Holding

Rules made under the proviso to Article 309 may have retrospective effect, and the second proviso concerning backlog vacancies is not ultra‑vires; promotions remain valid subject to future guidelines.

Summary

The appellants challenged amendments to Karnataka Civil Services (General Recruitment) Rules, 1977 concerning reservation in promotion and the concept of backlog vacancies. The Supreme Court examined whether the first proviso added to Rule 8 could be applied retrospectively and whether the second proviso, which introduced backlog vacancies, was invalid for lack of implementation guidelines. Relying on earlier decisions that rules made under the proviso to Article 309 are legislative and may have retrospective effect, the Court held that the first proviso could indeed operate retrospectively. It further held that the second proviso was not ultra‑vires; its operation does not depend on the issuance of guidelines, though such guidelines are necessary for practical implementation. Consequently, promotions already effected remain valid, subject to future guidelines and adjustment of vacancies. The State Government was directed to complete the exercise within three months of the order.

Issues considered

Whether the amendment (first proviso) to Rule 8 of the Karnataka Civil Services Rules can be given retrospective effect.
Whether the second proviso introducing backlog vacancies is ultra vires for the absence of prescribed guidelines.
Whether promotions already made under the amended rule remain valid pending the formulation of guidelines.

Legislation cited

Constitution of Indias. Article 16(4), s. Article 309, s. Article 335
Karnataka Civil Services (General Recruitment) Rules, 1977s. Rule 8

Subjects

reservation in promotionretrospective effectbacklog vacanciesservice lawArticle 309Article 16(4)Article 335Karnataka Civil Services Rulesadministrative law

Judgment

BHAKTA RAME GOWDA AND ORS. ETC. A
v.
STATE OF KARNATAKA AND ANR. ETC.

JANUARY 24, 1997
B
[K. RAMASWAMY AND G.T. NANAVATI, JJ.]

Service Law :

Kamataka Civil Services (General Recrnitment) Rules, 1977:
c
Rule 8--Reservation in promotion--Retrospectivity of the Rule-Back-
log vacancie:r-Filling up of-Guidelines not provided-Held : Whatever
promotions given, they would remain valid subject to laying down guidelines
and working out of backlog vacancies in the light of guideline:r-State Govem-
ment directed to complete the exercise within three months. D
B.S. Vadera v. Union of India, AIR (1969) SC 118; Chief Secretary to
Govemment ofAndhra Pradesh & Anr. v. VJ. Comelius Etc., AIR (1981) SC
1099; P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR (1987) SC 1676;
Supreme Court Employees Welfare Association v. Union of India & Ors., AIR E
(1990) SC 334; R.L. Bansal & Ors. v. Union of India & Ors., AIR 1993 SC
978 and V.K. Sood v. Secretary, Civil Aviation & Ors., AIR (1993) SC 2285,
relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 490-91
~~~ F
From the Judgment and Order dated 29.4.94 of the Karnataka Ad-
ministrative Tribunal, Bangalore in A. Nos. 3727/92 and 822 of 1993.

Ms. T. Sudha, Ms. Bina Gupta, Ramesh Singh and D.K. Garg for the G
Appellants.

V.N. Ganpule, P. Mahale, AK. Panda, R.P. Wadhwani, K.R.
--4. Nagaraja and S.N. Bhat for the Respondents.

The following Order of the Court was delivered : H
535
..,..
'

536 SUPREME COURT REPORTS [1997] 1 S.C.R.

A Leave granted. We have heard learned counsel on both sides.

These appeals by special leave arise from the order of the Karnataka
Administrative Tribunal, made on April 29, 1994 in Application Nos.
3727/82 and batch.

B The admitted position is that under the Karnataka Civil Services
(General Recruitment) Rules, 1977, the Government exercising the power
under proviso to article 309 of the Constitution has amended Rule 8 and
introduced proviso thereto. It reads as under :
-
c "8. Provision for reservation of appointments or posts : Subject to
provisions of sub-rule (3) of Rule 9, appointments or posts shall
be reserved for the members of the Scheduled Castes, Schedule
Tribes, Backward 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."
D
As a result thereof, the Government is empowered, in consistency
\vith Article 335 of the Constitution, to appoint by promotion by way of
reservation of the members belonging to Scheduled Castes, Scheduled
Tribes and other Backward Classes to such extent and in such manner as
E may be specified by the Government under clause (4) of Article 16 of the
Constitution. By another order dated April 1, 1992, the second proviso was
introduced which reads as under :

• "Provided that, notwithstanding anything in the rules of recruitment
F specially made in respect of any service or post, the backlog
vacancies in the promotional quota shall be determined and im-
plemented with effect from 27th April, 1978.

Note : The backlog vacancy means the extent of the number of
vacancies available under the roster system upto the level of lowest
G category in group-A posts calculated from 27th April, 1978. "

Under this proviso, the Government has introduced the principle of
filling up of the posts reserved for Scheduled Castes, Scheduled Tribes and
Other Backward Classes including the backlog vacancies in promotional
H quota effective from April 27, 1978. These rules came to be challenged in
,
,-1\"

BHAKTARAME GOWDAv. STATE 537

·t- .. the Tribunal. The Tribunal had held that the first proviso cannot be made
with retrospective effect. The view taken by the Tribunal is wholly unsus-
tainable.
A

•
A Constitution Bench of this Court had held in B.S. Vadera v. Union
of India, AIR (1969) SC 118 that rules made under the proviso to Article
309 of the Constitution are legislative in character and, therefore, they B
could be made with retrospective effect. The same principle was reiterated
~
in several decisions, viz., Chief Secretmy to Govemment of Andhra Pradesh
... & Anr. v. VJ. Comelius Etc., AIR (1981) SC 1099, P.D. Aggmwal & Ors. v.
State of U.P. & Ors., AIR (1987) SC 1676, Supreme Court Employees
Welfare Association v. Union of India & Ors., AIR (1990) SC 334, R.L. c
Bansal & Ors. v. Union of India & Ors., AIR (1993) SC 978 and V.K Sood
v. Secretmy, Civil Aviation & Ors., AIR (1993) SC 2285. The view of the
Tribunal that the rules cannot be made with retrospective effect is ex-facie
illegal and unsustainable. The rule also were struck down on yet another
ground, namely, until the guidelines have been provided for working out D
the rules, the rules are non est and, therefore; the second proviso is ultra
"' vires. This view also is not correct. The operation of the rules does not
depend on the guidelines to be laid. Merely because the guidelines have
not been provided in the manner in which the backlog vacancies are
required to be filled up, the second proviso to Rule 8 made in exercise of
the power under proviso to Article 309 does not become 11011 est. At best, E
it remains unworkable. The Government is required to formulate the
guidelines under Article 16(4) of the Constitution as to the manner in
which the backlog vacancies are required to be filled up. Admittedly, such
guidelines have not been provided including preparing the roster, identify-
ing the backlog vacancies and the placement of the officers between the F
general and reserved categories which were annexed for the first time along
with the counter-affidavit filed in the Tribunal. Under these circumstances,
the view of the Tribunal is not correct. It may be construed to the extent
the second proviso remains unworkable until the guidelines under Article
16(4) have been issue by the State Government. Under these circumstan-
G
ces, whatever promotions have been given, they would remain valid subject
to laying down of the guidelines and working oµt of the backlog vacancies
in the light of the guidelines provided thereunder and adjustment of the 11
_. officers promoted under the second .proviso. All the promotions will be
subject to the above fitment and adjustment between general candidates
~ H
j
""i

...
'
-,..,
i

538 SUPREME COURT REPORTS [19Y7] 1 S.C.R.

A and the reserved candidates in the respective categories, namely,
Scheduled Castes and Scheduled Tribes and other Backward Classes in
accordance with the guidelines and the law laid down by this Court. The
State Government is directed to complete the exe{.cise within a period of
three months from the date of the receipt of the order.
B The appeals are allowed to the above extent. No costs.

G.N Appeals are allowed.