopted the catch-up rule propounded in
Virpal Singh, to the effect that the seniority between reserved category
candidates and general candidates in the promoted category shall continue
F to be governed by their inter se seniority in the lower grades. This Court
held that a balance has to be maintained so as to avoid “reverse
discrimination” and, a rule or circular which gives seniority to a candidate
belonging to the reserved category promoted on the basis of roster points
would violate Articles 14 and 16 of the Constitution.
G
25
Ibid, paragraph 5 at page 750
26
Ibid, paragraph 6 at page 751
27
Ibid, paragraph 11 at page753
28
(1995) 6 SCC 684
29
10 February 1995
30
H (1996) 2 SCC 715
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1125
[DR. DHANANJAYA Y CHANDRACHUD, J.]

15. On 24 June 1997, the Government of Karnataka issued a A
Government Order31 formulating guidelines in regard to the manner in
which backlog vacancies were required to be filled. On 3 February 1999,
the Government of Karnataka issued another Government Order32
pursuant to Article 16 (4A) stipulating a modified policy of reservation in
matters of promotion. The 1999 Order provides for reservation in
B
promotion to the extent of 15 per cent for SCs and 3 per cent for STs of
the posts in a cadre up to and inclusive of the lowest category of group
A posts in each service for which there is no element of direct recruitment
or, where the proportionate of direct recruitment does not exceed 662/3
per cent. While providing for the continuance of reservations in promotion,
the Government Order stipulated that reservation in favour of persons C
belonging to the SCs shall continue to operate until their representation
in a cadre reaches 15 per cent. Reservations in promotion for the STs
would continue to operate until their representation in a cadre reaches 3
per cent. Thereafter, reservation in promotion shall continue only to
maintain the representation to the extent of the above percentages for
D
the respective categories. On 13 April 1999, the Government of Karnataka
issued another Government Order33 modifying the 1999 Order to provide
that reservations in promotions in favour of the SCs and STs shall continue
to operate by applying the existing roster to the vacancies till the
representation of persons belonging to these categories reached 15 per
cent or 3 per cent as the case may be, respectively. Moreover, after the E
existing backlog was cleared, the representation of persons belonging to
SCs and STs would be maintained to the extent of 15 per cent and 3 per
cent of the total working strength.
16. In Jagdish Lal v State of Haryana34, (“Jagdish Lal”) a
three judge Bench of this Court took a view contrary to the decision in F
Ajit Singh I. The decision in Jagdish Lal held that by virtue of the
principle of continuous officiation, a candidate belonging to a reserved
category who is promoted earlier than a general category candidate due
to an accelerated promotion would not lose seniority in the higher cadre.
This conflict of decisions was resolved by a Constitution Bench in Ajit
Singh v State of Punjab35 (“Ajit Singh II”). The Constitution Bench G

31
G.O. No. DPAR 10 SCBC 97
32
G.O. No. DPAR 21 SBC 97
33
Ibid
34
(1997) 6 SCC 538
35
(1999) 7 SCC 209 H
1126 SUPREME COURT REPORTS [2019] 7 S.C.R.

A held that Article 16 (4A) is only an enabling provision for reservation in
promotion. In consequence, roster point promotees belonging to the
reserved categories could not count their seniority in the promoted
category from the date of continuance officiation in the promoted post in
relation to general category candidates who were senior to them in the
lower category and who were promoted later. Where a senior general
B
candidate at the lower level is promoted later than a reserved category
candidate, but before the further promotion of the latter, such a person
will have to be treated as senior at the promotional level in relation to the
reserved candidate who was promoted earlier. The Constitution Bench
accordingly applied the catch-up rule for determining the seniority of
C roster point promotees vis-à-vis general category candidates. The Court
held that any circular, order or rule that was issued to confer seniority to
roster point promotees would be invalid. However, the Constitution Bench
directed that candidates who were promoted contrary to the above
principles of law before 1 March 1999 (the date of the decision in Ajit
Singh I) need not be reverted.
D
17. Contending that there was no provision permitting seniority to
be granted in respect of roster point promotees belonging to the reserved
categories, the reservation policy of the State of Karnataka came to be
challenged before this Court in M G Badappanavar v State of
Karnataka36 (“Badappanavar”). A three judge Bench, relying on the
E decisions in Ajit Singh I, Ajit Singh II and Sabharwal reiterated the
principle that Article 16 (4A) does not permit the conferment of seniority
to roster point promotees. This Court held that there was no specific
rule in the State of Karnataka permitting seniority to be counted in respect
of a roster promotion. It held thus:
F “12…The roster promotions were, it was held, meant only for the
limited purpose of due representation of backward classes at
various levels of service. If the rules are to be interpreted in a
manner conferring seniority to the roster-point promotees, who
have not gone through the normal channel where basic seniority
G or selection process is involved, then the rules, it was held will be
ultra vires Article 14 and Article 16 of the Constitution of India.
Article 16(4-A) cannot also help. Such seniority, if given, would
amount to treating unequals equally, rather, more than equals.”37
36
(2001) 2 SCC 666
37
Ibid at page 672
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1127
[DR. DHANANJAYA Y CHANDRACHUD, J.]

18. The conferment of seniority to roster point promotees of the A
reserved categories would, in view of the court in Badappanavar, violate
the equality principle which was part of the basic structure of the
Constitution. The Court directed that the seniority lists and promotions
be reviewed in accordance with its directions but those who were
promoted before 1 March 1996 on principles contrary to Ajit Singh II
B
and those who were promoted contrary to Sabharwal before 10 February
1995 need not be reverted.
19. The Constitution (Eighty-fifth Amendment) Act 2001 was
enacted with effect from 17 June 1995. Article 16 (4A), as amended,
reads thus:
C
“Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.” D

(Emphasis supplied)
The purpose of the amendment was to enable the grant of
consequential seniority to reserved categories promotees. The significance
of the date on which the eighty-fifth amendment came into force – 17 E
June 1995 – is that it coincides with the coming into force of the seventy-
seventh amendment which enabled reservations in promotions to be made
for the SCs and STs.
20. In 2002, the Karnataka State Legislature enacted the
Reservation Act 2002. The law came into force on 17 June 1995. It F
provided for consequential seniority to roster point promotees based on
the length of service in a cadre, making the catch-up rule propounded in
Ajit Singh II inapplicable. The earlier decision of this Court in
Badappanavar had held that there was no specific rule for the conferment
of seniority to roster point promotees. By the enactment of the
Reservation Act 2002 with effect from 17 June 1995, the principle of G
consequential seniority was statutorily incorporated as a legislative
mandate.
21. The validity of the seventy-seventh and eighty-fifth
amendments to the Constitution and of the legislation enacted in pursuance
H
1128 SUPREME COURT REPORTS [2019] 7 S.C.R.

A of those amendments was challenged before a Constitution Bench of
this Court in Nagaraj. The Constitution Bench analysed whether the
replacement of the catch-up rule with consequential seniority violated
the basic structure and equality principle under the Constitution. Upholding
the constitutional validity of the amendments, this Court held that the
catch-up rule and consequential seniority are judicially evolved concepts
B
based on service jurisprudence. Hence, the exercise of the enabling
power under Article 16 (4A) was held not to violate the basic features
of the Constitution:
“79. Reading the above judgments, we are of the view that the
concept of “catch-up” rule and “consequential seniority” are
C judicially evolved concepts to control the extent of reservation.
The source of these concepts is in service jurisprudence. These
concepts cannot be elevated to the status of an axiom like
secularism, constitutional sovereignty, etc. It cannot be said that
by insertion of the concept of “consequential seniority” the
D structure of Article 16(1) stands destroyed or abrogated. It cannot
be said that “equality code” under Articles 14, 15 and 16 is violated
by deletion of the “catch-up” rule. These concepts are based on
practices. However, such practices cannot be elevated to the status
of a constitutional principle so as to be beyond the amending power
of Parliament. Principles of service jurisprudence are different
E from constitutional limitations. Therefore, in our view neither the
“catch-up” rule nor the concept of “consequential seniority” is
implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal
Singh Chauhan.” 38
22. The Constitution Bench held that Article 16 (4A) is an enabling
F provision. The state is not bound to make reservations for the SCs and
STs in promotions. But, if it seeks to do so, it must collect quantifiable
data on three facets:
(i) The backwardness of the class;

G (ii) The inadequacy of the representation of that class in public
employment; and
(iii) The general efficiency of service as mandated by Article 335
would not be effected.

38
Supra 6 at page 259
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1129
[DR. DHANANJAYA Y CHANDRACHUD, J.]

23. The principles governing this approach emerge from the A
following extracts from the decision:
“107. …If the State has quantifiable data to show backwardness
and inadequacy then the State can make reservations in promotions
keeping in mind maintenance of efficiency which is held to be a
constitutional limitation on the discretion of the State in making B
reservation as indicated by Article 335. As stated above, the
concepts of efficiency, backwardness, inadequacy of
representation are required to be identified and measured…39
…
117… in each case the Court has got to be satisfied that the State C
has exercised its opinion in making reservations in promotions for
SCs and STs and for which the State concerned will have to place
before the Court the requisite quantifiable data in each case and
satisfy the Court that such reservations became necessary on
account of inadequacy of representation of SCs/STs in a particular D
class or classes of posts without affecting general efficiency of
service as mandated under Article 335 of the Constitution.40
…
123. … In this regard the State concerned will have to show in
each case the existence of the compelling reasons, namely, E
backwardness, inadequacy of representation and overall
administrative efficiency before making provision for reservation.
As stated above, the impugned provision is an enabling provision.
The State is not bound to make reservation for SCs/STs in matters
of promotions. However, if they wish to exercise their discretion F
and make such provision, the State has to collect quantifiable data
showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to
compliance with Article 335. It is made clear that even if the
State has compelling reasons, as stated above, the State will have
to see that its reservation provision does not lead to excessiveness G
so as to breach the ceiling limit of 50% or obliterate the creamy
layer or extend the reservation indefinitely.”41
39
Ibid at pages 270-271
40
Ibid at pages 276-277
41
Ibid at page 278 H
1130 SUPREME COURT REPORTS [2019] 7 S.C.R.

A The Constitution Bench held that the constitutional amendments
do not abrogate the fundamentals of equality:
“110…the boundaries of the width of the power, namely, the ceiling
limit of 50% (the numerical benchmark), the principle of creamy
layer, the compelling reasons, namely, backwardness, inadequacy
B of representation and the overall administrative efficiency are not
obliterated by the impugned amendments. At the appropriate time,
we have to consider the law as enacted by various States providing
for reservation if challenged. At that time we have to see whether
limitations on the exercise of power are violated. The State is
free to exercise its discretion of providing for reservation subject
C to limitation, namely, that there must exist compelling reasons of
backwardness, inadequacy of representation in a class of post(s)
keeping in mind the overall administrative efficiency. It is made
clear that even if the State has reasons to make reservation, as
stated above, if the impugned law violates any of the above
D substantive limits on the width of the power the same would be
liable to be set aside.”42
These observations emphasise the parameters which must be
applied where a law has been enacted to give effect to the provisions of
Article 16 (4A). The legislative power of the state to enact such a law is
E preserved. The exercise of the power to legislate is conditioned by the
existence of “compelling reasons” namely; the existence of
backwardness, the inadequacy of representation and overall administrative
efficiency. Elsewhere in the decision, the Constitution Bench treated
these three parameters as “controlling factors” for making reservations
in promotions for SCs and STs. They were held to be constitutional
F requirements crucial to the preservation of “the structure of equality of
opportunity” in Article 16. The Constitution Bench left the validity of the
individual enactments of the states to be adjudicated upon separately by
Benches of this Court.
24. In B K Pavitra I, a two judge Bench of this Court considered
G a challenge to the Reservation Act 2002 providing for consequential
seniority on the ground that the exercise which was required to be carried
out in Nagaraj had not been undertaken by the State and there was no
provision for the exclusion of the creamy layer. The validity of the

42
Ibid at page 272
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1131
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Reservation Act 2002 had been upheld by a Division Bench of the A
Karnataka High Court. In B K Pavitra I, this Court struck down Sections
3 and 4 of the Reservation Act 2002 as ultra vires Articles 14 and 16.
The petitioner contended that the law laid down by this Court in
Badappanavar, Ajit Singh II and Virpal Singh remained applicable
despite the Constitution (Eighty-fifth Amendment) Act 2001. Moreover,
B
it was contended that the Government of Karnataka had not complied
with the tests laid down in Nagaraj and had failed to provide any material
or data to show inadequacy of representation. Moreover, no consideration
was given to the issue of overall administrative efficiency. The principal
challenge was that an exercise for determining “backwardness”,
“inadequacy of representation”, and “overall efficiency” in terms of the C
decision in Nagaraj had not been carried out.
25. Relying on the decisions of this Court in Suraj Bhan Meena
v State of Rajasthan43, Uttar Pradesh Power Corporation Ltd v
Rajesh Kumar44 and S Panneer Selvam v State of Tamil Nadu45
(“Panneer Selvam”), a two judge Bench of this Court affirmed that D
the exercise laid down in Nagaraj for determining “inadequacy of
representation”, “backwardness” and “overall efficiency” is necessary
for recourse to the enabling power under Article 16 (4A) of the
Constitution. The Court held that the Government of Karnataka had
failed to place material on record showing that there was a compelling
necessity for the exercise of the power under Article 16 (4A). Hence, E
the directions laid down by this Court in Nagaraj were not followed.
Striking down Sections 3 and 4 of the Reservation Act 2002, this Court
held thus:
“29. It is clear from the above discussion in S. Panneer Selvam
case that exercise for determining “inadequacy of representation”, F
“backwardness” and “overall efficiency”, is a must for exercise
of power under Article 16(4-A). Mere fact that there is no
proportionate representation in promotional posts for the population
of SCs and STs is not by itself enough to grant consequential
seniority to promotees who are otherwise junior and thereby G
denying seniority to those who are given promotion later on account
of reservation policy. It is for the State to place material on record

43
(2011) 1 SCC 467
44
(2012) 7 SCC 1
45
(2015) 10 SCC 292 H
1132 SUPREME COURT REPORTS [2019] 7 S.C.R.

A that there was compelling necessity for exercise of such power
and decision of the State was based on material including the
study that overall efficiency is not compromised. In the present
case, no such exercise has been undertaken. The High Court
erroneously observed that it was for the petitioners to plead and
prove that the overall efficiency was adversely affected by giving
B
consequential seniority to junior persons who got promotion on
account of reservation. Plea that persons promoted at the same
time were allowed to retain their seniority in the lower cadre is
untenable and ignores the fact that a senior person may be
promoted later and not at the same time on account of roster
C point reservation. Depriving him of his seniority affects his further
chances of promotion. Further plea that seniority was not a
fundamental right is equally without any merit in the present
context. In absence of exercise under Article 16(4-A), it is the
“catch-up” rule which fully applies. It is not necessary to go into
the question whether the Corporation concerned had adopted the
D
rule of consequential seniority.”46
The Court clarified that the decision will not affect those who
have already retired and availed of financial benefits. It was further
directed that promotions granted to existing employees based on
consequential seniority are liable to be reviewed and that the seniority
E list be revised in terms of the decision. Three months were granted to
take further consequential action. Petitions seeking a review of the
decision have been tagged with the present proceedings.
26. After the decision of this Court in B K Pavitra I, on 22 March
2017, the Government of Karnataka constituted the Ratna Prabha
F Committee47 headed by the Additional Chief Secretary to the State of
Karnataka to submit a report on the backwardness and inadequacy of
representation of SCs and STs in the State Civil Services and the impact
of reservation on overall administrative efficiency in the State of
Karnataka. The tasks entrusted to the Committee were to:
G “1) Collect information on the cadre-wise representation of
Scheduled Castes and Scheduled Tribes in all the Government
Departments;

46
Supra 6 at page 641
47
G.O. No. DPAR 182 SeneNi 2011
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1133
[DR. DHANANJAYA Y CHANDRACHUD, J.]

2) Collect information regarding backwardness of Scheduled A
Castes and Scheduled Tribes; and
3) Study the effect on the administration due to the provision of
reservation in promotion to the Scheduled Castes and Scheduled
Tribes.”
27. On 5 May 2017, the Ratna Prabha Committee submitted a B
report, titled as the ‘Report on Backwardness, Inadequacy of
Representation and Administrative Efficiency in Karnataka’48. The
Government of Karnataka, through its Department of Personnel and
Administrative Reforms, submitted the Ratna Prabha Committee report
to the Law Commission of Karnataka on 8 June 2017. The Law C
Commission sought to opine on ‘whether the data collected and reasons
assigned by the Ratna Prabha Committee constitute a valid basis for
validating the law’ and submitted its report on 27 July 2017.
28. In the meantime, the petitioners filed contempt petitions
contending that the directions of this Court in B K Pavitra I to the State D
of Karnataka to review the seniority list were not complied with. The
State of Karnataka filed applications for extension of time for compliance.
On 20 March 2018, this Court disposed of the petitions rejecting the
applications for extension of time for compliance with the decision in B
K Pavitra I and granted one month time to take any consequential action.
The State of Karnataka subsequently filed compliance affidavits before E
this Court stating that the exercise directed by the decision in B K Pavitra
I had been carried out.
29. On the basis of the Ratna Prabha Committee report, the
Government of Karnataka introduced the Karnataka Extension of
Consequential Seniority to Government Servants Promoted on the Basis F
of Reservation (to the Posts in the Civil Services of the State) Bill 2017.
The Bill was passed by the Legislative Assembly on 17 November 2017
and by the Legislative Council on 23 November 2017. On 16 December
2017, the Governor of the Karnataka reserved the Bill for the consideration
of the President of India under Article 200 of the Constitution. The Bill G
received the assent of the President on 14 June 2018 and was published
in the official Gazette on 23 June 2018.
30. Sections 3, 4 and 5 of the Reservation Act 2018 provides as
follows :
48
Ratna Prabha Committee report H
1134 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “3. Determination of Seniority of the Government Servants
Promoted on the basis of Reservation.- Notwithstanding
anything contained in any other law for the time being in force,
the Government Servants belonging to the Scheduled Castes and
the Scheduled Tribes promoted in accordance with the policy of
reservation in promotion provided for in the Reservation Order
B
shall be entitled to consequential seniority. Seniority shall be
determined on the basis of the length of service in a cadre:
Provided that the seniority inter-se of the Government Servants
belonging to the Scheduled Castes and the Scheduled Tribes as
well as those belonging to the unreserved category, promoted to a
C cadre, at the same time by a common order, shall be determined
on the basis of their seniority inter-se, in the lower cadre.
Provided further that where the posts in a cadre, according to the
rules of recruitment applicable to them are required to be filled by
promotion from two or more lower cadres,-
D
(i) The number of vacancies available in the promotional (higher)
cadre for each of the lower cadres according to the rules of
recruitment applicable to it shall be calculated; and
(ii) The roster shall be applied separately to the number of
E vacancies so calculated in respect of each of those lower cadres:
Provided also that the serial numbers of the roster points specified
in the Reservation Order are intended only to facilitate calculation
of the number of vacancies reserved for promotion at a time and
such roster points are not intended to determine inter-se seniority
F of the Government Servants belonging to the Scheduled Castes
and the Scheduled Tribes vis-a-vis the Government Servants
belonging to the unreserved category promoted at the same time
and such inter-se seniority shall be determined by their seniority
inter-se in the cadre from which they are promoted, as illustrated
in the Schedule appended to this Act.
G
4. Protection of consequential seniority already accorded
from 27th April 1978 onwards.- Notwithstanding anything
contained in this Act or any other law for the time being in force,
the consequential seniority already accorded to the Government
servants belonging to the Scheduled Castes and the Scheduled
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1135
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Tribes who were promoted in accordance with the policy of A
reservation in promotion provided for in the Reservation Order
with effect from the Twenty Seventh Day of April, Nineteen
Hundred and Seventy Eight shall be valid and shall be protected
and shall not be disturbed.
5. Provision for review.- All promotions to the posts belonging B
to the State Civil Services shall be within the extent and in
accordance with the provisions of the reservation orders and other
rules pertaining to method of recruitment and seniority. The
Appointing Authority shall revise and redraw the existing seniority
lists to ensure that the promotions are made accordingly:
C
Provided that subsequent to such a review, wherever it is found
that Government Servants belonging to the Scheduled Castes and
Scheduled Tribes were promoted against reservation and backlog
vacancies in excess or contrary to extent of reservation provided
in the reservation orders shall be adjusted and fitted with reference
to the roster points in accordance with the reservation orders issued D
from time to time by assigning appropriate dates of eligibility. In
case, if persons belonging to the Scheduled Castes and the
Scheduled Tribes who have already been promoted against
reservation or backlog vacancies in excess or contrary to the
extent of reservation provisions cannot get adjusted and fitted E
against the roster points they shall be continued against
supernumerary posts, to be created by the concerned administrative
department presuming concurrence of Finance Department, in
the cadres in which they are currently working, till they get the
date of eligibility for promotion in that cadre.”
F
Section 9 provides for the validation of action taken in respect of
promotions since 27 April 1978:
“9. Validation of action taken under the provisions of this
Act.- Notwithstanding anything contained in any Judgment,
Decree or Order of any court, tribunal or other authority contrary G
to section 3 and 4 of this Act any action taken or done in respect
of any promotions made or purporting to have been made and any
action or thing taken or done, all proceedings held and any actions
purported to have been done since 27th April, 1978 in relation to
promotions as per sections 3 and 4 of this Act, before the
H
1136 SUPREME COURT REPORTS [2019] 7 S.C.R.

A publication of this Act shall be deemed to be valid and effective
as if such promotions or action or thing has been made, taken or
done under this Act and accordingly:- (a) no suit or other
proceedings shall be maintained or continued in any court or any
tribunal or before any authority for the review of any such
promotions contrary to the provisions of this Act; and (b) no court
B
shall enforce any decree or order to direct the review of any such
cases contrary to the provisions of this Act.”
Section 1 (2) provides that the Reservation Act 2018 came into
force with effect from 17 June 1995 (the effective date of the seventy-
seventh and eighty-fifth constitutional amendments).
C
31. These proceedings were instituted to assail the vires of the
Reservation Act 2018. The principal contention which has been urged is
that the Reservation Act 2018 does not take away basis of the decision
of this Court in B K Pavitra I and is ultra vires. All matters have been
admitted for hearing and tagged together.
D
32. On 27 July 2018, when the batch of cases was listed for hearing,
it was suggested by this Court that the status quo may not be altered
pending consideration of the matter. The Advocate General for the State
of Karnataka orally agreed and accepted an order of status quo. The
Government of Karnataka issued a circular on 3 August 2018 with a
E direction to maintain status quo and not affect the process of promotion/
demotion till further orders from the government. These directions were
issued to all autonomous bodies, universities, public enterprises,
commissions, corporations, boards and to institutions availing aid from
the government under their administrative control.
F 33. In Jarnail Singh v Lachhmi Narain Gupta49, (“Jarnail”) a
Constitution Bench of this Court considered whether the decision in
Nagaraj requires to be referred to a larger Bench since:
(i) It requires the state to collect quantifiable data showing
backwardness of the SCs and STs contrary to the nine judge
G Bench decision in Indra Sawhney;
(ii) The creamy layer principle was not applied to SCs and STs in
Indra Sawhney; and

49
2018 (10) SCC 396
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1137
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) In applying the creamy layer principle, Nagaraj conflicts with A
the decision in E V Chinnaiah v State of AP50 (“Chinnaiah”).
34. In Jarnail, the Constitution Bench held that :
(i) The decision in Chinnaiah holds, in essence, that a state law51
cannot further sub-divide the SCs into sub categories. Such an
exercise would be violative of Article 341(2) since only an Act B
of Parliament and not the state legislatures can make changes
in the Presidential list. Chinnaiah did not dwell on any aspect
on which the constitutional amendments were upheld in Nagaraj.
Hence, it was not necessary for Nagaraj to advert to the decision
in Chinnaiah. Chinnaiah dealt with a completely different C
problem and not with the constitutional amendments, which were
dealt with in Nagaraj52;
(ii) The decision of the Constitution Bench in Nagaraj, insofar as it
requires the state to collect quantifiable data on backwardness
in relation to the SCs and STs is contrary to Indra Sawhney D
and would have to be declared to be bad on this ground53; and
(iii) Constitutional courts, when applying the principle of reservation
will be within their jurisdiction to exclude the creamy layer on a
harmonious construction on Articles 14 and 16 along with Articles
341 and 34254. The creamy layer principle is an essential aspect E
of the equality code.
35. On 12 October 2018, the State of Karnataka submitted before
this Court that since a legislation has been enacted by the state legislature
and in view of the judgment of the Constitution Bench in Jarnail, the
State would no longer proceed on the oral assurance of the Advocate F
General and would not be bound to it. On the other hand, it was urged by
learned Counsel appearing for the petitioners that the intent of the
Reservation Act 2018 was only to nullify the effect of the judgment in B
K Pavitra I. Counsel urged that in view of the decisions of this Court
including those in Shri Prithvi Cotton Mills Ltd v Broach Borough
50
G
(2005) 1 SCC 394
51
The court was considering the provisions of the Andhra Pradesh Scheduled Caste
(Rationalisation of Reservations) Act 2000
52
Supra 49, paragraph 22 at page 422-423
53
Ibid, paragraph 24 at page 424
54
Ibid, paragraph 26 at page 425-426
55
(1969) 2 SCC 283 H
1138 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Municipality55 (“Prithvi Cotton Mills Ltd”) and Madan Mohan
Pathak v Union of India (“Madan Mohan Pathak”)56, it was not
open to the legislature to render a judgment of this Court ineffective
without taking away its basis or foundation. Since the case was of an
urgent nature, the proceedings were listed on 23 October 2018 for
commencement of final hearing.
B
36. On 27 February 2019, the State of Karnataka issued a
Government Order57 directing that:
“In the circumstances explained in the preamble, the following
instructions are hereby issued subject to the conditions that the
C officers/officials, who have been reverted, shall be reposted to
the cadres held by them immediately prior to their reversion and if
vacant posts are not available in those cadres, supernumerary
posts shall be created to accommodate them. It is also ordered
that the officers/officials working at present in those cadres,
belonging to any category, shall not be reverted.”
D
The Government Order was made subject to the outcome of these
proceedings. On 1 March 2019, this Court granted a stay on the operation
of the Government Order dated 27 February 2019. This Court observed
that since the case was in the concluding stages of the hearing, it would
not be appropriate to alter the present status when the matter was in
E seisin of the Court.
C. Submissions
C.I. Petitioners
37. In adjudicating upon the challenge to the constitutional validity
F of the Reservation Act 2018, we have heard the erudite submissions of
Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
Petitioners. Prefacing his submissions, Dr Rajeev Dhavan has adverted
to the following issues which arise for the determination of this Court:
A. Is the Reservation Act 2018 valid?
G (a) Does it not peremptorily overrule the decision of this
Court in B K Pavitra I without altering the basis of the
decision?

56
(1978) 2 SCC 50
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1139
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(b) Does it violate the law laid down by this Court in A
Badappanavar on seniority?
(c) Does the background to the enactment to the Reservation
Act 2018 reveal a manifest intent to overrule the decision
in B K Pavitra I?
(d) Was the reference of the Bill by the Governor of B
Karnataka to the President under Article 200 of the
Constitution and the subsequent events which took place
constitutionally valid? In this context, could the Bill have
been brought into force without the assent of the
Governor? C
B Is the Reservation Act 2018 compliant with the principles
enunciated in the Constitution Bench decisions in Nagaraj
and Jarnail? Does the report of the Ratna Prabha
Committee dated 5 May 2017 constituted an adequate
and appropriate basis to support the validity of the Act D
and its implementation?
C Does the Reservation Act 2018 apply in the present writ
petitions (instituted by B K Pavitra and Shivakumar) to
those departments where there is over representation or
in public corporations not covered by the Ratna Prabha E
report or the legislation?
38. While we will be dealing with the submissions urged by Dr
Dhavan in the course of our analysis, it would be appropriate at this
stage to advert to the salient aspects of the submissions under the following
heads: F
A. Usurpation of judicial power
39. Dr Dhavan has urged that the Reservation Act 2018 was
enacted in a hurry with no purpose other than to overrule the decision in
B K Pavitra I, while the issue of implementation was still pending. The
decision in B K Pavitra I was rendered on 19 February 2017. On 22 G
March 2017, a Government Order was issued appointing the Additional
Chief Secretary to submit a report on backwardness, inadequacy of
representation and the impact of reservation on efficiency. The report
was submitted on 5 May 2017. On 26 July 2017, the report was accepted
by the State Cabinet which constituted a sub-committee to examine the
H
1140 SUPREME COURT REPORTS [2019] 7 S.C.R.

A matter and submit a draft Bill. The State Law Commission recommended
the State to pass a legislation with retrospective effect by curing the
infirmities and factors noticed in the decision in B K Pavitra I. On 4
August 2017, the Cabinet Sub-Committee submitted its decision based
on the report. On 7 August 2017, the Cabinet approved the proposed
Bill. The Bill was introduced in the Karnataka State Legislative Assembly
B
on 14 November 2017 and was passed on 17 November 2017. The Bill
was passed by the State Legislative Council on 23 November 2017 and
was submitted to the Governor on 6 December 2017. The Bill was
reserved by the Governor for the consideration of the President. On 15
February 2018, 9 March 2018 and 18 April 2018, the Union Government
C in the Ministry of Home Affairs sought clarifications from the State
government which were provided on 16 March 2018 and 23 April 2018.
The Bill received the assent of the President on 14 June 2018, and was
published in the official Gazette and came into force on 23 June 2018.
40. On the basis of the above facts, Dr Dhavan submitted that:
D (i) There was no compelling necessity to overrule B K Pavitra I
“except political necessities”;
(ii) A comparison of the provisions of the Reservation Act 2002
with the Reservation Act 2018 indicates that:
(a) The Reservation Act 2018 is substantively the same as
E the Reservation Act 2002;
(b) The change in the basis of the decision in B K Pavitra I is
on the factum of the Ratna Prabha Committee report;
(c) “Compelling necessities” are mentioned but their existence
is not demonstrated;
F
(d) The title of the Reservation Act 2018 is limited to
consequential seniority which is not mentioned in the law;
(e) Section 5 allows for an unlimited backlog and the creation
of supernumerary posts for SCs and STs;
G (f) Section 5 presumes the permission of the Finance
Department and visualizes an “excess”, which will
invalidate the law; and
(g) Section 9 brazenly overrules and goes beyond the date of
17 June 1995 and postulates that in future a review of the
H cases is forbidden.
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1141
[DR. DHANANJAYA Y CHANDRACHUD, J.]

B. Violation of the separation of powers A
41. Separation of powers postulates a constitutional division
between legislative and judicial functions. In this context, the submission
is:
(a) The legislative power is distinct from the judicial power;
B
(b) The legislature cannot lawfully usurp judicial power by sitting in
appeal over any judicial decision by attempting to overturn it;
(c) Any statute which seeks to overturn a judicial decision must be
within the legislative competence of the legislature under the
Seventh Schedule to the Constitution;
C
(d) Any such statute must change the basis of the law;
(e) The decision of a court will always be binding unless the law or
conditions underlying the legislation which was held to be invalid
are so fundamentally altered so that a different result would
enure;
D
(f) While a legislation may be retroactive, an interim or final direction
must be obeyed especially when rights are conferred;
(g) A new legislation can be challenged on the basis that it violates
the fundamental rights; and
(h) Unless the basis of a legislation which is found to be ultra vires E
has been altered, the mere enactment of a new legislation would
constitute a brazen overruling of the law, which is impermissible.
42. Dr Dhavan urges that Reservation Act 2018 will not pass
muster, when it is assessed in the context of the principles enunciated by
the decisions of this Court in (i) Prithvi Cotton Mills Ltd, (ii) Madan F
Mohan Pathak, (iii) S R Bhagwat v State of Mysore 58, (iv)
Bakhtawar Trust v M D Narayan59, (v) Delhi Cloth & General
Mills Co. Ltd v State of Rajasthan60, (vi) Re Cauvery61, (vii) S T
Sadiq v State of Kerala62 and (viii) Medical Council of India v State
of Kerala63.
G
57
G.O. No. DPAR 186 SRS 2018
58
(1995) 6 SCC 16
59
(2003) 5 SCC 298
60
(1996) 2 SCC 449
61
(1993) Supp (1) SCC 96
62
(2015) 4 SCC 400
63
(2018) 11 SCALE 141 H
1142 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 43. Explaining the applicability of the above principles on facts,
Dr Dhavan urged that after the decision of this Court in B K Pavitra I,
the State Government filed applications for extension of time on 9 May
2017 and 8 September 201764. This Court extended time to revise the
seniority lists till 30 November 2017 and for consequential actions by 15
January 2018. On 15 January 2018, the State Government moved before
B
this Court seeking extension of time for implementing the decision in
B K Pavitra I. On 29 January 2018, this Court finally granted time until
15 March 2018. On 17 March 2018, the State moved before this Court
for extension of time and on 20 March 2018, while disposing of certain
contempt petitions and other applications, one month’s time was granted
C to take consequential action. On 25 April 2018, this Court directed the
State to file a further affidavit (by 1 May 2018) indicating that promotions
and demotions have been duly effected. On 9 May 2018, this Court
directed the State to file an affidavit to the effect that the judgment in
B K Pavitra I had been fully complied with and the hearing was posted
for 4 July 2018. On 28 June 2018, the State of Karnataka informed this
D
Court that the “further process have been stalled because of the
enactment of the new legislation and its publication in the Gazette on 23
June 2018”. On 7 August 2018, the State of Karnataka filed an interim
application seeking permission of this Court to implement the Reservation
Act 2018. It has been urged that contrary to what was stated by the
E state Government, there was no compliance of the decision in
B K Pavitra I. In this background, it has been submitted that the state
has undertaken an exercise to overrule B K Pavitra I which constitutes
a clear usurpation of judicial power.
C. Lack of compliance with Nagaraj and Jarnail
F 44. Dr Dhavan assails the report of the Ratna Prabha Committee
on the ground that is was not in compliance with Nagaraj and Jarnail.
Nagaraj postulates that:
(i) The backlog should not extend beyond three years;

G (ii) Excessive reservation would invalidate the exercise of power;
and
(iii) There is a theory of guided power under which a failure to follow
the above conditionalities would result in reverse discrimination.

64
H M.A. Nos. 730-756 of 2017
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1143
[DR. DHANANJAYA Y CHANDRACHUD, J.]

45. According to the submission, the decision in Nagaraj: A
(a) Deploys the methodology that the seventy-seventh, eighty-first,
eighty- second and eighty-sixth amendments were only enabling
and were valid. The conditionalities for a valid exercise of the
enabling power are two-fold:
(i) The existence of compelling reasons namely, backwardness, B
inadequacy of representation and overall administrative
efficiency requiring quantifiable data; and
(ii) Excessiveness, which postulates that the ceiling limit of
fifty per cent is not transgressed, the creamy layer is not
obliterated and reservation is not extended indefinitely. C

(b) The methodology of Nagaraj was approved both in I R Coelho
v State of TN65 and Jarnail; and
(c) The decision in Jarnail, while upholding the methodology adopted
in Nagaraj held that there is a constitutional presumption which D
obviates the need for quantifiable data on the backwardness of
SCs and STs and hence that part of Nagaraj was held to be
contrary to the decision in Indra Sawhney. The application of
the creamy layer test was held to be a requirement for SCs and
STs and other principles or applications enunciated in Nagaraj
were held to be valid. E
46. In this background, the Ratna Prabha Committee report is
assailed on the following grounds:
(i) The chapter on backwardness is not necessary;
(ii) Inadequacy of representation is examined over 30 pages; F
(iii) The data collected is over 32 years in thirty one government
departments;
(iv) No data exists in 1986;
(v) The data indicates that STs are adequately represented from G
1999 to 2015 but the average of 31 years is 2.70;
(vi) No data has been collected from public sector undertakings,
boards, corporations, local bodies, grant-in-aid institutions, among
others, and it is assumed that the data is representative in nature;
65
(2007) 2 SCC 1 H
1144 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (vii) The representation in Public Works Department (“PWD”) and
Karnataka Power Transport Corporation Limited (“KPTCL”)
is adequate;
(viii) The data collected is with respect to the availability of vacancies
and not posts, contrary to the requirements laid out in
B Sabharwal’s case;
(ix) The data is on sanctioned posts and not posts which have been
filled;
(x) The data is not cadre based but based on grades A, B, C and D
even though Jarnail requires the data to be on the basis of
C cadre;
(xi) The report erroneously assumed that grades A, B, C and D
correspond to cadres;
(xii) The report candidly admits that “in some departments,
D corporations like PWD and KPTCL there may be over
representation of the percentage mandated”;
(xiii) On administrative efficiency:
(a) The data is based on general considerations such as
economic development;
E (b) The efficiencies adverted to in matters of administrative,
policy and service are general; and
(c) Reliance which has been placed is on performance
reports.

F (xiv) The state has followed a strange method of back door entry by
filling up vacancies not by selection but through toppers from
universities in various departments for gazetted grade A and B
posts.
D. Reservation of the Bill to the President
G 47. Dr Dhavan urged that from the counter affidavit filed by the
State Government, it is evident that:
(i) The view of the State government was that given the legislative
competence of the state legislature, the “Bill was not required
to be reserved” for the assent of the President;
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1145
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(ii) On 6 December 2017, the Governor of Karnataka considered it A
appropriate to refer the Bill to the President in view of the
decision in B K Pavitra I and the “importance of the issue and
the constitutional interpretation involved in the matter” under
Article 200;
(iv) The State government on the Bill being forwarded to the President B
continued to maintain that the Bill neither attracted the second
proviso to Article 200 nor did it deal with a matter which was
repugnant to a Union law on an entry falling in List III of the
Seventh Schedule. Hence, the State government opined that
there did not appear to be any situation warranting the reservation
of the Bill for the consideration of the President. Hence, it has C
been urged that it may be:
(a) The reference by the Governor on 6 December 2017 to
the President simply stated that since a constitutional
interpretation was required, the Bill was reserved for
the President; however no specific issues were referred; D
and
(b) The State government forwarded the Bill to the
President, recording at the same time that there was no
reason to refer.
E
(v) The Union Government invited reasons for the reference to which
responses were made by the State Government in its clarification;
(vi) The Governor was altogether by-passed in this process; and
(vii) The Governor has the exclusive authority under Article 200 on
the reference and must formulate a specific reference, which F
was not done. The Central Government, it was urged, cannot
create a reference which has not been made by the state.
48. In order to buttress his submissions, Dr Dhavan relied upon
the decisions in Kaiser-I-Hind Pvt Ltd v National Textile
Corporation Ltd 66, Gram Panchayat of Village Jamalpur v G
Malwinder Singh67 (“Gram Panchayat of Village Jamalpur”),
Hoechst Pharmaceuticals Ltd v State of Bihar 68 (“Hoechst
66
(2002) 8 SCC 182
67
(1985) 3 SCC 661
68
(1983) 4 SCC 45 H
1146 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Pharmaceuticals Ltd”) and Nabam Rebia and Bamang Felix v
Deputy Speaker Arunachal Pradesh Legislative Assembly 69
(“Nabam Rebia”).
Dr Dhavan urged that:
(i) There was no valid reference by the Governor in the absence
B of specificity on the matter of reference;
(ii) The State government consistently indicated that there was no
reason to refer the Bill to the President;
(iii) The Union Government could not have created a reference where
C none existed; and
(iv) The reference was unconstitutional and the assent of the
Governor was not obtained.
E. Seniority including consequential seniority
49. The submissions of Dr Dhavan are:
D
(i) Seniority is determined by the Seniority Rules 1957;
(ii) The decision in Badappanavar held that there was no specific
rule providing for consequential seniority in the Seniority Rules
1957;
E (iii) The amendments in the Seniority Rules 1957 on 18 August 2006
did not effect any change to unsettle the decision in
Badappanavar;
(iv) The Reservation Act 2002 attempted to overrule Badappanavar
and was eventually invalidated in B K Pavitra I;
F
(v) The Reservation Act 2018 mentions consequential seniority in
its title yet Section 5 makes no reference of it and in fact
reinforces the Seniority Rules 1957 by implication. The reference
to the Rules in Section 5 can only be in the context of the Seniority
Rules 1957 as amended. The Seniority Rules 1957 will override
G the administrative orders of 27 April 1978;
(vi) The Government Order dated 27 April 1978 specifically adverts
to Rules 4 or 4-A (as the case may be) of the Seniority Rules
1957;
69
H (2016) 8 SSC 1
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1147
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(vii) No seniority can be conveyed by filling up of backlog and creating A
excess or supernumerary posts; and
(viii) The proviso to Section 5 would be liable to be struck down for
its excessiveness.
50. In substance, Dr Dhavan’s are as follows:
B
(i) Every administrative action or legislation has to be Nagaraj
compliant as explained in Jarnail;
(ii) After the decision in B K Pavitra I, the State of Karnataka
hurriedly enacted the Reservation Act 2018 without
demonstrating any compelling necessity; C
(iii) The Governor of Karnataka reserved the Bill for the President
without delineating the exact reasons for doing so. Even while
forwarding the Bill, the State government maintained that there
was no reason to make a reference to the President. The queries
exchanged subsequently would not constitute a valid reference; D
(iv) The Ratna Prabha Committee report is flawed and does not
establish inadequacy of representation and impact on
administrative efficiency;
(v) The Reservation Act 2018 is similar to the Reservation Act 2002
except for (i) Section 5 while mandates reservations; and (ii) E
Section 9 which overrules all decisions of the past and pre-empts
challenges in the future;
(vi) The Seniority Rules 1957 continue not to cover consequential
seniority and by the repeal of the Reservation Act 2002, the
decision in Badappanavar continues to be good law; F
(vii) The uncontrolled backlog is not valid;
(viii) A proper exercise must be post and not vacancy based, it must
be based on cadres and not on groups A to D;
(ix) The counter affidavit of the State admits the flaws of the process G
denying curative effect to the exercise; and
(x) The Reservation Act 2018 has failed to pass muster and its non-
compliant with the decisions in Nagaraj and Jarnail.

H
1148 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 51. Mr Shekhar Naphade, learned Senior Counsel submitted
that:
(i) The decision in B K Pavitra I has attained finality and a subsequent
change in law cannot abrogate the principle of res judicata;
(ii) As held in the decision of this Court in Pandit M S M Sharma
B v Dr Krishna Sinha70, whether an earlier judgment is right or
wrong is not material to the applicability of the doctrine of res
judicata;
(iii) The subsequent decision in Jarnail is not a ground for review
and, in any event, a review of B K Pavitra I by the state will
C not lie;
(iv) In view of the explanation to Order XLVII of the CPC, a reversal
on a question of law in a subsequent decision of a superior court
is not a ground for review;

D (v) An error of law is no ground for review (State of West Bengal
v Kamal Sengupta71);
(vi) The Reservation Act 2018 is based on a report which furnishes
factual data: this could have been furnished in the earlier round.
The legislature has taken recourse to exercise of judicial power;
E (vii) The provisions of the Reservation Act 2018 are virtually the
same as those of the Reservation Act 2002;
(viii) The basis of legislative intervention was the collection of data:
the attempt is to place fresh material before the Court to review
its decision in B K Pavitra I. There is no change in law;
F (ix) Retrospectivity of the Reservation Act 2018 from 1978 is
arbitrary;
(x) There is no change in the basis of the law. The basis is a change
in the factual matrix which is not available as a ground for review;

G (xi) The Ratna Prabha Committee report has collected no substantive
material on the impact of reservation in promotion on the
efficiency of administration;

70
AIR 1960 SC 1186
71
(2008) 8 SCC 612
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1149
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(xii) The second proviso to Article 200 and Article 254 (2) of the A
Constitution are exhaustive of the constitutional power of the
Governor to reserve a Bill for the assent of the President;
(xiii) The Ratna Prabha Committee report does not deal with the
aspect of creamy layer which had been duly considered in
Jarnail; B
(xiv) The Ratna Prabha Committee dwelt on groups and not on cadres.
The data includes direct recruits as well as promotees, whereas
the present case is only about promotion; and
(xv) Data was collected only from thirty one government departments
and not from public sector undertakings. C

52. Supplementing the submissions of Dr Dhavan, Mr Puneet Jain,
learned Counsel appearing on the behalf of the petitioners has adverted
to the following issues which arise for the consideration of this Court:
(i) Section 3 of the Reservation Act 2018 only seeks to extend D
consequential seniority retrospectively to vacancy based roster
point promotees and is not concerned with the state exercising
its enabling power to provide for reservation in promotions. The
Government Order72 dated 27 April 1978 by which reservation
for persons belonging to SCs and STs in specified categories of
promotional posts was introduced cannot be “justified” by a E
satisfaction on the basis of the Ratna Prabha Committee report;
(ii) Article 16 (4A) confers a discretion upon the state to provide
for reservations in promotion with or without consequential
seniority. Nagaraj mandates that there have to exist compelling
reasons and the satisfaction of the state before exercise of its F
powers under Article 16 (4A). In view of the decision in Panneer
Selvam, automatic conferment of consequential seniority can
no longer be sustained; and
(iii) The fact that the eighty-fifth amendment has been made
retrospective from 17 June 1995 cannot enable the state to make G
a provision for the first time by exercising powers retrospectively
and consequently taking away vested rights which legitimately
accrued upon the general category employees.

72
G.O. No. DPAR 29 SBC 77
H
1150 SUPREME COURT REPORTS [2019] 7 S.C.R.

A C.2. Submissions for the respondents and intervenors
53. Appearing for the State of Karnataka, Mr Basava Prabhu S
Patil, learned Senior Counsel submitted thus:
A. The basis of B K Pavitra I has been altered
B (i) The Reservation Act 2018 has taken away the basis of the
judgment in B K Pavitra I and the protection of seniority with
retrospective effect which is permissible in law:
(a) The Reservation Act 2018 does not seek to overrule or
nullify simpliciter the decision in B K Pavitra I. The
C law was enacted to provide consequential seniority for
roster point promotees after collecting data showing the
existence of the compelling reasons of : (i)
backwardness; (ii) inadequacy of representation; and
(iii) overall efficiency. Hence, the Reservation Act 2018
removes the basis of the decision in B K Pavitra I;
D
(b) The state legislature is competent to enact a law with
retrospective or retroactive operation. The legislative
competence of the State Legislature to enact law is
traceable to Article 16 (4A). Merely because the
legislation confers seniority with effect from 1978, will
E not lead to its invalidation (Cheviti Venkanna Yadav v
State of Telangana73 (“Cheviti Venkanna Yadav”),
Utkal Contractors & Joinery (P) Ltd v State of
Orissa74 (“Utkal Contractors and Joinery (P) Ltd”)
and State of Himachal Pradesh v Narain Singh75
F (“Narain Singh”);
(c) Sections 3 and 4 of the Reservation Act 2018 came into
operation on 17 June 1995, on which date the seventy-
seventh and eighty-fifth amendments to the Constitution
came into effect, thereby enabling reservations to be
made in promotion together with consequential seniority.
G
The Reservation Act 2018 protects consequential
seniority accorded from 27 April 1978 (the date of the
73
(2017) 1 SCC 283
74
(1987) Supp. SCC 751
75
(2009) 13 SCC 165
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1151
[DR. DHANANJAYA Y CHANDRACHUD, J.]

reservation order) in light of the data collected which A
shows the inadequacy of representation;
(d) In terms of the decision in Virpal Singh, the catch-up
rule was to be applied with effect from 10 February
1995 (i.e. the date of the judgment in Sabharwal).
According to the decision in Ajit Singh II, promotions B
granted prior to 1 March 1996 without following the
catch-up rule are protected. Badappanavar protects
the promotions of reserved candidates based on
consequential seniority which took place before 1 March
1996;
C
(e) While judicial review allows courts to declare a statute
as unconstitutional if it transgresses constitutional limits,
courts are precluded from inquiring into the propriety or
wisdom underlying the exercise of the legislative power.
The motives of the legislature in enacting a law are
incapable of being judicially evaluated; and D

(f) Seniority is not a vested or an accrued right and hence
it is open for the legislature to enact a law for dealing
with it.
(ii) The Reservation Act 2018 is not of the same genre of legislation E
dealt with in the decision of Madan Mohan Pathak:
(a) Madan Mohan Pathak involved a challenge by the
employees of the Life Insurance Corporation to the
constitutional validity of a Parliamentary law which
attempted to render ineffective a settlement with F
employees for the payment of bonus. The judgment does
not deal with a case where the basis of the invalidity of
a legislation noticed in a judicial decision is taken away
by a subsequent law; and
(b) Madan Mohan Pathak in fact, notices that in the case
G
of a declaratory judgment holding an action to be invalid,
validating legislation to remove the defect is permissible.
(iii) The collection of data by the State must demonstrate the
presence of compelling reasons namely, (a) inadequacy of
representation; (b) backwardness; and (c) overall administrative
efficiency as enunciated in Nagaraj and B K Pavitra I; H
1152 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (iv) The decision in Indra Sawhney holds that the question as to
whether a backward class of citizens is not adequately
represented in the services under the state is a matter of subjective
satisfaction;
(v) Nagaraj also notices the position that there is a presumption
B that the state is in the best position to define and measure merit
and that there is no fixed yardstick to identify and measure the
three factors on which quantifiable data has to be collected;
(vi) The decision in Jarnail also holds that the test of determining
the adequacy of representation in promotional posts is left wisely
C to the states; and
(vii) The Reservation Act 2018 was enacted after the State was
satisfied about the existence of the three compelling reasons.
B. The Ratna Prabha Committee has dealt with all the three
facets constituting the ‘compelling reasons’:
D
1. Backwardness
(i) The decision in Jarnail has clarified that there is no requirement
of collecting quantifiable data on the backwardness of SCs and
STs. The observation in Nagaraj is contrary to the larger Bench
decision in Indra Sawhney.
E
(ii) Yet, in any event, the Ratna Prabha Committee considered the
backwardness of SCs and STs in view of the dictum in Nagaraj
which then held the field. The Committee after carrying out the
exercise came to the conclusion that the requirement of
backwardness is satisfied.
F
2. Inadequacy of representation
(i) Chapter II of the Ratna Prabha Committee report considered
the inadequacy of representation and records a summary of its
conclusions in paragraphs 2.5 and 2.6;
G (ii) It is misleading to assert that the State did not collect cadre wise
data. Para 2.4.1 indicates that the government took into account
the data for groups A, B, C and D to draw a conclusion about
the inadequacy of representation;
(iii) The decisions in Indra Sawhney and Sabharwal are clear in
H postulating that persons belonging to the SCs and STs who are
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1153
[DR. DHANANJAYA Y CHANDRACHUD, J.]

appointed against general category posts/vacancies are not to A
be reckoned for ascertaining over representation; and
(iv) It is a matter of common experience that for most of the group
D posts such as municipal sweepers, only persons belonging to
SCs and STs apply. Over representation in group D posts which
results from general category candidates keeping away from B
them is no ground to deny promotion to group D employees
recruited against the reserved category.
3. Administrative efficiency
(i) Para 3.12 of Chapter III of the Ratna Prabha Committee report
has considered all relevant aspects before coming to the C
conclusion that reservations in promotion do not affect
administrative efficiency;
(ii) Promotions are made on the basis of seniority-cum-merit. [Rule
19(3)(a) of the Rules 1977] Only those candidates who fulfil the
criteria of merit/suitability are promoted based on seniority. Since D
this criterion is applicable even in respect of roster promotions,
the efficiency of administration is not adversely impacted; and
(iii) On promotion, a candidate is required to serve a statutory period
of officiation before being confirmed in service. This applies to
all candidates including roster point promotees and ensures that E
the efficiency of administration is not adversely affected.
C. The challenge on the ground that the Reservation Act
2018 does not exclude the benefit of consequential seniority in
respect of the creamy layer in terms of the decision in Jarnail is
baseless: F
(i) Creamy layer as a concept can be applied only at the entry level
or at appointment and has no application while granting
reservations in promotion and allowing for consequential
seniority. The Reservation Act 2018 provides only for
consequential seniority and the extent of reservation granted to G
SCs and STs at the entry level/ in appointment is not under
challenge;
(ii) Even assuming that the concept of creamy layer can be applied
at the stage of promotion, it is inapplicable to the conferment of
H
1154 SUPREME COURT REPORTS [2019] 7 S.C.R.

A consequential seniority. Consequential seniority is not an additional
benefit but a consequence of promotion;
(iii) Appointment to a post or progression in career based on
promotion cannot be treated as acquisition of creamy layer
status. In fact, the decision in Jarnail makes it clear that the
B concept of creamy layer applies only to the entry stage;
(iv) Nagaraj does not hold that the exclusion of the creamy layer is
a pre-condition for the exercise of the enabling power under
Article 16 (4A) for providing promotion or consequential
seniority;
C (v) In the decision in B K Pavitra I, the challenge to the Reservation
Act 2002 was accepted on the ground that the State had not
carried out an exercise for determining inadequacy of
representation, backwardness and overall efficiency of
administration. B K Pavitra I did not accept the plea of the
D applicability of creamy lawyer principle to consequential seniority;
and
(vi) Under the Reservation Order 1978, reservations in promotion
are restricted up to the lowest category of class I post.
D. There is no basis in the challenge that the Reservation
E Act 2018 does not meet the proportionality test and results in
over representation.
(i) In view of the Reservation Order 1999 providing that reservation
in promotion in favour of SCs and STs shall continue only till
their representation reaches 15 per cent and 3 per cent
F respectively, it is ensured that there is no over representation;
and
(ii) Since the Reservation Act 2018 provides only for consequential
seniority and not for reservation in appointment or promotion, it
cannot be asserted that reservation for the purpose of seniority
G is vacancy-based and not post-based, contrary to the decision in
Sabharwal. Reservations in promotion are provided by the
Government Order 1978 which provides for roster point
promotion and not roster point seniority. The Government Order
dated 13 April 1999 provides for making promotions (after the
existing backlog is filled) in favour of SCs and STs by maintaining
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1155
[DR. DHANANJAYA Y CHANDRACHUD, J.]

their representation to the extent of 15 per cent and 3 per cent A
of the total working strength (and not vacancies).
E. There was no constitutional infirmity in the Governor of
Karnataka having reserved the Reservation Act 2018 for the
consideration of the President.
The Governor in reserving the Bill for consideration of the President B
acted in pursuance of the provisions of Article 200 of the Constitution.
The Governor may under Article 200 (i) declare assent to a Bill; or (ii)
declare the withholding of assent; or (iii) reserve a Bill for consideration
of the President. The power of the Governor to reserve a Bill for
consideration of the President is not subject to the existence of a C
repugnancy under Article 254 (2). The action of the Governor is non-
justiciable. (Hoechst Pharmaceuticals Ltd)
F. The assent of the Governor is not contemplated once
the President has given assent to a Bill.
Neither Article 200 nor Article 201 contemplates that the Bill should D
be presented again before the Governor after it has been assented to by
the President. Section 5(1)(iv) of the Karnataka General Clauses Act
1899 postulates that an Act passed by the Karnataka legislature shall
come into operation on the day on which the assent of the Governor or,
as the case may be, of the President is granted and is first published in E
the Official Gazette. Hence, once the assent of the President is granted,
the necessity of a further assent by the Governor is obviated.
G. The submission that in Karnataka Power Transport
Corporation Limited, as a consequence of the reservation in
seniority in the cadre of Superintending Engineer and Engineer- F
in-Chief, there was over representation for SCs and ST between
2005 and 2016 is erroneous.
(i) There is no reservation for promotion to the posts of
Superintending Engineer and Engineer-in-Chief in KPTCL.
Reservation in promotion and consequential seniority is available
G
only up to the post of Assistant Executive Engineer. In fact, if
consequential seniority were not to be granted on promotion up
to the post of Assistant Executive Engineer, there would be
excessive under-representation of reserved category candidates.
The Ratna Prabha Committee report, in paragraph 2.4, took
note of the total number of officials/employees working in thirty H
1156 SUPREME COURT REPORTS [2019] 7 S.C.R.

A one government departments of the State Government. It noted
that 80.35 per cent of the sanctioned posts are concentrated in
six major Government departments namely; Education, Home,
Health, Revenue, Judicial and Finance. The data pertaining to
thirty one government departments was taken in the totality to
analyse and assess the adequacy of representation. The data of
B
smaller departments may not be representative of the State Civil
Services as a whole.
On the above grounds, it was urged that the challenge to the
Reservation Act 2018 must fail.
C 54. Ms Indira Jaising76, learned Senior Counsel appearing on behalf
of the intervenors (Karnataka SC/ST Engineer’s Welfare Association)
contended that the Reservation Act 2018 is constitutionally valid. Ms
Jaising urged the following submissions:
(i) The decisions of this Court in State of Kerala v N M Thomas77
D (“N M Thomas”) and Nagaraj affirmed that Article 16 (4) is
an emphatic declaration of Article 16 (1). The principle of
‘proportional equality’ entails substantive equality which is
reflected in affirmative action to remedy injustice to SCs, STs
and Other Backward Classes78. Social justice is concerned with
the distribution of benefits and burdens. The Reservation Act
E 2018, in providing for consequential seniority, furthers the vision
of substantive equality and is valid;
(ii) Affirmative action under Article 15 (4) and reservation under
Article 16 (4) of the Constitution are intended to ensure that all
sections of the society are represented equally in services under
F the state. The Reservation Act 2018 underlies this salient objective
and furthers the promotion of the interests of the SCs, STs and
other weaker sections as stipulated in Article 46 of the
Constitution;
(iii) Article 16 (4A) is an enabling provision which empowers the
G State to frame rules or enact a legislation granting reservations
in promotions with consequential seniority subject to the fulfilment
of the conditions laid down in Nagaraj and modified by Jarnail.
76
In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018
77
(1976) 2 SCC 310
78
H OBCs
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1157
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Following the decision in Jarnail, the state is required to show A
data only on the inadequacy of representation and efficiency of
administration. The State of Karnataka, in exercise of the
enabling power under Article 16 (4A) enacted the Reservation
Act 2018 in compliance with the conditions precedent to the
exercise of the power stipulated in that Article;
B
(iv) The decision in Sabharwal lays down that in determining the
inadequacy of representation of SCs and STs in promotional
posts, the state may take the total population of a particular
class and its representation in the service. The State has studied
the extent of reservation in posts for SCs and STs in a ‘group’
which is a collection of cadres. Hence, it cannot be said that the C
state failed to collect quantifiable data on the representation of
SCs and STs in promotional posts. Without the grant of
consequential seniority, the percentage of reservation will not
reach the prescribed percentage;
(v) No statistical studies have been provided to show that the grant D
of consequential seniority has led to the lowering of efficiency
in administration. It cannot be presumed that the appointment of
SCs and STs will lead to a lowering of efficiency as at the
individual level, all individuals belonging to SCs and STs must
also achieve the minimum benchmark of ‘good’; E
(vi) The Reservation Act 2002 was struck down on the basis of the
failure of the state to collect quantifiable data. The Reservation
Act 2018 has been enacted on the basis of data collected and
studied in the Ratna Prabha Committee report. Hence, the basis
of the decision in B K Pavitra I has been removed. Additionally, F
no mandamus was issued in B K Pavitra I;
(vii) The collection of data required to be carried out by the State is
a matter of social science and is carried out by experts. Data
collection is both qualitative and quantitative. As long as the
methodology adopted by the state is scientifically sound, the G
assessment of the data collected is the prerogative of the state.
The court may intervene in judicial review only when there is a
complete absence of data or if the data relied on is irrelevant;
and

H
1158 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (viii) The principles laid down by this Court in Indra Sawhney on the
exclusion of the creamy layer apply only to OBCs and cannot
extend to SCs and STs. No question arose in Nagaraj on the
exclusion of the creamy layer in respect of SCs and STs. Hence,
the decision is not an authority for the principle that the states
are bound to exclude the creamy layer in respect of SCs and
B
STs. The decision of this Court in Jarnail dealt with the
competence of Parliament to enact a law in relation to the creamy
layer and did not lay down a general proposition on its exclusion.
The concept of creamy layer, if applicable, can only be applied
at the entry level and not in promotions.
C 55. Mr Dinesh Dwivedi79, learned Senior Counsel appearing on
behalf of the intervenor (Karnataka SC/ST Engineers’ Welfare
Association), urged the following submissions:
(i) The decision in Nagaraj was concerned with whether reservation
in promotion as inserted in Article 16 (4A) by the Constitution
D (Seventy-seventh Amendment) Act 1995 and the enabling
provision for the grant of consequential seniority under Article
16 (4A) inserted by the Constitution (Eighty-fifth Amendment)
Act 2001 violated the basic structure of the Constitution. The
decision in Nagaraj was concerned with reservations in
E promotion and did not equate reservation in promotion with the
grant of consequential seniority. In this view, the four controlling
factors, namely (i) backwardness; (ii) adequacy of representation;
(iii) elimination of the creamy layer; and (iv) efficiency of
administration have relevance only to the exercise of the enabling
power under Article 16 (4A) for making reservation in promotion
F and not the exercise of the enabling power to grant consequential
seniority;
(ii) Reservation in promotion was introduced in the State of
Karnataka by the Government Order dated 27 April 1978 and
continues to be in operation. The Reservation Act 2018 stipulates
G the grant of consequential seniority which is premised on the
prior existence and operation of reservation in promotion. Absent
a challenge to the Government Order dated 27 April 1978 in the
present proceedings, the petitioner is precluded from challenging
the grant of consequential seniority in the Reservation Act 2018;
H 79
In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1159
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) Consequential seniority is nothing but the normal rule of seniority A
which accords seniority to roster point promotees from the date
of their substantive promotion. The catch-up rule is an exception
to the normal rule of seniority. Prior to the decision in Indra
Sawhney, accelerated seniority to roster point promotees existed
in the State of Karnataka with the application of the continuous
B
officiation rule. This is supported by Rule 2(b) of the 1957 Rules.
Para III (d) of the Government Order dated 27 April 1978
provided for the application of the catch-up rule only in a limited
manner. Rule 4 is restricted in its application to appointments
made on the same day which implies that in the absence of its
application to a given case, consequential seniority must be C
granted;
(iv) The decision in Virpal Singh concerned a rule that specifically
provided for the application of the catch-up rule in a departure
from the normal rule of seniority. This Court held that a state
may prescribe either consequential seniority based on continuous D
officiation or the catch-up rule of seniority in case of roster
point promotions. A harmonious reading of Articles 14 and 16(1)
of the Constitution does not stipulate that the catch-up rule must
apply in the case of roster point promotions. Thus, a balancing
of Articles 14, 16(1) and 16(4) of the Constitution denotes that
the catch-up rule is not mandatory. The decisions of this Court E
in Ajit Singh I, Ajit Singh II and Badappanavar, in holding to
the contrary, have been expressly overruled by the seventy-
seventh and the eighty-fifth amendments to the Constitution,
following which the principles enunciated in Virpal Singh
continue to govern the field. The eighty-fifth amendment was F
intended to make consequential seniority a constitutional principle
and revive consequential seniority as the normal rule of seniority;
(v) The principles enunciated in Virpal Singh are fortified by the
decision in Nagaraj which held that the catch-up rule and
consequential seniority are principles of service jurisprudence G
and cannot be elevated to a constitutional status. The discretion
to choose between consequential seniority and catch-up vests
with the state. The Reservation Act 2018, in stipulating for
consequential seniority, is a valid exercise of discretion by the
State; and
H
1160 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (vi) In the alternative, the tests laid down by the four controlling
factors in Nagaraj and Jarnail have been satisfied prior to the
enactment of the Reservation Act 2018. The satisfaction of the
state in this regard cannot be subjected to review by this Court.
56. Mr Lakshminarayana, learned Senior Counsel has submitted
B thus:
(i) The issue as to whether reservation under Article 16 (4A) can
be provided by an executive order was answered in the
affirmative in the judgment of Justice BP Jeevan Ready speaking
for a plurality of judges in Indra Sawhney. The word ‘provision’
C in Article 16 (4) was interpreted in contrast with the word ‘law’
in clauses (3) and (5) of Article 16. The word ‘any’ and the
word ‘provision’ in Article 16 (4) must be given their due meaning.
Article 16 (4) is exhaustive as a special provision in favour of
the backward class of citizens. Backward classes having been
classified by the Constitution as a class deserving special
D treatment and the Constitution itself having specified the nature
of the special treatment, it should be presumed that no further
classification or special treatment is permissible in their favour
outside Article 16 (4). In light of the decision in Indra Sawhney,
it is now a settled principle that a provision for reservation can
E be made by the legislature, by statutory rules and by executive
orders;
(ii) Provisions for reservation in promotions were introduced in
Karnataka by the Government Order dated 27 April 1978 on
the basis of the inadequacy of representation of SCs and STs in
F public services under Article 16 (4). After the report on the
inadequacy of representation dated 30 August 1979, first and
second roster points were reserved for SCs and STs. The
principle of consequential seniority is adopted by clause (vii) of
the Government Order dated 27 April 1978 and clause (d) of
the Government Order dated 1 June 1978;
G
(iii) Clause (vii) of the Government Order dated 27 April 1978 as it
originally stood provided that inter se seniority amongst persons
promoted “on any occasion” shall be determined under Rules 4
and 4 (A) of the Seniority Rules 1957;

H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1161
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iv) The words “on any occasion” in clause (vii) were amended by A
clause (d) of the Government Order dated 1 June 1978 so that
the determination of seniority among reserved promotees and
general candidates on the basis of seniority-cum-merit shall “on
each occasion” be fixed under Rule 4 of the Seniority Rules
1957;
B
(v) The substitution of the expression “on any occasion” with the
expression “on each occasion” denotes the intention of the
government to provide consequential seniority to reserved
category candidates promoted on the basis of roster;
(vi) The legislature enacted provisions pertaining to the policy of C
reservation in promotion in the State Civil Services and Public
Sector Undertakings as follows :
(a) The Rules 1977 including the proviso to Rule 8, upheld
by this Court in Bhakta Ramegowda;
(b) The Karnataka Scheduled Castes, Scheduled Tribes and D
Other Backward Classes (Reservation of Appointment
etc.,) Act 1990;
(c) The Karnataka Scheduled Castes, Scheduled Tribes and
Other Backward Classes (Reservation of Appointment
etc.,) Rules 1992; and E
(d) The Karnataka State Civil Services (Unfilled Vacancies
Reserved for the persons belonging to the Scheduled
Castes and the Scheduled Tribes) (Special Recruitment)
Rules 2001.
F
The above provisions were followed by the Reservation Acts of
2002 and 2017.
(vii) With effect from 1 April 1992, the State of Karnataka inserted
the proviso to Rule 8 in the Rules 1977 which reads as follows:
“8. Provision for reservation of appointments or posts.- G
Appointments or posts shall be reserved for the members of
the Scheduled Castes, Scheduled Tribes, and Other Backward
Classes to such extent and in such manner as may be specified
by the government under clause (4) of Article 16 of the
Constitution of India. H
1162 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Proviso to Rule 8
80
[Provided that, notwithstanding anything in the rules of
Recruitment specially made in respect of any Service or Post,
the backlog vacancies in the promotional quota shall be
determined and implemented with effect from 27th April,1978.
B Note.– The backlog vacancy means the extent of the
number of vacancies available under the roster system up to
the level of lowest category in Group-A post calculated from
27th April, 1978.].”
The above Rule was upheld in Bhakta Ramegowda;
C
(viii) The Government Order dated 24 June 1997 provided additional
roster points to cover up backlog promotional roster points, both
in promotion and direct recruitment. Clauses (iv) and (v) of
para 8 of the Government Order dated 24 June 1997 reads as
follows :
D
“Clause (IV).
After effecting review of promotion and adjustment and fitment
as indicated in item (iii) above, if some more persons belonging
to scheduled castes and scheduled tribes who have already
been promoted against backlog cannot get adjusted due to want
E
of adequate number of vacancies as per the aforesaid roster
points, such persons shall be adjusted and fitted in accordance
with the procedure specified in item (iii) while effecting
promotion in respect of future vacancies. Until such time, shall
be continued against supernumerary posts to be created by
F the concerned Administrative Department. For this purpose,
the Secretaries to Government are hereby delegated the power
to create supernumerary posts presuming the concurrence of
Finance Department and to that extent the Government Order
No. FD 1 TFP 96, dated 10.07.1996, shall be deemed to have
been modified accordingly.
G
Clause (V)
While adjusting and fitting promote[e]s as indicated in item (iii)
and (iv) above, the inter-se seniority among the General category,
80
Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1163
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the scheduled caste category and the scheduled tribe category A
shall be determined in accordance with rule 4 or rule 4 A as
the case may be, of the Karnataka Government Servants
Seniority Rules 1957. The roster points are meant only for
calculating the number of vacancies that become available for
the different categories on each occasion and they do not
B
determine the seniority.”
The above clauses reiterated the purpose of assessing inter se
seniority after promotion of roster promotees in reckoning consequential
seniority among two groups.
(ix) The State Government is entitled to prescribe the percentage of C
reservation based on the total population of a particular backward
class and its representation in the services of the State under
Article 16 (4). Once the prescribed percentage of reservations
is determined, the numerical test of adequacy is satisfied. The
percentage of reservation is the desired representation of the
backward classes in the state services and is consistent with D
the demographic estimate, based on the proportion worked out
in relation to their population;
(x) The operation of the roster points and filling of the cadre strength
ensures that the reservation remains within the limit of 50 per
cent; E

(xi) Reserved candidates who have been appointed or promoted on
merit as general candidates cannot be included in calculating
adequacy of representation of backward classes in operating
the roster points. Only reserved candidates promoted against
roster points are to be taken into account in considering the F
adequacy of representation;
(xii) A cadre includes different grades and reservation can be provided
in different grades within the cadre. The reservation policy
contained in the Government Order dated 27 April 1978 has
been re-issued on 17 April 1993 and 11 May 1993 after the G
decision in Indra Sawhney;
(xiii) Both clauses (1) and (4) of Article 16 operate in the same field.
Both are directed towards achieving equality of opportunity in
services under the State. The formation of opinion by the State
on the adequacy of representation is a matter of subjective H
1164 SUPREME COURT REPORTS [2019] 7 S.C.R.

A satisfaction and the test is whether there was some material
before the State to justify its opinion. In the exercise of judicial
review, the court would extend due deference to the judgment
and discretion of the executive. Even if there are some errors
on the part of the State Government, that would not in any way
result in the invalidation of the entire exercise;
B
(xiv) Efficiency of administration means governance which provides
responsive service to the people. Merit alone is not a component
of efficiency. Once an employee is promoted, efficiency is judged
on the basis of the annual confidential reports;
C (xv) A curative legislation does not constitute an encroachment on
judicial power by the State Legislature. Similarly, it is open to
the legislature to enact a legislation both with retrospective and
prospective effect;
(xvi) Judicial review cannot extend to examine the adequacy of the
D material available before the President and unless, there is a
situation involving a fraud on power or conduct actuated by
oblique motive, the court would not intervene;
(xvii) The principle of creamy layer has no application to in-service
candidates; and
E (xviii) The State having rectified the lacuna which was pointed out in
B K Pavitra I, by carrying out the exercise of data collection,
the opinion formed by the State after analysing the data lies in
its subjective satisfaction. The reservation policy dated 27 April
1978 which introduced provisions for reservations in promotions
F for SCs and STs in public services has continued until date without
interruption.
57. Mr Nidhesh Gupta, learned Senior Counsel urged the following
submissions:
(i) The phrase ‘in the opinion of the state’ in Article 16(4) of the
G Constitution indicates that the issue with regard to adequacy of
representation is within the subjective satisfaction of the state.
The role of the court is limited to examining whether the opinion
formed by the government was on the basis of data available
with it. While the existence of circumstances requiring state
action may be reviewed, the opinion formed is outside the purview
H of judicial review. These propositions have been accepted in the
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1165
[DR. DHANANJAYA Y CHANDRACHUD, J.]

decisions of this Court in Indra Sawhney, Barium Chemicals A
Ltd. v Company Law Board81 (“Barium Chemicals Ltd.”),
Rohtas Industries v S D Agarwal82 and Rustom Cavasjee
Cooper v Union of India83;
(ii) The expression ‘to any class or classes of posts’ in Article 16(4)
makes it abundantly clear that the phrase refers to a ‘class’ or B
‘group’ and not a cadre. The use of the word ‘services’ in the
phrase ‘services under the state’ in Article 16 (4A) supports
this contention. The decisions in Sabharwal and Nagaraj clarify
that cadre strength is to be applied in the operation of the roster.
The reference to ‘entire cadre strength’ in Sabharwal adverted
to the fact that the entire cadre strength should be taken into C
account in determining whether reservation up to the quota limit
has been reached. In this view, ‘entire cadre strength’ is the
reference point to (i) ascertain the position of representation in
the entire service; (ii) determine whether reservation up to the
quota limit has been reached in the application of the roster; and D
(iii) the cadre strength has been applied in the operation of the
roster. It was urged that if the percentages were calculated on
the basis of vacancies, the actual appointments made may
exceed the prescribed quota. Reliance has been placed on the
decisions of this Court in Indra Sawhney, Nagaraj, and Jarnail;
E
(iii) The decision in Indra Sawhney does not deal with SCs and
STs in regard to the creamy layer principle. In any case, even if
the principle applies to SCs and STs, it would only be applicable
at the stage of appointments and not for promotional posts; and
(iv) The percentages in the PWD which are marginally above the
F
stipulated quota are by way of including those reserved category
candidates who were selected on general merit. This is contrary
to the law laid down by this Court in Sabharwal, Indra Sawhney
and Ritesh Sah v Y L Yamul84.
58. The rival submissions now fall for consideration.
G
59. Other Counsel, who argued and submitted their written
submissions, have with certain nuances, reiterated similar arguments.
81
AIR 1967 SC 295
82
(1969) 1 SCC 325
83
(1970) 1 SCC 248
84
(1996) 3 SCC 253 H
1166 SUPREME COURT REPORTS [2019] 7 S.C.R.

A D. Assent to the Bill
60. Besides the Governor, the legislatures of the States consist of
a bicameral legislature for some States and a unicameral legislature for
others.85
61. Article 200 is the provision which enunciates the power of the
B Governor to assent to a Bill, withhold assent or reserve a Bill for considering
of the President:
“200. When a Bill has been passed by the Legislative Assembly
of a State or, in the case of a State having a Legislative Council,
has been passed by both Houses of the Legislature of the State, it
C shall be presented to the Governor and the Governor shall declare
either that he assents to the Bill or that he withholds assent
therefrom or that he reserves the Bill for the consideration of the
President:
Provided that the Governor may, as soon as possible after the
D presentation to him of the Bill for assent, return the Bill if it is not
a Money Bill together with a message requesting that the House
or Houses will reconsider the Bill or any specified provisions
thereof and, in particular, will consider the desirability of introducing
any such amendments as he may recommend in his message and,
E when a Bill is so returned, the House or Houses shall reconsider
the Bill accordingly, and if the Bill is passed again by the House or
Houses with or without amendment and presented to the Governor
for assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but shall
F reserve for the consideration of the President, any Bill which in
the opinion of the Governor would, if it became law, so derogate
from the powers of the High Court as to endanger the position
which that Court is by this Constitution designed to fill.”

85
G Article 168. (1) For every State there shall be a Legislature which shall consist of the
Governor, and —
(a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra],
[Karnataka], [[Tamil Nadu, Telangana]] [and Uttar Pradesh], two Houses;
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the
Legislative Council and the other as the Legislative Assembly, and where there is only
H one House, it shall be known as the Legislative Assembly.
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1167
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Article 201 deals with what is to happen when the Governor A
reserves a Bill for the consideration of the President.
“201. When a Bill is reserved by a Governor for the consideration
of the President, the President shall declare either that he assents
to the Bill or that he withholds assent therefrom:
Provided that, where the Bill is not a Money Bill, the President B
may direct the Governor to return the Bill to the House or, as the
case may be, the Houses of the Legislature of the State together
with such a message as is mentioned in the first proviso to article
200 and, when a Bill is so returned, the House or Houses shall
reconsider it accordingly within a period of six months from the C
date of receipt of such message and, if it is again passed by the
House or Houses with or without amendment, it shall be presented
again to the President for his consideration.”
Upon a Bill being passed by the Houses of the legislature (or by
the sole House where there is only a legislative assembly), it has to be D
presented to the Governor. The Governor can (i) assent to the Bill; (ii)
withhold assent; or (iii) reserve the Bill for the consideration of the
President.
62. Where a Bill is not a Money Bill, the Governor may return the
Bill for reconsideration upon which the House or Houses, as the case E
may be, will reconsider the desirability of introducing the amendments
which the Governor has recommended. If the Bill is passed again by the
House (or Houses as the case may be), the Governor cannot thereafter
withhold assent. The second proviso to Article 200 stipulates that the
Governor must not assent to a Bill but necessarily reserve it for the
consideration of the President if the Bill upon being enacted would F
derogate from the powers of the High Court in a manner that endangers
its position under the Constitution. Save and except for Bills falling within
the description contained in the second proviso (where the Governor
must reserve the Bill for consideration of the President), a discretion is
conferred upon the Governor to follow one of the courses of action G
enunciated in the substantive part of Article 200. Aside from Bills which
are covered by the second proviso, where the Governor is obliged to
reserve the Bill for the consideration of the President, the substantive
part of Article 200 does not indicate specifically, the circumstances in
which the Governor may reserve a Bill for the consideration of the
President. The Constitution has entrusted this discretion to the Governor. H
1168 SUPREME COURT REPORTS [2019] 7 S.C.R.

A The nature and scope of the discretionary power of the Governor to act
independent of, or, contrary to aid and advice of Council of Ministers
under Article 163 was discussed in Nabam Rebia, Justice J S Khehar
(as the learned Chief Justice then was) held thus:
“154. We are, therefore, of the considered view that insofar as
B the exercise of discretionary powers vested with the Governor is
concerned, the same is limited to situations, wherein a constitutional
provision expressly so provides that the Governor should act in
his own discretion. Additionally, a Governor can exercise his
functions in his own discretion, in situations where an interpretation
of the constitutional provision concerned, could not be construed
C otherwise…”86
Justice Dipak Misra (as the learned judge then was), observed
thus:
“375. …The Governor is expected to function in accordance with
D the provisions of the Constitution (and the history behind the
enactment of its provisions), the law and the rules regulating his
functions. It is easy to forget that the Governor is a constitutional
or formal head—nevertheless like everybody else, he has to play
the game in accordance with the rules of the game—whether it is
in relation to the Executive (aid and advice of the Council of
E Ministers) or the Legislature (Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly). This
is not to say that the Governor has no powers—he does, but these
too are delineated by the Constitution either specifically or by
necessary implication…”87
F 63. The framers carefully eschewed defining the circumstances
in which the Governor may reserve a Bill for the consideration of the
President. By its very nature the conferment of the power cannot be
confined to specific categories. Exigencies may arise in the working of
the Constitution which justify a recourse to the power of reserving a Bill
G for the consideration of the President. They cannot be foreseen with the
vision of a soothsayer. The power having been conferred upon a
constitutional functionary, it is conditioned by the expectation that it would
be exercised upon careful reflection and for resolving legitimate concerns
86
Supra 69 at page 159
87
H Ibid at page 244
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1169
[DR. DHANANJAYA Y CHANDRACHUD, J.]

in regard to the validity of the legislation. The entrustment of a A
constitutional discretion to the Governor is premised on the trust that the
exercise of authority would be governed by constitutional statesmanship.
In a federal structure, the conferment of this constitutional discretion is
not intended to thwart democratic federalism. The state legislatures
represent the popular will of those who elect their representatives. They
B
are the collective embodiments of that will. The act of reserving a Bill
for the assent of the President must be undertaken upon careful reflection,
upon a doubt being entertained by the Governor about the constitutional
legitimacy of the Bill which has been passed.
64. Dr Dhavan in the course of his submissions, has dwelt at
length on the power which is entrusted to the Governor to reserve a Bill C
for the consideration of the President under Article 254 (2). Article 254
(2) deals with a situation where a law which has been enacted by the
legislature of a state on a matter which is enumerated in the Concurrent
List of the Seventh Schedule contains any provision which is repugnant
either to an earlier law made by Parliament or an existing law with D
respect to that matter. In such an eventuality, the law made by the
legislature of the state can prevail in that state only if it has received the
assent of the President on being reserved for consideration.
65. When the reservation of a Bill for the assent of the President
has been occasioned on the ground of a repugnancy with an existing law E
or a law enacted by the Parliament, there are decisions of this Court
which hold that the President has to be apprised of the reason why the
assent was sought. In Gram Panchayat of Village Jamalpur, a law
enacted by the Punjab legislature in 1953, extinguished all private interests
in Shamlat-deh lands and vested them in the village Panchayats as a
matter of agrarian reform. This Court held that the Punjab enactment F
had not been reserved for the assent of the President on the ground that
it was repugnant to an earlier Act enacted by Parliament in 1950 but the
assent was sought for a different and a specific purpose. In this
background, the Constitution Bench held that the assent of the President
would not avail the state government to accord precedence to the law G
enacted by the state legislature over the law made by Parliament. The
Constitution Bench held:
“12…The assent of the President under Article 254(2) of the
Constitution is not a matter of idle formality. The President has, at
least, to be apprised of the reason why his assent is sought if, H
1170 SUPREME COURT REPORTS [2019] 7 S.C.R.

A there is any special reason for doing so. If the assent is sought
and given in general terms so as to be effective for all purposes,
different considerations may legitimately arise. But if, as in the
instant case, the assent of the President is sought to the Law for
a specific purpose, the efficacy of the assent would be limited to
that purpose and cannot be extended beyond it.”88
B
66. A similar principle was adopted in Kaiser-I-Hind Pvt Ltd.
The case concerned rent legislation in Maharashtra and the Public
Premises (Eviction of Unauthorized Occupants) Act 1971 enacted by
Parliament. This Court held that where the assent was given after
considering the repugnancy between the Bombay Rent Act, the Transfer
C of Property Act and the Presidency Small Cause Courts Act, it was not
correct to hold that the state law would prevail over another parliamentary
enactment for which no assent had been sought. In that context, the
Court held:
“65… 2. (a) Article 254(2) contemplates “reservation for
D consideration of the President” and also “assent”. Reservation
for consideration is not an empty formality. Pointed attention of
the President is required to be drawn to the repugnancy between
the earlier law made by Parliament and the contemplated State
legislation and the reasons for having such law despite the
E enactment by Parliament.
(b) The word “assent” used in clause (2) of Article 254 would in
context mean express agreement of mind to what is proposed by
the State.”89
67. These decisions are specifically in the context of Article 254.
F Article 254(1) postulates inter alia, that in a matter which is governed
by the Concurrent List, a law which has been enacted by the legislature
of a state shall be void to the extent of its repugnancy with a law enacted
by the Parliament. Clause (2) of Article 254 obviates that consequence
where the law has been reserved for the consideration of the President
G and has received assent. Article 254(1) is made subject to Clause (2),
thereby emphasizing that the assent of the President will cure a
repugnancy of the state law with a law enacted by the Parliament in a
matter falling in the Concurrent List. It is in this context, that the decisions
88
Supra 67 at pages 668-669
89
H Supra 66 at pages 215-216
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1171
[DR. DHANANJAYA Y CHANDRACHUD, J.]

of this Court hold that the assent of the President should be sought in A
relation to a repugnancy with a specific provision contained in a
Parliamentary legislation so as to enable due consideration by the
President of the ground on which assent has been sought. Article 200
contains the source of the constitutional power which is conferred upon
the Governor to reserve a Bill for the consideration of the President.
B
Article 254 (2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the state legislature for
consideration of the President in a specified situation - where it is
repugnant to an existing law or to a Parliamentary legislation on a matter
falling in the Concurrent List. The eventuality which is specified in Article
254 (2) does not exhaust the ambit of the power entrusted to the Governor C
under Article 200 to reserve a Bill for the consideration of the President.
Apart from a repugnancy in matters falling in the Concurrent List between
state and Parliamentary legislation, a Governor may have sound
constitutional reasons to reserve a Bill for the consideration of the
President. Article 200, in its second proviso mandates that a Bill which
D
derogates from the powers of the High Court must be reserved for the
consideration of the President. Apart from Bills which fall within the
description set out in the second proviso, the Governor may legitimately
refer a Bill for consideration of the President upon entertaining a
legitimate doubt about the validity of the law. By its very nature, it would
not be possible for this Court to reflect upon the situations in which the E
power under Article 200 can be exercised. This was noticed in the
judgment of this Court in Hoechst. Excluding it from judicial scrutiny,
the Court held:
“86…There may also be a Bill passed by the State Legislature
where there may be a genuine doubt about the applicability of any F
of the provisions of the Constitution which require the assent of
the President to be given to it in order that it may be effective as
an Act. In such a case, it is for the Governor to exercise his
discretion and to decide whether he should assent to the Bill or
should reserve it for consideration of the President to avoid any
future complication. Even if it ultimately turns out that there was G
no necessity for the Governor to have reserved a Bill for the
consideration of the President, still he having done so and obtained
the assent of the President, the Act so passed cannot be held to
be unconstitutional on the ground of want of proper assent. This
aspect of the matter, as the law now stands, is not open to scrutiny H
1172 SUPREME COURT REPORTS [2019] 7 S.C.R.

A by the courts. In the instant case, the Finance Bill which ultimately
became the Act in question was a consolidating Act relating to
different subjects and perhaps the Governor felt that it was
necessary to reserve it for the assent of the President. We have
no hesitation in holding that the assent of the President is not
justiciable, and we cannot spell out any infirmity arising out of his
B
decision to give such assent.”90
68. Hoechst is an authority for the proposition that the assent of
the President is non - justiciable. Hoechst also lays down that even if,
as it turns out, it was not necessary for the Governor to reserve a Bill for
the consideration of the President, yet if it was reserved for and received
C the assent of the President, the law as enacted cannot be regarded as
unconstitutional for want of ‘proper’ assent.
69. The above decisions essentially answer the submissions which
were urged by Dr Dhavan. The law as propounded in the line of
precedents adverted to above must negate the submissions which were
D urged on behalf of the petitioners. Once the Bill (which led to the
Reservation Act 2018) was reserved by the Governor for the
consideration of the President, it was for the President to either grant or
withhold assent to the Bill. The President having assented to the Bill, the
requirements of Article 201 were fulfilled. The validity of the assent by
E the President is non-justiciable. The Governor, while reserving the Bill in
the present case for the consideration of the President on 6 December
2017 observed thus:
“The Supreme Court in the case of BK Pavitra Case, while
considering the issue of grant of promotion to persons belonging
F to SC and STs has observed the necessity of applying the test of
inadequacy of representation, backwardness and overall efficiency,
for exercise of power under Article 16 (4A) of the Constitution
and has directed the State Government to revise the seniority list
within the time frame.

G The State Government to overcome the situation which was found
fault with by the Supreme Court in the aforesaid judgment has
come out with a Bill, which is now sent for my assent.
Having regard to the judgment of the Supreme Court in the
aforesaid case and importance of the issue and the Constitutional
90
H Supra 68 at pages 100-101
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1173
[DR. DHANANJAYA Y CHANDRACHUD, J.]

interpretation involved in the matter, I deem it appropriate to reserve A
the matter for the consideration of the President. Accordingly, the
Bill is reserved for the consideration of the President under Article
200 of the Constitution of India.”
70. The state government, in the course of its clarifications, was
of the view that there was no necessity of reserving the Bill for the B
consideration of the President, since in its view, the Governor had not
recorded a finding that it was unconstitutional, or fell afoul of existing
central legislation on the subject or that it was beyond legislative
competence or derogated from the fundamental rights. All procedural
requirements under the Constitution were according to the government
duly complied with. This objection of the state government cannot cast C
doubt upon the grant of assent by the President. The law having received
the assent of the President, the submissions which were urged on behalf
of the petitioners cannot be countenanced.
E. Does the Reservation Act 2018 overrule or nullify B K
Pavitra I D

71. The foundation of the decision in B K Pavitra I is the principle
enunciated in Nagaraj that in order to sustain the exercise of the enabling
power contained in Article 16 (4A), the state is required to demonstrate
a “compelling necessity” by collecting quantifiable data on: (i) inadequacy
of representation; (ii) backwardness; and (iii) overall efficiency. The E
judgment in B K Pavitra I held that no such exercise was undertaken
by the State of Karnataka before providing for reservation in promotion
and providing for consequential seniority. On the ground that the state
had not collected quantifiable data on the three parameters enunciated
in Nagaraj, the Reservation Act 2002 was held to be unconstitutional. F
The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A)
on the basis that before taking recourse to the enabling power the state
has to carry out the exercise of collecting quantifiable data and fulfilling
the three parameters noted above. B K Pavitra I essentially held that
there was a failure on the part of the state to undertake this exercise,
which was a pre-condition for the exercise of the enabling power to G
make reservations in promotions and to provide for consequential seniority.
72. The decision in B K Pavitra I did not restrain the state from
carrying out the exercise of collecting quantifiable data so as to fulfil the
conditionalities for the exercise of the enabling power under Article 16
(4A). The legislature has the plenary power to enact a law. That power H
1174 SUPREME COURT REPORTS [2019] 7 S.C.R.

A extends to enacting a legislation both with prospective and retrospective
effect. Where a law has been invalidated by the decision of a constitutional
court, the legislature can amend the law retrospectively or enact a law
which removes the cause for invalidation. A legislature cannot overrule
a decision of the court on the ground that it is erroneous or is nullity. But,
it is certainly open to the legislature either to amend an existing law or to
B
enact a law which removes the basis on which a declaration of invalidity
was issued in the exercise of judicial review. Curative legislation is
constitutionally permissible. It is not an encroachment on judicial power.
In the present case, state legislature of Karnataka, by enacting the
Reservation Act 2018, has not nullified the judicial decision in B K Pavitra
C I, but taken care to remedy the underlying cause which led to a declaration
of invalidity in the first place. Such a law is valid because it removes the
basis of the decision.
73. These principles have consistently been reiterated in a line of
precedents emerging from this Court. In Utkal Contractors and
D Joinery (P) Ltd, this Court held:
“15. …The legislature may, at any time, in exercise of the plenary
power conferred on it by Articles 245 and 246 of the Constitution
render a judicial decision ineffective by enacting a valid law. There
is no prohibition against retrospective legislation. The power of
E the legislature to pass a law postulates the power to pass it
prospectively as well as retrospectively. That of course, is subject
to the legislative competence and subject to other constitutional
limitations. The rendering ineffective of judgments or orders of
competent courts by changing their basis by legislative enactment
is a well-known pattern of all validating acts. Such validating
F legislation which removes the causes of ineffectiveness or invalidity
of action or proceedings cannot be considered as encroachment
on judicial power. The legislature, however, cannot by a bare
declaration, without more, directly overrule, reverse or set aside
any judicial decision…”91
G (See also in this context : Bhubaneshwar Singh v Union of
India 92, Indian Aluminium Co v State of Kerala 93 (“Indian
Aluminium Co”), Narain Singh94 and Cheviti Venkanna Yadav).
91
Supra 74 at page 759
92
(1994) 6 SCC 77
93
(1996) 7 SCC 637
H 94
(2009) 13 SCC 165
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1175
[DR. DHANANJAYA Y CHANDRACHUD, J.]

74. The legislature has the power to validate a law which is found A
to be invalid by curing the infirmity. As an incident of the exercise of this
power, the legislature may enact a validating law to make the provisions
of the earlier law effective from the date on which it was enacted (The
United Provinces v Mst Atiqa Begum95 and Rai Ramkrishna v
State of Bihar96). These principles were elucidated in the decision of
B
this Court in Prithvi Cotton Mills Ltd. The judgment makes a distinction
between a law which simply declares that a decision of the court will not
bind (which is impermissible for the legislature) and a law which
fundamentally alters the basis of an earlier legislation so that the decision
would not have been given in the altered circumstances. This distinction
is elaborated in the following extract: C
“4. … Granted legislative competence, it is not sufficient to declare
merely that the decision of the Court shall not bind for that is
tantamount to reversing the decision in exercise of judicial power
which the Legislature does not possess or exercise. A court’s
decision must always bind unless the conditions on which it is D
based are so fundamentally altered that the decision could not
have been given in the altered circumstances. Ordinarily, a court
holds a tax to be invalidly imposed because the power to tax is
wanting or the statute or the rules or both are invalid or do not
sufficiently create the jurisdiction. Validation of a tax so declared
illegal may be done only if the grounds of illegality or invalidity are E
capable of being removed and are in fact removed and the tax
thus made legal.”97
75. In State of T N v Arooran Sugars Ltd98, a Constitution
Bench of this Court recognized the power of the legislature to enact a
law retrospectively to cure a defect found by the Court. It was held that F
in doing so, the legislature did not nullify a writ or encroach upon judicial
power. The legislature in remedying a deficiency in the law acted within
the scope of its authority. This Court held:
“16…It is open to the legislature to remove the defect pointed out
by the court or to amend the definition or any other provision of G
the Act in question retrospectively. In this process it cannot be
95
AIR 1941 FC 16
96
(1964) 1 SCR 897
97
Supra 55 at pages 286-287
98
(1997) 1 SCC 326 H
1176 SUPREME COURT REPORTS [2019] 7 S.C.R.

A said that there has been an encroachment by the legislature over
the power of the judiciary. A court’s directive must always bind
unless the conditions on which it is based are so fundamentally
altered that under altered circumstances such decisions could not
have been given. This will include removal of the defect in a statute
pointed out in the judgment in question, as well as alteration or
B
substitution of provisions of the enactment on which such judgment
is based, with retrospective effect.”99
The same principle was formulated in the decision of this Court in
Virender Singh Hooda v State of Haryana100:
C “59. …vested rights can be taken away by retrospective legislation
by removing the basis of a judgment so long as the amendment
does not violate the fundamental rights. We are unable to accept
the broad proposition… that the effect of the writs issued by the
courts cannot be nullified by the legislature by enacting a law with
retrospective effect. The question, in fact, is not of nullifying the
D effect of writs which may be issued by the High Court or this
Court. The question is of removing the basis which resulted in
issue of such a writ. If the basis is nullified by enactment of a
valid legislation which has the effect of depriving a person of the
benefit accrued under a writ, the denial of such benefit is incidental
E to the power to enact a legislation with retrospective effect. Such
an exercise of power cannot be held to be usurpation of judicial
power…”101
76. A declaration by a court that a law is constitutionally invalid
does not fetter the authority of the legislature to remedy the basis on
F which the declaration was issued by curing the grounds for invalidity.
While curing the defect, it is essential to understand the reasons underlying
the declaration of invalidity. The reasons constitute the basis of the
declaration. The legislature cannot simply override the declaration of
invalidity without remedying the basis on which the law was held to be
ultra vires. A law may have been held to be invalid on the ground that
G the legislature which enacted the law had no legislative competence on
the subject matter of the legislation. Obviously, in such a case, a legislature
which has been held to lack legislative competence cannot arrogate to
99
Ibid at page 340
100
(2004) 12 SCC 588
101
H Ibid at page 616
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1177
[DR. DHANANJAYA Y CHANDRACHUD, J.]

itself competence over a subject matter over which it has been held to A
lack legislative competence. However, a legislature which has the
legislative competence to enact a law on the subject can certainly step
in and enact a legislation on a field over which it possesses legislative
competence. For instance, where a law has been invalidated on the
ground that the state legislature lacks legislative competence to enact a
B
law on a particular subject – Parliament being conferred with legislative
competence over the same subject – it is open for the Parliament,
following a declaration of the invalidity of the state law, to enact a new
law and to regulate the area. As an incident of its validating exercise,
Parliament may validate the collection of a levy under the earlier law.
The collection of a levy under a law which has been held to be invalid is C
validated by the enactment of legislation by a legislative body – Parliament
in the above example – which has competence over the subject matter.
Apart from legislative competence, a law may have been declared invalid
on the ground that there was a breach of the fundamental rights contained
in Part III of the Constitution. In that situation, if the legislature proceeds
D
to enact a new law on the subject, the issue in essence is whether the
re-enacted law has taken care to remove the infractions of the
fundamental rights on the basis of which the earlier law was held to be
invalid. The true test therefore is whether the legislature has acted within
the bounds of its authority to remedy the basis on which the earlier law
was held to suffer from a constitutional infirmity. E
77. The petitioners have placed a considerable degree of reliance
on the decision in Madan Mohan Pathak, where a law – The Life
Insurance Corporation (Modification of Settlements) Act 1976 was
enacted by Parliament to render ineffective a settlement which was
arrived at between LIC and its employees for the payment of bonus. F
The law was challenged by the employees. In that case, there was a
judgment of the Calcutta High Court which had given effect to the right
of the employees to an annual cash bonus under an industrial settlement,
by the issuance of a writ of mandamus. The mandamus bound the parties
to the dispute. It was in this backdrop that the Constitution Bench
observed that the effect of the mandamus issued by the High Court G
could not simply be nullified by enacting a law overriding the industrial
settlement. This Court held:
“9...Here the judgment given by the Calcutta High Court, which
is relied upon by the petitioners, is not a mere declaratory judgment
holding an impost or tax to be invalid, so that a validation statute H
1178 SUPREME COURT REPORTS [2019] 7 S.C.R.

A can remove the defect pointed out by the judgment amending the
law with retrospective effect and validate such impost or tax. But
it is a judgment giving effect to the right of the petitioners to annual
cash bonus under the Settlement by issuing a writ of mandamus
directing the Life Insurance Corporation to pay the amount of
such bonus. If by reason of retrospective alteration of the factual
B
or legal situation, the judgment is rendered erroneous, the remedy
may be by way of appeal or review, but so long as the judgment
stands, it cannot be disregarded or ignored and it must be obeyed
by the Life Insurance Corporation. We are, therefore, of the view
that, in any event, irrespective of whether the impugned Act is
C constitutionally valid or not, the Life Insurance Corporation is bound
to obey the writ of mandamus issued by the Calcutta High Court
and to pay annual cash bonus for the year April 1, 1975 to March
31, 1976 to Class III and Class IV employees.”102
78. The decision in Madan Mohan Pathak is hence
D distinguishable from the facts of the present case. The above observations
recognized the constitutional position that in the case of a declaratory
judgment holding an action to be invalid, a validating legislation to remove
the defect is permissible. Applying this principle, it is evident that the
decision in B K Pavitra I declared the Reservation Act 2002 to be
invalid and consequent upon the declaration of invalidity, certain directions
E were issued. If the basis on which Reservation Act 2002 was held to be
invalid is cured by a validating legislation, in this case the Reservation
Act 2018, this would constitute a permissible legislative exercise. The
grounds which weighed in Madan Mohan Pathak would hence not be
available in the present case.
F 79. The decision in Madan Mohan Pathak has been adverted to
and clarified in several decisions of this Court rendered subsequently.
These include:
(i) Sri Ranga Match Industries v Union of India103, where it
was held that:
G
“14. While appreciating the ratio of the said opinions, it is necessary
to bear in mind the basic fact that the settlement between the
Corporation and its employees was not based upon any statute or
102
Supra 56 at page 67
103
1994 Supp. (2) SCC 726
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1179
[DR. DHANANJAYA Y CHANDRACHUD, J.]

statutory provision. Sub-sections (1) and (3) of Section 18 of the A
Industrial Disputes Act provide merely the binding nature of such
settlements; they do not constitute the basis of the settlements.
The settlement between the parties was directed to be
implemented by the High Court. In other words, it was not
a case where the High Court either struck down a statutory
B
provision nor was it a case where a statutory provision was
interpreted in a particular manner or directed to be
implemented. It was also not a case where the statutory
provision, on which the judgment was based, was amended
or altered to remove/rectify the defect.”104
(Emphasis supplied) C

(ii) Indian Aluminium Co, where it was held that:
“49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC 50
: 1978 SCC (L&S) 103 : (1978) 3 SCR 334]…
From the observations made by Bhagwati, J. per majority, it is D
clear that this Court did not intend to lay down that
Parliament, under no circumstance, has power to amend
the law removing the vice pointed out by the court. Equally,
the observation of Chief Justice Beg is to be understood in the
context that as long as the effect of mandamus issued by the E
court is not legally and constitutionally made ineffective,
the State is bound to obey the directions. Thus understood, it
is unexceptionable. But it does not mean that the learned Chief
Justice intended to lay down the law that mandamus issued by
court cannot at all be made ineffective by a valid law made by the
legislature, removing the defect pointed out by the court.”105 F
(Emphasis supplied)
(iii). Agricultural Income Tax Officer v Goodricke Group
Ltd106, where it was held:
“14. We are of the view that Madan Mohan Pathak case [(1978)
G
2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334] would not
apply to the facts in the present case for the simple reason that

104
Ibid at pages 736-737
105
Supra 93 at page 660
106
(2015) 8 SCC 399 H
1180 SUPREME COURT REPORTS [2019] 7 S.C.R.

A what has been undone by Section 4-B and Section 78-C is
not a mandamus issued by a superior court. What is undone
is the very basis of the judgment in Buxa Dooars Tea Co.
Ltd. case[(1989) 3 SCC 211 : 1989 SCC (Tax) 394] by
retrospectively changing the levy of rural employment cess and
education cess.”107 (Emphasis supplied)
B
80. Madan Mohan Pathak involved a situation where a
parliamentary law was enacted to override a mandamus which was
issued by the High Court for the payment of bonus under an industrial
settlement. The case did not involve a situation where a law was held to
be ultra vires and the basis of the declaration of invalidity of the law
C was sought to be cured.
81. Dr Dhavan adverted to the legal basis of B K Pavitra I as
set out in the following extract from the conclusion:
“30. In view of the above, we allow these appeals, set aside the
D impugned judgment and declare the provisions of the impugned
Act to the extent of doing away with the ‘catch-up’ rule and
providing for consequential seniority under Sections 3 and 4 to
persons belonging to SCs and STs on promotion against roster
points to be ultra vires Articles 14 and 16 of the Constitution.”108

E Dr Dhavan is entirely correct, if we may say so with respect, in
submitting “that what has to be shown is whether the Reservation Act
2018 is, in law Articles 14 and 16 compliant”. This necessitates an
examination of the constitutionality of the Reservation Act 2018. That
would require this Court to examine the challenge on the ground that
there has been a violation of the equality code contained in Articles 14
F and 16.
E.I. Is the basis of B K Pavitra I cured in enacting the
Reservation Act 2018
82. The Statement of Objects and Reasons of the Reservation
Act 2018 refers to the legislative history preceding its enactment. The
G
Ratna Prabha Committee was constituted after the Reservation Act
2002 was held to be invalid in B K Pavitra I on the ground that no
compelling necessity had been shown by the state to provide for
107
Ibid at page 407
108
Supra 5 at page 641
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1181
[DR. DHANANJAYA Y CHANDRACHUD, J.]

reservation in matters of promotion for SCs and STs by collecting and A
analysing relevant data to satisfy the requirements laid out in Nagaraj.
The constitution of the Ratna Prabha Committee was consequent
upon the Reservation Act 2002 having been held to be invalid in B K
Pavitra I.
83. The Statement of Objects and Reasons is extracted below, B
insofar as it is material:
“The Hon’ble Supreme Court of India in its judgment dated:
09.02.2017 in the case of BK Pavitra and others Vs Union of
India and others in Civil Appeal No. 2368 of 2011 and connected
matters while dealing with the issue of consequential seniority C
provided to the Scheduled Castes and Scheduled Tribes, having
regard to the ratio of the decision of the Constitution Bench in
M.Nagaraj in Writ Petition No. 61 of 2002 has observed that a
proper exercise for determining ‘inadequacy of representation’
‘backwardness’ and ‘overall efficiency’ is a must for exercise of
power under Article 16 (4A). The court held that in the absence D
of this exercise under Article 16 (4A) it is the “catch-up” rule that
shall be applicable. Having observed this the Court declared the
provisions of Sections 3 and 4 of the Karnataka Act 10 of 2002 to
be ultra vires of Articles 14 and 16 of the Constitution. The Hon’ble
Supreme Court directed that revision of the Seniority lists be E
undertaken and completed within three months and further
consequential action be taken within the next three months;
In order to comply with the directions of the Hon’ble Supreme
Court in BK Pavitra and others vs Union of India and others in
Civil Appeal No. 2368 of 2011 the Government has issued order F
vide Government order No. DPAR 182 SRR 2011 dated 06.05.2017
to all appointing authorities to revise the seniority lists;
While in compliance of the Supreme Court order, the Government
considering the need and taking note of the decision of the
Constitution Bench in M Nagaraj, in Writ Petition No. 61 of 2002, G
has entrusted the task of conducting study and submitting a report
on the backwardness of the Scheduled Castes and Scheduled
Tribes in the state, inadequacy of their representation in the State
Civil Services and the effect of reservation in promotion on the
State administration, to the Additional Chief Secretary to
H
1182 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Government in Government order No. DPAR 182 SRR 2011 dated
22.03.2017;
The Additional Chief Secretary to Government with the assistance
of officers from various departments has collated the scientific,
quantifiable and relevant data collected and having made a detailed
B study of quantifiable data has submitted a report on backwardness
of Scheduled Castes and Scheduled Tribes in the state, inadequacy
of their representation in the State Civil Services and the effect of
reservation in promotion on the State administration to the State
Government;
C The report confirms the backwardness of the Scheduled Castes
and Scheduled Tribes in the state, inadequacy of their representation
in the State Civil Services and that the overall efficiency of
administration has not been affected or hampered by extending
reservation in promotion to the Scheduled Castes and Scheduled
Tribes in the state and continuance of reservation in promotion
D within the limits will not affect or hamper overall efficiency of
administration;”
84. The first principle of statutory interpretation guides us towards
the view that undoubtedly, the Statement of Objects and Reasons:

E (i) Cannot be used for restricting the plain meaning of a
legislation109;
(ii) Cannot determine whether a provision is valid110; and
(iii) May not be definitive of the circumstances in which it was
passed 111.
F
[See in this context Welfare Association v Ranjit112].
85. The preamble to a law may be a statutory aid to consider the
mischief which the law seeks to address. While it cannot prevail over
the provisions of the statute, it can be an aid to resolve an ambiguity113.
G
109
Bhaiji v Sub-Divisional Officer, Thandla : (2003) 1 SCC 692 at page 700, A Manjula
Bhashini v A P Monen’s Coor. Finance Corp. Ltd. : (2009) 8 SCC 431 at paras 34, 40
110
Kerala State (Electricity) Board v Indian Aluminum : (1976) 1 SCC 466.
111
K S Paripoornan v State of Kerala : (1994) 5 SCC 593
112
(2003) 9 SCC 358
113
Burrakur Coal Co. Ltd. v Union of India : AIR 1961 SC 954 at pages 956-957
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1183
[DR. DHANANJAYA Y CHANDRACHUD, J.]

86. In the course of his submissions, Dr Dhavan has emphasized A
the “new provisions” contained in the Reservation Act 2018. These
according to him, are:
(i) Section 2 (d) which defines ‘backlog’;
(ii) Section 5 under which the appointing authority is to revise
and redraw the existing seniority lists; B

(iii) Section 7 which deals with the power to remove difficulties;
(iv) Section 8 which provides for the repeal of the Reservation
Act 2002; and
(v) Section 9 which is a validating provision. C
87. The essential issue which now needs to be addressed by this
Court is whether the basis of the decision in B K Pavitra I has been
cured. The decision of the Constitution Bench in Nagaraj mandates that
before the State can take recourse to the enabling power contained in
Clauses (4A) and (4B) of Article 16, it must demonstrate the existence D
of “compelling reasons” on three facets: (i) backwardness; (ii)
inadequacy of representation; and (iii) overall administrative efficiency.
In Jarnail, the Constitution Bench clarified that the first of the above
factors – “backwardness” has no application in the case of reservations
for the SCs and STs. Nagaraj to that extent was held to be contrary to
E
the decision of the larger Bench in Indra Sawhney.
E.2. The Ratna Prabha Committee report
88. The decision in B K Pavitra I was rendered on 9 February
2017. The Ratna Prabha Committee was established on 22 March 2017.
Its report was examined by a Cabinet Sub-Committee on 4 August 2017 F
and was eventually approved by the Cabinet on 7 August 2017. The
Ratna Prabha Committee report was commissioned to : (i) collect
information on cadre wise representation of SC and ST employees in all
government departments; (ii) collect information on backwardness of
SCs and STs; and (iii) study the effect on the administration due to the
promotion of SCs and STs. G

89. Dr Dhavan’s challenge to the report is basically founded on
the following features:
(i) Only thirty one out of sixty two government departments were
examined; H
1184 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (ii) No data was collected for public sector undertakings, boards,
corporations, local bodies, grant-in-aid institutions and
autonomous bodies;
(iii) In PWD and KPTCL, the representation is excessive;
(iv) The data is vacancy based and not post based as required by
B Sabharwal;
(v) The data is on sanctioned posts and not of filled posts;
(vi) The data is based on grades A, B, C and D and not cadre based;
and
C (vii) On efficiency, there is only a general reference to the economic
development of the State of Karnataka.
90. Based on the above features, the petitioners have invoked the
power of judicial review. Dr Dhavan emphasized that the decision in
Nagaraj upheld the constitutional validity of successive constitutional
D amendments to Article 16 conditional upon the existence of compelling
reasons which must be demonstrated by the State by collecting and
analysing relevant data. It is submitted that the flaws in the report of the
Ratna Prabha Committee would indicate that the compelling reasons
which constitute the foundation for the exercise of the enabling power
contained in Article 16 are absent, which must result in the invalidation
E
of the Reservation Act 2018.
91. Before we deal with the merits of the attack on the Ratna
Prabha Committee report, it is necessary to set down the parameters on
which judicial review can be exercised. Essentially, the exercise which
the petitioners require this Court to undertake is to scrutinize the underlying
F
collection of data by the State on two facets laid out in Nagaraj, as now
clarified by Jarnail: (i) the adequacy of representation; and (ii) impact
on efficiency in administration.
Clause (4) of Article 16 contains an enabling provision to empower
the State to make reservations in appointments or posts in favour of any
G backward class of citizens “which, in the opinion of the State, is not
adequately represented in the services under the State”. Clause (4A)
contains an enabling provision that allows the state to provide for
reservations in promotion with consequential seniority in posts or classes
of posts in services under the State in favour of SCs and STs. Clause
H (4A) also uses the expression “which, in the opinion of the State, are not
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1185
[DR. DHANANJAYA Y CHANDRACHUD, J.]

adequately represented in the services under the State”. In Indra A
Sawhney, while construing the nature of the satisfaction which has to
be arrived at by the State, this Court held:
“798….The language of clause (4) makes it clear that the question
whether a backward class of citizens is not adequately represented
in the services under the State is a matter within the subjective B
satisfaction of the State. This is evident from the fact that the said
requirement is preceded by the words “in the opinion of the State”.
This opinion can be formed by the State on its own, i.e., on the
basis of the material it has in its possession already or it may
gather such material through a Commission/Committee, person
or authority. All that is required is, there must be some material C
upon which the opinion is formed. Indeed, in this matter the court
should show due deference to the opinion of the State, which in
the present context means the executive. The executive is
supposed to know the existing conditions in the society, drawn as
it is from among the representatives of the people in Parliament/ D
Legislature. It does not, however, mean that the opinion formed is
beyond judicial scrutiny altogether. The scope and reach of
judicial scrutiny in matters within subjective satisfaction of
the executive are well and extensively stated in Barium
Chemicals v. Company Law Board [1966 Supp SCR 311 : AIR
1967 SC 295] which need not be repeated here. Suffice it to E
mention that the said principles apply equally in the case of
a constitutional provision like Article 16 (4) which expressly
places the particular fact (inadequate representation) within
the subjective judgment of the State/executive.”114 (Emphasis
supplied) F
The above extract from the decision in Indra Sawhney presents
two mutually complementary and reinforcing principles. The first principle
is that the executive arm of the state is aware of prevailing conditions.
The legislature represents the collective will of the people through their
elected representatives. The presumption of constitutionality of a law G
enacted by a competent legislature traces itself to the fundamental
doctrine of constitutional jurisprudence that the legislature is accountable
to those who elect their representatives. Collectively, the executive and
the legislature are entrusted with the constitutional duty to protect social
114
Supra 13 at page 728 H
1186 SUPREME COURT REPORTS [2019] 7 S.C.R.

A welfare. This Court explained in Amalgamated Tea Estates Co Ltd v
State of Kerala115, the rationale for the principles of constitutionality:
“11.The reason why a statute is presumed to be constitutional is
that the Legislature is the best judge of the local conditions and
circumstances and special needs of various classes of persons.
B “(T)he Legislature is the best judge of the needs of particular
classes and to estimate the degree of evil so as to adjust its
legislation according to the exigency found to exist.”116
This principle was reiterated in V C Shukla v State (Delhi
Administration)117:
C “11…Furthermore, the legislature which is in the best position to
understand the needs and requirements of the people must be
given sufficient latitude for making selection or differentiation
and so long as such a selection is not arbitrary and has a rational
basis having regard to the object of the Act, Article 14 would not
be attracted. That is why this Court has laid down that presumption
D
is always in favour of the constitutionality of an enactment and
the onus lies upon the person who attacks the statute to show that
there has been an infraction of the constitutional concept of
equality.”118
92. More recently, this was emphasized in State of Himachal
E Pradesh v Satpal Saini119:
“12…The duty to formulate policies is entrusted to the executive
whose accountability is to the legislature and, through it, to the
people. The peril of adopting an incorrect policy lies in democratic
accountability to the people…”120
F
93. The second of the reinforcing principles which emerges from
Indra Sawhney is that the opinion of the government on the adequacy
of representation of the SCs and STs in the public services of the state is
a matter which forms a part of the subjective satisfaction of the state.
Significantly, the extract from Indra Sawhney reproduced earlier adverts
G to the decision in Barium Chemicals Ltd, which emphasises that when
115
(1974) 4 SCC 415
116
Ibid at page 420
117
(1980) Supp SCC 249
118
Ibid at page 259
119
(2017) 11 SCC 42
120
H Ibid at page 47
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1187
[DR. DHANANJAYA Y CHANDRACHUD, J.]

an authority is vested with the power to form an opinion, it is not open A
for the court to substitute its own opinion for that of the authority, nor
can the opinion of the authority be challenged on grounds of propriety or
sufficiency. In Nagaraj, while dealing with the parameters governing
the assessment of the adequacy of representation or of the impact on
efficiency, the Constitution Bench held:
B
“45… The basic presumption, however, remains that it is
the State who is in the best position to define and measure
merit in whatever ways it consider it to be relevant to public
employment because ultimately it has to bear the costs
arising from errors in defining and measuring merit.
Similarly, the concept of “extent of reservation” is not an absolute C
concept and like merit it is context-specific.
…
49. Reservation is necessary for transcending caste and not for
perpetuating it. Reservation has to be used in a limited sense
D
otherwise it will perpetuate casteism in the country. Reservation
is underwritten by a special justification. Equality in Article 16(1)
is individual-specific whereas reservation in Article 16 (4) and
Article 16(4A) is enabling. The discretion of the State is, however,
subject to the existence of “backwardness” and “inadequacy of
representation” in public employment. Backwardness has to be E
based on objective factors whereas inadequacy has to factually
exist. This is where judicial review comes in. However,
whether reservation in a given case is desirable or not, as
a policy, is not for us to decide as long as the parameters
mentioned in Articles 16 (4) and 16 (4A) are maintained. As stated
F
above, equity, justice and merit (Article 335)/efficiency are
variables which can only be identified and measured by the
State.
…
102…equity, justice and efficiency are variable factors. These G
factors are context-specific. There is no fixed yardstick to
identify and measure these three factors, it will depend on
the facts and circumstances of each case.” 121 (Emphasis
supplied)
121
Supra 6 at pages 249-250
H
1188 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 94. The element of discretion vested in the state governments to
determine adequacy of representation in promotional posts is once again
emphasized in the following extract from the decision in Jarnail:
“35…According to us, Nagaraj has wisely left the test for
determining adequacy of representation in promotional
B posts to the States for the simple reason that as the post gets
higher, it may be necessary, even if a proportionality test to the
population as a whole is taken into account, to reduce the number
of Scheduled Castes and Scheduled Tribes in promotional pots, as
one goes upwards. This is for the simple reason that efficiency of
administration has to be looked at every time promotions are made.
C As has been pointed out by B P Jeevan Reddy, J.’s judgment in
Indra Sawhney, there may be certain posts right at the top, where
reservation is impermissible altogether. For this reason, we make
it clear that Article 16 (4A) has been couched in language
which would leave it to the States to determine adequate
D representation depending upon the promotional post that
is in question.”122 (Emphasis supplied)
95. In dealing with the submissions of the petitioners on this aspect,
it is relevant for this Court to recognize the circumspection with which
judicial power must be exercised on matters which pertain to propriety
E and sufficiency, in the context of scrutinizing the underlying collection of
data by the State on the adequacy of representation and impact on
efficiency. The Court, is above all, considering the validity of a law
which was enacted by the State legislature for enforcing the substantive
right to equality for the SCs and STs. Judicial review must hence traverse
conventional categories by determining as to whether the Ratna Prabha
F Committee report considered material which was irrelevant or extraneous
or had drawn a conclusion which no reasonable body of persons could
have adopted. In this area, the fact that an alternate line of approach
was possible or may even appear to be desirable cannot furnish a
foundation for the assumption by the court of a decision making authority
G which in the legislative sphere is entrusted to the legislating body and in
the administrative sphere to the executive arm of the government.
96. On the inadequacy of representation, the summary which
emerges from the Ratna Prabha Committee report is as follows:

122
Supra 49 at page 430
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1189
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“2.5: Summary: A
1) The analysis of time series data collected for the last 32 years
(1984-2016 except for 1986) across 31 Departments of the State
Government provides the rich information on the inadequacy of
representation of SCs and STs employees in various cadres of
Karnataka Civil Services. B
2) The total number of sanctioned posts as per the data of 2016 is
7,45,593 of which 70.22 percent or 5,23,574 are filled up across
31 Departments.
3) The vacancies or posts are filled up through Direct Recruitment
(DR) and Promotions including consequential promotion. C

4) The overall representation of the SC and ST employees of all
31 Departments in comparison with total sanctioned posts
comprises of 10.65 per cent and 2.92 per cent respectively. This
proves inadequacy of representation of SCs and STs.
D
5) On an average the representation in Cadre A for SCs is at
12.07 per cent and STs 2.70 per cent which sufficiently proves
the inadequacy of representation.
6) The extent of representation in Cadre B is on an average of
9.79 per cent and 2.34 per cent for ST for all the years of the
E
study period.
7) It is observed that on an average 3.05 per cent of SC
representation is inadequate in the Cadre ‘C’ whereas, 0.05 per
cent excess representation is seen for ST.
8) On an average of 2 per cent and 1 per cent over representation F
of employees of SCs and STs is found in Cadre D respectively.
However, in the last 5 years, inadequacy of representation of SCs
by 3 per cent is found in this cadre.
9) The representation of Scheduled Caste in Cadre A, B and C is
on an average 12, 9.79 and 12.04 per cent respectively whereas G
in Cadre D it is 16.91.
10) In case of STs in the cadres A and B the representation is
2.70 and 2.34 per cent. However, excess representation of 0.04
and 0.93 per cent is found in case of Group C and Group D
respectively. H
1190 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 11) Over representation in some years and departments is attributed
to either Direct Recruitment or retirement of employees or filling
up of backlog vacancies as the later does not fall under 50 per
cent limitation of reservation.
2.6: Conclusion:
B The data clearly shows the inadequacy of representation of SCs
and STs in the civil services in Groups A, B and C and adequate
representation in Group D.”
97. Collection of data and its analysis are governed by varying
and often divergent approaches in the social sciences. An informative
C treatise on the subject titled Empirical Political Analysis – Quantitative
and Qualitative Research Methods123 distinguishes between obtaining
knowledge and using knowledge. The text seeks to explain empirical
analysis on the one hand and normative analysis on the other hand:
“Social Scientists distinguish between obtaining knowledge and
D using knowledge. Dealing with factual realities is termed empirical
analysis. Dealing with how we should use our knowledge of the
world is termed normative analysis.
Empirical analysis is concerned with developing and using a
common, objective language to describe and explain reality. It
E can be quantitative or qualitative. Quantitative analyses are based
on math-based comparisons of the characteristics of the various
objects or events that we study. Qualitative analyses are based
on the researcher’s informed and contextual understanding of
objects or events.
F Normative analysis is concerned with developing and examining
subjective values and ethical rules to guide us in judging and
applying what we have learned about reality. Although the emphasis
in this book is on empirical analysis, it seeks to develop an
appreciation of the larger, normative perspective within which
knowledge is acquired, interpreted, and applied through a
G
discussion of the ethics of research.
Normative analysis without an empirical foundation can lead
to value judgments that are out of touch with reality. Empirical
123
Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B
H Willnat, Longman Publishers
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1191
[DR. DHANANJAYA Y CHANDRACHUD, J.]

analysis in the absence of sensitivity to normative concerns, on A
the other hand, can lead to the collection of observations whose
significance we are not prepared to understand fully. The objective
in undertaking political inquiry is to draw upon both types of analysis
– empirical and normative – so as to maximize not only our factual
knowledge, but also our ability to use the facts we discover wisely.”
B
98. In supporting the methodology which has been adopted by the
Ratna Prabha Committee, Ms Indira Jaising, learned Senior Counsel
emphasized that:
(i) Save and except where a national census is proposed to be
conducted, data collection is based on valid sampling methods C
on which conclusions are drawn;
(ii) Research methodology can be qualitative as well as quantitative
– the present case deals with the collection of quantitative data;
(iii) Quantitative data is also collected on the basis of sample surveys.
In this case, the purpose of the study was to collect data on the D
adequacy of representation in promotional posts and the sample
which was chosen was a representative sample from which
conclusions were drawn; and
(iv) In the study conducted by the State of Karnataka, statistics of a
number of persons belonging to the SCs and STs in promotional E
posts were collected group wise. The groups include cadres.
Hence, it stands to reason that if the data is collected in relation
to a group, it will include data pertaining to cadres as well since,
every cadre within the group has been statistically enquired.
99. We find merit in the above submissions. The methodology F
which was adopted by the Ratna Prabha Committee has not been
demonstrated to be alien to conventional social science methodologies.
We are unable to find that the Committee has based its conclusions on
any extraneous or irrelevant material. In adopting recourse to sampling
methodologies, the Committee cannot be held to have acted arbitrarily.
G
If, as we have held above, sampling is a valid methodology for collection
of data, the necessary consequence is that the exercise cannot be
invalidated only on the ground that data pertaining to a particular
department or of some entities was not analysed. The data which was
collected pertained to thirty one departments which are representative
in character. The State has analysed the data which is both relevant and H
1192 SUPREME COURT REPORTS [2019] 7 S.C.R.

A representative, before drawing its conclusions. As we have noted earlier,
there are limitations on the power of judicial review in entering upon a
factual arena involving the gathering, collation and analysis of data.
100. Dr Dhavan has painstakingly compiled charts for the purpose
of his argument. We may also note at this stage that Ms Jaising in response
B to the charts relied upon by Dr Dhavan, also placed on records charts
indicating:
(i) Current representation after demotion of SC and ST employees
in the PWD of Karnataka;
(ii) Percentage of SCs and STs in the post of Executive Engineer
C without consequential seniority in the PWD; and
(iii) Corresponding figures in the post of Executive Engineer without
consequential seniority in the PWD.
101. We are of the view that once an opinion has been formed by
D the State government on the basis of the report submitted by an expert
committee which collected, collated and analysed relevant data, it is
impossible for the Court to hold that the compelling reasons which
Nagaraj requires the State to demonstrate have not been established.
Even if there were to be some errors in data collection, that will not
justify the invalidation of a law which the competent legislature was
E within its power to enact. After the decision in B K Pavitra I, the Ratna
Prabha Committee was correctly appointed to carry out the required
exercise. Once that exercise has been carried out, the Court must be
circumspect in exercising the power of judicial review to re-evaluate the
factual material on record.
F 102. The adequacy of representation has to be assessed with
reference to a benchmark on adequacy. Conventionally, the State and
the Central governments have linked the percentage of reservation for
the SCs and STs to their percentage of population, as a measure of
adequacy. The Constitution Bench noticed this in Sabharwal, where it
observed:
G
“4. When a percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserve points, it has
to be taken that the posts shown at the reserve points are to be
filled from amongst the members of reserve categories and the
candidates belonging to the general category are not entitled to be
H considered for the reserved posts. On the other hand the reserve
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1193
[DR. DHANANJAYA Y CHANDRACHUD, J.]

category candidates can compete for the non-reserve posts and A
in the event of their appointment to the said posts their number
cannot be added and taken into consideration for working out the
percentage of reservation. Article 16 (4) of the Constitution of
India permits the State Government to make any provision for the
reservation of appointments or posts in favour of any Backward
B
Class of citizens which, in the opinion of the State is not adequately
represented in the Services under the State. It is, therefore,
incumbent on the State Government to reach a conclusion that
the Backward Class/Classes for which the reservation is made is
not adequately represented in the State Services. While doing so
the State Government may take the total population of a particular C
Backward Class and its representation in the State Services. When
the State Government after doing the necessary exercise makes
the 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
D
or changed simply because some of the members of the Backward
Class have already been appointed/promoted against the general
seats. As mentioned above the roster point which is reserved for
a Backward Class has to be filled by way of appointment/promotion
of the member of the said class. No general category candidate
can be appointed against a slot in the roster which is reserved for E
the Backward Class…”124
Explaining this further, the Constitution Bench held:
“5...Once the prescribed percentage of posts is filled the numerical
test of adequacy is satisfied and thereafter the roster does not
survive. The percentage of reservation is the desired representation F
of the Backward Classes in the State Services and is consistent
with the demographic estimate based on the proportion worked
out in relation to their population. The numerical quota of posts is
not a shifting boundary but represents a figure with due application
of mind. Therefore, the only way to assure equality of opportunity G
to the Backward Classes and the general category is to permit
the roster to operate till the time the respective appointees/
promotees occupy the posts meant for them in the roster…”125
124
Supra 24 at page 750
125
Ibid at page 751 H
1194 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Consequently, it is open to the State to make reservation in
promotion for SCs and STs proportionate to their representation in the
general population.
103. One of the submissions which has been urged on behalf of
the petitioners is that the quota has to be reckoned with reference to
B posts which are actually filled up or the working strength and not with
reference to sanctioned posts. This submission is answered by the decision
in Sabharwal, which holds that the percentage of reservation has to be
worked out in relation to the number of posts which form part of the
cadre strength. The Constitution Bench held:
C “6. The expressions ‘posts’ and ‘vacancies’, often used in the
executive instructions providing for reservations, are rather
problematical. The word ‘post’ means an appointment, job, office
or employment. A position to which a person is appointed.
‘Vacancy’ means an unoccupied post or office. The plain meaning
of the two expressions make it clear that there must be a ‘post’ in
D existence to enable the ‘vacancy’ to occur. The cadre-strength
is always measured by the number of posts comprising the
cadre. Right to be considered for appointment can only be
claimed in respect of a post in a cadre. As a consequence
the percentage of reservation has to be worked out in
E relation to the number of posts which form the cadre-
strength. The concept of ‘vacancy’ has no relevance in
operating the percentage of reservation.” 126 (Emphasis
supplied)
Similarly, in Nagaraj, the Constitution Bench held:
F “83. In our view, the appropriate Government has to apply the
cadre strength as a unit in the operation of the roster in order to
ascertain whether a given class/group is adequately represented
in the service. The cadre strength as a unit also ensures that upper
ceiling limit of 50% is not violated. Further, roster has to be post-
G specific and not vacancy based.”127
Hence, the submission that the quota must be reckoned on the
basis of the posts which are actually filled up and not the sanctioned
posts cannot be accepted.
126
Ibid at pages 751-752
127
H Supra 6 at page 261
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1195
[DR. DHANANJAYA Y CHANDRACHUD, J.]

104. We find no merit in the challenge to the Ratna Prabha A
Committee report on the ground that the collection of data was on the
basis of groups A, B, C and D as opposed to cadres. For one thing, the
expression ‘cadre’ has no fixed meaning ascribed to it in service
jurisprudence. But that apart, Nagaraj requires the collection of
quantifiable data inter alia, on the inadequacy of representation in
B
services under the state. Clause 4A of Article 16 specifically refers to
the inadequacy of representation in the services under the state. The
collection of data on the basis of groups A to D does not by its very
nature exclude data pertaining to cadres. The state has studied in the
present case the extent of reservation for SCs and STs in groups A to D,
consisting of several cadres. Since, the group includes posts in all the C
cadres in that group, it can logically be presumed that the state has
collected quantifiable data on the representation of SCs and STs in
promotional posts in the cadres as well.
105. Another facet of the matter is that in the judgment of Justice
Jeevan Reddy in Indra Sawhney, it was observed that reservation under D
Article 16 (4) does not operate on communal grounds. Hence, if a member
belonging to a reserved category is selected in the general category, the
selection would not count against the quota prescribed for the reserved
category. The decision in Sabharwal also noted that while candidates
belonging to the general category are not entitled to fill reserved posts,
reserved category candidates are entitled to compete for posts in the E
general category. In several group D posts, such as municipal sweepers,
the sobering experience of administration is that the overwhelmingly
large segment of applicants consists of persons belonging to the SCs
and STs. Over representation in group D posts as a result of candidates
belonging to the general category staying away from those posts cannot F
be a valid or logical basis to deny promotion to group D employees
recruited from the reserved category.
F. Substantive versus formal equality
106. The core of the present case is based on the constitutional
content of equality. G
107. For equality to be truly effective or substantive, the principle
must recognise existing inequalities in society to overcome them.
Reservations are thus not an exception to the rule of equality of
opportunity. They are rather the true fulfilment of effective and
substantive equality by accounting for the structural conditions into which H
1196 SUPREME COURT REPORTS [2019] 7 S.C.R.

A people are born. If Article 16(1) merely postulates the principle of formal
equality of opportunity, then Article 16(4) (by enabling reservations due
to existing inequalities) becomes an exception to the strict rule of formal
equality in Article 16 (1). However, if Article 16 (1) itself sets out the
principle of substantive equality (including the recognition of existing
inequalities) then Article 16 (4) becomes -the enunciation of one
B
particular facet of the rule of substantive equality set out in Article
16 (1).
F.I. The Constituent Assembly’s understanding of Article
16 (4)
C (I). Reservations to overcome existing inequalities in society
(a). There is substantial evidence that the members of the
Constituent Assembly recognised that (i) Indian society suffered from
deep structural inequalities; and (ii) the Constitution would serve as a
transformative document to overcome them. One method of overcoming
D these inequalities is reservations for the SCs and STs in the legislatures
and state services. Therefore, for the members of the Constituent
Assembly who supported reservations, a key rationale for
incorporating reservations for SCs and STs in the Constitution
was the existence of inequalities in society based on discrimination
and prejudice within the caste structure. This is evidenced by the
E statements in support of reservations for minorities by members. For
example, in the context of legislative reservations for minorities
Monomohan Das noted:
“… Therefore, it is evident from the Report of the Minorities
Committee that it is on account of the extremely low educational
F and economic conditions of the scheduled castes and the grievous
social disabilities from which they suffer that the political safeguard
of reservation of seats had been granted to them...”128
(b) Prof. Yashwant Rai used similar statements to support
reservations for backward communities in employment:
G
“… Therefore, if you want to give equal status to those
communities which are backward and depressed and on
whom injustice has been perpetrated for thousands of years
and if you want to establish Indian unity, so that the country may
128
(Volume XI) Debate on 25 August 1949.
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1197
[DR. DHANANJAYA Y CHANDRACHUD, J.]

progress and so that many parties in the country may not mislead A
the poor, I would say that there should be a provision in the
constitution under which the educated Harijans may be
provided with employment….”129 (Emphasis supplied)
(II). Recognition of the insufficiency of formal equality by
the Constituent Assembly B
108. During the debates on the principles of equality underlying
Article 16 (then draft Article 10), certain members of the Assembly
recognised that in order to give true effect to the principle of equality of
opportunity, the Constitution had to expressly recognise the existing
inequalities. For example, Shri Phool Singh noted:
C
“… Much has been made of merit in this case; but equal merit
pre-supposes equal opportunity, and I think it goes without
saying that the toiling masses are denied all those opportunities
which a few literate people living in big cities enjoy. To ask the
people from the villages to compete with those city people
is asking a man on bicycle to compete with another on a D
motorcycle, which in itself is absurd. Then again, merit should
also have some reference to the task to be discharged…”130
(Emphasis supplied)
Similarly, P Kakkam stated,
“… If you take merit alone into account, the Harijans cannot E
come forward. I say in this house, that the Government must
take special steps for the reservation of appointment for the
Harijans for same years. I expect the government will take the
necessary steps to give more appointments in police and military
services also...”131 (Emphasis supplied)
F
109. By recognising that formal equality of opportunity will be
insufficient in fulfilling the transformative goal of the Constitution, these
members recognised that the conception of equality of opportunity must
recognise and account for existing societal inequalities. The most revealing
debates as to how the Constituent Assembly understood equality of
opportunity under the Constitution took place on 30 November 1948. G
Members debated draft article 10 (which would go on to become Article
16 of the Constitution). In these debates, some members understood
129
(Volume XI) Debate on 23 August 1949.
130
(Volume XI) Debate on 23 August 1949.
131
(Volume VII) Debate on 30 May 1948. H
1198 SUPREME COURT REPORTS [2019] 7 S.C.R.

A sub-clause (4) (providing for reservations) as an exception to the general
rule of formal equality enunciated in sub-clause (1). Illustratively, an
articulation of this position was made by Mohammad Ismail Khan, who
stated,
“… There can be only one of these two things—either there
B can be clear equal opportunity or special consideration.
Article 10 says there shall be equality of opportunity, then it
emphasises the fact by a negative clause that no citizen shall be
discriminated on account of religion or race. It is quite good, but
when no indication is given whether this would override article
296 or article 296 is independent of it, we are certainly left in the
C lurch. What would be the fate of the minorities? [Article 296
stated that special considerations shall be shown to
minorities to ensure representation in the services]…”132
(Emphasis supplied)
110. Dr B R Ambedkar’s response summarises the different
D conceptions of equality of opportunity that the members of the assembly
put forward. Dr Ambedkar argued that the inclusion of sub-clause (4)
was a method of recognising the demand that mere formal equality in
sub-clause (1) would be insufficient, and a balance between formal
equality of opportunity and the needs of the disadvantaged classes of
E society was needed. Dr Ambedkar presciently observed:
“… If members were to try and exchange their views on this
subject, they will find that there are three points of view which it
is necessary for us to reconcile if we are to produce a workable
proposition which will be accepted by all…
F The first is that there shall be equality of opportunity for all citizens.
It is the desire of many Members of this House that every
individual who is qualified for a particular post should be free to
apply for that post, to sit for examinations and to have his
qualifications tested so as to determine whether he is fit for the
post or not and that there ought to be no limitations…
G
Another view mostly shared by a section of the House is that, if
this principle is to be operative—and it ought to be operative in
their judgment to its fullest extent—there ought to be no
reservations of any sort for any class or community at all…
132
H (Volume VII) Debate on 30 May 1948.
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1199
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Then we have quite a massive opinion which insists that, although A
theoretically it is good to have the principle that there shall
be equality of opportunity, there must at the same time be
a provision made for the entry of certain communities which
have so far been outside the administration. As I said, the
Drafting Committee had to produce a formula which would
B
reconcile these three points of view, firstly, that there shall be
equality of opportunity, secondly that there shall be reservations
in favour of certain communities which have not so far had a
‘proper look-in’ so to say into the administration…
The view of those who believe and hold that there shall be equality
of opportunity, has been embodied in sub-clause (1) of C
Article 10. It is a generic principle. At the same time, as I
said, we had to reconcile this formula with the demand made
by certain communities that the administration which has
now—for historical reasons—been controlled by one
community or a few communities, that situation should D
disappear and that the others also must have an opportunity of
getting into the public services…”133 (Emphasis supplied)
F.2. The Constitution as a transformative instrument
111. The Constitution is a transformative document. The realization
of its transformative potential rests ultimately in its ability to breathe life E
and meaning into its abstract concepts. For, above all, the Constitution
was intended by its draftspersons to be a significant instrument of bringing
about social change in a caste based feudal society witnessed by centuries
of oppression of and discrimination against the marginalised. As our
constitutional jurisprudence has evolved, the realisation of the F
transformative potential of the Constitution has been founded on the
evolution of equality away from its formal underpinnings to its substantive
potential.
112. In the context of reservations, the decision in T Devadasan
v The Union of India134 construed Article 16 (4) to be a proviso or an G
exception to Article 16 (1). In a dissent which embodied a vision statement
of the Constitution, Justice Subba Rao held:

133
(Volume VII) Debate on 30 May 1948.
134
AIR 1964 SC 179 H
1200 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “26. Article 14 lays down the general rule of equality. Article 16
is an instance of the application of the general rule with special
reference to opportunity of appointments under the State. It says
that there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the
State… Centuries of calculated oppression and habitual submission
B
reduced a considerable section of our community to a life of
serfdom. It would be well nigh impossible to raise their standards
if the doctrine of equal opportunity was strictly enforced in their
case. They would not have any chance if they were made to
enter the open field of competition without adventitious aids till
C such time when they could stand on their own legs. That is why
the makers of the Constitution introduced clause (4) in Article 16.
The expression “nothing in this article” is a legislative device to
express its intention in a most emphatic way that the power
conferred thereunder is not limited in any way by the main provision
but falls outside it. It has not really carved out an exception, but
D
has preserved a power untrammelled by the other provisions of
the article.”
113. Subsequently, in N M Thomas, the Constitution Bench
adopted an interpretation of Articles 15 and 16 which recognized these
provisions as but a facet of the doctrine of equality under Article 14.
E Justice K K Mathew observed:
“78…Article 16(4) is capable of being interpreted as an exception
to Article 16(1) if the equality of opportunity visualized in Article
16(1) is a sterile one, geared to the concept of numerical equality
which takes no account of the social, economic, educational
F background of the members of Scheduled Castes and Scheduled
Tribes. If equality of opportunity guaranteed under Article 16 (1)
means effective material equality, then Article 16(4) is not an
exception to Article 16(1). It is only an emphatic way of putting
the extent to which equality of opportunity could be carried viz.,
G even up to the point of making reservation.”135
In his own distinctive style, Justice Krishna Iyer observed:
“139. It is platitudinous constitutional law that Articles 14 to 16
are a common code of guaranteed equality, the first laying down
135
Supra 77 at page 347
H
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1201
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the broad doctrine, the other two applying it to sensitive areas A
historically important and politically polemical in a climate of
communalism and jobbery.”136
This court has set out this latter understanding in several cases
including ABS Sangh (Railways) v Union of India137.
114. Ultimately, a Bench of nine judges of this Court in Indra B
Sawhney recognized that Article 16 (4) is not an exception to but a
facet of equality in Article 16 (1). Justice Jeevan Reddy delivering the
judgment of a plurality of four judges observed:
“741…Article 16(4) is not an exception to Article 16(1) but that it
is only an emphatic way of stating the principle inherent in the C
main provision itself...
In our respectful opinion, the view taken by the majority
in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976)
1 SCR 906] is the correct one. We too believe that Article 16(1)
does permit reasonable classification for ensuring attainment of D
the equality of opportunity assured by it.”138
115. Justice Mathew in N M Thomas spoke of the need for
proportional equality as a means of achieving justice. Highlighting the
notion that equality under the Constitution is based on the substantive
idea of providing equal access to resources and opportunities, learned E
judge observed:
“73. There is no reason why this Court should not also require the
State to adopt a standard of proportional equality which takes
account of the differing conditions and circumstances of a class
of citizens whenever those conditions and F
circumstances stand in the way of their equal access to the
enjoyment of basic rights or claims.”139
Carrying these precepts further Justice S H Kapadia (as the learned
judge then was) speaking for the Constitution Bench in Nagaraj observed:
G
“51…Therefore, there are three criteria to judge the basis of
distribution, namely, rights, deserts or need. These three criteria
136
Ibid at page 369
137
(1981) 1 SCC 246
138
Supra 13 at page 691
139
Supra 77 at page 346 H
1202 SUPREME COURT REPORTS [2019] 7 S.C.R.

A can be put under two concepts of equality— “formal equality”
and “proportional equality”. “Formal equality” means that law
treats everyone equal and does not favour anyone either because
he belongs to the advantaged section of the society or to the
disadvantaged section of the society. Concept of “proportional
equality” expects the States to take affirmative action in favour
B
of disadvantaged sections of the society within the framework of
liberal democracy.”140
Social justice, in other words, is a matter involving the distribution
of benefits and burdens.
C G. Efficiency in administration
116. Critics of affirmative action programs in government services
argue that such programs adversely impact the overall competence or
“efficiency” of government administration. Critics contend that the only
method to ensure “efficiency” in the administration of government is to
D use a “merit” based approach – whereby candidates that fulfil more,
seemingly “neutral”, criteria than others are given opportunities in
government services. The constitutional justification for this “efficiency”
argument is centred around Article 335.
“335. The claims of the members of the Scheduled Castes and
E the Scheduled Tribes shall be taken into consideration, consistently
with the maintenance of efficiency of administration, in the making
of appointments to services and posts in connection with the affairs
of the Union or of a State:
[Provided that nothing in this article shall prevent in making of
F any provision in favour of the members of the Scheduled Castes
and the Scheduled Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation, for reservation
in matters of promotion to any class or classes of services or
posts in connection with the affairs of the Union or of a State.].”
The proviso was inserted by the Constitution (Eighty-second
G
Amendment) Act 2000.
117. The substantive part of Article 335 contains a mandate : a
requirement to take into consideration the claims of SCs and STs in
making appointments to services and posts in connection with the affairs
140
H Supra 6 at page 250
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1203
[DR. DHANANJAYA Y CHANDRACHUD, J.]

of the Union or of a State. Consideration is much broader in its ambit A
than reservation. The consideration of their claims to appointment is to
be in a manner consistent with maintaining the efficiency of
administration. The proviso specifically protects provisions in favour of
the SCs and STs for: (i) relaxing qualifying marks in an examination; (ii)
lowering the standards of evaluation; or (iii) reservation in matters of
B
promotion. Reservation is encompassed within the special provision but
the universe of the latter is wider.
118. The proviso recognises that special measures need to be
adopted for considering the claims of SCs and STs in order to bring
them to a level playing field. Centuries of discrimination and prejudice
suffered by the SCs and STs in a feudal, caste oriented societal structure C
poses real barriers of access to opportunity. The proviso contains a
realistic recognition that unless special measures are adopted for the
SCs and STs, the mandate of the Constitution for the consideration of
their claim to appointment will remain illusory. The proviso, in other words,
is an aid of fostering the real and substantive right to equality to the SCs D
and STs. It protects the authority of the Union and the States to adopt
any of these special measures, to effectuate a realistic (as opposed to a
formal) consideration of their claims to appointment in services and posts
under the Union and the states. The proviso is not a qualification to the
substantive part of Article 335 but it embodies a substantive effort to
realise substantive equality. The proviso also emphasises that the need E
to maintain the efficiency of administration cannot be construed as a
fetter on adopting these special measures designed to uplift and protect
the welfare of the SCs and STs.
119. The Constitution does not define what the framers meant by
the phrase “efficiency of administration”. Article 335 cannot be construed F
on the basis of a stereotypical assumption that roster point promotees
drawn from the SCs and STs are not efficient or that efficiency is reduced
by appointing them. This is stereotypical because it masks deep rooted
social prejudice. The benchmark for the efficiency of administration is
not some disembodied, abstract ideal measured by the performance of a G
qualified open category candidate. Efficiency of administration in the
affairs of the Union or of a State must be defined in an inclusive sense,
where diverse segments of society find representation as a true aspiration
of governance by and for the people. If, as we hold, the Constitution
mandates realisation of substantive equality in the engagement of the
fundamental rights with the directive principles, inclusion together with H
1204 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the recognition of the plurality and diversity of the nation constitutes a
valid constitutional basis for defining efficiency. Our benchmarks will
define our outcomes. If this benchmark of efficiency is grounded in
exclusion, it will produce a pattern of governance which is skewed against
the marginalised. If this benchmark of efficiency is grounded in equal
access, our outcomes will reflect the commitment of the Constitution to
B
produce a just social order. Otherwise, our past will haunt the inability of
our society to move away from being deeply unequal to one which is
founded on liberty and fraternity. Hence, while interpreting Article 335,
it is necessary to liberate the concept of efficiency from a one sided
approach which ignores the need for and the positive effects of the
C inclusion of diverse segments of society on the efficiency of administration
of the Union or of a State. Establishing the position of the SCs and STs
as worthy participants in affairs of governance is intrinsic to an equal
citizenship. Equal citizenship recognizes governance which is inclusive
but also ensures that those segments of our society which have suffered
a history of prejudice, discrimination and oppression have a real voice in
D
governance. Since inclusion is inseparable from a well governed society,
there is, in our view, no antithesis between maintaining the efficiency of
administration and considering the claims of the SCs and STs to
appointments to services and posts in connection with the affairs of the
Union or of a State.
E 120. This part of the philosophy of the Constitution was
emphasized in a powerful exposition contained in the judgment of Justice
O Chinnappa Reddy in K C Vasanth Kumar v State of Karnataka141
(“K C Vasanth Kumar”). The learned Judge held:
“35. One of the results of the superior, elitist approach is that the
F question of reservation is invariably viewed as the conflict between
the meritarian principle and the compensatory principle. No, it is
not so. The real conflict is between the class of people, who have
never been in or who have already moved out of the desert of
poverty, illiteracy and backwardness and are entrenched in the
G oasis of convenient living and those who are still in the desert and
want to reach the oasis. There is not enough fruit in the garden
and so those who are in, want to keep out those who are out. The
disastrous consequences of the so-called meritarian principle to
the vast majority of the under-nourished, poverty-stricken, barely
141
H (1985) Supp. SCC 714
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1205
[DR. DHANANJAYA Y CHANDRACHUD, J.]

literate and vulnerable people of our country are too obvious to be A
stated. And, what is merit? There is no merit in a system which
brings about such consequences…”142
Speaking of efficiency, the learned Judge held:
“36. Efficiency is very much on the lips of the privileged whenever
reservation is mentioned… B

One would think that the civil service is a Heavenly Paradise into
which only the archangels, the chosen of the elite, the very best
may enter and may be allowed to go higher up the ladder. But the
truth is otherwise. The truth is that the civil service is no paradise
and the upper echelons belonging to the chosen classes are not C
necessarily models of efficiency. The underlying assumption that
those belonging to the upper castes and classes, who are appointed
to the non-reserved posts will, because of their presumed merit,
“naturally” perform better than those who have been appointed
to the reserved posts and that the clear stream of efficiency will D
be polluted by the infiltration of the latter into the sacred precincts
is a vicious assumption, typical of the superior approach of the
elitist classes…”143
121. The substantive right to equality is for all segments of society.
Articles 15 (4) and 16 (4) represent the constitutional aspiration to E
ameliorate the conditions of the SCs and STs. While, we are conscious
of the fact that the decision in Indra Sawhney did not accept K C
Vasanth Kumar144 on certain aspects, the observations have been
cited by us to explain the substantive relationship between equal
opportunity and merit. It embodies the fundamental philosophy of the
Constitution towards advancing substantive equality. F
122. An assumption implicit in the critique of reservations is that
awarding opportunities in government services based on “merit”
results in an increase in administrative efficiency. Firstly, it must
be noted that administrative efficiency is an outcome of the actions
taken by officials after they have been appointed or promoted and is not G
tied to the selection method itself. The argument that one selection
method produces officials capable of taking better actions than a second
142
Ibid at pages 737-738
143
Ibid at page 738
144
Supra 139 at paragraph 613 H
1206 SUPREME COURT REPORTS [2019] 7 S.C.R.

A method must be empirically proven based on an evaluation of the
outcomes produced by officials selected through both methods.
Secondly, arguments that attack reservations on the grounds of
efficiency equate “merit” with candidates who perform better than other
candidates on seemingly “neutral” criteria, e.g. standardised examinations.
B Thus, candidates who score beyond a particular “cut-off point” are
considered “meritorious” and others are “non-meritorious”. However,
this is a distorted understanding of the function “merit” plays in society.
123. As Amartya Sen notes in his chapter on “Merit and Justice”,145
the idea of merit is fundamentally derivative of our views of a good
C society. Sen notes,
“Actions may be rewarded for the good they do, and a system
of remunerating the activities that generate good consequences
would, it is presumed, tend to produce a better society. The
rationale of incentive structures may be more complex than this
D simple statement suggests, but the idea of merit in this instrumental
perspective relates to the motivation of producing better results.
In this view, actions are meritorious in a derivative and
contingent way, depending on the good they do, and more
particularly, the good that can be brought about by
rewarding them….
E
…The concept of merit is deeply contingent on our views of a
good society. Indeed, the notion of merit is fundamentally derivative,
and thus cannot be qualified and contingent. There is some
elementary tension between (1) the inclination to see merit
in fixed and absolute terms, and (2) the ultimately
F instrumental character of merit – its dependence on the
concept of “the good” in the relevant society.
This basic contrast is made more intense by the tendency, in
practice, to characterise “merit” in inflexible forms reflecting values
and priorities of the past, often in sharp conflict with conceptions
G that would be needed for seeing merit in the context of
contemporary objectives and concerns…
Even though the typical “objective functions” that are
implicitly invoked in most countries to define and assess
145
Sen A, Merit and Justice, in Arrow, KJ, M ERITOCRACY AND ECONOMIC INEQUALITY
H (Princeton University Press 2000) (Amartya Sen, Merit and Justice).
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1207
[DR. DHANANJAYA Y CHANDRACHUD, J.]

what is to count as merit tend to be indifferent to (or A
negligent of) distributive aspects of outcomes, there is no
necessity to accept that ad hoc characterisation. This is not
a matter of a “natural order” of “merit” that is independent
of our value system….” (Emphasis supplied)
124. Once we understand “merit” as instrumental in achieving B
goods that we as a society value, we see that the equation of “merit”
with performance at a few narrowly defined criteria is incomplete. A
meritocratic system is one that rewards actions that result in the
outcomes that we as a society value.
125. For example, performance in standardised examinations C
(distinguished from administrative efficiency) now becomes one among
many of the actions that the process of appointments in government
services seeks to achieve. Based on the text of Articles 335, Articles 16
(4), and 46, it is evident that the uplifting of the SCs and STs through
employment in government services, and having an inclusive government
are other outcomes that the process of appointments in government D
services seeks to achieve. Sen gives exactly such an example.
“If, for example, the conceptualisation of a good society includes
the absence of serious economic inequalities, then in the
characterisation of instrumental goodness, including the
assessment of what counts as merit, note would have to be E
taken of the propensity of putative merit to lessen – or to
generate – economic inequality. In this case, the rewarding of
merit cannot be done independent of its distributive consequences.
…
F
A system of rewarding of merit may well generate inequalities of
well-being and of other advantages. But, as was argued earlier,
much would depend on the nature of the consequences that are
sought, on the basis of which merits are to be characterised. If
the results desired have a strong distributive component,
with a preference for equality, then in assessing merits G
(through judging the generating results, including its
distributive aspects), concerns about distribution and
inequality would enter the evaluation.”146
(Emphasis supplied)
146
Ibid H
1208 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Thus, the providing of reservations for SCs and the STs is not at
odds with the principle of meritocracy. “Merit” must not be limited to
narrow and inflexible criteria such as one’s rank in a standardised exam,
but rather must flow from the actions a society seeks to reward, including
the promotion of equality in society and diversity in public administration.
In fact, Sen argues that there is a risk to excluding equality from the
B
outcomes.
“In most versions of modern meritocracy, however, the selected
objectives tend to be almost exclusively oriented towards
aggregate achievements (without any preference against
inequality), and sometimes the objectives chosen are even biased
C (often implicitly) towards the interests of more fortunate groups
(favouring the outcomes that are more preferred by “talented”
and “successful” sections of the population. This can reinforce
and augment the tendency towards inequality that might
be present even with an objective function that inter alia,
D attaches some weight to lower inequality levels.” 147
(Emphasis supplied)
126. The Proviso to Article 335 of the Constitution seeks to mitigate
this risk by allowing for provisions to be made for relaxing the marks in
qualifying exams in the case of candidates from the SCs and the STs. If
E the government’s sole consideration in appointments was to appoint
individuals who were considered “talented” or “successful” in
standardised examinations, by virtue of the inequality in access to
resources and previous educational training (existing inequalities in
society), the stated constitutional goal of uplifting these sections of society
and having a diverse administration would be undermined. Thus, a
F “meritorious” candidate is not merely one who is “talented” or
“successful” but also one whose appointment fulfils the constitutional
goals of uplifting members of the SCs and STs and ensuring a diverse
and representative administration.
127. It is well settled that existing inequalities in society can lead
G to a seemingly “neutral” system discriminating in favour of privileged
candidates. As Marc Galanter notes, three broad kinds of resources are
necessary to produce the results in competitive exams that qualify as
indicators of “merit”. These are:

147
H Ibid
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1209
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“… (a) economic resources (for prior education, training, materials, A
freedom from work etc.); (b) social and cultural resources
(networks of contacts, confidence, guidance and advice,
information, etc.); and (c) intrinsic ability and hard work...” 148
128. The first two criteria are evidently not the products of a
candidate’s own efforts but rather the structural conditions into which B
they are born. By the addition of upliftment of SCs and STs in the moral
compass of merit in government appointments and promotions, the
Constitution mitigates the risk that the lack of the first two criteria will
perpetuate the structural inequalities existing in society.
129. The Ratna Prabha Committee report considers in Chapter C
III, the relationship between reservation in promotion and maintenance
of efficiency in administration. Finally, it concludes:
“3.12: Conclusion:
Karnataka has been showing high performance in all the sectors
of development viz., finance, health, education, industry, services, D
etc., to support sustainable economic growth. The analysis on
performance of the state in economic development clearly indicates
that reservation in promotions has not affected the overall
efficiency of administration.
130. Moreover, even in a formal legal sense, promotions, including E
those in respect of roster points, are made on the basis of seniority-cum-
merit and a candidate to be promoted has to meet this criteria [See in
this context Rule 19(3) A and D of the Karnataka Civil Services General
Recruitment Rules 1977 which states that subject to other provisions all
appointments by promotion shall be on an officiating basis for a period of F
one year and at the end of the period of officiation, if appointing authority
considers the person not suitable for promotion, she/he may be reverted
back to the post held prior to the promotion]. A candidate on promotion
has to serve a statutory period of officiation before being confirmed.
This rule applies across the board including to roster point promotees.
This ensures that the efficiency of administration is, in any event, not G
adversely affected.
148
Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford
University Press, New Delhi 1984), cited by Deshpande S, Inclusion versus excellence:
Caste and the framing of fair access in Indian higher education, 40:1 South African
Review of Sociology 127-147. H
1210 SUPREME COURT REPORTS [2019] 7 S.C.R.

A H. The issue of creamy layer
131. At the outset, we analyse the submission of Ms Indira Jaising,
learned Senior Counsel that the concept of creamy layer is inapplicable
to the SCs and STs. This submission which has been urged by the learned
Counsel is founded on two hypotheses which we have extracted below
B from the written submissions:
“(i) This Court in Indra Sawhney seems to suggest that the creamy
layer should be excluded, however there was no unanimity for
determining what is creamy layer. Some judges took the view
that the criteria for creamy layer exclusion is social advancement
C (i.e. based on social basis, educational, and economical basis) and
others took the view that it will be economic basis alone. It is
submitted that it must be kept in mind that the said judgment related
only to OBCs; and
(ii) Jarnail is not an authority for the proposition that the creamy
D layer principle applies to SCs and STs. It dealt only with the
competence of the Parliament to enact a law in relation to creamy
layer without affecting Articles 341 and 342.”
132. Dr Dhavan, learned Senior Counsel in his response has urged
that the above submissions are incorrect because:
E (i) Indra Sawhney decided the issue of creamy layer as a
principle of equality; and
(ii) Jarnail affirmed that if Nagaraj is rightly applied, creamy
layer is a principle of equality and of the basic structure.
133. Ms Jaising’s argument is based on the decision in Chinnaiah
F
that the SCs and STs cannot be split or bifurcated and the adoption of
the creamy layer principle would amount to a spilt in the homogenous
groups of the SCs and STs. This argument according to Dr Dhavan,
was rejected in Jarnail by the Constitution Bench.
134. As a Bench of two judges we are bound by the decision in
G Indra Sawhney as indeed, we are by the construction placed on that
decision by the Constitution Benches in Nagaraj and Jarnail. Construing
the decision in Indra Sawhney. Nagaraj held:
“120…Concept of egalitarian equality is the concept of proportional
equality and it expects the States to take affirmative action in
H favour of disadvantaged sections of society within the framework
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1211
[DR. DHANANJAYA Y CHANDRACHUD, J.]

of democratic polity. In Indra Sawhney [1992 Supp (3) SCC 217 A
: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the Judges
except Pandian, J. held that the “means test” should be adopted
to exclude the creamy layer from the protected group earmarked
for reservation. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992
SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has, therefore,
B
accepted caste as a determinant of backwardness and yet it has
struck a balance with the principle of secularism which is the
basic feature of the Constitution by bringing in the concept of
creamy layer. Views have often been expressed in this Court that
caste should not be the determinant of backwardness and that the
economic criteria alone should be the determinant of C
backwardness. As stated above, we are bound by the decision
in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] . The question as to the “determinant”
of backwardness cannot be gone into by us in view of the binding
decision. In addition to the above requirements this Court in Indra
D
Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385] has evolved numerical benchmarks like ceiling
limit of 50% based on post-specific roster coupled with the concept
of replacement to provide immunity against the charge of
discrimination.”149
Then again, in paragraphs 121, 122 and 123, the Constitution Bench E
held:
“121. The impugned constitutional amendments by which Articles
16 (4A) and 16 (4B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4). They retain the
controlling factors or the compelling reasons, namely, F
backwardness and inadequacy of representation which enables
the States to provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They
do not obliterate any of the constitutional requirements, namely,
ceiling limit of 50% (quantitative limitation), the concept of creamy G
layer (qualitative exclusion), the sub-classification between OBCs
on one hand and SCs and STs on the other hand as held in Indra
Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385] , the concept of post-based roster with inbuilt
149
Supra 6 at pages 277-278 H
1212 SUPREME COURT REPORTS [2019] 7 S.C.R.

A concept of replacement as held in R.K. Sabharwa [(1995) 2 SCC
745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .
122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency
B are all constitutional requirements without which the structure of
equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue
concerns the “extent of reservation”. In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
C representation and overall administrative efficiency before making
provision for reservation. As stated above, the impugned provision
is an enabling provision. The State is not bound to make reservation
for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has
D to collect quantifiable data showing backwardness of the class
and inadequacy of representation of that class in public
employment in addition to compliance with Article 335. It is made
clear that even if the State has compelling reasons, as stated above,
the State will have to see that its reservation provision does not
lead to excessiveness so as to breach the ceiling limit of 50% or
E obliterate the creamy layer or extend the reservation
indefinitely.”150
135. The reference before the Constitution Bench in Jarnail arose
out of an initial reference by a two judge Bench in State of Tripura v
Jayanta Chakraborty (“State of Tripura”)151 and then by a three judge
F Bench in State of Maharashtra v Vijay Ghogre152. The order in State
of Tripura states:
“2…However, apart from the clamour for revisit, further questions
were also raised about application of the principle of creamy layer
in situations of competing claims within the same races,
G communities, groups or parts thereof of SC/STs notified by the
President under Articles 341 and 342 of the Constitution of
India.”153
150
Ibid at pages 278 -280
151
(2018) 1 SCC 146
152
(2018) 15 SCC 64
H 153
Supra 149 at pages 147-148
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1213
[DR. DHANANJAYA Y CHANDRACHUD, J.]

136. Before the Constitution Bench in Jarnail, the learned Attorney A
General specifically raised the following arguments:
“3…according to the learned Attorney General, the creamy layer
concept has not been applied in Indra Sawhney (1) [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1] to the Scheduled Castes and the Scheduled Tribes B
and Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212
: (2007) 1 SCC (L&S) 1013] has misread the aforesaid judgment
to apply this concept to the Scheduled Castes and the Scheduled
Tribes. According to the learned Attorney General, once the
Scheduled Castes and the Scheduled Tribes have been set out in
the Presidential List, they shall be deemed to be Scheduled Castes C
and Scheduled Tribes, and the said List cannot be altered by
anybody except Parliament under Articles 341 and 342. The
learned Attorney General also argued that Nagaraj [M.
Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC
(L&S) 1013] does not indicate any test for determining adequacy D
of representation in service. According to him, it is important that
we lay down that the test be the test of proportion of Scheduled
Castes and Scheduled Tribes to the population in India at all stages
of promotion, and for this purpose, the roster that has been referred
to in R.K. Sabharwal v. State of Punjab [R.K.
Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC E
(L&S) 548] can be utilised. Other counsel who argued, apart from
the learned Attorney General, have, with certain nuances, reiterated
the same arguments.”154
The decision in Jarnail specifically addressed the issue of creamy layer:
F
“28. Therefore, when Nagaraj [M. Nagaraj v. Union of India,
(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy
layer test to Scheduled Castes and Scheduled Tribes in exercise
of application of the basic structure test to uphold the constitutional
amendments leading to Articles 16 (4A) and 16 (4B), it did not in
any manner interfere with Parliament’s power under Article 341 G
or Article 342. We are, therefore, clearly of the opinion that this
part of the judgment does not need to be revisited, and
consequently, there is no need to refer Nagaraj [M.

154
Supra 49 at pages 407-408 H
1214 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC
(L&S) 1013] to a seven-Judge Bench. We may also add at this
juncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8
SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment
of five learned Judges of this Court which has held sway since
the year 2006. This judgment has been repeatedly followed and
B
applied…”155
Justice Rohinton Nariman speaking for the Constitution Bench in
Jarnail explained the reason for applying the creamy layer principle:
“25. However, when it comes to the creamy layer principle, it is
C important to note that this principle sounds in Articles 14 and 16
(1), as unequals within the same class are being treated equally
with other members of that class.”
137. We are thus unable to subscribe to the submission that Jarnail
is not per curium on the issue of creamy layer. For one thing, Jarnail
D specifically examined the decision in Indra Sawhney, noticing that eight
of the nine learned Judges applied the creamy layer principle as a facet
of the larger equality principle. In fact, the decision in Indra Sawhney
II v Union of India156 (“Indra Sawhney II”) summarised the judgments
in Indra Sawhney I on the aspect of creamy layer. The judgment in
Jarnail approved Indra Sawhney II when it held that the creamy layer
E principle sounds in Articles 14 and 16 (1):
“12. In para 27 of the said judgment, the three-Judge Bench of
this Court clearly held that the creamy layer principle sounds
in Articles 14 and 16(1) as follows: [Indra Sawhney (2)
case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168 :
F 2000 SCC (L&S) 1] , SCC p. 190, para 27]
“(i) Equals and unequals, twin aspects
27. As the “creamy layer” in the backward class is to be treated
“on a par” with the forward classes and is not entitled to benefits
of reservation, it is obvious that if the “creamy layer” is not
G
excluded, there will be discrimination and violation of Articles
14 and 16(1) inasmuch as equals (forwards and creamy layer
of Backward Classes) cannot be treated unequally. Again,
non-exclusion of creamy layer will also be violative of
155
Ibid at page 426
H 156
(2000)1 SCC 168
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1215
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Articles 14, 16(1) and 16(4) of the Constitution of India A
since unequals (the creamy layer) cannot be treated as
equals, that is to say, equal to the rest of the backward
class…
Thus, any executive or legislative action refusing to exclude the
creamy layer from the benefits of reservation will be violative B
of Articles 14 and 16(1) and also of Article 16(4). We shall examine
the validity of Sections 3, 4 and 6 in the light of the above principle.
(emphasis in original)”157
Jarnail discussed the decision in Chinnaiah and held that it dealt
with the lack of legislative competence on the part of the State legislatures C
to create sub- categories among the Presidential lists under Articles 341
and 342. The decision in Jarnail therefore held that Chinnaiah did not
deal with any of the aspects on which the constitutional amendments
were upheld in Nagaraj and hence it was not necessary for Nagaraj to
refer to Chinnaiah at all. In this view of the matter, we are clearly of
the view that Jarnail, on a construction of Indra Sawhney holds that D
the creamy layer principle is a principle of equality.
138. Though, we have not accepted the above submission which
was urged by Ms Jaising on behalf of the intervenors, we will have to
decide as to whether the Reservation Act 2018 is unconstitutional. The
challenge in the present case is to the validity of the Reservation Act E
2018 which provides for consequential seniority. In other words, the
nature or extent of reservation granted to the SCs and STs at the entry
level in appointment is not under challenge. The Reservation Act 2018
adopts the principle that consequential seniority is not an additional benefit
but a consequence of the promotion which is granted to the SCs and F
STs. In protecting consequential seniority as an incident of promotion,
the Reservation Act 2018 constitutes an exercise of the enabling power
conferred by Article 16 (4A). The concept of creamy layer has no
relevance to the grant of consequential seniority. There is merit in the
submission of the State of Karnataka that progression in a cadre based
on promotion cannot be treated as the acquisition of creamy layer status. G
The decision in Jarnail rejected the submission that a member of an SC
or ST who reaches a higher post no longer has a taint of untouchability
or backwardness. The Constitution Bench declined to accept the

157
Supra 49 at page 415
H
1216 SUPREME COURT REPORTS [2019] 7 S.C.R.

A submission on the ground that it related to the validity of Article 16 (4A)
and held thus:
“34…We may hasten to add that Shri Dwivedi’s argument cannot
be confused with the concept of “creamy layer” which, as has
been pointed out by us hereinabove, applies to persons within the
B Scheduled Castes or the Scheduled Tribes who no longer require
reservation, as opposed to posts beyond the entry stage,
which may be occupied by members of the Scheduled
Castes or the Scheduled Tribes.”158 (Emphasis supplied)
139. In sustaining the validity of Articles 16 (4A) and 16 (4B)
C against a challenge of violating the basic structure, Nagaraj applied the
test of width and the test of identity. The Constitution Bench ruled that
the catch-up rule and consequential seniority are not constitutional
requirements. They were held not to be implicit in clauses (1) to (4) of
Article 16. Nagaraj held that they are not constitutional limitations or
principles but are concepts derived from service jurisprudence. Hence,
D neither the obliteration of those concepts nor their insertion would violate
the equality code contained in Articles 14, 15 and 16. The principle
postulated in Nagaraj is that consequential seniority is a concept purely
based in service jurisprudence. The incorporation of consequential
seniority would hence not violate the constitutional mandate of equality.
E This being the true constitutional position, the protection of consequential
seniority as an incident of promotion does not require the application of
the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not
obliterate any of the constitutional limitations and to fulfil the width test.
In the above view of the matter, it is evident that the concept of creamy
layer has no application in assessing the validity of the Reservation Act
F 2018 which is designed to protect consequential seniority upon promotion
of persons belonging to the SCs and STs.
I. Retrospectivity
140. Sections 3 and 4 of the Reservation Act 2018 came into
G force on 17 June 1995. The other provisions came into force “at once”
as provided in Section 1(2). Section 4 stipulates that the consequential
seniority already granted to government servants belonging to the SCs
and STs in accordance with the reservation order with effect from 27

158
H Supra 49 at page 430
B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1217
[DR. DHANANJAYA Y CHANDRACHUD, J.]

April 1978 shall be valid and shall be protected. In this context, we must A
note from the earlier decisions of this Court that:
(i) The decision in Virpal Singh held that the catch-up rule would
be applied only from 10 February 1995 which was the date of
the judgment in Sabharwal;
(ii) The decision in Ajit Singh II specifically protected the B
promotions which were granted before 1 March 1996 without
following the catch-up rule; and
(iii) In Badappanavar, promotions of reserved candidates based
on consequential seniority which took place before 1 March
1996 were specifically protected. C

141. Since promotions granted prior to 1 March 1996 were
protected, it was logical for the legislature to protect consequential
seniority. The object of the Reservation Act 2018 is to accord
consequential seniority to promotees against roster points. In this view
of the matter, we find no reason to hold that the provisions in regard to D
retrospectivity in the Reservation Act, 2018 are either arbitrary or
unconstitutional.
142. The benefit of consequential seniority has been extended
from the date of the Reservation Order 1978 under which promotions
based on reservation were accorded. E
J. Over representation in KPTCL and PWD
143. The Ratna Prabha Committee collected data from thirty one
departments of the State Government of Karnataka. It has been pointed
out on behalf of the State that corporations such as KPTCL and other
F
public sector undertakings fall within the administrative control of one of
the departments of the State government. The position in thirty one
departments was taken as representative of the position in public
employment under the State. The over representation in KPTCL and
PWD has been projected by the petitioners with reference to the total
number of posts which have been filled. On the other hand, the quota is G
fixed and the roster applies as regards the total sanctioned posts as held
in Sabharwal and Nagaraj. On the contrary, the data submitted by the
State of Karnataka indicates that if consequential seniority is not allowed,

H
1218 SUPREME COURT REPORTS [2019] 7 S.C.R.

A there would be under representation of the reserved categories. Finally,
it may also be noted that under the Government Order dated 13 April
1999, reservation in promotion in favour of SC’s and ST’s has been
provided until the representation for these categories reaches 15 per
cent and 3 per cent, respectively. The State has informed the Court that
the above Government Order is applicable to KPTCL and PWD, as
B
well.
K. Conclusion
144. For the above reasons, we have come to the conclusion that
the challenge to the constitutional validity of the Reservation Act 2018 is
C lacking in substance. Following the decision in B K Pavitra I, the State
government duly carried out the exercise of collating and analysing data
on the compelling factors adverted to by the Constitution Bench in
Nagaraj. The Reservation Act 2018 has cured the deficiency which
was noticed by B K Pavitra I in respect of the Reservation Act 2002.
The Reservation Act 2018 does not amount to a usurpation of judicial
D power by the state legislature. It is Nagaraj and Jarnail compliant. The
Reservation Act 2018 is a valid exercise of the enabling power conferred
by Article 16 (4A) of the Constitution.
145. We therefore find no merit in the batch of writ petitions as
the constitutional validity of the Reservation Act 2018 has been upheld.
E They shall stand dismissed. Accordingly, the review petitions and
miscellaneous applications shall also stand dismissed in view of the
judgment in the present case. There shall be no order as to costs. All
pending applications are disposed of.
146 Before concluding, the Court records its appreciation of the
F erudite submissions of the learned Counsel who have ably assisted the
Court. We deeply value the assistance rendered by Dr Rajeev Dhavan
and Mr Shekhar Naphade, learned Senior Counsel and Mr Puneet Jain,
learned Counsel who led the arguments on behalf of the Petitioners. We
acknowledge the valuable assistance rendered to the Court by Ms Indira
G Jaising, Mr Basava Prabhu S Patil, Mr Dinesh Dwivedi, Mr Nidhesh
Gupta and Mr V Lakshminarayana, learned Senior Counsel.

Nidhi Jain Petitions and Applications dismissed.

H