SURAJ BHAN MEENA & ANR.versusSTATE OF RAJASTHAN & ORS.

                 [2010] 14 (ADDL.) S.C.R. 532


A                SURAJ BHAN MEENA & ANR.
                               v.
                STATE OF RAJASTHAN & ORS.
      (Special Leave Petition (Civil) No.6385 of 2010 etc.)
                      DECEMBER 7, 2010
B
          [ALTAMAS KABIR AND A.K. PATNAIK, JJ.)

       SERVICE LAW·

c      Promotion through reservation - Consequential
  seniority - Held: The position after the decision in M.
  Nagaraj's case is that reservation in promotion is dependent
  on the inadequacy of representation of members of
  Scheduled Castes, Scheduled Tribes and Backward
0 Classes and subject to the condition of ascertaining as to
  whether such reservation was at all required - The High
  Court has rightly quashed the notifications dated 28.12.2002
  and 25.04.2008 issued by the Government of Rajasthan
  providing for consequential seniority to the members of the
  Schedules Caste and Scheduled Tribe communities on
E promotion through reservation or roster - Constitution of
  India, 1950 - Article 16(4-A) and 16(4-8). - Rajasthan
  Administrative Service Rules, 1954 - Government of
  Rajasthan Notifications dated 28.12.2002 and 25.04.2008.

F     Writ petitions were filed before the High Court, by
  the members of Rajasthan Administrative Service
  governed by the Rajasthan Administrative Service Rules
  1954, challenging the Notification dated 25.04.2008 by
  which various Service Rules of the State were amended
G with effect from 28.12.2002. Thl3ir case was that by virtue
  of the Notification dated 25.4.2008, consequential
  seniority was given to the candidates belonging to
  Scheduled Castes and Scheduled Tribes on their
  promotion through reservation, which could not have
H                             532
      SURAJ BHAN MEENA & ANR. v. STATE OF                              533
               RAJASTHAN & ORS.

been done without quantifying the figures of Scheduled                       A
Caste and Scheduled Tribe candidates so as to take a
decision that reservation was required in promotion and
also to show that the State had to pass such orders for
compelling reasons, such as, backwardness,
inadequacy of representation as was held by the                              B
Supreme Court in M. Nagaraj's case1. The High Court
allowed the writ petitions and quashed the Notifications
dated 28.12.2002 and 25.8.2008. Aggrieved, the affected
officers and the State Government filed the petitions for
special leave.                                                               c
    The question for consftteration before the Court
was: whether the. amended provisions of Article 16(4-A)
of the Cohstitution intended that those belonging to
Scheduled Caste and Schedule Tribe communities and
had been promoted against reserve quota, would also                          D
be entitled to consequential seniority on account of
such promotions, or would the "catch-up" rule prevail.

      Disposing of the petitions, the Court
                                                                             E
      Held:

     1.1. In M. Nagaraj's case, the Constitution Bench of
the Supreme Court, while upholding the validity of the
77th, 81st, 82nd and 85th constitutional amendments,
added that, in any event, the requirement of Articles                        F
16(4-A) and 16(4-B) of the Constitution would have to
be maintained and that in order to provide for
reservation, if at all, the tests indicated in Article 16
(4-A) and 16(4-B) would have to be satisfied, which could
only be achieved after an inquiry as to identity. The                        G
Court further held that the concepts of "catch-up" rule
and "consequential seniority" are judicially evalued


1.   M. Nagaraj & Ors. vs. Union of India & Ors. 2006 (7) Suppl. SCR 326.    H
    534   SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A concepts and could not be elevated to the status of a
  constitutional principle so as to place them beyond the
  amending power of Parliament. The position after the
  decision in M. Nagaraj's case is that reservation of posts
  in promotion is dependent on the inadequacy of
B representation of members of Scheduled Castes,
  Scheduled Tribes and Backward Classes and subject
  to the condition of ascertaining as to whether such
  reservation was at all required. [para 45-46) [858-C-F]

       1.2. The view of the High Court is based on the
C decision in M. Nagaraj's case, as no exercise was
  undertaken in terms of Article 16(4-A) to acquire
  quantifiable data regarding the inadequacy of
  representation of Schedule Caste and Scheduled Tribe
  communities in public services. The High Court has
D rightly quashed the notifications dated 28.12.2002 and
  25.4.2008 issued by the State of Rajasthan providing
  for promotion and consequential seniority to the
  members of Scheduled Caste and Scheduled Tribe
  communities and the same does not call for any
E interference. Accordingly, the claim of the appellants in
  Special Leave Petition (Civil) No.6385 of 2010 will be
  subject to the conditions laid down in M. Nagaraj's case.
  [para 46] [858-G-H; 859-A-B]

F      M. Nagaraj & Ors. vs. Union of India & Ors. 2006 (7)
    Suppl. SCR 336 = 2006 (8) SCC 212 - Followed

      Ajit Singh-II & Ors. vs. State of Punjab & Ors. 1999 (2)
  suppl. SCR 521 = 1999 (7 ) SCC 209; Ram Prasad etc.
                                                   =
  vs D. K. Vijay & Ors. 1999 (2) Suppl. SCR 576 1999 (7)
G SCC 251; Union of India vs. Virpal Singh Chauhan & Ors.
  1995 (4) Suppl. SCR 158 = 1995 (6) sec 684; B. K.
  Sharama & Anr. Vs. State of Rajasthan & Ors. WLC (Raj)
  1998 (2) 583; Ajit Singh Januja & Ors. vs. State of Punjab

H
     SURAJ BHAN MEENA & ANR. v. STATE OF            535
              RAJASTHAN & ORS.
& Ors. 1996 (3) SCR 125 = 1996 ( 2 ) SCC 715 - Relied      A
on

     Indra Sawhney & Ors. vs. Union of India & Ors. 1992
(2) Suppl. SCR 454 = 1992 (3) Suppl. SCC 217 - referred
to
                                                           8
    Jagdish Lal vs. State of Haryana 1997 (6) SCC 538 -
Stood over ruled

    S. S. Bola & Ors. Vs. B.D. Saldana & Ors. (1997) 8
SCC 522; T. Narasimhulu & Ors. Vs. State of A.P. & Ors.    C
(2010) 5 SCALE 730; General Manager, Southern Railway
Vs. Rangachari (1962) 2 SCR 586 - Cited.

                   Case Law Reference:
 1999 (2) suppl. SCR 521     relied on    para 4 and 42    D

 1999 (2)   Suppl. SCR 576 relied on      para 4 and 42
 2006 (7) Suppl. SCR 336     followed     para 5
 1992 (2) Suppl. SCR 454     referred to para 5            E
  1995 (4) Suppl. SCR 158 relied on       para 5
 1996 (3) SCR 125            relied on    para 5
 WLC (Raj) 1998 (2) 583       relied on   para 9
                                                           F
 1997 (6) sec 538            Stood over ruled para 14
 (1997) 8 sec 522            Cited        para 19     •
 (2010) 5 SCALE 730          Cited        para 19
                                                           G
 (1962) 2 SCR 586            Cited        para 21
     CIVIL APPELLATE JURISDICTION : SLP No. 6385 of
2010.
                                                           H
    536    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       From the Judgment & Order dated 5.2.2010 of the High
    Court of Judicature for Rajasthan, Jaipur Bench, at Jaipur
    D.B. (Civil) Writ Petition No. 8104 of 2008.

                               WITH

B SLP (C) Nos. 7716, 7717, 7826 & 7838 of 2010

    Conmt. Pet. (C) No. 313 of 2010 in SLP (C) 7716 of 2010.

       P.P. Rao, Rajeev Dhawan, Pallav Shishodia, M.R. Calla,
C Dr. Manish Singhvi, AAG, Dr. Krishan Singh Chauhan, Chand
  Kiran, Ajit Kumar Ekka, Tej Singh Varun, Devanshu Kumar
  Devesh, R. Gopalakrishnan, Jaswant Persoya, Rajesh Kumar,
  Binu Tamta, Pradeep Aggarwal, N. Annapoorani, L.P. Singh,
  Ram Niwas, Shobhit Tiwari, Brijesh Singh, M.L. Lahoty, Mukul
  Kumar, Rishi Matoliya, Pratiksha Sharma, Charu Mathur for
D the appearing parties.

          The Judgment of the Court was delivered by

       ALTAMAS KABIR, J. 1. Since common questions of
E fact and law are involved, five Special Leave Petitions have
  been taken up for hearing and final disposal together. While
  SLP(C)No.6385 of 2010 has been filed by Su raj Bhan Meena
  & Anr., SLP(C)Nos.7716, 7717, 7826 and 7838 of 2010,
  have all been filed by the State of Rajasthan.

F      2. All the petitioners are aggrieved by the judgment and
  order dated 5th February, 2010, passed by the Jaipur Bench
  of the Rajasthan High Court in D.B. Civil Special Appeal
  (Writ) No.618/2009 filed by the State of Rajasthan & Anr.
  against Bajrang Lal Sharma & Ors., D.B. Civil Special Appeal
G (Writ) No.3/2010 filed by Suraj Bhan Meena against Bajrang
  Lal Sharma & Ors., D.B. Civil Special Appeal (Writ) No.611/
  2009 filed by the State of Rajasthan against Gyan Prakash
  Shukla, D.B. Civil Special Appeal (Writ) No.610/2009 filed
  by the State of Rajasthan against M.M. Joshi, D.B. Civil Writ
H
     SURAJ BHAN MEENA & ANR. v. STATE OF                    537
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
Petition No.8104/2008 filed by Baj rang Lal Sharma & Ors.           A
against the State of Rajasthan & Ors., D.B. Civil Writ Petition
No.6241/2008 filed by Gyan Prakash Shukla & Anr. against
the State of Rajasthan & Ors. and D.B. Civil Writ Petition
No.7775/2009 filed by M.M. Joshi against the State of
Rajasthan & Ors. As indicated hereinbefore, all the matters         B
were heard and disposed of by a common judgment passed
by the Division Bench on 5th February, 2010. While
considering the writ petitions along with the writ appeals, the
Division Bench referred to the facts of D.B. Civil Writ Petition
No.8104/2008, against which SLP(C)No.6385/2010 has been             c
filed by Suraj Bhan Meena and SLP(C)No.7716/2010 has
been filed by the State of Rajasthan. The other Special Leave
Petitions have been filed against the orders passed in the
Writ Petitions filed by the private respondents therein.

     3. All the writ petitioners, as also the Petitioners in        D
SLP(C)No.6385/2010, are members of the Rajasthan
Administrative Service and are governed by the Rajasthan
Administrative Service Rules, 1954. The writ petitioners in
their respective writ petitions challenged the Notification dated
25th April, 2008, issued by the State of Rajasthan in exercise      E
of its powers conferred by the proviso to Article 309 of the
Constitution of India amending the Rajasthan "Various Service
Rules" with effect from 28.12.2002.

     4. According to the writ petitioners, they had been            F
inducted in the Rajasthan Administrative Service in December,
1982, through selection by the Rajasthan Public Service
Commission. Vide notice dated 26th June, 2000, the State
Government issued a Provisional Seniority List of Rajasthan
Administrative Service Selection Grade as on 1.4.1997, in           G
which the Writ Petitioner No.1, Bajrang Lal Sharma, was
placed above Suraj Bhan Meena (Scheduled__ Tribe) and
Sriram Choradia (Scheduled Caste). The said Seniority List
was published pursuant to the order of this Court dated
16.9.1999, passed in the case of Ajit Singh-II & Ors. Vs.
                                                                    H
    538   SUPREME COURT REPORTS [2010] 14 (ADDL.) $.C.R.


A State of Punjab & Ors. [(1999) 7 SCC 209) and another
  order of the same date in the case of Ram Prasad vs. D.K
  Vijay [(1999) 7 SCC 251). Once again Provisional Seniority
  Lists were published on 27 .11.2003 and 12.5.2008.
  Subsequently, the State of Rajasthan published the final
B Seniority Lists of Super Time Scale and Selection Scale of
  the service on 24.6.2008 as on 1.4.1997 and Provisional
  Seniority List dated 2.7.2008 as on 1.4.2008, wherein the
  name of Bajrang Lal Sharma was shown below the names of
  both Suraj Bhan Meena and Sriram Choradia.
c        5. The Notification dated 25.4.2008, which was the
    subject matter of challenge in the Writ Petition was challenged
    on two grounds. It was firstly contended that the proviso dated
    28.12.2002, which had been added to the Various Service
    Rules was subject to the final decision of this Court in Writ
D   Petition (Civil) No.234/2002 filed by the All India Equality
    Forum against the Union of India & Ors., but the same was
    yet to be decided. Therefore, during the pendericy of the Writ
    Petition before this Court, the Respondents had acted
    improperly in deleting the ~bove-mentioned proviso in the
E   Various Service Rules by the Notification dated 25.4.2008,
    which amounted to giving a consequential seniority to
    candidates belonging to the Scheduled Castes and Scheduled
    Tribes, which could not have been given without quantifying
    the figures of Scheduled Castes and Scheduled Tribes
F   candidates to enable a decision to be arrived at that
    reservation wa required in promotion and also to show that
    the State had to pass such orders for compelling reasons,
    such as, backwardness, inadequacy of representation, as held
    by this Court in the case of M. Nagaraj & Ors. vs. Union of
G   India & Ors. [(2006) 8 SCC 212). It was contended that
    since the State Government had not complied with the
    directions given by this court in M. Nagaraj's case (supra),
    the Notification in question was liable to be quashed. It was
    further urged on behalf of the Writ Petitioner, Bajrang Lal
H   Sharma, that in the case of Indra Sawhney & Ors. Vs. Union
     SURAJ BHAN MEENA & ANR. v. STATE OF                     539
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
of India & Ors. [(1992) Supp.(3) SCC 217], this Court had           A
held that Article 16(4) of the Constitution of India did not
permit reservations in the matter of promotion. Thereafter,
the Constitution (77th Amendment) Act, 1995, was enacted
and came into force on 17 .6.1995. The subsequent Special
Leave Petitions filed by the Union of India & Ors. against          B
Virpal Singh Chauhan & Ors. [(1995) 6 SCC 684], Ajit Singh
Januja & Ors. Vs. State of Punjab & Ors. [(1996) 2 SCC
715] and Ajit Singh-II & Ors. Vs. State of Punjab & Ors.
[(1999) 7 sec 209)], introduced the "catch-up" rule and held
that if a senior general candidate was promoted after               c
candidates from the Scheduled Castes and Scheduled Tribes
have been promoted to a particular cadre, the senior general
candidate would regain his seniority on promotion in relation
to the juniors who had been promoted against reserved
vacancies.                                                          D
     6. The Parliament on 4.1.2002 amended the Constitution
by the Constitution (85th Amendment) Act, 2001, in order to
give the benefit of consequential seniority to the reserved
category candidates with effect from 17.6.1995. The
constitutional validity of both the said Constitution Amendment     E
Acts was challenged before this court in other writ petitions,
including the writ petition filed by M.. Nagaraj and All India
Equality Forum. During the pendency of the writ petitions,
this Court passed an interim order protecting the promotion
and seniority of generallOBC candidates. The Government             F
of Rajasthan, thereafter, deleted the proviso added vide
Notification dated 1.4.1997.

      7. In M. Nagaraj's case (supra), this Court while upholding
the constitutional validity of the Constitution (77th Amendment)    G
Act, 1995 and the Constitution (85th Amendment) Act, 2001,
clarified the position that it would not be necessary for the
State Government to frame rules in respect of reservation in
promotion with consequential seniority, but in case the State
Government wanted to frame such rules in this regard, then          H
    540 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.

A   it would have to satisfy itself by quantifiable data, that there
    was backwardness, inadequacy of representation in public
    employment and overall administrative inefficiency and unless
    such an exercise was undertaken by the State Government,
    the rule relating to reservation in promotion with consequential
s   seniority could not be introduced.

       8. Despite the decision in M. Nagaraj's case, the State
  Government by deleting the proviso, which had been inserted
  vide notification dated 1.4.1997 on the basis of the "catch-
  up" rule and further deleting the new proviso added on
C 28.12.2002 in the Various Service Rules of the State, had in
  effect provided consequential seniority to the Scheduled
  Castes and Schedule Tribes candidates, without undertaking
  the exercise indicated in M. Nagaraj's case in respect of the
  three conditions laid down in the said judgment. It was the
D case of the Petitioners that the impugned notification dated
  25.4.2008 was liable to be declared ultra vires to the
  provisions of the Constitution being contrary to the decision
  of this Court in M. Nagaraj's case.

E        9. As indicated hereinbefore, it was also the case of the
    Writ Petitioners that nowhere in Rule 33 of the Rajasthan
    Administrative Service Rules has any provision been made
    for consequential seniority to reserved category promotees.
    As a result, after the judgment in B.K. Sharma & Anr. Vs.
F   State of Rajasthan & Ors. [WLC (Raj.) 1998 (2) 583] and in
    Ram Prasad's case (supra), consequential seniority could
    not have been assigned to reserve promotees above the
    senior General/OBC candidates.                                 ·

        10. This was the view which had been taken by this
G Bench in the cases of Virpal Singh Chauhan (supra) and
  Ajit Singh-I (supra) to the effect that reserve promotees would
  be entitled for accelerated promotion, but not accelerated
  seniority. The same view was reiterated by a Constitution
  Bench of this Court on 16th September, 1999, while deciding
  Ajit Singh-1/'s case (supra). It is only on account of the
     SURAJ BHAN MEENA & ANR. v. STATE OF                     541
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
judgment in Virpal Singh Chauhan's case (supra) and in the           A
case of Ajit Singh-I (supra), the State Government vide
 notification dated 1.4.1997 inserted the new proviso in the
Various Service Rules.

     11. The Constitution (85th Amendment) Act, 2001 was B
thereafter passed on 4th January, 2002, with retrospective
effect from 16th September, 1995, with regard to
consequential seniority to reserve promotees. It was the said
amendments which were the subject matter of challenge in
several writ petitions, including in M. Nagaraj's case and in · C
the case of All India Equality Forum.

     12. On behalf of the Petitioners, it was submitted by Dr.
Krishan Singh Chauhan, that the insertion of the words "with
consequential seniority" in clause IVA of Article 16 of the
Constitution after the words "reservation in promotion", was         D
only an enabling provision which was under challenge befor
this Court and while the matter was sub-judice, without waiting
for the decision of this Court in M. Nagaraj's case and All
India Equality Forum, the State Government withdrew its
earlier notification dated 1st April, 1997 vide notification dated   E
28.12.2002. It has to be kept in mind that as in M. Nagaraj's
case (supra), this Court has made it mandatory on the part
of the State Government to undertake the three exercises in
case any rule was required to be framed by the State for
reservation in promotion with consequential seniority. It was        F
submitted that the withdrawal of the notification dated 1.4.1997
by notification dated 28.12.2002 amounted to negating the
judgment of this Court in Ram Prasad's case (supra) and,
accordingly, the notification dated 28.12.2002 was also liable
to be quashed by the Court. In short, the question to be             G
decided in this case is whether the State Government was
reintroducing a concept which had been replaced pursuant
to the orders passed by this Court, which had been found to
be ultra vires the provisions of the Constitution.

     13. It was urged on behalf of the Petitioners, Suraj Bhan       H
    542    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A Meena and Sriram Choradia, that till the decision of this
  Court in the case of Indra Sawhney vs. Union of India [(1992)
  Supp. (3) SCC 217), this Court had almost uniformly applied
  the rule of reservation in promotion with consequential
  seniority. In Indra Sawhney's case (supra), this Court had
B held that reservation in promotion was unconstitutional, but
  permitted such reservation to continue for a period of five
  years. It is_ p,ursuant to the said decision in Indra Sawhney's
  case (supra), that the Parliament enacted the Constitution
  (77th Amendment) Act, 1995. A contrary view was taken in
c Union of India vs. Virpal Singh Chauhan [(1995) 6 SCC
  684), whe~i~ it was laid down that the grant of consequential
  seniority In cases of reservation' in promotion was illegal.
  The issue was taken further in the case of Ajit Singh Januja
  Vs. State of Punjab [(1996) 2 SCC 715] holding 1that the
  grant of consequential seniority to reserve category
0
  employees, who had got promotion on the basis of
  reservation, wa unconstitutional.

        14. On 7th May, 1997, another Bench of this Court in _
  the case of Jagdish Lal Vs. State of Haryana [(1997) 6
E SCC 538] took a diametrically opposite view upon holding,
  inter alia, that equality should not remain mere idle incantation,
  but it had to become a vibrant living reality since equality of
  opportunity could not simply be judged on the merit of the
  marks obtained by him but by taking into account de facto
F inequalities which exist in society and to give preference to
  the socially and economically disadvantaged persons by
  inflicting handicaps on those more disadvantageously placed.
  Although such affirmative action might appear to be
  discriminatory, it was calculated to bring about equality on a
G broader basis by eliminating the de facto inequalities between
  the weaker sections and the stronger sections of the
  community and placing them on a footing of equality in relation
  to public employment.

          15. In view of the opposite stands taken in Jagdish Lat's
H
    SURAJ BHAN MEENA & ANR. v. STATE OF                      543
    RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
case (supra) and in Ajit Singh-l's case (supra), the matters         A
were referred to the Constitution Bench which approved the
decision in Ajit Singh Januja's case (supra) and Virpal Singh
Chauhan's case (supra), upon holding that the case of
Jagdish Lal had not been correctly decided. As a result, the
rule of "regain" and "catch-up" was explained as the correct         B
interpretation of the rules. As mentioned hereinbefore, by
enacting the Constitution (85th Amendment) Act, 2001, the
Parliament constitutionally nullified the principle of "regain"
and "catch-up" by enacting the Constitution (77th Amendment)
Act, 1995 under its constituent power under Article 368 of           c
the Constitution. It was sought to be urged by Dr. Krishan
Singh Chauhan, learned Advocate, that the power which was
existing in the Government to make provision for consequential
seniority in promotion of reservation, which had been eclipsed
on account of the decision of this Court in Virpa/ Singh             D
Chauhan's case (supra), stood revived by the enactment of
the Constitution (85th Amendment) Act, 2001, with
retrospective effect.

     16. Learned counsel for the Petitioners referred to various
decisions on the doctrine of eclipse, which we will refer to,        E
if necessary.

      17. Learned counsel, in addition, contended that the
Respondents had not acquired any vested right since the
Constitution Amendment Acts had been enacted by the                  F
Parliament only with the intention of nullifying the effects of
the judgments of this Court in Virpa/ Singh Chauhan's case
(supra) and Ajit Singh-1/'s case (supra). Dr. Chauhan
submitted that the Constitution (85th Amendment) Act, 2001,
given effect to from 17th June, 1995, had constitutionally           G
nullified the principle of "regain of seniority" and the principle
of "catch-up" which had been explained by this Court in Virpa/
Singh Chauhan's case (supra).

     18. Mr. P.P. Rao, learned Senior Advocate, appearing
for the State of Rajasthan, submitted at the very outset that        H
    544   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. .


A   the reliefs prayed for in the several writ petitions, which are
    common in the Special Leave Petitions, praying for· a direction
    that the benefit of reservation in promotion with consequential
    seniority, should not be given unless the three compelling
    conditions as indicated in M. Nagaraj's case (supra), were
B   fulfilled, was totally misconceived in the absence of any
    challenge to the order dated 10th February, 1975, passed by
    the State of Rajasthan providing for reservations in favour of
    Scheduled Castes and Scheduled Tribes candidates in
    promotion. Furthermore, no such prayer had been granted by
c   the High Court. Mr. Rao submitted that the reliefs prayed for
    was based on a complete misreading of the decision in M.
    Nagaraj's case (supra).
                   -
       19. Mr. Rao urged that the High Court took an erroneous
  view that seniority is a vested right in view of the observations
D made in paragraph 123 in M. Nagaraj's case that the State
  was not bound to provide for reservation1 for Scheduled
  Castes/Scheduled Tribes candidates in matters of promotions,
  but that if it intended to exercise its discretion and make
  such provision, it had to collect quantifiable data showing
E backwardness of the class and inadequacy of representation
  of that class in public employment in addition to compliance
  of Article 335 of the Constitution. Mr. Rao submitted that the
  High Court, however, overlooked the opening part of the
  judgment which indicated that the main issue involved the
F extent of reservation. Mr. Rao submitted that the High Court
  erred in proceeding on the basis that seniority in Government
  service is a vested right, since it is now well settled that the
  seniority of a Government servant can be 'interfered with by
  the State by making a Rule under the Proviso to Article 309
G of the Constitution. In this regard, Mr. Rao referred to and
  relied on the decision of this Court in S.S. Bola & Ors. Vs.
  B.D. Saldana & Ors. [(1997) 8 SCC 522], and T.
  Narasimhulu & Ors. Vs. State of A.P. & Ors. [(2010) 5 SCALE
  730], where the aforesaid principle was enunciated. It was
H urged that even otherwise, a right would accrue only when an
     SURAJ BHAN MEENA & ANR. v. STATE OF                    545
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]

order is issued to a Government servant. It was further urged      A
that the High Court's reliance on the observations in M.
Nagaraj's ca~e (supra), and the statement of the Advocate
General that the exercise of collection of quantifiable data
was not undertaken, is without basis on the ground that the
collection ·of quantifiable data showing backwardness and          B
inadequacy of representation would only arise when the State
wished to exercise its discretion in making reservation for
Scheduled Tribes and Scheduled Castes candidates in
matters of promotion and not in a case where reservation
had already been made as far back as on 10.2.1975 and              c
was allowed to continue uninterruptedly.

     20. Mr. Rao submitted that as far as the "Catch-up
Principle" is concerned, the same had been deleted by the
impugned notification dated 25.4.2008. The first Notification
deleted the said rule with effect from 1.4.1997, while retaining   D
some reservation in the form of a Proviso 1which too was
ultimately deleted by the second Notification with effect from
28.12.2002. Mr. Rao also referred to the observation made
in M. Nagaraj's case that it could not be said that the equality
code under Articles 14, 15 and 16 was violated by the deletion     E
of the "Catch-up" Rule. Mr. Rao submitted that this declaration
of the Constitution Bench had not been noticed by the High
Court when it held that the two impugned notifications violated
Articles 14 and 16 of the Constitution.
                                                                   F
     21. Mr. Rao also submitted that the doctrine of eclipse,
as urged on behalf of the Petitioners, was not applicable to
the facts of the case since after over-ruling the decision in
General Manager, Southern Railway Vs. Rangachari [(1962)
2 SCR 586], this Court had extended the life of the existing       G
reservations for a period of five years. Accordingly, the
Government Order dated 10.2.1975 survived the decision in
Indra Sawhney's case (supra) and during the period of
extension of five years, Parliament intervened and inserted
Clause (4-A) in Article 16 empowering the State to continue
                                                                   H
    546   SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A reservations in promotions already made or to make such
  reservations, if not already made. Mr. Rao urged that the
  85th Amendment was enacted not merely to withdraw the
  Office Memorandum dated 31.1.1997, which gave effect to
  the catch-up rule, but to restore the benefit of consequential
B seniority with retrospective effect from 17 .6.1995 as if there
  never was any Catch-up Rule at all in the eye of law. Mr. Rao ·
  submitted that the contention of the Petitioners that for the
  purpose of giving the benefit of consequential seniority, the
  State would have to undertake the collection of quantifiable
c data in regard to backwardness, inadequacy of representation
  and non-impairment of efficiency, was based on a
  misunderstanding of the law declared in M. Nagaraja's case
  (supra), since it defeats the intent of Parliament to give
  retrospective effect to the Constitution (85th Amendment) Act.

D      22. In addition, it was pointed out that in M. Nagaraj's
  case (supra) it had been categorically indicated that the
  concept of consequential seniority did not violate the equality
  code unde Articles 14, 15 and 16 by deleting the Catch-up
  Principle , as was held in Virpal Singh Chauhan's case
E (supra). It was submitted that the instant case is a simple
  case of deletion of the Catch-up Principle in view of the
  Constitution (85th Amendment) Act. It was contended that
  the provisional seniority list which was quashed by the High
  Court could never become the ground for any accrued right
F to seniority.

       23. Appearing for the Intervenor, Rajasthan Vanijik Kar
  Anusuchit Jati-Janjati Mahasangh, hereinafter referred to as
  "Mahasangh", Mr. Pallav Shishodia, learned Senior Advocate,
G reiterated Mr. Rae's submissions regarding the observations
  made by this Court in paragraph 79 of M. Nagaraj's case
  that the concept of "Catch-up Rule" and "consequential
  seniority" are judicially evolved concepts not implicit in Clauses
  (1) and (4) of Article 16 of the Constitution and with the
  concept of equality contained in Articles 14, 15 and 16 stood
H
     SURAJ BHAN MEENA & ANR. v. STATE OF                   547
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
violated by the deletion of the "Catch-up Rule". The              A
Constitution Bench also observed that such concepts were
based on principles which could not be elevated to the status
of constitutional principles or constitutional limitations. Mr.
Shishodia urged that the deletion of the Proviso added by
the Amendment of 1997 by way of the impugned Notification         B
of 28.12.2002 and 25.4.2008, merely gave a quietus to the
Catch-up Rule in harmony with the Constitution (85th
Amendment) Act. which was introduced with the specific
object of negating the effect of the decisions of this Court in
Virpal Singh Chauhan's case (supra), Ajit Singh-f's case          c
(suprq) and in Ajit Singh-ti's case (supra). It was submitted
that since the 85th Amendment had been upheld by the
constitution Bench in M. Nagaraj's case (supra) the State
was duty bound to restore the original practice of giving
seniority from the date of substantive appointment, without       0
reference to the Catch-up Principle.

     24. Mr. Shishodia concluded on the note that just as the
repealing of an enactment would not automatically revive the
original Act, on the same analogy, mere setting aside or
quashing of the impugned Notification dated 28.12.2002 and        E
25.4.2008 would not revive the "Catch-up" Rule introduced
by Notification dated 1.4.1997. While the repeal of the two
Notifications dated 28.12.2002 and 25.4.2008 removed the
eclipse caused by the judgment in Ajit Singh-l's case (supra),
Ram Prasad's case (supra) and Ajit Singh-ti's case (supra),       F
no fresh right of consequent seniority was conferred.

     25. Mr. M.L. Lahoti, learned Senior Advocate, appearing
for Respondent No.13 in SLP(C)No.6385 of 201 O, while
reiterating the submissions made on behalf of the other           G
Respondents, submitted that the question of reservation had
been gone into in detail in Indra Sawhney's case (supra) and
it had been held that if a feeling of complacency relating to
promotion was allowed to prevail amongst candidates from
the reserved categories, it was bound to generate a feeling
                                                                  H
    548   SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.

A of despondency among candidates from the open categories
  which would affect the efficiency of administration. It was also
  held that putting the members of the Backward Class on a
  fast track would lead to leap-frogging which could have
  disastrous effects on the moral of the candidates from the
B general candidates. Learned counsel went on to submit that
  the 77th and 85th Constitutional Amendments were brought
  about in the Constitution after the judgment in Indra Sawhney's
  case and provided the Government with power to provide
  reservation in promotion and consequential seniority. Although,
c the same was challenged in the All India Equality Forum's
  case, as also in M. Nagaraja's case, this Court upheld the
  constitutional validity of all the amendments, subject to
  compelling circumstances being fulfilled by the States. Mr.
  Lahoti also referred to the contents of paragraph 123 of the
  judgment in M. Nagaraja's case (supra) which has been
0
  referred to hereinbefore, relating to the "extent of reservation"
  to be made by the State Government.

        26. Mr. Lahoti submitted that in response to several
  applications made under the Right to Information Act, 2005,
E little or no information was supplied with regard to the
  population, education, public employment, private employment,
  selfemployment, below poverty line population and percapita
  income of Scheduled Tribes and Scheduled Castes for the
  years 1951, 2001 and 2009. In fact, the response of the
F National Commission for Scheduled Tribes was that they did
  not have the requisite data for all the information sought for.

       27. Mr. Lahoti lastly contended that in the absence of
  any data in relation to Scheduled Castes and Scheduled
G Tribes, the parameters laid down in M. Nagaraja's case were
  not fulfilled and Rule 33 of the Rajasthan Administrative Service
  Rules, 1954 providing for consequential seniority, was
  unconstitutional as no exercise had been undertaken by the
  State pursuant to Article 16(4-A) of the Constitution, and, as
  such it was not entitled to provide consequential seniority to
H
     SURAJ BHAN MEENA & ANR. v. STATE OF                   549
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
Scheduled Castes and Scheduled Tribes employees.                  A

     28. Mr. M.R. Calla, learned Senior Advocate, who
appeared for the sole. Respondent, Mr. O.P. Harsh, in Special
Leave Petition (Civil) No.7838 of 2010, contended that as
far as his client was concerned, he was the Selection Scale
                                                                  8
promotee of the year 1991-92 and the judicial decision
upholding his position had attained finality and had nothing
to do with the amendment of the rules or the constitutional
amendment with retrospective effect from 17th June, 1995. It
was submitted that in his case there was no question of any
general category candidate gaining seniority over him once        C
he has superseded them on the .basis of merit in the year
1991-92. In other words, once a general category candidate,
though initially senior to him, failed to compete against him
in merit in the year 1991-92, he could not regain seniority
over his client even if he had been promoted in any               D
subsequent year. Mr. Calla urged that when Shri Harsh had
been given the benefit of the "catch-up" rule in terms of the
notification dated 1.4.1997, the general category candidates,
who were senior to him but had been superseded by him on
the basis of merit in the year 1991-92 for the selection scale,   E
had been wrongly placed above· him. Mr. Calla further
submitted that such an act on the part of the Respondents
having been challenged by Shri Harsh in Writ Petition No.3136
of 2000, which was allowed on 3oth May, 2001 and the
subsequent challenge thereto before the Division Bench            F
having been dismissed, the order dated 12.9.2001 of the
learned Single Judge had attained finality.

     29. Mr. Calla also referred to the decision of this Court
in M. Nagaraj's case (supra) and submitted that despite the       G
constitutional mandate to the Government as per the 77th
and 85th amendments, to form an opinion relating to adequate
representation for exercise of the powers under Articles 16(4)
and 16(4-A) of the Constitution, no such exercise had been
undertaken by the State before exercising the enabling power.
                                                                  H
    550   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A It was submitted that adequate representation of candidates
  cannot be a constant factor for ever, but was variable for the
  purpose of providing adequate representation in the services,
  as circumstances had changed after 1975. Mr. Calla
  submitted that the exercise for adequate representation was
B the most important factor for the Government to exercise its
  powers under Article 16(4) and 16(4-A) of the Constitution
  and the same could not be avoided by the Government and
  the failure to follow the said mandate rendered the exercise
  of the enabling power invalid. Mr. Calla submitted that the
c various data which came to be disclosed during the hearing
  of the matter, clearly show that Scheduled Castes and
  Scheduled Tribes candidates were adequately represented
  and had at times even exceeded the quota and as such it
  was necessary for an exercise to be undertaken to ascertain
  the representation of such candidates. Mr. Calla submitted
0
  that, in any event, since no injustice had been done to
  Scheduled Castes and Scheduled Tribes candidates, the
  petitioners could have no legitimate cause for grievance with
  the order of the High Court.

E      30. Dr. Rajeev Dhawan, learned Senior Advocate who
  appeared for the Respondent No.10 in Special Leave Petition
  (Civil) No. 7716 of 2010, firstly contended that the main issue
  for decision in this case is whether the conditions enumerated
  in M. Nagaraj's case (supra) applied to cases of seniority
F and promotion after 17th June, 1995, from which date the
  amendments were declared to be valid in M. Nagaraj's case
  (supra). Dr. Dhawan submitted that in M. Nagaraj's case
  (supra) this Court was called upon to consider the provisions
  of the Constitution (77th, 81st, 82nd and 85th Amendment)
G Acts relating to reservation in promotion, the principle of carry
  over, enabling preservation of principles of efficiency and
  providing for consequential seniority by amending Article 16(4-
  A) by substituting the words "in matters of promotion, with
  consequential seniority, to any class", in place of the words
H "in matters of promotion to any class". Dr. Dhawan submitted
     SURAJ BHAN MEENA & ANR. v. STATE OF                   551
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
that by the Constitution (85th Amendment) Act, 2001, the          A
legislature reintroduced the concept of consequential seniority
to any class in matters of promotion.

      31. It was submitted that after the decision in Virpal
Singh Chauhan's case (supra), the provisions relating to
                                                                  8
"catch-up" were discontinued and the protection which had
been given against disputes of seniority by juniors by the
notification dated 1.4.1997 was withdrawn, but with a proviso
of maintaining the status-quo that was existing as on that
date.
                                                                  c
      32. Dr. Dhawan contended that the exercise to be
undertaken as per the directions in M. Nagaraj's case (supra)
was mandatory and admittedly such an exercise had not been
undertaken before grant of promotion. The Division Bench
also held that the rights which had been preserved by virtue D
of the notifications dated 1.4.1997 and 28.12.2002 were
vested rights in favour of the writ petitioners and by the
impugned judgment, the notifications dated 28.12.2002 and
25.4.2008 had been rightly quashed. Dr. Dhawan urged that
by the notifications dated 1.4.1997 and 28.12.2002, the E
Government of Rajasthan had protected the seniority and merit
of candidates. The decision in M. Nagaraj's case made a
distinction between the existence and the width of the exercise .
of power under the amendments and validates the
amendments subject to the exercise emanating from the
                                                                  F
above-mentioned principles. Dr. Dhawan submitted that the
decision in M. Nagaraj's case did not automatically invalidate
or validate any exercise between when the amendments were
held to be valid, and 4.1.2000 from when consequential
seniority was required to be considered in terms of such
amendment.                                                        G

     33. It was submitted that since the State had not
undertaken the exercise which was mandatory in terms of
the judgment in M. Nagaraj's case (supra), the State could
                                                                  H
    552 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A not, either directly or indirectly, circumvent or ignore or refuse
  to undertake the exercise by taking recourse to the
  Constitution (85th Amendment) Act providing for reservation
  in promotion with consequential seniority.

       34. Dr. Dhawan urged that the powers conferred on the
8
  State under Articles 16(4), 16(4-A) and 16(1-B) of the
  Constitution are enabling in nature and the expression
  "consequential seniority" was optional and not a requirement.
  Dr. Dhawan also urged that what was restored by the decision
  in M. Nagataj's case (supra) was merely the enabling power
C of the Government and exercise of such power in relation to
  consequential seniority by the State of Rajasthan would still
  have to be reconsidered in accordance with the decision in
  M. Nagaraj's case (supra).
D       35. Dr. Dhawan submitted that the seniority of the
  candidates who had been promoted on merit was protected
  by the notification dated 1.4.1997 and the same was required
  to be retained and the contingent protection given by the
  notification of 28.12.2002 was also required to be retained,
E though the contingency in the last sentence of the notification
  was liable to be struck down. Dr. Dhawan also urged that the
  restoration of consequential seniority in the notification of
  25.4.2002, without conducting the exercise a contemplated
  in M. Nagaraj's case (supra), was liable to be struck down
F and if the State wanted to introduce a provision for
  consequential seniority, it would have to follow the procedure
  indicated in M. Nagaraj's case (supra).
         36. The primary question which we are called upon to
    answer in these five Special Leave Petitions is whether the
G amended provisions of Article 16(4-A) of the Constitution
    intended that those belonging to the Scheduled Castes and
    Schedule Tribes communities, who had been promoted
    against reserved quota, would also be entitled to
  . consequential seniority on account of such promotions, or
H
     SURAJ BHAN MEENA & ANR. v. STATE OF                     553
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
would the "catch-up" rule prevail.                                   A
      37. The said question has been the subject matter of
different decisions of this Court, but the discordant note was
considered and explained by the Constitution Bench in M.
Nagaraj's case (supra). On account of reservation those who
were junior to their seniors, got the benefit of accelerated         B
promotions without any other consideration, including
performance. Those who were senior to the persons who
were promoted from the reserved category were not
overlooked in the matter of promotion on account of any
inferiority in their work performance. It is .only on account of     C
fortuitous circumstances that juniors who belong to the reserve
category were promoted from that category before their
seniors could be accommodated.

     38. The question relating to reservation in promotional         o
posts fell for the consideration of this Court in Indra Sawhney's
case (supra) for construction of Article 16(4) of the Constitution
relating to the State's powers for making provision for
reservation of appointments or posts in favour of any
backward class of citizens, which in the opinion of the State,       E
was not adequately represented in services under the State.
The further question for determination was whether such power
extended to promotional posts. This Court answered the
questions by holding that Article 16(4) does not permit
provision for reservation in the matter of promotion. Further,
                                                                     F
such rule was to be given effect to only prospectively and
would not affect the promotions already made, whether made
on regular basis or on any other basis. Accordingly, apart
from holding that Article 16(4) does not permit provision for
                1
reservation in the matter of promotion, this Court also protected
the promotees who had been appointed against reserved                G
quotas and a direction was also given that wherever
reservations are provided in the matter of promotion, such
reservation would continue in operation for a period of five
years from the date of the judgment. In other words, the right
                                                                     H
    554   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   of promotion was protected only for a period of 5 years from
    the date of the judgment and would cease to have effect
    thereafter.

          39. The matter did not end there. The Constitution (77th
    Amendment) Act, 1995, came into force on 17th June, 1995.
8
    A subseque_nt question arose in the case of Union of India
    vs. Virpal Singh Chauhan, [(1995) 6 SCC 684], as to whether
    the benefit of accelerated promotion through reservation or
    the roster system would give such promotees seniority over
    general category promotees who were promoted
C   subsequently. The said question arose in regard to pro.motion
    of Railway Guards in non-selection posts by providing
    concession to Scheduled Castes and Scheduled Tribes
    candidates and it was sought to be contended that the
    reservation provided was not only at the stage of initial
D   appointment, but at every stage of subsequent promotions. In
    the said case, the Petitioners, who were general category
    candidates and the Respondents who were members of the
    Scheduled Castes and Scheduled Tribes were in the grade
    of Guards Grade 'A' in the Northern Railway. On 1st August,
E   1986, the Chief Controller, Tundla, promoted certain general
    category candidates on ad-hoc basis to Grade 'A' Special.
    Within less then three months, however, they were reverted
    and in their place members of the Scheduled Castes and
    Scheduled Tribes were promoted. Complaining of such action
F   as being illegal, arbitrary and unconstitutional, Virpal Singh
    Chauhan and others moved the High Court, but the petition
    was transferred to the Central Administrative Tribunal. The .
    Tribunal, inter alia, held that persons who had been promoted
    by virtue of the application of roster would be given
G   accelerated promotion but not seniority, and that the seniority
    in a particular grade amongst the incumbents available for
    promotion to the next grade would be re~cast each time new
    incumbents entered from the lower grade on the basis of
    initial Grade 'C' seniority. This came to be recognized as the
H   "catch-up" rule. The matter was brought to this Court by the
     SURAJ BHAN MEENA & ANR. v. STATE OF                  555
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
Union of India and this Court confirmed the view taken by the     A
Tribunal.

     40. The same view was reiterated in the case of Ajit
Singh Januja's case (supra) whereih it was held further that
by accelerated promotion Scheduled Castes/Scheduled               B
Tribes and Backward Class candidates could not supersede
their seniors in the general category by accelerated promotion,
simply because that their seniors in the general category
had been promoted subsequently. It was observed that
balance has to be maintained vis-avis reservation.
                                                                  c
      41. After the decision rendered in Virpa/ Singh
Chauhan's case (supra) and in Ajit Singh-l's case (supra), in
which the claim of reserved category candidates in
promotional posts with consequential seniority was negated,
the question surfaced once again in the case of Jagdish Lal       D
& Ors. Vs. State of Hayrana & Ors. [(1997) 6 SCC 538],
where a Bench of Three Judges took a different view. Their
Lordships held that the recruitment rules had provided for
fixation of seniority according to length of continuous service
on a post in the service. Interpreting the said provisions,       E
Their Lordships held that in view of the said rules those
Scheduled Castes and Scheduled Tribes candidates, who
though junior to others in the general category, had got
 promotion earlier than their seniors in the general category
candidates and would, therefore, be entitled to get seniority     F
with reference to the date of their promotion. Their Lordships
held that the general candidates by relying on Virpa/ Singh
 Chauhan's case (supra) and Ajit Singh Januja's case (supra)
could not derive any benefit therefrom.                     ,
                                                            '
    42. This resulted in the vexed question being referred to     G
the Constitution Bench. Of the several cases taken up by the
Constitution Bench, we are concerned with the decision
rendered in the case of Ram Prasad vs. D.K. Vijay [(1999)
7 SCC 251] and Ajit Singh-II & Ors. Vs. State of Punjab &
                                                                  H
    556 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A Ors. [(1999) 7 SCC 209]. Differing with the views expressed
  in Jagdish Lal's case (supra), the Constitution Bench in Ajit
  Singh-ll's case (supra) affirmed the earlier decision in Virpa/
  Singh Chauhan's case (supra) and Ajit Singh Januja's case
  (supra) and overruled the views expressed in Jagdish Lal's
B case (supra). The constitution Bench reiterated the views
  expressed in Ajit Singh-J's case (supra) that those who had
  obtained the benefit of accelerated promotion should not be
  reverted as that would cause hardship to them, but they would
  not be entitled to claim seniority in the. promotional cadre.
c Quite naturally, the same view was expressed in Ram
  Prasad's case (supra) which was also decided on the same
  day. In the said case, while affirming the decision in Ajit
  Singh-J's case (supra), this Court directed modification of the
  seniority lists which had been prepared earlier, to fall in line
0 with the decision rendered in Ajit Singh-f's case (supra) and
  Virpa/ Singh Chauhan's case (supra).

       43. Thereafter, as mentioned hereinbefore, on 4th
  January, 2002, the Parliament amended the. Constitution by
  the Constitution (85th Amendment) Act, 2001, in order to
E restore the benefit of consequential seniority to the reserved
  category candidates with effect from 17th June, 1995. The
  constitutional validity of both the Constitution Amendment Acts
  was challenged in this Court in several Writ Petitions, including
  the Writ Petitions filed by M. Nagaraj and the All India Equality
F Forum. The Constitution Bench while considering the validity
  and interpretation as also the implementation of the
  Constitution (77th, 81 st, 82nd and 85th Constitutional
  Amendment) Acts and the· effect thereof on the decisions of
  this Court in matters relating to promotion in public
G employment and their application with retrospective effect,
  answered the reference by upholding the constitutional validity
  of the amendments, but with certain conditions.

      44. The vital issue which fell for determinati~n was
H whether by virtue of the implementation of the Constitutional
     SURAJ BFIAN MEENA & ANR. v. STATE OF                   557
     RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
Amendments, the power of Parliament was enlarged to such            A
an extent so as to ignore all constitutional limitations and
requirements. Applying the "width" test and "identity" test, the
Constitution Bench held that firstly it is the width of the power
under the impugned amendments introducing amended
Articles 16(4-A) and 16(4-B) that had to be tested. Applying        B
the said tests, the Constitution Bench, after referring to the
various decisions of this Court on the subject, came to the
conclusion that the Court has to be satisfied that the State
had exercised its power in making reservation for Scheduled
Castes and Scheduled Tribes candidates in accordance with           C
the mandate of Article 335 of the Constitution, for which the
State concerned would have to place before the Court the
requisite quantifiable data in each case and to satisfy the
Court that such reservation became necessary on account of
inadequacy of rE;!presentation of Scheduled Castes and
Scheduled Tribes candidates in a particular class or classes        D
of posts, without qffecting the general efficiency of service.
The Constitution ·Bench went on to observe that the
Constitutional equality is inherent in the rule of law. However,
it's reach is limited because its primary concern is not with
efficiency of the public law, but with its enforcement and          E
application. The Constitution Bench also observed that the
width of the power and the power to amend together with its
limitations, would have to be found in the Constitution itself.
It was held that the extension of reservation would depend on
the facts of each case. In case the reservation was excessive,      F
it would have to be struck down. It was further held that the
impugne Constitution Amendments, introducing Article 16(4-
A) and 16(4-B), had been inserted and flow from Article 16(4),
but they do not alter the structure of Article 16(4) of the
Constitution. They do not wipe out any of the Constitutiqnal        G
requirem~nts such as ceiling limit and the concept of creamy
layer on one hand and Scheduled Castes and Scheduled
Tribes on the other hand, as was held in Indra Sawhney's
case (supra). Ultimately, after the entire exercise, the
                                                                    H
    558    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A Constitution Bench held that the State is not bound to make
  reservation for Scheduled Castes and Scheduled Tribes
  candidates i matters of promotion but if it wished, it could
  collect quantifiable data touching backwardness of the
  applicants and inadequacy of representation of that class in
B public employment for the purpose of compliance with Article
  335 of the Constitution.

       45. In effect, what has been decided in M. Nagaraj's
  case (supra) is part recognition of the views expressed in
  Virpal Singh Chauhan's case (supra), but at the same time
C upholding the validity of the 77th, 81 st, 82nd and 85th
  amendments on the ground that the concepts of "catch-up"
  rule and "consequential seniority" are judicially evolved
  concepts and could not be elevated to the status of a
  constitutional principle so as to place them beyond the
D amending power of the Parliament. Accordingly, while
  upholding the validity of the said amendments, the Constitution
  Bench added that, in any event, the requirement of Articles
  16(4-A) and 16(4-B) would have to be maintained and that
  in order to provide for reservation, if at all, the tests indicated
E in Article 16(4-A) and 16(4-B) would have to be satisfied,
  which could only be achieved after an inquiry as to identity.

       46. The position after the decision in M. Nagaraj's case
  (supra) is that reservation of posts in promotion is dependent
F on the inadequacy of representation of members of the
  Scheduled Castes and Scheduled Tribes and Backward
  Classes and subject to the condition of ascertaining as to
  whether such reservation was at all required. The view of the
  High Court is based on the decision in M. Nagaraj's case
  (supra) as no exercise was undertaken in terms of Article
G 16(4-A) to acquire quantifiable data regarding the inadequacy
  of representation of the Schedule Castes and Scheduled
  Tribes 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
H
      SURAJ BHAN MEENA & ANR. v. STATE OF                559
      RAJASTHAN & ORS. [ALTAMAS KABIR, J.]
consequential seniority and promotion to the members of the     A
Scheduled Castes and Scheduled Tribes communities and
the same does not call for any interference. Accordingly, the
claim of Petitioners Suraj Bhan Meena and Sriram Choradia
in Special Leave Petition (Civil) No.6385 of 2010 will be
subject to the conditions laid down in M. Nagaraj's case        B
(supra) and is disposed of accordingly. Consequently, Special
Leave Petition (C) Nos. 7716, 7717, 7826 and 7838 of 2010,
filed by the State of Rajasthan, are also dismissed.

    47. Having regard to the nature of the facts involved,      C
each party will bear its own cost.

RP.                                   Petitions disposed of.