Holding

Sections 3 and 4 of the Karnataka Determination of Seniority Act, 2002, which do away with the catch‑up rule and provide consequential seniority to SC/ST promotees, are unconstitutional as they fail to satisfy the mandatory criteria of backwardness, inadequacy of representation and overall efficiency under Article 16(4A).

Summary

The Supreme Court examined the Karnataka Determination of Seniority of Government Servants Promoted on the Basis of Reservation Act, 2002, which granted consequential seniority to SC/ST government servants promoted under reservation and protected seniority accorded since 1978. Petitioners challenged the Act as violative of Articles 14 and 16(4A) because it eliminated the "catch‑up" rule without the State first demonstrating backwardness, inadequacy of representation, and overall efficiency as required by the M. Nagaraj judgment. The High Court had upheld the Act, but the Supreme Court held that the State must conduct a quantifiable exercise of the three criteria before granting consequential seniority, and that the provisions of Sections 3 and 4 of the Act are ultra vires. Consequently, the Court set aside the High Court order, declared the provisions unconstitutional, and directed revision of seniority lists, without affecting retirees' benefits. The decision reaffirmed the need for a data‑driven exercise before extending reservation benefits in promotion.

Issues considered

Whether the Karnataka Act granting consequential seniority to SC/ST promotees violates Articles 14 and 16(4A) of the Constitution.
Whether the State is required to determine backwardness, inadequacy of representation, and overall efficiency before providing consequential seniority.
Whether the "catch‑up" rule can be overridden by legislative provision.
Whether Sections 3 and 4 of the Karnataka Act are ultra vires.

Legislation cited

Subjects

reservation in promotionconsequential senioritycatch‑up ruleArticle 14Article 16(4A)backwardnessinadequacy of representationoverall efficiencyKarnataka Act 2002SC/STaffirmative actionequality

Judgment

[2017] 1 S.C.R. 631

B. K. PAVITRA & ORS. A
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 2368of2011)
FEBRUARY 09, 2017 B

(ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Karnataka Determination of Seniority of the Government
Servants Promoted on the Basis of Reservation (Io the Posts in the
Civil Services of the State) Act, 2002 - Providing for grant of
consequential seniority to the Government servants belonging to
c
SC and ST promoted under reservation policy as also protecting
consequential seniority already accorded from 27. 04.1978 onwards -
Validity of - Held: Exercise for determining 'inadequacy of·
representation', 'backwardness' and 'overall efficiency', is a must
for exercise of power u/Art.16(4A) - Mere fact that there is no D
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 oth~rwise junior and thereby denying
seniority to those who are given promotion later on account of
reservation policy - State has to place material on record that there
E
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 instant case, no such exercise
was undertaken - High Court erroneously observed that· it was for
the petitioners to plead and prove that the overall efficiency was
adversely affected by giving consequential seniority to junior F
persons who got promotion on account of reservation - Also High
Court erred in brushing aside the mandatory requirement of
determining 'inadequacy of representation', 'backwardness' and
'overall efficiency' in view of the inbuilt mechanism in s. 3 limiting
the representation to 15% and 3% fur SC and ST respectively -
G
Thus, the order passed by the Hi:;h Court is set aside - Provisions
of 2002 Act declared to the extent cf doing away with the 'catch up'
rule and providing for consequential seni'Jrity to persons belonging
to SCs and STs on promotion against roster points, ultra vires Arts.
14 and.16 - Constitution of India - Arts. 14 and 16 - Constitution
(Eighty-fifth Amendment) Act, 2001. H
631
632 SUPREME COURT REPORTS [2017) I S.C.R.

A Allowing the appeals, the Court
HELD: 1.1 While no doubt in M. Nagaraj 85" Amendment
was upheld with the 'observation that enabling the State to do
away with the 'catch up' rule, a judicially evolved concept to
control the effect of reservations, was valid but the exercise of
B power to do away with the said rule and providing consequential
seniority in favour of roster point promotees of reserved category
was subject to the limitation of determining the three factors of
'backwardness', 'inadequacy of representation' and 'overall
efficiency'. The High Court brushed aside the said mandatory
requirement by simply observing that Section 3 provided for an
c inbuilt mechanism as the extent of mechanism was limited to 15%
and 3% respectively for the SCs .and STs which dispensed with
any requirement of determining inadequacy of representation or
backwardness. The High Court further dispensed with the
requirement of determining overall efficiency by· observing that
D there was no pleading that overall efficiency would be hampered
by promoting persons belonging to SCs and STs. This reasoning
in the judgment of the High Court, it is submitted, is contrary to
the mandate of law as recognized in M. Nagaraj case and the
view similar to the impugned judgment has been repeatedly
disapproved in decisions of this Court. There is force in the
E submission. [Para 15) (643-A-D)
1.2 It is held in M. Nagraj case that conferment of enabling
power on State under Article 16(4A) did not by itself violate the
basic feature of equality. If the affirmative action stipulated under
Article 16(4A) could be balanced with the need for adequate
F representation for justice to the backwards while upholding equity
for the forwards and efficiency for the entire system with the
further observation that the content of a right is defined by the
Courts and even while the amendment as such could be upheld,
validity of an individual enactment was required to be gone into.
G If the State wished to exercise its discretion under Article 16(4A),
it was 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 was
made clear that even if the State has compelling reasons, the
State will have to see that its reservation provision does not lead
H
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 633

to excessiveness so as to breach the ceiling limit of 50% or A
obliterate the creamy layer or extend the reservation indefinitely.
[Para 20] [645-G-H; 646-A-C]
1.3 The exercise for determining 'inadequacy of
representation', 'backwardness' and 'overall efficiency', is a must
for exercise of power under Article 16(4A). Mere fact that there B
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 denying seniority to those who are given promotion
later on account of reservation policy. It is for the State to place
material on record that there was compelling necessity for exercise c
of such power and decision of the State was based on material
including the study that overall efficiency is not compromised. In
the instant 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 D
affected by giving consequential seniority to junior persons who
got promotion on account of reservation. Plea that persons
promoted at the same time were allowed to retain their seniority
in the lower cadre is untenable and ignores the fact that a senior
person may be promoted later and not at same time on account
of roster point reservation. Depriving him of his seniority affects E
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(4A), it is the
'catch up' rule which is fully applies. [Para 26] [656-D-G]
1.4 The impugned judgment is set aside and the provisions F
of the impugned Act is declared 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. The judgment would affect those who have G
already retired and would not affect financial benefits already
taken. <;:onsequential promotions granted to serving employees,
based on consequential seniority benefit, wonld be treated as ad
hoc and liable to be reviewed. Seniority list may be now revised. ·
[Para 27] [656-H; 657-A-B]
H
634 SUPREME COURT REPORTS [2017] I S.C.R.

A M Nagaraj and others v. Union of India and others
(2006) 8 SCC 212 : 2006 (4) Suppl. SCR 511 - relied
on.
MG Badappanavar v. State of Karnataka (2001) 2 SCC
666: 2000 (5) Suppl. SCR 302; Ajit Singh Januja v.
B State of Punjab (Ajit Singh I) (1996) 2 SCC 715 : 1996
(3) SCR 125; Ajit Singh (//) v. State of Punjab (1999) 7
SCC 209: 1999 (2) Suppl. SCR 521; R.K. Sabharwa/
v. State of Punjab (1995) 2 SCC 745: 1995 (2) SCR
35; Bhakta Ramegowda v. State of Karnataka (1997) 2
SCC 661: 1997 (1) SCR 535; Union of India v. Virpal
c Chauhan (1995) 6 SCC 684: 1995 (4) Suppl. SCR 158;
Uttar Pradesh Power Corporation Limited v. Rajesh
Kumar (2012) 7 SCC 1: 2012 ( 4) SCR 118; Bim/esh
Tanwar v. State of Haryana (2003) 5 SCC 604: 2003
(2) SCR 757; Suraj Bhan Meena v. State of Rajasthan
D (2011) 1 SCC 467 : 2010 (14) SCR 532; Pi:em Kumar
Singh v. State of U.P. (2011) 3 All LJ 343; Mukund
Kumar Srivastava v. State of UP. (2011) 1 All LJ 428;
Indra Sawhney v. UOI (1992) Supp. (3) SCC 217: 1992
( 2) Suppl. SCR 454; Central Bank of India v. SC/ST
Employees Welfare Association (2015) 12 SCC 308:
E 2015 (1) SCR 55; S. Panneer Selvam v. State of Tamil
Nadu (2015) 1 SCC 292 - referred to.
Case Law Reference
2000 (5) Suppl. SCR 302 referred to Paras
F 1996 (3) SCR 125 referred to Para 5
1999 (2) Suppl. SCR 521 referred to Paras
1995 (2) SCR 35 . referred to ParaS
1997 (1) SCR 535 referred to Para 6
G 1995 (4) Suppl. SCR 158 referred to Para 7
2012 (4) SCR 118 referred to Para 10
2003 (2) SCR 757 referred to Para 11
2010 (14) SCR 532 referred to Para 14
H
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 635

2006 (4) Suppl. SCR 511 relied on Para 15, 20 A
(2011) 3 All LJ 343 referred to Para 23
(2011) 1 All LJ 428 referred to Para 23
1992 (2) Suppl. SCR 454 referred to Para 23
2015 (1) SCR 55 referred to Para 26 B
(2015) 1 sec 292 referred to Para 27
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2368 of
2011.
From the Judgment and Order dated 23.12.20 I 0 of the High Court C
of Karnataka at Bangalore'in Writ Petition No. 14672 of 20 I 0.
WITH
C. A. Nos. 2369, 2370-2373, 2374-2377, 2378, 2379, 4320-4327 and
5280-5286 of201 I.
D
Ms. Kiran Suri, Dr. Rajeev Dhavan, Sushi! Kumar Jain, Basava
Prabhu S.Patil, A. K. Sanghi, Sr. Advs., S. J. Amith, Dr. (Mrs.) Vipin
Gupta, Ms. Anjana Chandrashekar, Kumar Parimal, Aniruddha P. Mayee,
G. V. Chandrashekhar, N. K. Verma, Ms. Anjana Chandrasekhar, Puneet
Jain, Ms. Pratibha Jain, Abhinav Gupta, Ms. Paya! Kirti, Ms. Chhaya
Kirti, Pankaj Sharma, Abhinav Gupta,V.N. Raghupathy, Parikshit P. E
Angadi, Anirudh Sangareria, Chinmay Deshpande, Ms. Sadhna Sandhu,
Rakesh Upadhayay, M. K.Maroria, Joseph Aristotle S., Ms. Priya
Aristotle, Ms. K. Priyadarshini, S. K. Kulkarni, M. Gireesh Kumar, ·
AnkurS. Kulkarni, S. N. Bhat, D. P. Chaturvedi, Ravi Panwar, Ms.Anitha
Shenoy, Adv. Mr. Anirudh P.Mayee, Advs. for the appearing parties. F
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. l. These appeals involve the
question of validity of the 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 (the impugned Act). G
The Act inter alia provides for grant of consequential seniority to the
Government servants belonging to Scheduled Castes and the Scheduled
Tribes promoted under reservation policy. It also protects consequential
seniority already accorded from 27'" April, 1978 onwards.
H
636 SUPREME COURT REPORTS [2017] 1 S.C.R.

A 2. The validity of the Act was challenged before this Court by way
of Writ Petition (Civil) No.61 of2002 titled M. Nagaraj and others v.
Union of India and others. The issue referred to larger Bench in the
writ petition along with connected matters was decided by this Court on
l 9'h October, 2006 1 • While upholding the constitutional validity of the
Constitution (seventy-seventh Amendment) Act, 1995; the Constitution
B
(Eighty-first Amendment) Act, 2000; the Constitution (Eighty-Second
Amendment)Act, 2000 and the Constitution (Eighty-fifth Amendment)
Act, 200 I, individual matters were remitted to the appropriate Bench'.
Thereafter, the matter was remitted back to the High Court for deciding
the question of validity of the said enactment'.
c 3. The petition was re-numbered by the High Court as Writ Petition
(Civil) No.14672 of2010. The High Court by the impugned judgment
has held the Act to be valid. The question framed for determination by
the High Court is as follows:
"Whether the State Government has shown the compelling reasons,
D namely, backwardness, inadequacy of representation and overall
administrative efficiency before making provision for reservation
for Scheduled Castes and Scheduled Tribes in matters of promotion
and as to whether the extent of reservation provided for promotion
in favour of the persons belonging to Scheduled Castes and
E Scheduled Tribes at 15% and 3% respectively, in Kamataka is '
justified?
4. It will be appropriate to notice the factual matrix relevant to
determine the controversy. Policy of reservation in promotion was
_introduced in the State ofKamataka vide Government Order dated 27 1•
F April, 1978. The reservation in promotion was provided to the SCs and
STs to the extent of 15% and 3% respectively but upto and inclusive of
. the lowest Group-A posts in the cadres where there is no element of
direct recruitment and where the direct recruitment does not exceed
66"%. A roster of 33 points was issued applicable to each cadre of
posts under each appointing authority. Prior to I" April, 1992, there was
G no carry forward _system of the vacancies. It was introduced on l"
April, 1992. In the stream of graduate Engineers, the reservation in
promotion was available upto and inclusive of third level, i.e., Executive

'(2006) s sec 212
2 Para 124 of 'M. Nagaraj (supra)

H 'Vide order of this Court dated 18'" March. 2010.
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 637
[ADARSH KUMAR GOEL, J.]

Engineers upto 1999 and on the date of filing of the petition (in 2002), it A
was available upto second level, i.e. Assistant Executive Engineer. In
Diploma Engineers, it was available upto third level, i.e. Assistant
Executive Engineer- Division I!. According to the appellants, Assistant
Engineers of SC/ST category recruited in the year 1987 were promoted
to the cadre of Assistant Executive Engineers while in general merit,
B
Assistant Engineers recruited in 1976 were considered for promotion to
the said cadre. The representation of the SC/ST group was as follows:
EE Cadre 19.9%
SE Cadre 23.95%
CE Cadre 4.3% (being a selection post)
Engineer-in-chief 44.44% c
5. Thus, according to the appellants, SG/ST candidates got promotion
early and on account of consequential seniority, percentage of SC/ST
candidates was much higher than the permitted percentage and all top
positions were likely to be filled up by SC/ST candidates without general
merit candidates getting to higher positions. This aspect was considered D
in the judgment of this Court dated 1" December, 2000 in M.G.
Badappanavar v. State of Karnataka 4 • This Court applying the
principles laid down in Ajit Singh Januja v. State ofPunjab (Ajit Singh
/)"'; Ajit Singh (II) v. State of Punjab' and R.K. Sablwrwal v. State of
Punjab' issued a direction to the State ofKamataka to redo the seniority
and take further action in the light of the said judgments. Pointing out E
the consequence of accelerated seniority to the roster point promotee, it
has been averred in the writ petition that the roster point promotee would
reach the third level by the age of 45 and fourth, fifth and sixth level in
next three, two and two years. The general merit promotee would reach
the third level only at the age of 56 and retire before reaching the fourth F
level. This would result in reverse discrimination and representation of
reserved category would range between 36% to I 00%.
6. Stand of the State and the contesting respondents who have been
given promotion under the reservation, is that inter se seniority amongst
persons promoted on any occasion is determined as per Kamataka G
Government Servants (Seniority) Rules, 1957 (1957 Rules). By
amendment dated l" April, 1992 provision was made to fill-up backlog
• (2001J2 sec 666
'(1996)2sec115
' ( 1999)7 sec 209
'(1995) 2 sec 745 H
638 SUPREME COURT REPORTS [2017] I S.C.R.

A vacancies which was upheld by this Court in B/111kt" R"megowd" v.
St"te ofKarnataka 8• On that basis, Government order dated 24'" June,
1997 was issued for fixation of seniority of SC/ST candidates promoted
under reservation. Thus, all candidates promoted 'on the same occasion'
retained their seniority in the lower cadre. This aspect was not considered
in B"'/app<mavar (supra). Extent of reservation for SC and ST was
B
15% and 3% respectively on the basis of census figures of 1951, though
the population ofSCs and STs has substantially increased. As per census
figures of 1991 population of SC and ST was 16.38% and 4.26%
respectively. The stand of the appellants that the SC/ST candidates reach
level four at 45 years or become Chief Engineers by 49 years or there is
c reverse discrimination has been denied.
7. In the light of the above pleadings and judgment of this Court in
M. Nagaraj (supra), the matter was put in issue before the High Court.
The contention raised on behalf of the appellants was that grant of
consequential seniority to candidates promoted by way of reservation
D affected efficiency of administration and was violative of Articles 14
and 16. In spite of85'" Amendment having been upheld, law laid down
in B"dappanavar (supra), Ajit Singh II (supra) and Union of India
v. Virpal Chauhan• remained relevant in absence of 'backwardness',
'inadequacy of representation' and 'overall administrative efficiency'
being independently determined. The State Government had not provided
E any material or data to show inadequacy of reservation to the members
of SC/ST nor the State has given any thought to the issue of overall
administrative efficiency.
8. On the other hand, the submission on behalfofthe State was that
reservation to SCs and STs to the extent of 15% and 3% respectively
F could never be said to be excessive in view of progressive increase in
population ofSCs and STs.
9. The High Court referring to this Court's judgment in M. Nagamj
(supra) observed that concept of "catch up" rule and "consequential
seniority" are judicially evolved concepts to control the effect of
G reservations. Deleting the said rule cannot by itself be in conflict with
"equality code" under the Constitution. The 85'" Amendment gave
freedom to the State to provide for reservation in promotion with
consequential seniority under Article 16(4-A) if 'backwardness',
'(1997) 2 sec 661
H '(1995)6SCC684
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 639
[ADARSH KUMAR GOEL, J.]

'inadequacy of representation' and 'overall efficiency' so warranted. A
There is no fixed yardstick to identify and measure the above three
factors. If the State fails to identify and measure the above three factors,
the reservation can be invalid. Examining whether the State had in fact
measured the above factors, the High Court observed that Order dated
27'h April, 1978 was issued by the State of Karnataka after considering
B
the statistics available about the representation of SCs and STs in
promotional vacancies. On 3'' February, l 999, the policy was modified
to limit reservation in promotion in cadre upto and inclusive of the lowest
category of Group-A posts in which there is no element ofrecruitment
beyond 66T' %. The said order was further amended on l3'h April, l 999
to the effect that reservation in the promotion for SCs and STs will c
continue to operate till their representation. reached 15% or 3%
respectively and promotion of SCs and STs and against backlog was to
continue as per order dated 24'h June, l 997 till the said percentage was
so reached in the total working strength. As per the Karnataka Scheduled
Castes, Scheduled Tribes and other Backward Classes (Reservation of
D
seats in Educational Institutions and of appointments or posts in the
services under the State) Act, 1994 (the Karnataka Act 43of1994),
seniority in the lower cadre is maintained in promotional posts for the
persons promoted "on one occasion". Since reservation had not exceeded
15% and 3% for SCs and STs while population of the said categories
had increased, there was adequate consideration of the above three E
factors of"backwardness", inadequacy of representation" and "overall
efficiency". Section 3 of the Act provided for an inbuilt mechanism for
providing reservation in promotion to the extent of 15% and 3%
respectively for the SCs and STs. The State Government collects statistics
every year. The High Court held that co1itention that if all the posts in
F
higher echelons may be filled by SCs and STs, the promotional prospects
of general merit candidates will get choked or blocked could not be
accepted as reservation in promotion was provided only upto the cadre
of Assistant Executive Engineers. It was further observed that there
was no pleading that overall efficiency of service would be hampered
by promoting persons belonging to SCs and STs. G
I 0. The impugned judgment has been challenged on behalf of the
appellants mainly relying upon judgment' ' .:1is Court in Uttar Priuleslr
Power Corporation Limited v. Rajeslr Kum11r10• It was submitted
that the High Court erroneously held that there was an inbuilt mechanism
"(2012) 1sec1 H
640 SUPREME COURT REPORTS [2017] I S.C.R.

A under Section 3 of the impugned Act or that the seniority rule maintaining
lower cadre seniority in respect of persons promoted on a pa1ticular
occasion was a safeguard against excessive reservation. Similarly, the
finding that reservation was only upto a particular level and not beyond
or that accelerated promotion upto that level did not affect further
promotions was erroneous. It was also submitted that there was no
B
provision for excluding the creamy layer which also rendered the Act
invalid. It was submitted that no exercise whatsoever in terms of M.
Nagaraj case has been undertaken by the State.
11. Shri Basava Prabhu S. Patil, learned senior counsel appearing
on behalf of the State submitted that the Act did not deal with the
c reservation. It only dea It with seniority. Seniority was not a fundamental
right but a civi I right as held in Bimleslt Tan war vs. Stale ofHaryana".
M. Nagaraj judgment of this Court had dealt with reservation and not
·• with consequential seniority. Once reservation is within the prescribed
•..• limit, there was no bar to consequential seniority being granted. It was
·•. D further submitted that even if seniority is to be struck down, the clock
cannot be entirely reversed so as to affect seniority of persons who had
retired or who are about to retire or who had reached higher positions.
12. Shri S.N. Bhat, learned counsel for the private respondents
supported the impugned judgment and submitted that the Government
E was not required to carry out the exercise of finding out 'backwardness',
'inadequacy ofrepresentation' and 'overall administrative efficiency'
for providing consequential seniority to officers on the basis of reservation.
The said exercise was required to be carried out only for providing
reservation in promotion. Reservation in promotion was permissible only
upto Class I posts in Karnataka. Moreover, inter se seniority ofreserved
F category and general category candidates promoted together was not
disturbed. The roster points ensured that there was no excessive
representation in different cadres of service. In view of Government
Order dated 3'' February, 1999 there was enough data available to justify
continuance of provision for consequential seniority under the impugned
G Act. Data collected by the Department of Statistics with regard to overall
representation of SCs and STs as on 31" March, 2002 showed that the
representation of SCs and STs was not above 15% and 3% respectively.
Section 4 of the Act only protected consequential seniority which was
already given. Promotions already effected cannot be disturbed.

H "(2003 J s sec 604
B. K. PAVJTRA & ORS. v. UNION OF INDIA & ORS. 641
[A.DARSH KUMAR GOEL, J.]

I3. Reference may now be made to the impugned Act. The A
preamble of the Act refers to policy ofreservation in promotion in favour
of Government servants belonging to SCs and STs in terms of order
dated 27'" April, 1978. Para 7 of the said order stipulates that inter se
seniority amongst persons promoted in accordance with the said order
has to be determined in the manner provided under Rule 4 or Rule 4A of
B
the 1957 Rules. There is further reference to the judgment of this Court
in Badappanavar (supra) to the effect that there was no specific rule
permitting seniority to be counted for persons promoted against a reserved
roster point. It further refers to the Constitution (85'" Amendment) Act,
200 l pennitting consequential seniority in the case of promotion on the
basis of reservation. It states that to remove any ambiguity and to clarify c
that government servants belonging to SCs and STs promoted in
accordance with the reservation in promotion shall be entitled to seniority
as it is available to government servants belonging to other categories.
Section 3 of the impugned Act provides that government servants
belonging to SCs and STs promoted in accordance with the policy
D
reservation in promotion shall be entitled to consequential seniority on
the basis of length of service in a cadre. Proviso to the said section to
the effect that inter se seniority of government servants belonging to
SCs/STs and those belonging to unreserved category promoted at the
same time by a common order shall be on the basis of inter se seniority
in the lower cadre. Section 4 provides for protection of consequential E
seniority already accorded from 27'" April, 1978. Since Sections 3 and
4 are the key sections, the same are reproduced below :
"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, F
the Government Servants belonging to the Scheduled Castes and
the Scheduled Tribes promoted in accordance with the policy of
reservation in promotion provided for in the Reservation Order
shall be entitled to consequential seniority. Seniority shall be
determined on the basis of the length of service in a cadre.
G
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
cadre, at the same time by a common 5 order, shall be determined
on the basis of their seniority inter-se, in the lower cadre.
H
642 SUPREME COURT REPORTS [2017] I S.C.R.

A Provided further that where the posts in a cadre, according to the
rules ofrecruitment applicable to them are required to be filled by
promotion from two or more lower cadres,-
(i) The number of vacancies available in the promotional
(higher) cadre for each of the lower cadres according to the rules
B of recruitment applicable to it shall be calculated; and
(ii) The roster shall be applied separately to the number of
vacancies so calculated in respect of each of those lower cadres;
Provided also thatthe serial numbers of the roster points specified
in the Reservation Order are intended only to facilitate calculation
c of the number of vacancies reserved for promo\ion at a time and
such roster points are not intended to determine inter-se seniority
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
D 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.
4. Protection of consequential seniority already accorded
from 27th April, 1978, onwards.- Notwithstanding anything
E 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
Tribes who were promoted in accordance with the policy of
reservation in promotion provided for in the Reservation Order
with effect from the Twenty Seventh Day of April, Nineteen
F Hundred and Seventy Eight shall be valid and shall be protected
and shall not be disturbed."
14. Question for consideration is whether the impugned Act is
consistent with Articles 14 and 16 of the Constitution. The said question
has been gone into by this Court inter a/ia in identical circumstances in
G Suraj Bhan Meena v. State of Rajastlum" and Uttar Pradesh Power
Corporation Limited (supra) to which we will make a reference at
appropriate place.
15. We proceed to deal with the contention that High Comtjudgment
proceeds on incorrect understanding of the law laid down in M. Nagaraj
H "(2011) I SCC467
B. K. PAVITRA & ORS. ·v. UNION OF INDIA & ORS. 643
[ADARSH KUMAR GOEL, J.]

(supra). While no doubt in M. Nt1gt1mj (supra), 85'h Amendment was A
upheld with the observation that enabling the State to do away with the
'catch up' rule, a judicially evolved concept to control the effect of
reservations, was valid but the exercise of power to do away with the
said rule and providing consequential seniority in favour ofroster point
promotees of reserved category was subject to the limitation of
B
determining the three factors of 'backwardness', 'inadequacy of
representation' and 'overall efficiency'. The High Court brushed aside
the said mandatory requirement by simply observing that Section 3 provided
for an inbuilt mechanism as the extent of mechanism was limited to 15%
and 3% respectively for the SCs and STs which dispensed with any
requirement of determining inadequacy of representation or c
backwardness. High Court further dispensed with the requirement of
determining overall efficiency by observing that there was no pleading
that overall efficiency would be hampered by promoting persons
belonging to SCs and STs. This reasoning in the judgment of the High
Cou1t, it is submitted, is contrary to the mandate oflaw as recognized in
D
M. Nt1gt1rt1j (supra) and the view similar to the impugned judgment has
been repeatedly disapproved in decisions of this Court.
16. We find considerable force in the submission. The issue is no
longer res integra and it will be suffice to refer to the law clearly laid
down by this Court in this regard.
E
17. In M. Nt1gt1rt1j (supra), this Court considered constitutional
validity of 77'". 81 ", 82"' and 85'h Amendments. In doing so, the Comt
was concerned with the question whether the amendment infringed the
basic structure of the Constitution. It was held that equality is part of the
basic structure but in the present context, right to equality is not violated
by an enabling provision if exercise of power so justifies. In this regard, F
following·observations are worthwhile to note:
"31. At the outset, it may be noted that equality, rule oflaw,judicial
review and separation of powers are distinct concepts. They have
to be treated separately, though they are intimately connected.
There can be no rule oflaw ifthere is no equality before the law; G
and rule of law and equality before the law would be empty words
iftheir violation was not a matter of judicial scrutiny or judicial
review and judicial relief and all these features would lose their
significance if judicial, executive and legislative functions were
united in only one authority, whose dictates had the force of law. H
644 SUPREME COURT REPORTS (2017] 1 S.C.R.

A The rule of law and equality before the law are designed to secure
among other things, justice both social and economic ..... .

32. In Minen'a Mills [0980) 3 SCC 625} Chandrachud, C.J.,
speaking for the majority, observed that Articles I 4 and 19 do not
B confer any fanciful rights. They confer rights which are
elementary for the proper and effective functioning of democracy.
They are universally regarded by the Universal Declaration of
Human Rights. If Articles 14 and 19 are put out of operation,
Article 32 will be rendered nugatory .....

c
33. From these observations, which are binding on us, the principle
which emerges is that "equality" is the essence of democracy
and, accordingly a basic feature of the Constitution ...... .

o 34. However, there is a difference between formal equality and
egalitarian equality which will be discussed later on.
xxxx
42 .......... There can be no justice without equality. Article 14
guarantees the fundamental right to equality before the law on all
E persons. Great social injustice resulted from treating sections of
the Hindu community as "untouchable" and, therefore, Article 17
abolished untouchability and Article 25 permitted the State to make
any law providing for throwing open all public Hindu religious
temples to untouchables. Therefore, provisions of Part Ill also
provide for political and social justice.
F
18. Considering the right of equality in the context of reservation/
affirmative action it was observed :
"43 .......... Therefore, the concept of"equality of opportunity"
in public employment concemsan individual, whether that individual
G belongs to the general category or Backward Class. The conflicting
claim of individual right under Article 16(1) and the preferential
treatment given to a Backward Class has to be balanced. Both
the claims have a particular object to be achieved. The question is
of optimisation of these conflicting interests and claims."
H 19. Thereafter, concepts of 'equity', 'justice' and 'merit' in public
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 645
[ADARSH KUMAR GOEL, J.]

employment were referred to and it was held that application of these A
concepts in public employment depends upon quantifiable data in each
case. It was observed:
"44.......... Backward Classes seek justice. General class in
public employment seeks equity. The difficulty comes in when
the third variable comes in, namely, efficiency in service. In the B
issue ofreservation, we are being asked to find a stable equilibrium
between justice to the backwards, equity for the forwards and
efficiency for the entire system. Equity and justice in the above
context are hard concepts. However, if you add efficiency to equity
and justice, the problem arises in the context of the reservation.
This problem has to be examined, therefore, on the facts of each c
case. Therefore, Article 16(4) has to be construed in the light of
Article 335 of the Constitution. Inadequacy in representation and
backwardness of the Scheduled Castes and Scheduled Tribes are
circumstances which enable the State Government to act under
Article 16(4) of the Constitution. However, as held by this Court D
the limitations on the discretion of the Government in the matter
ofreservation under Article 16(4) as well as Article 16(4-A) come
in the form of Article 335 of the Constitution.
45 .......... The basic presumption, however, remains that it is
the State who is in the best position to define and measure merit E
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. Simi !arty, the concept of "extent of
reservation" is not an absolute concept and like merit it is context-
specific.
F
46 .......... Therefore, "vesting of the power" by an enabling
provision may be constitutionally valid and yet "exercise of the
power" by the State in a given case may be arbitrary, particularly,
if the State fails to identify and measure backwardness and
inadequacy keeping in mind the efficiency of service as required
under Article 335." G

20. The above discussion led this Court to hold that conferment of
enabling power on State under Article 16(4A) did not by itself violate the
basic feature of equality. If the affirmative action stipulated under Article
16(4A) could be balanced with the need for adequate representation for
justice to the backwards while upholding equity for the forwards and H
646 SUPREME COURT REPORTS [2017] 1 S.C.R.

A efficiency for the entire system with the further observation that the
content of a right is defined by the Courts and even while the amendment
as such could be upheld, validity of an individual enactment was required
to be gone into. If the State wished to exercise its discretion under
Article 16(4A), it was to collect quantifiable data showing backwardness
of the class and inadequacy of representation of that class in public
B
employment in addition to compliance with Article 335. It was made
clear that even ifthe 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 obliterate the
creamy layer or extend the reservation indefinitely.
c 21. It may also be worthwhile to note further observations of this
Court in the said judgment:
"49. Reservation is necessary for transcending caste and not for
perpetuating it. Reservation has to be used in a limited sense
otherwise it will perpetuate caste ism in the country. Reservation
D is underwritten by a special justification.
xxxx
59. Giving the judgment of the Court in Indra ScnPhney [(1992)
Supp. (3) SCC 217] Jeevan Reddy, J. stated that Article 16(4)
speaks of adequate representation not proportionate representation
E although proportion of population of Backward Classes to the total
population would certainly be relevant ........... .

xxxx
102. .. .. ..... ..... Therefore, in every case where the State
F decides to provide for reser"ation there must exist two
circumstances, namely, "backwardness" and "inadequacy of
representation". As stated above, equity, justice and efficiency
are variable factors. These factors are context-specific. There is
no fixed yardstick to identify and measure these three factors, it
will depend on the facts and circumstances of each case. These
G
are the limitations on the mode of the exercise of power by tlie
State. None of these limitations have been removed by the
impugned amendments. If the State concerned fails to identify
and measure backwardness, inadequacy and overall administrative
efficiency then in that event the provision for reservation would
H
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 647
[ADARSH KUMAR GOEL, J.]

be invalid A
xxxxx
104. . : ... .. ... As stated above, be it reservation or evaluation,
excessiveness in either would result in violation of the constitutional
mandate. This exercise, however, will depend on the facts of each
B
case. In our view, the field of exercise of the amending power is
retained by the impugned amendments, as the impugned
amendments have introduced merely enabling provisions because,
as stated above, merit, efficiency, backwardness and inadequacy
cannot be identified and measured in vacuum. Moreover, Article
16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) c
and as long as the parameters mentioned in those articles are
complied with by the States, the provision of reservation cannot
be faulted. Articles 16(4-A) and 16(4-B) are classifications within
the principle of equality under Article 16(4).
xxxxx D
106. .. .... According to the Co11stitutio11a/ Law of
India, by H.M. Seervai, 4th Edn., p. 546, equality is not violated
by mere conferment of discretionary power. It is violated by
arbitrary exercise by those on whom it is conferred. This is the
theory of"guided power''. This theory is based on the assumption E
that in the event of arbitrary exercise by those on whom the power
is conferred, would be corrected by the cowts ......
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
F
efficiency which is held to be a constitutional limitation on the
discretion of the State in making reservation as indicated by Article
335. As stated above, the concepts of efficiency, backwardness,
inadequacy of representation are required to be identified and
measured .... ..
G
108 . ............ Moreover, Article 335 is to be read with Article
46 which provides that the State shall promote with special care
the educational and economic interests of the weaker sections of
the people, and in particular, of the Scheduled Castes and Scheduled
Tribes, and shall protect them from social injustice. Therefore,
where the State finds compelling interests of backwardness and H
648 SUPREME COURT REPORTS (2017) I S.C.R.

A inadequacy, it may relax the qualifying marks for SCs/STs. These
compelling interests however have to be identified by weighty
and comparable data.
xxxxx
117. .. .... Therefore, in each case the Court has got to
B be satisfied that the State has exercised its opinion in making
reservations in promotions for SCs and STs and for which the
State concerned will have to place before the Court the requisite
quantifiable data in each case and satisfy the Court that such
reservations became necessary on account of inadequacy of
c representation of SCs/STs in a particular class or classes of posts
without affecting general efficiency of service as mandated under
Article 335 of the Constitution.
118. The constitutional principle of equality is inherent in the rule
of law. However, its reach is Iimited because its primary concern
D is not with the content of the law but with its enforcement and
application. The rule of law is satisfied when laws are applied or
enforced equally, that is, even-handedly, free of bias and without
irrational distinction. The concept of equality allows differential
treatment but it prevents distinctions that are not properly justified.
Justification needs each case to be decided on case-to-case basis.
E
xxxx
120. At this stage, one aspect needs to be mentioned. Socialjustice
is concerned with the distribution of benefits and burdens. The
basis of distribution is the area of conflict between rights, needs
and means. These three criteria can be put under two concepts
F
of equality, namely, "formal equality" and ·'proportional equality".
Formal equality means that law treats everyone equal. Concept
of egalitarian equality is the concept of propo1tional equality and it
expects the States to take affirmative action in favour of
disadvantaged sections of society within the framework of
G democratic polity. In Indra Sml'/mey all the Judbes 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 Sml'hney this Court has, therefore, 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
H
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 649
[ADARSH KUMAR GOEL, J.]

Constitution by bringing in the concept of creamy layer. Views A
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 backwardness. As stated above,
we are bound by the decision in Indra Sawhney. The question as
to the "determinant" of backwardness cannot be gone into by us
B
in view of the binding decision. In addition to the above
requirements this Court in Indra Sawhney has evolved numerical
benchmarks like ceiling limit of50% based on post-specific roster
coupled with the concept of replacement to provide immunity
against the charge of discrimination.
xxxx c
122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
inadequacy ofrepresentation and overall administrative efficiency
are all constitutional requirements without which the structure of
equality of oppo11unity in A11icle I 6 would collapse." D

22. Question of application of principles laid down in M. Nagaraj
(supra) for judging the exercise of enabling power of granting
consequential seniority and promotion was raised in Surllj Blum Mee1w
(supra). Therein challenge was to the validity ofnotification dated 25'"
August, 2008 issued by the State GovernmentofRajasthan under proviso E
to Article 309 of the Constitution, amending the service rules in the State
ofRajasthan w.e.f. 28<h December, 2002. The notification purported to
give consequential seniority to candidates belonging to SCs and STs who
got roster point promotions. The challenge to the notification was that
without quantifying figures ofSCs and STs or showing compelling reasons F
such as 'backwardness', 'inadequacy of representation' and 'overall
administrative efficiency' as laid down in M. Nagllrllj (supra) the grant
of consequential seniority was not permissible. The High Court quashed
the notification providing for consequential seniority on the ground that
no exercise had been undertaken in terms of Article 16(4A) to acquire
quantifiable data regarding inadequacy ofrepresentation to SCs and STs G
in public service and to assess whether such reservation was necessary.
This was upheld by this Court as under:
"66. The position after the decision in M Nagaraj case is that
reservation of posts in promotion is dependent on the inadequacy
of representation of members of the Scheduled Castes and H
650 SUPREME COURT REPORTS (2017] I S.C.R.

A Scheduled Tribes and Backward Classes and subject to the
condition of asce11aining as to whether such reservation was at
all required.
67. The view of the High Co1111 is based on the decision in M.
Nagaraj case as no exercise was undertaken in terms of Article
B 16(4-A) to acquire quantifiable data regarding the inadequacy of
representation of the Scheduled Caste and Scheduled Tribe
communities in public services. The Rajasthan High Court has
rightly quashed the Notifications dated 28-12-2002 and 25-4-2008
issued by the State of Rajasthan providing for consequential
seniority and promotion to the members of the Scheduled Caste
c and Scheduled Tribe communities and the same does not call for
any interference.•·
23. Again in Uttar Pradesh Power Corporation Limited (supra),
validity of Rule SA of the U.P. Government Servants Seniority Rules,
1991, inserted by wayofan amendment in 2007, was put in issue. While
D a Division Bench of Lucknow Bench in Prem Kumar Singh v. State of
U.P. 13 struck down the said rule, another Division Bench at Allahabad in
Mukum/ Kumar Srivastava v. State of U.P.u took a contrary view.
This Court dismissed the appeal filed by the U.P. Power Corporation
Limited and upheld the view of the Lucknow Bench. Reference was
E made to observations in para 819 in Indra S11w/111ey v. UOI'-' to the
effect that reservation under Article 16(4) of the Constitution could only
. be at the stage of entry into the State service and not in promotion.
Reservation in promotion is bound to generate acute heartburning and
lead to inefficiency in administration. The members of open category
would think that whatever be their record or performance, members of
F reserved category will steal a march over them irrespective of their
performance and competence. Once persons coming from different
sources join a category or class, they must be treated alike for promotion
and no distinction was permissible on the basis of 'birth-mark'.
Reservation in promotion will be contrary to the mandate of Article 335,
G viz., maintenance of efficiency in administration and put premium on
etliciency. Members ofreserved category will not work hard since they
do not have to compete with their colleagues and because of assured

"(2011) 3 All LJ 343
"(2011) 1 All LJ 428
'' (1992) Supp. (3) sec 217
H
B. K. PAYITRA & ORS. v. UNION OF INDIA & ORS. 651
[ADARSH KUMAR GOEL, J.]

promotion, which will be against the goal of excellence under Article 51- A
A G). Reference was also made to para 831 in the said judgment to the
effect that extending concessions and relaxations in the matter of
promotion to members of reserved category could affect efficiency of
administration. Reference was then made to the decisions of this Court
holding that rosteronly ensured percentage ofreservation in promotion
B
but could not affect seniority. 16
24. Reference was then made to the Constitution amendment
enabling reservation in promotions and consequential seniority which
was upheld in M. Nagaraj (supra). The said judgment was summarized
as follows:
c
" 81. From the aforesaid decision in M Nagaraj case and the
paragraphs we have quoted hereinabove, the following principles
can be carved out:
(i) Vesting of the power by an enabling provision may be
constitutionally valid and yet "exercise of power" by the State in D
a given case may be arbitrary, particularly, if the State fails to
identify and measure the backwardness and inadequacy keeping
in mind the efficiency of service as required under Article 335.
(ii) Article 16(4) which protects the interests of certain sections
of the society has to be balanced against Article 16( 1) which E
protects the interests of every citizen of the entire society. They
should be harmonised because they are restatements of the
principle of equality under Article 14.
(iii) Each post gets marked for the particular category of
candidates to be appointed against it and any subsequent vacancy
F
has to be filled by that category candidate.
(iv) The appropriate Government ha, ro 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 the upper ceiling limit of
G
50% is not violated. Further, roster has to be post-specific and not
vacancy based.
(v) The State has to form its opinion on the quantifiable data
16
R.K. Sabharwal versus State of Punjab, Ajit Singh Januja versus State of Punjab (Ajit
Singh I); Ajit Singh (II) versus State of Punjab and Union of India versus Virpal
Chauhan (supra) H
652 SUPREME COURT REPORTS [2017) I S.C.R.

A regarding adequacy ofrepresentation. Clause (4-A) of Article 16
is an enabling provision. It gives freedom to the State to provide
for reservation in matters of promotion. Clause ( 4-A) of Article
16 applies only to SCs and STs. The said clause is carved out of
Article 16(4-A). Therefore, clause ( 4-A) wi II be governed by the
two compelling reasons-"backwardness" and "inadequacy of
B
representation", as mentioned in Article 16(4). If the said two
reasons do not exist, then the enabling provision cannot be
enforced.
(vi) If the ceiling limit on the carry over of unfilled vacancies is
removed, the other alternative time factor comes in and in that
c event, the timescale has to be imposed in the interest of efficiency
in administration as mandated by Article 335. If the timescale is
not kept, then posts will continue to remain vacant for years which
would be detrimental to the administration. Therefore, in each
case, the appropriate Government will now have to introduce the
D duration depending upon the fact situation.
(vii) If the appropriate Government enacts a law providing for
reservation without keeping in mind the parameters in Article 16(4)
and Article 335, then this Court will certainly set aside and strike
down such legislation.
E (viii) The constitutional limitation under Article 335 is relaxed and
not obliterated. As stated above, be it reservation or evaluation,
excessiveness in either would result in violation ofthe constitutional
mandate. This exercise, however, will depend on the facts of each
case.
F (ix) The concepts of efficiency, backwardness and inadequacy
ofrepresentation are required to be identified and measured. That
exercise depends on the availability of data. That exercise depends
on numerous factors. It is for this reason that the enabling
provisions are required to be made because each competing claim
G
seeks to achieve certain goals. How best one should optimise
these conflicting claims can only be done by the administration in
the context oflocal prevailing conditions in public employment.
(x) Article 16(4), therefore, creates a field which enables a State
to provide for reservation provided there exists backwardness of
a class and inadequacy of representation in employment. These
H
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 653
[ADARSH KUMAR GOEL, J.]

are compelling reasons. They do not exist in Article 16(1). It is A
only when these reasons are satisfied that a State gets the power
to provide for reservation in the matter of employment."
25. Referring to the "Social Justice Committee Report" relied upon
by the U.P. Power Corporation, it was observed that the said report was
in respect of population and vacancies and not in respect of the concepts B
evolved in M. Nagaraj (supra). Therefore, exercise in the light of
judgment in M. Nagaraj was a categorical imperative. The contention
that no such exercise was necessary could not be accepted. Accordingly,
this Court upheld the view that grant of consequential seniority in
promotion to the persons belonging to SCs and STs who were granted
promotion against roster points could not be.sustained. Reference may
c
be made to the following observations :
"85. As has been indicated herein before, it has been vehemently
argued by the learned Senior Counsel for the State and the learned
Senior Counsel for the Corporation that once the principle of
reservation was made applicable to the spectrum of promotion, D
no fresh exercise is necessary. It is also urged that the efficiency
in service is not jeopardised. Reference has been made to the
Social Justice Committee Report and the chart. We need not
produce the same as the said exercise was done regard being had
to the population and vacancies and not to the concepts that have E
been evolved in M Nagaraj. It is one thing to think that there are
statutory rules or executive instructions to grant promotion but it
cannot be forgotten that they were all subject to the pronouncement
by this Court in Virpa/ Singh Chauhan and Ajit Singh.
86. We are of the firm view that a fresh exercise in the Iight of F
the judgment of the Constitution Bench in M Nagaraj is a
categorical imperative. The stand that the constitutional
amendments have facilitated the reservation in promotion with
consequential seniority and have given the stamp of approval to
the Act and the Rules cannot withstand close scrutiny inasmuch
as the Constitution Bench has clearly opined that Articles 16( 4- G
A) and 16(4-B) are enabling provisions and the State can make
provisions for the same on certain basis or foundation. The
conditions precedent have not been satisfied. No exercise has
been undertaken. What has been argued with vehemence is that
it is not necessary as the concept of reservation in promotion was
H
654 SUPREME COURT REPORTS [2017] I S.C.R.

A already in vogue. We are unable to accept the said submission,
for when the provisions of the Constitution are treated valid with
certain conditions or riders, it becomes incumbent on the part of
the State to appreciate and apply the test so that its amendments
can be tested and withstand the scrutiny on param.eters laid down
therein.
B
87. In the ultimate analysis, we conclude and hold that Section
3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra
vires as they run counter to the dictum in M Nagaraj. Any
promotion that has been given on the dictum of Indra Sawhney
and without the aid or assistance of Section 3(7) and Rule 8-A
c shall remain undisturbed."
26. In Central Bank of India v. SC/ST Employees Welfare
Association", question was whether in absence of a rule ofreservation
for promotion such reservation was permissible merely because the banks
were following reservation policy of the Govemmentoflndia. The Madras
D High Court after considering the statistics found that there was no
adequate representation ofSCs and STs in higher scales. It directed that
such representation be granted. Plea of the Bank that such reservation
will affect efficiency in the administration was rejected. This Court held
that in absence of any specific provision for reservation in promotion,
E the Court could not issue a direction for reservation. It was observed:
"32. We have already noticed above that in matters of promotion
within Group A posts, which carry an ultimate salary of Rs 5700
per month, there was no provision for any reservation. On a conjoint
reading of these two Office Memorandums dated 1-11-1990 and
13-8-1997, in the absence of any other provision or rule evidencing
F
such a reservation in the matter of promotions, it cannot be said
that there was reservation in promotion within Group A posts up
to the ultimate salary of Rs 5700 per month. The High Court in
the impugned judgment has gone by the lofty ideals enshrined in
Articles 15 and 16 of the Constitution as well as the fact that in
G these Banks there is no adequate representation of SC/ST
category of officers in Group IV and above. That may be so. It
can only provide justification for making a provision of this nature.
However, in the absence of such a provision, same cannot be
read by overstretching the language of the Office Memorandum
H "(2015) 12 sec Jos
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 655
[ADARSH KUMAR GOEL, J.]

dated 13-8-1997. It is for the State to.take stock of the ground A
realities and take a decision as to whether it is necessary to make
provision for reservation in promotions to the aforesaid post as
\VelJ."
27. In S. Panneer Se/vam v. State of Tamil Nadu 18, question before
the Court was whether in absence of any policy decision by the State B
for giving consequential seniority to candidates promoted on the basis of
reservation prior to a senior general category candidate, claim for
consequential seniority could be accepted. Answering the question in
the negative, it was held that in absence of provision for consequential
seniority, 'catch up' rule will be applicable and the roster point promotees
cannot claim such consequential seniority. The senior general candidates c
will regain their seniority on being promoted. Observations relevant in
this regard are as follows :
"34. If we look at the above comparative table of the service
particulars of the appellants and the respondents, it is seen that
the contesting respondents U. Palaniappan joined the service D
almost seven years after the appellants, his seniority is
automatically accelerated at an unprecedented rate and as on 1-
4-2004 his seniority rank as ADE is 150 and seniority of V.
Appadurai is 120. The appellants who are qualified and senior
than the contesting respondents are placed much below in rank 'in
E
comparison to the person belonging to the reserved class
promotees who were promoted following the rule of reservation.
It is to be noted that the private respondents in the present case
have been promoted temporarily under Rule 39(a) and Rule
lO(aX1) of the General Rules with the condition that their inclusion
in the promotional order shall not confer on them any right F
whatsoever in the service. Determination of seniority is a vital
aspect in the service career of an employee and his future promotion
is dependent on this. Therefore, determination of seniority must
be based on some principles which are just and fair. In the absence
of any policy decision taken or rules framed by the State ofTamil
G
Nadu regarding TalT!il Nadu Highways Engineering Service,
accelerated promotion given to the respondents following rule of
reservation in terms of Rule 12 will not give them consequential
accelerated seniority.

"(2015) 1 sec 292
H
•

656 SUPREME COURT REPORTS (2017) 1 ~.C.R.

A xxxx
36. In the absence of any provision for consequential sen.iority in
the IJlles, the "catch-up rule" will be applicable and the roster-
point reserved category promotees cannot count their seniority in
the promoted category from the date of their promotion a11d the
B senior general candidates if later reach the promotional level,
general candidates will regain their seniority. The Division llench
appears to have proceeded on an erroneous footing that Article
16(4-A) of the Constitution of India automatically gives the
consequential seniority in addition to accelerated promotion to the
roster-point promotees and the judgment of the Division Bench
c cannot be sustained."
26. It is clear from the above discussion that exercise for
determining 'inadequacy ofrepresentation', 'backwardness' and 'overall
efficiency', is a must for exercise of power under Article 16(4A). Mere
fact that there is no proportionate representation in promotional posts
D for the population of SCs and STs is not by itself enough to grant
consequential seniority to promotees who are otherwise junior and thereby
denying seniority to those who are given promotion later on account of
reservation policy. It is for the State to place material on record that
there was compelling necessity for exercise of such power and decision
E 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 consequential seniority to junior persons
who got promotion on account of reservation. Plea that persons promoted
F 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 same time on account of roster point reservation.
Depriving hin. Dfhis seniority affects his further chances of promotion.
Further plea that se11iority was not a fundamental right is equally without
G any merit in the present context. In absence of exercise under Article
16(4A), it is the 'catch up' rule which is fully applies. It is not necessary
to go into the question whether the concerned Corporation had adopted
the rule of consequential seniority.
27. In view of the above, we allow these appeals, set aside the
H impugned judgment and declare the provisions of the impugned Act to
B. K. PAVITRA & ORS. v. UNION OF INDIA & ORS. 657
[ADARSH KUMAR GOEL, J.]

the extent of doing away with the 'catch up' rule and providing for A
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. Tlie judgment will not affect those who
have already retired and will not affect financial benefits already taken.
Consequential pr0motions granted to serving employees, based on
B
consequential seniority benefit, will be treated as ad hoc and liable to be
reviewed. Seniority list may be now revised in the light of this judgment
within three months from today. Further consequential action may be
taken accordingly within next three months.

c
Nidhi Jain Appeals allowed.