Supreme Court of India
SURESH CHAND GAUTAMversusSTATE OF UTTAR PRADESH & ORS.
- Citation
- 2016 INSC 1174
- Decided
- 11 March 2016
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
Articles 16(4‑A) and 16(4‑B) are enabling provisions; the State has no constitutional obligation to collect data or to make reservation in promotion, and therefore a writ of mandamus cannot be issued.
Summary
The petitioners sought a writ of mandamus directing the Uttar Pradesh government to collect quantitative data on Scheduled Castes and Scheduled Tribes in its services, arguing that such data is a condition precedent for exercising the reservation in promotion power under Articles 16(4‑A), 16(4‑B) and 335 of the Constitution. The Court held that these constitutional provisions are merely enabling provisions; the State is not bound to make reservation in promotion and there is no constitutional duty to gather the data. Issuing a mandamus would amount to directing the State to frame policy or legislation, which is beyond judicial power. Consequently, the petitions were dismissed.
Issues considered
- Whether Articles 16(4‑A) and 16(4‑B) impose a duty on the State to collect quantifiable data on SC/ST representation for reservation in promotion.
- Whether a writ of mandamus can be issued directing the State to collect such data.
- Whether the State is constitutionally bound to make reservation for SCs/STs in matters of promotion.
Legislation cited
- Constitution of Indias. Art.16(4), s. Art.16(4-A), s. Art.16(4-B), s. Art.335
- Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994s. Sec.3(7)
Subjects
Reservation in promotionScheduled CastesScheduled TribesArticle 16(4‑A)Article 16(4‑B)Article 335MandamusEnabling provisionQuantifiable dataAffirmative action
Judgment
[2016] 1 S.C.R. 727
SURESH CHAND GAUTAM A
v.
STATE OF UTTAR PRADESH & ORS.
(Writ Petition (Civil) No. 690of2015)
MARCH 11, 2016 B
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
Constitution of India, 1950 - Arts. 16(4-A), 16(4-B) and 335
- Reservation in promotion for Scheduled Castes and the Scheduled
Tribes - Need for quantifiable data - Whether a writ or direction
can be issued to the State Government to collect and gather the
c
necessary data of the SC and the ST in the services of the State for
granting reservation in promotion - Held: State is not bound to
make reservation for SCs/STs in matters of promotion - There is no
constitutional obligation - There is no duty - Writ of mandamus is
sought to collect material or data which is in the realm of condition D
precedent for exercising a discretion which flows from the enabling
constitutional provision - Direction of this nature would not come
within the principle of exercise of power coupled with duty - To
issue a mandamus to collect the data would tantamount to taking a
step towards framing of a rule or a regulation for the purpose of
E
reservation for SC and ST in matter of promotions - This would be
in a way, entering into the domain of legislation - Thus, writ of
mandamus of such a nature cannot be issued.
Dismissing the writ petitions, the Court
HELD: 1.1 It has been clearly laid down in *M. Nagaraj F
case that the State is not bound to make reservaticln for SCs/STs
in matters of promotion. However, if the State wishes to exercise
the discretion and make such provision, it has to collect
quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment
in addition to compliance with Article 335. The expression of the G
opinion clearly demonstrates that the regard being had to the
enabling provisions of Articles 16(4-A) and (4-B), the State is not
bound to make reservation. It has a discretion to do so and the
State's discretion can only be exercised on certain conditions
being satisfied. The submission of the petitioners is that a H
727
728 SUPREME COURT REPORTS [2016] I S.C.R.
A command should be issued to the State of Uttar Pradesh to collect
the data as enshrined in the Constitution Bench decision in M.
Nagaraj so that benefit of reservation in promotion can be given.
The relief sought may appear innocuous or simple but when the
Court thinks of issue of a writ of mandamus, it has to apprise
itself of an existing right or a power to be exercised regard being
B
had to the conception of duty. The concept of power coupled with
duty is always based on facts. If the relief sought is scrutinized,
the prayer is to issue a mandamus to the State and its functionaries
to carry out an exercise for the purpose of exercising a discretion.
The discretion is to take a decision to have the reservation, and
c to have reservation there is a necessity for collection of data in
accordance with the principles stated in M. Nagaraj as the same
is the condition precedent. A writ of mandamus is sought to collect
material or data which is in the realm of condition precedent for
exercising a discretion which flows from the enabling
constitutional provision. Direction of this nature would not come
D
within the principle of exercise of power coupled with duty. A
direction for exercise of a duty which has inherent and
insegretable nexus with the constitutional provision like Article
21 of the Constitution or a statutory duty. There is an inclination
to think so as the language employed in M. Nagaraj clearly states
E that the State is not bound to make reservation in promotion.
Thus, there is no constitutional obligation. [Para 42] [758-E-H;
759-A-F]
1.2 The Courts do not formulate any policy, remains away
from making anything that would amount to legislation, rules and
F regulation or policy relating to reservation. The Courts can test
the validity of the same when they are challenged. The court
cannot direct for making legislation or for that matter any kind of
sub-ordinate legislation. In certain decisions directions have been
issued for framing of guidelines or the court has itself framed
guidelines for sustaining certain rights of women, children or
G prisoners or under-trial prisoners. The said category of cases
falls in a different compartment. They are in different sphere than
what is envisaged in Article 16 (4-A) and 16 (4-B) whose
constitutional validity have been upheld by the Constitution Bench
with certain qualifiers. They have been regarded as enabling
H constitutional provisions. Additionally it has been postulated that
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 729
the State is not bonnd to make reservation for Scheduled Castes A
and Scheduled Tribes in matter of promotions. Therefore; there
is no duty. In such a situation, to issue a mandamus to collect the
data would tantamount to asking the authorities whether there is
ample data to frame a rule or regulation. This will be in a way,
entering into the domain of legislation, for it is a step towards
B
commanding to frame a legislation or a delegated legislation for
reservation. The relief in the instant case, tantamounts to a prayer
for issue of a mandamus to take a step towards framing of a rule
or a regulation for the purpose of reservation for Scheduled
Castes and Scheduled Tribes in matter of promotions. A writ of
mandamus of such a nature cannot be issued. [Para 43, 44) [759- c
G-H; 760-A-C; 761-AJ
*M Nagaraj & others v. Union of India & others (2006)
8 SCC 212:2006 (7) Suppl. SCR 336 - relied on.
U.P Power Corporation Limited v. Rajesh Kumar &
others (2012) 7 SCC 1:2012 (4) SCR 118; Indra D
Sawhney & others v. Union of India & others (1992)
Supp. 3 SCC 217:1992 (2) Suppl. SCR 454; R.K.
Sabharwa/ v. State of Pubjab 1995 (2) SCC 745: 1995
(2) SCR 35; Sura} Bhan Meena & another v. State of
Rajasthan & others (2011) 1 SCC 467:2010 (14) SCR
E
532; Ganga Ram Moolchandani v. State of Rajasthan
& others (2001) 6 SCC 89:2001 (3) SCR 992; M.A.
Murthy v. State of Karnataka & Others (2003) 7 SCC
517:2003 (3) Suppl. SCR 327; Madhav Rao Jivaji Rao
Scindia V. Union of India (1971) 1 sec 85:1971 (3)
SCR 9; Ambica Querry Works v. State of Gujarat (1987) F
1 SCC 213:1987 (1) SCR 562; State of Rajasthan v.
Harishan~er Raiendrapal AIR 1966 SC 296:1965 SCR
402; Brij Mohan Lal v. Union of India & others (2012)
6 SCC 502:2012 (5) SCR 305; Aneesh D. LmMnde &
others V. State of Goa & others (2014) 1 sec 554:2013
(17) SCR 55; Dhampur Sugar Mills Ltd. v. State of U.P. G
and others (2007) 8 SCC 338:2007 (10) SCR 245;
Khoday Distilleries Ltd. v. State of Karnataka (1995) 1
SCC 574:1994 (4) Suppl. SCR 477; Commr. of Police
v. Gordhandas Bhanji AIR 1952 SC 16:1952 SCR 135;
Municipal Council, Rat/am v. Vardichan (1980) 4 SCC H
730 SUPREME COURT REPORTS [2016] l S.C.R.
A 162:1.981 (1) SCR 97; D.K Basu v. State of West Bengal
& others (2015) 8 SCC 744:2015 (7) SCR 814; Ranveer
Yac/av v. State of Bihar (2010) 11 SCC 493:2010 (6)
SCR 1073; Nagor Palika Nigam 1~ Krishi Upaj Mandi
Samiti Affi 2009 SC 187:2008 (14) SCR 419; Ankush
Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC
B
770: 2013 (8) SCR 863; Province of Bombay v.
Khushaldas S. Advani AIR 1950 SC 222:1950 SCR
621; Sub-Committee on Judicial Accountability v. Union
of India & others AIR 1992 SC 320; Tara Prasad Singh
& others v. Union of India & others AIR 1980 SC
c 1682:1980 (3) SCR 1042; Markand Dattatreya
Sugavkar v. Municipal Corporation of Greater Mumbai
& others (2013) 9 SCC 136; S.P. Gupta v. Union of
India 1981 Supp (1) SCC 87; Supreme Court Advocates-
011-Record Association & others v. Union of India (1993)
4 SCC 441:1993 (2) Suppl. SCR 659; lmtiyaz Ahmad
D
v. State of U.P. & others (2012) 2 SCC 688: 2012 (1 )
SCR 779; T.N. Godavarman Thirumulpad v. Union of
India and others (2014) 4 SCC 61:2014 (1) SCR 88;
Lafarge Umiam Mining (P) Ltd. v. Union of India &
others (2011) 7 SCC 338: 2011 (7) SCR 954; State of
E Kerala v. A. Lakshmikutt (1986) 4 SCC 632 1987 (1)
SCR 136; Dr. Umakant Saran v. State of Bihar and
others (1973) 1 SCC 485; Dr. Rai Shivendra Bahadur
v. The Governing Body of the Nalanda College 1962
Supp. 2 SCR 144; Sharif Ahmad and others v. Regional
Transport Authority, Meerut and others (1978) 1 SCC
F 1:1978 (2) SCR 761; Director of Settlements, A.P. and
others v. MR. Apparao and another (2002) 4 SCC 638:
2002 (2) SCR 661; All India Judges· Association &
others v. Union of India & others (2002) 4 SCC
247:2002 (2) SCR 712; Vishaka & others v. State qf
G Rajasthan & others (1997) 6 SCC 241 :1997 (3) Suppl.
SCR 404; Prakash Singh & others v. Un ion of India &
others (2006) 8 SCC 1:2006 (6) Suppl. SCR 473;
Chairman & Managing Director, Central Bank of India
& Ors. v. Central Bank of India SC/ST Employees
Welfare Association & Ors. 2015 (1) SCALE 169;
H
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 731
Census Commissioner & other.1 v. R. Krishnamurthy A
(2015) 2 sec 796 - referred to.
Julius v Lord Bishop of O)Cford (1880) 5 AC 214; Bake1:
Re Nichols v. Baker (1890) 44 Ch D 262 (CA); Padfield
v. Minister of Agriculture, Fisheries and Food (1968) 1
All _ER. 694 (HL); Breen v. Amalgamated Engineering B
Union (1971) 2 QB 175 - referred to.
Judicial Review of Administrative Action by De Smith
1995, pp. 300-01; Administrative Law by Wade &
Forsyth 9th Edn., p.23328; Hals bury s Laws of England
Fourth Edn Volume 1 - referred to.
c
Case Law Reference
20P. (4) SCR 118 Referred to. Paras 2, 3, 7,
8,9,13,
14, 18,19
1992 (2) Suppl. SCR 454 Referred to. Para3 D
1995 (2) SCR 35 Referred to. Para4
2010 (14 ) SCR 532 Referred to. Paras
20()~ (3) SCR 992 Referred to. Para 15
2003 (3) Suppl. SCR 327 Referred to. Para 17
1971 (3) SCR 9 Referred to. Para 19 E
191!7 (1) SCR 562 Referred to. Para 21
1965 SCR 402 Referred to. Para 21
2012. (5) SCR 305 Referred to. Para 22
2013 (17) SCR 55 Referred to. Para 23
2007 (10) SCR 245 Referred to. Para 23
F
1994 (4) Suppl. SCR 477 Referred to. Para 23
1952 SCR 135 Referred to. Para 23
1981 (1) SCR 97 Referred to. Para 23
20t5 (7) SCR 814 Referred to. Para 24
2010 (6 ) SCR 1073 Referred to. Para 24
G
2008 (14 ) SCR 419 Referred to. Para 24
201~ (8) SCR 863 Referred to. Para 24
1950 SCR 621 Referred to. Para 24
AIR 1992 SC 320 Referred to. Para 24
1980 (3) SCR 1042 Referred to. Para 24
H
(2013) 9 sec 136 Referred to. Para 24
732 SUPREME COURT REPORTS [2016] I S.C.R.
A 1981 Supp (1) sec 87 Referred to. Para 24
1993 (2) Suppl. SCR 659 Referred to. Para 24
2012 (1.) SCR 779 Referred to. Para 29
2014 (1) SCR 88 Referred to. Para 32
2011 (7) SCR 954 Referred to. Para 32
B
1987 (1.) SCR 136 Referred to. Para 36
(197~) 1 sec 485 Referred to. Para 37
1962 Supp. 2 SCR 144 Referred to. Para 37
1~78 (2) SCR 761 Referred to. Para 38
c 2!)02 (2) SCR 661 Referred to. Para 40
2002 (2) SCR 712 Referred to. Para 41
1997 (3) Suppl. SCR 404 Referred to. Para 41
2006 (6) Suppl. SCR 473 Referred to. Para 41
2015 (1) SCALE 169 Referred to. Para 42
D 2006 (7) Suppl. SCR 336 Relied on. Para 42
(2015) 2 sec 796 Referred to. Para 44
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
690of2015
E UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
WITH
W. P. (C) NOS. 715 AND 273 OF 2015
Salman Khurshid, Avtaar Singh Rawat, K. V. Vishwanathan,
F Mahalakshmi Pavani, Rajeev Kumar Bansal, Dr. Krishan Singh Chauhan,
Ajit Kumar Ekka, Ravi Prakash, Chand Kiran, Murari Lal, Tej Singh
Varun, K. K. L. Gautam, Santosh Krishnan for the Petitioner.
Dr. Rajeev Dhavan, Kumar Parimal, Aniruddha P. Mayee, Kabir
Ghosh, Ravi P. Mehrotra, Ashutosh Kr. Sharma, Varun Thakur, Varinder
Kumar Sharma, Shraddha Saran for the Respondents.
G
The Judgment of the Court was delivered by
DIPAK MISRA, J. l. In this batch of Writ Petitions preferred
under Article 32 of the Constitution oflndia the prayer relates to issue of
a direction in the nature of mandamus commanding the respondents to
H enforce appropriately the constitutional mandate as contained under the
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 733
fDIPAK MISRA, J.l
provisions of Articles 16(4-A), 16(4-B) and 335 of the Constitution of A
India or, in the alternative, directing the respondents to constitute a
Committee or appoint a Commission chaired either by a retired Judge of
the High Court or Supreme Court in making survey and collecting
necessary qualitative data of the Scheduled Castes and the Scheduled
Tribes in the services of the State for granting reservation in promotion
B
in the light of direction gives by this Court in M. Nagaraj & others v.
Union of India & others'. Let it be clarified in the beginning, apart
from this prayer, other reliefs sought for in the petitions have not been
argued and rightly so, as the said grievances have already been directed
to be dealt with in interlocutory applications to be filed in the case of
U.P. Power Corporation Limited v. Rajesh Kumar & others'. c
2. At the commencement of the hearing, Dr. K.S. Chauhan,
learned counsel appearing for the petitioner in Writ Petition (Civil) No.
715 of2015, had submitted that the decision in M. Nagaraj(supra) by
the Constitution Bench requires reconsideration. For the said purpose,
he has made an effort to refer to certain passages from Indra Sawlmey D
& others v. Union of India & others' and R.K. Sabllarwal v. Stale of
Pubjab4• We are not inclined to enter into the said issue as we are of
the considered opinion that the pronouncement in M. Nagaraj (supra) is
a binding precedent and has been followed in number of authorities and
that apart, it has referred to, in detail, all other binding previous authorities
of larger Benches and there does not appear any weighty argument to E
convince us, even for a moment, that the said decision requires any
reconsideration. The submission on the said score is repelled.
3. The principal submission of Mr. Salman Khurshid, Mr. K.V.
Vishwanathan, learned senior counsel and Dr. K.S. Chauhan learned
counsel appearing for the respective petitioners is the alternative F
submission which can be put in three compartments:- (i) the decision
rendered in M. Nagaraj (supra) has not been appositely applied (ii) the
authority in Rajesh Kunmr(supra) has to apply prospectively and cannot
have retrospective effect, and (iii) even if it is assumed, as interpreted in
M. Nagaraj (supra), Articles 16( 4-A) and 16( 4-B) are enabling G
constitutional provisions, the concept of power coupled with duty requires
the authorities to perform the duty and they are obliged to collect the
1
(2006) s sec 212
2
(2012)1sec1
2
(1992) Supp. 3 sec 211
• 1995 (2) sec 745 H
734 SUPREME COURT REPORTS (2016) I S.C.R.
A quantifiable data to enable them to take a decision on reservation in
promotion and hence, a mandamus should be issued to all authorities to
carry out the constitutional command. We have permitted Dr. Raj iv
Dhavan to argue the matter as he had appeared for some of the
respondents in the case of R"jesft Kum(lr (supra).
B 4. Articles 16(4), 16(4-A) and 16(4-B) read as under:-
"Article 16. Equality of opportunity in matters of public
employment.-
(4) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts in favour
c of any backward class of citizens which, in the op in ion of the
State, is not adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts in the
D services under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.
(4-B) Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being
E filled up in that year in accordance with any provision for
reservation made under clause (4) or clause (4-A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number
F
of vacancies of that year".
5. In M. N"g"raj (supra), the Court has encompassed the facts
in the following manner:-
"The petitioners have invoked Article 32 of the Constitution for a
G writ in the nature of certiorari to quash the Constitution (Eighty-
fifth Amendment) Act, 200 I inserting Article 16(4-A) of the
Constitution retrospectively from 17-6-1995 providing reservation
in promotion with consequential seniority as being unconstitutional
and violative of the basic structure. According to the petitioners,
the impugned amendment reverses the decisions of this Court in
H
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 735
fDIPAK MISRA, J.l
Union of India v. Virpal Singh Chauhan', Ajit Singh Januja A
v. State of Punjab' (Ajit Singh-I). Ajit Singh (JI) v. State of
Punjab-, Ajit Singh (III) v. State of Punjab", Indra Sawhney
v. Union of India (supra) and MG Badappanavar v. State of
Karnataka'. The petitioners say that Parliament has appropriated
the judicial power to itselfand has acted as an Appellate Authority
B
by reversing the judicial pronouncements of this Court by the use
of power of amendment as done by the impugned amendment
and is, therefore, violative of the basic structure of the Constitution.
The said amendment is, therefore, constitutionally invalid and is
liable to be set aside. The petitioners have further pleaded that
the amendment also seeks to alter the fundamental right of equality c
which is part of the basic structure of the Constitution. The
petitioners say that the equality in the context of Article 16(1)
connotes "accelerated promotion" so as not to include
consequential seniority. The petitioners say that by attaching
consequential seniority to the accelerated promotion, the impugned
D
amendment violates equality in Article 14 read with Article 16( I).
The petitioners further say that by providing reservation in the
matter of promotion with consequential seniority, there is
impairment of efficiency. The petitioners say that in Indra
Sawhney (supra) decided on 16-11-1992, this Court has held that
under Article 16(4), reservation to the Backward Classes is E
permissible only at the time of initial recruitment and not in
promotion. The petitioners say that contrary to the said judgment
delivered on 16-11-1992, Parliament enacted the Constitution
(Seventy-seventh Amendment) Act, 1995. By the said amendment,
Article 16(4-A) was inserted, which reintroduced reservation in
F
promotion. The Constitution (Seventy-seventh Amendment) Act,
1995 is also challenged by some of the petitioners. The petitioners
say that if accelerated seniority is given to the roster-point
promotees, the consequences would be disastrous .... "
6. After referring to a series of authorities, the Court concluded
as follows:- G
·'(1995) 6 sec 684
'(1996)2SCC715
1
(1999)1 sec 209
' (2000) 1 sec 430
'(2001) 2 sec 666
H
736 SUPREME COURT REPORTS (2016] l S.C.R.
A "12 l. The impugned constitutional amendments by which Articles
16(4-A) and 16(4-B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4). They retain the
controlling factors or the compelling reasons, namely,
backwardness and inadequacy of representation which enables
the States to provide for reservation keeping in mind the overall
B
efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They
do not obliterate any of the constitutional requirements, namely,
ceiling limit of 50% (quantitative limitation), the concept of creamy
layer(qualitative exclusion), the sub-classification between OBCs
c on one hand and SCs and STs on the other hand as held in Indra
Sawhney (supra), the concept of post-based roster with inbuilt
concept of replacement as held in R.K. Sabharwal (supra).
122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
D inadequacy ofrepresentation and overall administrative efficiency
are all constitutional requirements without which the structure of
equality ofopportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns
the "extent of reservation". In this regard the State concerned
E will have to show in each case the existence of the compelling
reasons, namely, backwardness, inadequacy of representation and
overall administrative efficiency before making provision for
reservation. As stated above, the impugned provision is an enabling
provision. The State is not bound to make reservation for SCs/
STs in matters of promotions. However, if they wish to exercise
F their discretion and make such provision, the State has to collect
quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment
in addition to compliance with Article 335. It is made clear that
even if the State has compelling reasons, as stated above, the
G 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.
124. Subject to the above, we uphold the constitutional validity of
the Constitution (Seventy-seventh Amendment) Act, 1995; the
Constitution (Eighty-first Amendment) Act, 2000; the Constitution
H
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 737
fDIPAK MISRA, J.l
(Eighty-second Amendment) Act, 2000 and the Constitution A
(Eighty-fifth Amendment) Act, 2001.
125. We have not examined the validity of individual enactments
of appropriate States and that question will be gone into in
individual writ petition by the appropriate Bench in accordance
with law laid down by us in the present case." B
7. In Rajesfl Kumar's case, a two-Judge Bench, apart from
referring to the paragraphs we have reproduced hereinabove, also
adverted to paragraphs 44, 48, 49, 86, 98, 99, I 02, 107, I 08, I I 0, I 17, 123
and 124 and culled out certain principles. We think it absolutely
appropriate to reproduce the said principles:- c
"(i) Vesting of the power by an enabling provision may be
constitutionally valid and yet "exercise of power" by the State in
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. D
(ii) Article 16(4) which protects the interests of certain sections
of the society has to be balanced against Article 16(1) which
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.
E
(iii) Each post gets marked for the particular category of
candidates to be appointed against it and any subsequent vacancy
has to be filled by that category candidate.
(iv) The appropriate Government has to apply the cadre strength
as a unit in the operation of the roster in order to ascertain whether
a given class/group is adequately represented in the service. The F
cadre strength as a unit also ensures that the upper ceiling limit of
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
regarding adequacy of representation. Clause (4-A) of Article 16 G
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) will be governed by the
two compelling reasons-"backwardness" and "inadequacy of
H
738 SUPREME COURf REPORTS [20 I 6] I S.C.R.
A representation", as mentioned in Article I 6( 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
B 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
duration depending upon the fact situation.
c (vii) If the appropriate Government enacts a law providing for
reservation without keeping in mind the parameters in Article I 6(4)
and Article 335, then this Court will certainly set aside and strike
down such legislation.
(viii) The constitutional limitation under Article 335 is relaxed and
D 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.
(ix) The concepts of efficiency, backwardness and inadequacy
E 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
seeks to achieve certain goals. How best one should optimise
these conflicting claims can only be done by the administration in
F the context oflocal prevailing conditions in public employment.
(x)A1ticle 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
are compelling reasons. They do not exist in Article I 6( I). It is
G only when these reasons are satisfied that a State gets the power
to provide for reservation in the matter of employment."
8. Rajesft Kumar's case also referred to the authority in Suntj
Bhan Meena & another v. State of Rajastlum & ot/lers' 0 wherein it
has been ruled thus:-
H '" (2011 l 1 sec 467
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 739
[DIPAK MISRA, J.l
"66. The position after the decision in M Nagaraj case (supra) A
is that reservation of posts in promotion is dependent on the
inadequacy ofrepresentation 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.
B
67. The view of the High Court is based on the decision in M.
Nagaraj cases(supra) as no exercise was undertaken in terms
of Article 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- c
2002 and 25-4-2008 issued by the State of Rajasthan providing
for consequential seniority and promotion to the members of the
Scheduled Caste and Scheduled Tribe communities and the same
does not call for any interference."
9. After referring to the said decision, the Court in Rajes/1 Kumar's D
case took note of the Social Justice Committee Report and the chart and
opined that the said exercise was done regard being had to the population
and vacancies and not keeping in view the concepts that have been
evolved in M. N<rgaraj (supra). It is one thing to think that there are
statutory rules or executive instructions to grant promotion but it cannot E
be forgotten that they were all subject to the pronouncement by this
Court in Virpal Singlt Cltaultan (supra) and Ajit Singh (2) (supra).
Being of this view, the Court held that a fresh exercise in the light of the
judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical
imperative. The stand that the constitutional amendments have facilitated
the reservation in promotion with consequential seniority and have given F
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-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. G
On the said score, the Court did not accept the submission as the
provisions of the Constitution are treated valid with certain conditions
and riders. Thereafter the Court concluded:-
"ln 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 vi res as
H
740 SUPREME COURT REPORTS (2016] I S.C.R.
A they run counter to the dictum in M. Nagaraj (supra). Any
promotion that has been given on the dictum of Indra Sawhney
(supra) and without the aid or assistance of Section 3(7) and Rule
8-A shall remain undisturbed."
10. To have a complete picture, we may reproduce Section 3(7)
B of the Uttar Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994 (for short,
"1994 Act") which reads as follows:-
"Section 3. Reservation in favour of Scheduled Castes,
Sclteduled Tribes and Other Backward Classes.-
c (I )-(6) • • *
(7) If, on the date of commencement of this Act, reservation was
in force under government orders for appointment to posts to be
filled by promotion, such government orders shall continue to be
applicable till they are modified or revoked."
D 11. Rule 8-A was inserted by the Uttar Pradesh Government
Servants Seniority (First Amendment) Rules, 2002 (for short, '2002 Rules')
in the U .P. Government Servants Seniority Rules, 1991, which is extracted
below:-
"8-A. Entitlement of consequential seniority to a person
E belonging to Sclteduled Castes or Scheduled Tribes.-
Notwithstanding anything contained in Rules 6, 7 or 8 of these
Rules, a person belonging to the Scheduled Castes or Scheduled
Tribes shall, on his promotion by virtue of rule of reservation/
roster, be entitled to consequential seniority also."
F 12. Rule 8-A was omitted on 13.05.2005 by the Uttar Pradesh
Government Servants Seniority (Second Amendment) Rules, 2005.
However, it was provided in the said Rules that the promotions made in
accordance with the revised seniority as determined under Rule 8-A
prior to the commencement of the 2005 Rules could not be affected.
Thereafter, on 14.9.2007, by the Uttar Pradesh Government Servants
G Seniority (Third Amendment) Rules, 2007, Rule 8-A was inserted with
the same language. It has been mentioned in the said Rule that it shall
be deemed to have come into force on 17.6.1995.
13. It is contended by Dr. Chauhan, that the decision in Rajesh
Kumar (supra) has a prospective application. To buttress the said
H submission he has commended us to paragraphs 85 to 87.
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 741
[DIPAK MISRA, J.l
I4. Placing reliance on the said paragraphs, it is argued by Dr. A
Chauhan thatthe provisions of Section 3(7) of the 1994 Act remained in
force upto 07.05.2012 as it was omitted by Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Amendment Ordinance, 2012. We do not intend to
address to the said facets. Suffice it to say, the Court in Rajesll Kumar
B
(supra) has clearly held that Section 3(7) of the 1994 Act and Rule 8-A
are ultra vires. What has been stated in the said judgment is that any
promotion that has been given on the dictum of Indra Sawhney (supra)
and without the aid or assistance of Section 3(7) and Rule 8-A was to
remain undisturbed. Thus, the decision has made it distinctly clear what
has been stated. c
15. The stand that the provisions remained in force till the State
omits it by an omission has no force. When the statutory provisions and
the rules have been declared ultra vires, the two-Judge Bench was
absolutely conscious what is to be stated and accordingly, has directed
so. In this regard, reference may be made to the decision in Ganga D
Ram Moolclrandani v. State of Rajastllan & others", wherein a
particular rule was declared ultra vires. A contention was advanced
thatthe Court must hold that the decision would have prospective operation
to avoid a lot of complications. The Court referred to the authorities in
Ganga Ram Moolc/1andani (supra) and observed thus:-
E
"To meet the then extraordinary situation that may be caused by
the said decision, the Court felt that it must evolve some doctrine
which had roots in reason and precedents so that the past may be
preserved and the future protected. In that case it was laid down
that the doctrine of prospective overruling can be invoked only in
matters arising under the Constitution and the same can be applied F
only by this Court in its discretion to be moulded in accordance
with the justice of the cause or matter before it."
After so stating, the Court proceeded to hold as follows:-
"20. Accepting the lead given in the above decision, this Court
G
has since extended the doctrine to the interpretation of ordinary
statutes as well. In the cases of Waman Rao v. Union of Jndiae,
Atam Prakash v. State of Hmyana", Orissa Cement Ltd. v.
11
(2001)6 sec 89
" ( 1980) 3 sec 587
" ( 1986) 2 sec 249 H
742 SUPREME COURT REPORTS [2016] I S.C.R.
A State of Orissa 1', Union of India v. Mohd. Ramzan Khan"
and ManaRinR Direct01; ECIL v. B. Karunakar 1' the device of
prospective overruling was resorted to even in the case of ordinaty
statutes. We find in the fitness of things, the law decided in this
case be declared to be prospective in operation."
B 16. In the said case, eventually the Court, while declaring the
rules ultra vires, opined that:-
" .. It is made clearthat this judgment will not affect any appointment
made prior to this date under the Rules which have been found to
be invalid hereinabove ."
c 17. In M.A. Murthy v. State of Karnataka & Others", it has
been held that:-
" .. It is for this Court to indicate as to whether the decision in
question will opera!~ prospectively. In other words, there shall be
no prospective overruling, unless it is so indicated in the particular
D decision. It is not open to be held that the decision in a particular
case will be prospective in its application by application of the
doctrine of prospective overruling. The doctrine of binding
precedent helps in promoting certainty and consistency in judicial
decisions and enables an organic development of the law besides
E providing assurance to the individual as to the consequences of
transactions forming part of the daily affairs. That being the
position, the High Court was in error by holding that the judgment
which operated on the date of selection was operative and not the
review judgment in Ashok Kumar Sharma case No. JI". All the
more so when the subsequent judgment is by way of review of
F the first judgment in which case there are no judgments at all and
the subsequent judgment rendered on review petitions is the one
and only judgment rendered, effectively and for all purposes, the
earlier decision having been erased by countenancing the review
applications. The impugned judgments of the High Court are,
G
therefore, set aside."
" ( 1991 J Supp 1 sec 430
'' (1991) 1sec588
"(1993)4 sec 727
"(2003J7 sec 517
H " ( 1997) 4 sec 18
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 743
fDIPAK MISRA, J.l
18. Tested on the aforesaid principles, it is luminescent that the A
pronouncement in Rajesft Kumar (supra) is by no means prospective.
The declaration is clear and the directions are absolutely limpid. The
Court has not stated that the entire past promotions should be saved. It
allows limited sphere of saving. Thus viewed, the submission that
prospectivity is inhered in the said judgment does not appeal to us. If a
B
promotee is saved as per the judgment of the said case, the same is
saved; and for that reason, the Court has already directed in certain
interlocutory applications that the promotees who have been reversed,
their grievance shall be looked into by a committee and the decision of
the committee can directly be challenged by way of interlocutory
application before this Court in this case. We may ingeminate without c
any reservation that by no means prospectivity in entirety can be given
to the said decision.
19. The centripodal stand of the petitioners is that assuming the
principle stated in M. Nagaraj (supra) is correct and what has been
stated irr'Rajesft Kumar's case following the dictum in M. Nagaraj D
(supra) holds sound; then also the enabling constitutional provisions cannot
remain absolutely static. The constitutional amendments have been
brought in, and once they have been held valid, it is the obligation of the
State and the competent authority to give effect to the same as per the
norms envisaged in the judgments of this Court. In case the said exercise
is not carried out, it is the constitutional duty of this Court to see that the E
constitutional norm, philosophy and the purpose are worked out, especially
keeping in view Articles 16(4), 16(4-A), 16(4-B), 46 and 335 of the
Constitution oflndia and also the principle of affirmative action which is
meant for certain historically disadvantaged groups. It is further argued
that in M. Nagaraj (supra) Articles 16(4-A) and 16(4-B) have been F
regarded as enabling provisions which confer powers on the State
authorities to provide reservation in promotion with consequential
seniority subject to the condition of availability of appropriate data to
justify exercise of the enabling provision. The said authorities do not
debar the State to carry out the said exercise and when it is not done, it
is to be presumed that the State as a model employer has. failed in its G
duty and hence, it is obligatory on the part of this Court to require it to
carry out the procedure so that the constitutional vision is realized. It
has been highlighted before us that the concept of"power coupled with
duty" comes into play in the instant case and, therefore, the court should
issue appropriate direction to the State to collect the necessary qualitative H
744 SUPREME COURT REPORTS (2016] I S.C.R.
A data. Reliance has been placed on eleven-Judge Bench decision in
Madltav Rao Jivaji Rao Scindia v. Union of India". We have been
commended to paragraph 117 from the majority judgment by Justice
J.C. Shah, which is to the following effect:-
" 117. There are many analogous provisions in the Constitution
8 which confer upon the President a power coupled with a duty.
We may refer to two such provisions. The President has under
Articles 341 and 342 to specify Scheduled Castes and Scheduled
Tribes and he has done so. Specification so made carries for the
members of the Scheduled Castes and Scheduled Tribes certain
special benefits e.g. reservation of seats in the House of the People,
c and in the State Legislative Assemblies by Articles 330 and 332,
and of the numerous provisions made in Schedules V and YI. It
may be noticed that Scheduled Castes and Scheduled Tribes are
specially defined for the purposes of the Constitution by Articles
366(24) and 366(25). If power to declare certain classes of citizens
D as belonging to Scheduled Castes and Scheduled Tribes includes
power to withdraw declaration without substituting a fresh
declaration, the President will be destroying the constitutional
scheme. The power to specify may cariy with it the power to
withdraw specification, but it is coupled with a dutv to specify in a
manner which makes the constitutional provisions operative."
E
[underlining is ours]
20. Learned counsel has also drawn our attention to the opinion
of Hegde, J. which reads as follows:-
"In my opinion Atiicle 366(22) imposes a duty on the President
F and for that purpose has conferred on him certain powers. In
other words the power conferred on the President under that
provision is one coupled with duty. There are similar powers
conferred on the President under the Constitution. Under Chapter
XVI of the Constitution certain special provisions were made for
G the benefit of the Scheduled Castes and certain Scheduled Tribes.
Seats were reserved for them both in the Parliament as well as in
the State Assemblies. Certain other benefits were also secured to
them in the matter of appointments to services and posts in
connection with the affairs of the Union or of a State. But the
Constitution did not specify which castes were Scheduled Castes
H " (1971) 1 sec ss
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 745
[DIPAK MISRA, J.l
and which Tribes were Scheduled Tribes. Under Articles 341 (I) A
and 342( I) of the Constitution, the President was given power to
specify the castes which he considered to be Scheduled Castes
and the Tribes which he considered to be Scheduled Tribes. Though
both the Articles say the President "may" specify the castes which
he considers as Scheduled and Tribes which he considers
B
Scheduled, it is clear that a constitutional duty was imposed on
him to specify which castes were Scheduled Castes and which
tribes were Scheduled Tribes for the purpose of the Constitution.
The word "may" in those clauses must be read as "must" because
ifhe had failed or declined to specify the castes and tribes, Articles
330, 332, 334, 335, 338 and 340 would have become inoperative c
and the constitutional guarantees given to the Scheduled Castes
and Scheduled Tribes would have become meaningless."
21. Inspiration has also been drawn from Ambic(I Querry Works
v. State of Gujarat'°. In the said case, the Court was engaged in
interpretation of certain rules of Gujarat Minor Mineral Rules, 1966. On D
behalfofthe appellant therein, reliance was placed on St(lte ofR(/j(lstlwn
v. Harishanker Rajendrapa/" to advance a contention that the word
'may' is to be read as 'shall' and thereby convey the meaning that it is
mandatory. In that context, the Court observed:-
"Often when a public authority is vested with power, the expression E
"may" has been construed as "shall" because power if the
conditions for the exercise are fulfilled is coupled with duty. As
observed in Craies on Statute Lm•', 7th Edn., p. 229, the expression
"may" and "shall" have often been subject of constant and
conflicting interpretation. "May" is a permissive or enabling
expression but there are cases in which for various reasons as F
soon as the person who is within the statute is entrusted with the
power, it becomes his duty to exercise it. As early as 1880 the
Privy Council in Julius v. Lord Bishop of Oxford " explained
the position. Earl Cairns, Lord Chancellor speaking forthe judicial
committee observed dealing with the expression "it shall be lawful" G
that these words confer a faculty or power and they do not of
themselves do more than confer a faculty or power. But the Lord
Chancellor explained there may be something in the nature of the
'" (1987) I SCC213
" AIR 1966 SC 296
22
(1880) 5AC 214
H
746 SUPREME COURT REPORTS (2016] I S.C.R.
A thing empowered to be done; something in the object for which it
is to be done, something ii1 the conditions under which it is to be
done, something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple the power
with a duty, and make it the duty of the person in whom the power
is reposed, to exercise that power when called upon to do so.
B
Whether the power is one coupled with a duty must depend upon
the facts and circumstances of each case and must be so decided
by the courts in each case. Lord Blackburn observed in the said
decision that enabling words were always compulsory where the
words were to effectuate a legal right."
c Be it noted, in the said decision, the Court has approved and applied
the principle stated in Julius (supra).
22. We have also been referred to Brij Mo/tan Lal v. Union of
India & others". In the said case, apart from other issues, the relief
related to issue of direction to the respondents therein to stop the scheme
D and policy of appointment of retired District and Sessions Judges as
ad hoc Judges of the Fast Track Courts (FTCs) in the State Judicial
Services. We need not refer to the contentions raised and how the issue
was eventually answered. In the said case, the two-Judge Bench
deliberated on the question whether a writ of mandamus can at all be
issued regard being had to the factual score of the case. The Court took
E
note of the fact that origin of FTC Scheme was in a pol icy decision by
the Central Government and the said decision was taken to implement
the FTC Scheme, particularly, to deal with the arrears of criminal cases
in the country and it had taken upon itself the burden of financing the
entire scheme. The Court referred to the concept of judicial review in
F policy matters and the scope of interference in that regard, adverted to
the principles stated in S.P. Gupta's case and other decisions and opined
thus:-
"I 06. This Court has consistently held that the writ of mandamus
can be issued, perhaps not as regards the manner of discharge of
G public duty but with respect to the due exercise of discretion in
the course of such duty. In S.P Gupta v. Union of India (supra)
this Court issued directions to the Union of India to determine,
within a reasonable time, the strength of permanent Judges required
for disposal of cases instituted in the High Courts and to take
tests to fill up the vacancies after making such determination.
H "(2012) 6 sec 502
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 747
fDIPAK MISRA, J.l
x x x x x A
111. It is, thus, clear that it is the constitutional duty of this Court
to ensure maintenance of the independence of judiciary as well
as the effectiveness of the justice delivery system in the country.
The data and statistics placed on record, of which this Court can
even otherwise take judicial notice, show that certain and effective B
measures are required to be taken by the State Governments to
bring down the pendency of cases in the lower courts. It necessarily
implies that the Government should not frame any policies or do
any acts which shall derogate from the very ethos of the stated
basic principle of judicial independence. Ifthe policy decision of
the State is likely to prove counterproductive and increase the
c
pendencfof cases, thereby limiting the right to fair and expeditious
trial to the litigants in this country, it will tantamountto infringement
of their basic rights and constitutional protections. Thus, we have
no hesitation in holding that in these cases, the Court could issue a
mandamus. The extent of such power, we shall discuss shortly D
hereinafter."
The aforesaid decision, in our considered opinion, is quite
distinguishable. The Court was referring to certain constitutional concepts,
namely, constitutional duty, independence ofjudiciary, effectiveness of
justice delivery system in the country, the infringement of specific rights E
and constitutional protection. We will in course of our deliberations advert
to whether the said principles can be taken recourse to in the case at
hand.
23. Reliance has also been placed by the learned counsel on the
decision in Aneesh D. L(IW(lnde & others v. St(lte of Go(I & others", F
where the Court has referred to the authority in Julius (supra) and
observed every public authority who has a duty coupled with power
before exercising the power is required to understand the object of such
power and the conditions in which the same is to be exercised. Learned
counsel for the petitioners emphasizing on the conception of "power
coupled with duty" has referred to series ofjudgments. We have already G
referred to some and we think it appropriate to refer to some. In
Dlrnmpur Sug(lr Mills Ltd. v.St(lte of U.P. (Ind others", the attention
of the two-Judge Bench was engaged in relation to constitution of the
" (2014) 1sec554
"(2007) s sec 338 H
748 SUPREME COURT REPORTS [2016] I S.C.R.
A Advisory Committee under Uttar Pradesh Sheera Niyantran Adhiniyam,
1964. Before the High Court reliance was placed on Klwday distilleries
Ltd. v. State of Karnataka" for inter alia that Section 3 of 1964 Act
could merely be an enabling provision and thus, directory in nature and
hence, the writ petitioner could not compel the State to constitute an
Advisory Committee. The High Court referred to the decision in K/wday
B
distilleries Ltd. (supra) and opined that the provision was directory in
nature. This Court referred to the relevant provisions of the Act, the
Rules framed under the Act and the notification issued thereunder and
came to hold that the submission of the writ petitioner that such a
Committee ought to have been constituted by the State was well founded.
c , It did not accept the view expressed by the High Court that the provision
was directory. It observed that several statutes confer power on
authorities and officers to be exercised by them at their discretion and
they are couched in permissive language, such as, "it may be lawful", "it
may be permissible", "it may be open to do", etc. But in certain situations,
such power is coupled with duty and must be exercised. The Court
D
referred to Baker, Re Nichols v. Baker', a passage from Judicial
Review of Administrative Action", an instructive passage from
Administrative Law", the authority in Padfield v. Minister of
Agriculture, Fisheries and Food-", Commr. of Police v. Gordhandas
Bhanji" and Municipal Council, Rat/am v. Vardic/ian" and on that
E basis, concurred with the view expressed in Julius (supra) and eventually,
held that it was obligatory on the Government to constitute a Committee
to carry out the purpose and objective of the Act. The import and effect
of the aforesaid authorities we shall dwell upon when we will be addressing
the issue whether a writ of mandamus can be issued in the present
factual matrix regard being had to the nature of constitutional provisions.
F
24. We will be failing in our duty if we do not take note of another
facet of the submissions advanced by the learned counsel for the
petitioners. It is urged by them that it is the constitutional duty and
obligation of the authorities to work out the constitutional provisions to
effectuate the affirmative action meant for scheduled castes and the
G
"(1995) I SCC574
" ( 1890) 44 Ch D 262 (CA)
28 De Smith. Judicial Revie\v of Administrative Action. I995. pp. 300-01
'" Wade & Forsyth, Administrative Law. 9th Edn .. p.233
'" [ 1968] I All ER 694 (HL)
"AJR 1952 SC 16
H "(1980)4 sec 162
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 749
[DIPAK MISRA, J.l
scheduled tribes persons and regard being had to the principles stated in A
M. Nagaraj (supra), the reservation in promotion with consequential
seniority cannot be thought of without collection of the necessary
quantitative data in regard to certain aspects. Mechanisms are to be
provided for collection of such data. It is contended that failure to do so
tantamounts to failure of performance of constitutional duty. Elaborating
B
further, it is highlighted that when there is apathy in taking the steps to
live up to the constitutional obligation, the Court is expected in law to
issue a mandamus to command the authorities to carry out the
constitutional duty, for non-performance of such duty would affect and
eventually jeopardize the fundamental affirmative facets of the
Constitution. It is also argued that this Court has in many an authority c
framed the guidelines, issued directions for performance of duty and
also filled the gaps wherever required and, therefore, in the present
situation, the Court can direct for collection of the requisite data so that
ultimate constitutional goal is achieved . In this regard, we have been
commended to D.K. Basu v. State of West Bengal & ot/1ers·'-', Ranveer
D
Yt!.dav v. State of Bihar'', Nagar Pa/ika Nigam v. Kris/ii Upaj Mandi
SamitP.', Ankush ShiV<lji Gaikwad v. State of Maharaslitra"',
Province of Bombay v. Khushaldas S. Advani·", Sub-Committee on
Judicial Accountability v. Union of India & others-", Tara Prasad
Singh & others v. Union of India & others-", Markand Dattatreya
Sugavkar v. Municipal Corporation of Greater Mumbai & others'', E
S.P. Gupta v. Union of India" and Supreme Court Advocates-on-
Record Association & others v. Union of India''.
25. In S.P. Gupta (supra) the larger Bench has held thus:-
"lt is true that the words in Article 216 of the Constitution are
undoubtedly empowering but it has been so often decided as to F
have become an axiom that in public statutes words only directory,
permissory or enabling may have a compulsory force where the
33 (2015)8SCC744
" (2010) 11sec493
" AIR 2009 SC 187 G
"(2013)6SCC770
37 AIR 1950 SC 222
" AIR 1992 SC 320
" AIR 1980 SC 1682
'" (2013) 9 sec 136
41
1981 Supp(l}SCC87
"(1993)4SCC441 H
750 SUPREME COURT REPORTS [2016] I S.C.R.
A thing to be done is for the public benefit or in advancement of
public justice. Thus, the enabling power cannot be refused to be
exercised by the repository of that power, as such refusal would
be contrary to the constitutional principles and such action is not
permissible under the scheme of the Constitution."
B 26. Relying on the said decision, learned counsel would submit
the said principle has not been upset by the nine-Judge Bench in Supreme
CourtAdvocates-on-Record(supra). We have been also apprised that
the seven-Judge Bench has approved the principle stated in Julius (supra),
wherein it has been held thus:-
c "there may be something in the nature of thing empowered to be
done, something in the object for which it is to be done, something
in the conditions under which it is to be done, something in the title
of the person or persons for whose benefit the power is to be
exercised, which may couple the power with a duty, and make it
the duty of the person in whom the power is reposed, to exercise
D that power when called upon to do so." · '
27. Immense emphasis has been laid on D.K Basu (supra) wherein
the Court was dealing with Section 21 of the Protection of Human Rights
Act, 1993 which deals with setting up of State Human Rights
Commission. Interpreting the said provision, the Court has observed:-
E
"A plain reading of the above would show that Parliament has
used the word "may" in sub-section(!) of Section 21 while
providing for the setting up of a State Human Rights Commission.
In contrast Parliament has used the word "shall" in Section 3(1)
while providing for constitution of a National Commission. The
F argument on behalf of the defaulting States, therefore, was that
the use of two different expressions which dealing with the subject
of analogous nature is a clear indication that while a National
Hu1nan Rights Co1n1nission is 1nandatory a State Co1111nission is
not. That argument is no doubt attractive, but does not stand close
scrutiny. The use of the word "may" is not by itself determinative
G
of the true nature of the power or the obligation conferred or
created under a provision. The legal position on the subject is
fairly well settled by a long line of decisions of this Court. The
stated position is that the use of the word "may" does not always
mean that the authority upon which the power is vested may or
H may not exercise that power. Whether or not the word "may'·
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 751
fDIPAK MISRA, J .l
should be construed as mandatory and equivalent to the word A
"shall" would depend upon the object and the purpose of the
enactment under which the said power is conferred as also related
provisions made in the enactment. The word "may" has been
often read as "shall'' or "must" when there is something in the
nature of the thing to be done which must compel such a reading.
B
In other words, the conferment of the power upon the authority
may having regard to the context in which such power has been
conferred and the purpose of its conferment as also the
circumstances in which it is meant to be exercised carry with
such power an obligation which compels its exercise."
28. In the said case reference was made to Julius (supra) and c
the opinion of Justice Cairns, L.C. was quoted and thereafter, the opinion
of Lord Blackburn which is to the following effect was reproduced:-
"! do not think thlfwords 'it shall be lawful' are in themselves
ambiguous at all. They are apt words· to express that a power is
given; and as, prima facie, the donee of a power may either D
exercise it or leave it unused, it is not inaccurate to say that, prima
facie, they are equivalent to saying that the donee may do it; but if
the object for which the power is conferred is for the purpose of
enforcing a right, there may be a duty cast on the donee of the
power, to exercise it for the benefit of those who have that right, E
when required on their behalf."
29. As is evident, the Court has referred to number of judgments
tbat the word "may" at times can assume the character of "shall". In
the said case, stress was laid on access of justice and in that context,
reliance was placed on lmtiyaz Ahmad v. State of U.P. & others". F
After referring certain recommendations, the Court issued number of
directions.
30. Learned counsel for the petitioner, as stated earlier, has founded
his argument on the principles stated in many authorities which pertain
to interpretation of "power coupled with duty". Reference has been G
made to Breen v. Amalgamated Engineering Union" which has been
cited by the House of Lords in Pru/field (supra) wherein their Lordships
considering the discretion of statutory authority under the Agriculture
Marketing Act, 1958 (UK) opined:-
" (2012) 2 sec 688
"(1971) 2 QB 175, 190 H
752 SUPREME COURT REPORTS [2016] I S.C.R.
A "The discretion of a statutory body is never unfettered. It is a
discretion which is to be exercised according to law. That means
at least this: the statutory body must be guided by relevant
considerations and not by irrelevant. !fits decision is influenced
by extraneous considerations, which is ought not to have taken
into account, then the decision cannot stand."
B
31. The said view has been accepted by the Court in S.P. Gupta
(supra).
32. In T.N. Godavarnum Tllirumulpad v. Union of India and
otlters'' the Court referred to the decision in Lafarge Umiam Mining
c (P) Ltd. v. Union of India & otlters'', reproduced a paragraph from it
and observed:-
"[! will be clear from the italicised portions of the order of this
Court in Lafarge Umiam Mining (PJ Ltd. (supra) extracted above
that this Court on an interpretation of Section 3(3) of the
D Environment (Protection)Act, 1986 has taken a view that it confers
a power coupled with duty to appoint an appropriate authority in
the form of a Regulator at the State and at the Central level for
appraising projects, enforcing environmental conditions for
approvals and to impose penalties on polluters and has, accordingly,
directed the Central Government to appoint a National Regulator
E under the said provision of the Act. Mr Parasaran is, therefore,
not right in arguing that in Lafarge Umiam Mining (PJ Ltd. (supra),
this Court has merely suggested that a National Regulator should
be appointed and has not issued any mandamus to appoint a
National Regulator."
F 33. The argument is, assuming the principles stated in M. Nagmj
(supra) are correct, it is the duty of the State to give effect to the same
and it cannot remain in apathy or lie in slumber. In such a situation, the
Court has the power under the Constitution, when moved, to direct them
to wake up and act.
G 34. The core issue is whether in the context of Articles 16( 4-A)
and 16(4-B), a writ or direction can be issued to the State Government
or its functionaries or the instrumentalities of the State to collect and
gather the necessary data for the purpose of taking a decision as regards
the promotion and consequential fixation of seniority. In this regard, it is
H "(2014) 4 sec 61
"(2011) 7 sec 338
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 753
fDIPAK MISRA, J.l
imperative to appreciate in proper perspective the concept of mandamus A
and the circumstances in which it can be issued.
35. In Halsbury's Laws of England, Fourth Edition, Volume I, it
has been stated:-
"89. Nature of mandamus. The order of mandamus"' is of a
most extensive remedial nature, and is, in form, a command issuing B
from the High Court of Justice, directed to any person, corporation,
or inferior tribunal, requiring him or them to do some particular
thing therein specified which appertains to his or their office and
is in the nature ofa public duty. Its purpose is to remedy defects
of justice and accordingly it will issue, to the end that justice may c
be done, in all cases where there is a specific legal right and no
specific legal remedy for enforcing that right"'; and it may issue
in cases where, although there is an alternative legal remedy yet
that mode of redress is less convenient beneficial and effectual49 ."
36. This Court in State of Kera/(I v. A. Lakshmikutt 50 , while
D
dealing with the concept of mandamus, opined thus:-
" ... It is well settled that a writ of mandamus is not a writ of
course or a writ of right, but is, as a rule, discretionary. There
must be a judicially enforceable right for the enforcement of which
a mandamus will lie. The legal right to enforce the performance
of a dutv must be in the applicant himself. In general. therefore. E
the court will only enforce the performance of statutory duties by
public bodies on application ofa person who can show that he has
himself a legal right to insist on such performance .... "
[Emphasis addedl
37. In Dr. Unwkm1t Saran v. State of Bihar and others'', the F
Court referred to its earlier decision in Dr. Rai Sldvemlra Balwdur v.
The Governing Body of the Na/anda College", and observed that in
order that mandamus may issue to compel the authorities to do something,
it must be shown that the statute imposes a legal duty and the aggrieved
party has a legal right under the statute to enforce its performance. G
"Lee District Board v. LCC (1989) 82 LT 306: R v. Marshland Smeeth and Fen
DistrictCommr[I920] 1KB155,DC
'" R. v. Archbishop of Canterbury and Bishop of London, (I 812) 15 East 117. at 136
49
R. v. Bank of England, (1819) 2 B &Aid 620. at 622; R v. Thomas (1892) I QB 426
'" (I 986) 4 sec 632
"(1973) 1 SCC485
H
" 1962 Supp. 2 SCR 144
754 SUPREME COURT REPORTS [2016] I S.C.R.
A 38. In Sharif Ahmad and others v. Regional Transport
Authority, Meerut and others", the Court observed thus:-
"Mr A.K. Sen, learned counsel for the appellants drew our attention
to what S.A. de Smith has pointed out at p. 59 of the third Edn. of
his well known treatise "Judicial Review of Administrative
B Action":
"It may describe any duty, the discharge of which involves no
element of discretion or independent judgment. Since an order
of mandamus will issue to compel the performance of a
ministerial act, and since, moreover, wrongful refusal to carry
c out a ministerial duty may give rise to liability in tort, it is often
of practical importance to determine whether discretion is
present in the performance of a statutory function. The cases
on mandamus show, however, that the presence of a minor
discretionary element is not enough to deter the Courts from
characterising a function as ministerial."
D
We think that the Regional Transport Authority, pursuant to the
order of the Appellate Tribunal, had merely to perform a ministerial
duty and the minor discretionary element given to it for finding out
whether the terms of the Appellate Order had been complied with
or not is not enough to deter the Courts from characterising the·
E function as ministerial. Dn the facts and in the circumstances of
this case by a writ of mandamus the said authority must be directed
to perform its function."
39. Dr. Dhavan, who has been permitted to argue, has placed
reliance on the said decision only to point out that the mandamus sought
F in the present case does not come in the nature of mandamus that the
Court has dealt with, in the aforesaid case. It is his submission that the
facts in which directions have been issued are quite different and that
apart, the Court has issued a writ of mandamus in cases which involved
minor discretionary element but not where a major policy decision is
G involved. It is his submission that when the authority has a discretion to
exercise the discretion ornot regard being had to many an administrative
contingencies, the Court should refrain from issuing a mandamus. It is
because at this stage there is neither any semblance of right nor exercise
of power coupled with duty.
H "(1978) 1sec1
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADE.SH 755
rDIPAK MISRA, J .l
40. In this regard reference to the decision in Director of A
Settlements, A.P. and others v. M.R. Apparao and another" would
be fruitful. In the said case, a three-Judge Bench of the Court, while
dealing with the order of the High Court to issue mandamus, opined:-
" ... One of the conditions for exercising power under Article 226
for issuance of a mandamus is that the Court must come to the B
conclusion thatthe aggrieved person has a legal right, which entitles
him to any of the rights and that such right has been infringed. In
other words, existence of a legal right of a citizen and performance
of any corresponding legal duty by the State or any public authority,
could be enforced by issuance of a writ of mandamus.
"Mandamus" means a command. It differs from the writs of c
prohibition or certiorari in its demand for some activity on the part
of the body or person to whom it is addressed. Mandamus is a
command issued to direct any person, corporation, inferior courts
or Government, requiring him or them to do some particular thing
therein specified which appertains to his or their office and is in D
the nature of a public duty. A mandamus is available against any
public authority including administrative and local bodies, and it
would lie to any person who is under a duty imposed by a statute
or by the common law to do a particular act. In order to obtain a
writ or order in the nature of mandamus, the applicant has to
satisfy that he has a legal right to the performance of a legal duty E
by the party against whom the mandamus is sought and such right
must be subsisting on tlte date of the petition (Kalyan Singh
v. State of UP. 55 ). The duty that may be enjoined by mandamus
may be one imposed by the Constitution, a statute, common law
or by rules or orders having the force oflaw.... " F
41. Having stated about general principles relating to mandamus,
the question arises - whether a court should issue a direction to
effectuate an enabling constitutional provision which has to be exercised
by the State in its discretion on being satisfied of certain conditions
precedent. There can be no doubt that certain constitutional duties are G
inferred from the various Articles of the Constitution and this Court has
issued directions. Certain directions have been issued in S.P. Gupta
(supra) and Supreme Court Advocates-on-RecordAssocimion (supra)
(Ilnd Judges case) but they are based on principles of secure operation
"(2002) 4 sec 638
"AIR 1962SC 1183 H
756 SUPREME COURT REPORTS [2016] 1 S.C.R.
A of legal system, access to justice and speedy disposal of cases. In All
India Judges' Association & others v. Union of India & others", the
Court issued directions by stating that it is the constitutional obligation to
ensure that the backlog of cases is decreased and efforts are made to
increase the disposal of cases. Keeping in view the concept of
constitutional silence or abeyance, guidelines were issued in Vislwka &
B
others v. State ofRajastlwn & others" and for the said purpose, reliance
was placed on international Treaties, norms of gender equality and right
to life and liberty of working women. Guidelines have been issued in
D.K. Basu (supra) to lay down the procedure to be followed in case of
arrest and detention based on fundamental rights of convicts, prisoners
c and under trials under Article 21 of the Constitution. Similarly, in Prakllsh
Singh & others v. Union ofIntfill & others", the Court has laid down
specific guidelines for police reform so as to insulate the police machinery
from political/executive interference and the same is founded on the
backdrop of right to life and the enhancement of the criminal justice
delivery ~ystem.
D
42. In the case at hand, we are concerned with the enabling power
as engrafted under Articles 16, 16(4-A)and 16(4-B). The said Articles
being enabling provisions, there is no power coupled with duty. In Ajit
Singh (II) (supra), it has been held that no mandamus can be issued
either to provide for reserv_ation or for relaxation. Recently, in Clwirman
E & Mllnllging Director, Central Bank of India & Ors. v. Central
Blink of lntfill SC/ST Employees We/fllre Association & Ors.;• it has
been held thus:-
"In the first instance, we make it clear that there is no dispute
about the constitutional position envisaged in Articles 15 and 16,
F insofar as these provisions empower the State to take affirmative
action in favour of SC/ST category persons by making reservations
for them in the employment in the Union or the State (or for that
matter, public sector/authorities which are treated as State under
Article 12 of the Constitution). The laudable objective underlying
G these provisions is also to be kept in mind while undertaking any
exercise pertaining to the issues touching upon the reservation of
such SC/ST employees. Further, such a reservation can not only
" (2002) 4 sec 247
" ( 1997) 6 sec 241
'" (2006) s sec 1
H "2015 (I) SCALE 169
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 757
[DIPAK MISRA, J.l
be made at the entry level but is permissible in the matters of A
promotions as wells. At the same time, it is also to be borne in
mind that Clauses 4 and 4A of Article 16 of the Constitution are
only the enabling provisions which permit the State to make
provision for reservation of these category of persons. Insofar as
making of provisions for reservation in matters of promotion to
B
any class or classes of post is concerned, such a provision can be
made in favourofSC/STCivil Appeal No. of2015 & Ors. (arising
out ofSLP (C) No. 4385 of2010 & Ors.) category employees if,
in the opinion of the State, they are not adequately represented in
services under the State. Thus, no doubt, power lies with the State
to make a provision, but, at the same time, courts cannot issue c
any mandamus to the State to necessarily make such a provision.
It is for the State to act, in a given situation, and to take such an
affirmative action. Of course, whenever there exists such a
provision for reservation in the matters of recruitment or the
promotion, it .would bestow an enforceable right in favour of
D
persons belonging to SC/ST category and on failure on the part of
any authority to reserve the posts, while making selections/
promotions, the beneficiaries of these provisions can approach
the Court to get their rights enforced. What is to be highlighted is
that existence of provision for reservation in the matter of selection
or promotion, as the case may be, is the sine qua non for seeking E
mandamus as it is only when such a provision is made by the
State, a right shall accrue in favour of SC/ST candidates and not
otherwise."
The aforesaid passage makes its luminescent that existence of a
provision for reservation in the matter of selection or promotion is the F
sine qua non for seeking mandamus. The right accrues in favour of
the Scheduled Castes and the Scheduled Tribes candidates when there
is a provision. Weare absolute in conscious that the controversy before
us is quite different. The relief is not sought on the basis of existence of
a provision. The grievance pertains to steps being not taken to collect
the quantifiable data as has been envisaged in M. Nagaraj (supra). To G
appreciate the relief in its quintessence, it is imperative to clearly
understand the ratio laid down in M. Nagaraj (supra). The Constitution
Bench while opining that Articles 16(4-A) and (4-B) are enabling
provisions' had observed thus:-
H
758 SUPREME COURT REPORTS (2016] I S.C.R.
A " ... Extent of reservation, as stated above, will depend on the facts
of each case. Backwardness and inadequacy of representation
are compelling reasons for the State Governments to provide
representation in public employment. Therefore, if in a given case
the court finds excessive reservation under the State enactment
then such an enactment would be liable to be struck down since it
B
would amount to derogation of the above constitutional
requirements." ·
After so stating, the larger Bench has clearly held that Article
16(4-A) and 16 (4-B) do not alter the structure of Article 16(4). The
said Articles are confined to the Scheduled Castes and the Scheduled
c Tribes and do not obliterate any of the constitutional requirements, namely,
ceiling limit of50% (quantitative limitation), the concept of creamy layer
(qualitative exclusion), the sub-classification between OBCs on one hand
and SCs and STs on the other hand as held in Indra Sawlmey (supra),
the concept of post-based roster with inbuilt concept of replacement as
D held in R.K. Sablutrwa/ (supra). After so stating, the Court has adverted
to the concept of "extent of reservation". In that regard, it has been
opined that the State concerned is required to show in each case the
existence of the compelling reasons, namely, backwardness, inadequacy
of representation and overall administrative efficiency before making
provision for reservation. It has been clearly laid down that the State is
E not bound to make reservation for SCs/STs in matters of promotion.
However, ifthe State wishes to exercise the discretion and make such
provision, it has to' collect quantifiable data showing backwardness of
the class and inadequacy of representation of that class in public
employment in addition to compliance with Article 335. The expression
F of the opinion clearly demonstrates that the regard being had to the
enabling provisions of Articles 16(4-A) and (4-B), the State is not bound
to make reservation. It has a discretion to do so and the State's discretion
can only be exercised on certain conditions bei1ig satisfied. In Rajesli
Kumar's case, after culling out the principles stated in M. Nagaraj
(supra) the Court has graphically stated that a fresh exercise in accord
G with the law laid down in M. Nagaraj (supra) is a categorical imperative.
It has been held that the State can make provisions for reservation in
promotion with consequential seniority on certain basis or foundation
and conditions precedents have to be satisfied. The Court has declared
Section 3(9) of the 1994 Act and Rule 8-A of the 2002 Rules as
H unconstitutional as no fresh exercise had been undertaken. The
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 759
fDIPAK MISRA, J.l
submission of the learned counsel for the petitioners is that a command A
should be issued to the State of Uttar Pradesh to collect the data as
enshrined in the Constitution Bench decision in M. Nagamj (supra) so
that benefit ofreservation in promotion can be given. The relief sought
may appear innocuous or simple but when the Court thinks of issue of a
writ of mandamus, it has to apprise itself of an existing right or a power
B
to be exercised regard being had to the conception of duty. The concept
of power coupled with duty is always based on facts. If we keenly
scrutinize the relief sought, the prayer is to issue a mandamus to the
State and its functionaries to carry out an exercise for the purpose of
exercising a discretion. To elucidate, the discretion is to take a decis_ion
to have the reservation, and to have reservation there is a necessity' for c
collection of data in accordance with the principles stated in M. Nagaraj
(supra) as the same is the condition precedent. A writ of mandamus is
sought to collect material or data which is in the realm of condition
precedent for exercising a discretion which flows from the enabling
constitutional provision. Direction of this nature, in our considered
D
opinion, would not come within the principle of exercise of power coupled
with duty. A direction for exercise of a duty which has inherent and
insegretable nexus with the constitutional provision like Article 21 of the
Constitution or a statutory duty which is essential for prayer as laid down
in Julius (supra) where a power is deposited with a public officer but
the purpose of being used for the benefit of persons who are specifically E
pointed out with regard to whom a discretion is applied by the Legislature
on the conditions upon which they are entitled. We are inclined to think
so as the language employed in M.Nagaraj (supra) clearly states that
the State is not bound to make reservation in promotion. Thus, there is
no constitutional obligation. The decisions wherein this Court has placed
F
reliance on Julius (supra) and the other judgments of this Court and
issued directions, the language employed in the statute is different and
subserves immense public interest in the said authorities, the purpose
and purport are quite different.
43. Be it clearly stated, the Courts do not formulate any policy,
remains away from making anything that would amount to legislation, G
rules and regulation or policy relating to reservation. The Courts can
test the validity of the same when they are challenged. The court cannot
direct for making legislation or for that matter any kind of sub-ordinate
legislation. We may hasten to add that in certain decisions directions
have been issued for framing of guidelines or the court has itself framed H
760 SUPREME COURT REPORTS [2016] I S.C.R.
A guidelines for sustaining certain rights of women, children or prisoners
or under-trial prisoners. The said category of cases falls in a different
compartment. They are in different sphere than what is envisaged in
Article 16 (4-A) and 16 (4-B) whose constitutional validity have been
upheld by the Constitution Bench with certain qualifiers. They have been
regarded as enabling constitutional provisions. Additionally it has been
B
postulated that the State is not bound to make reservation for Scheduled
Castes and Scheduled Tribes in matter of promotions. Therefore, there
is no duty. In such a situation, to issue a mandamus to collect the data
would tantamount to asking the authorities whether there is ample data
to frame a rule or regulation. This will be in a way, entering into the
c domain of legislation, for it is a step towards commanding to frame a
legislation or a delegated legislation for reservation.
44. R_ecently in Census Commissioner & others v. R.
Krishnamurthy'° a three-Judge Bench while dealing with the
correctness of the judgment of the high court wherein the High court
D had directed that the Census Department of Government of India shall
take such measures towards conducting the caste-wise census in the
country at the earliest and in a time-bound manner, so as to achieve the
goal of social justice in its true sense, which is the need of the hour, the
court analyzing the context opined thus:-
E "Interference with the policy decision and issue of a mandamus
to frame a policy in a particular manner are absolutely different.
The Act has conferred power on the Central Government to issue
notification regarding the manner in which the census has to be
carried out and the Central Government has issued notifications,
and the competent authority has issued directions. It is not within
F the domain of the court to legislate. The courts do interpret the
law and in such interpretation certain creative process is involved.
The courts have the jurisdiction to declare the law as
unconstitutional. That too,, where it is called for. The court may
also fill up the gaps in certain spheres applying the doctrine of
G constitutional silence or abeyance. But, the courts are not to plunge
into policy-making by adding something to the policy by ways of
issuing a writ of 1nanda1nus."
We have referred to the said authority as the court has clearly
held that it neither legislates nor does it issue a mandamus to legislate .
H .... (2015) 2 sec 796
SURESH CHAND GAUTAM v. STATE OF UTTAR PRADESH 761
fDIPAK MISRA, J.l
The relief in the present case, when appositely appreciated, tantamounts A
to a prayer for issue of a mandamus to take a step towards framing of a
rule or a regulation for the purpose of reservation for Scheduled Castes
arnil Scheduled Tribes in matter of promotions. In our considered opinion
a writ of mandamus of such a nature cannot be issued.
I
45. Consequently, the Writ Petitions, being devoid of merit, stand B
dismissed. There shall be no order as to costs.
Nidhi Jain Writ Petitions dismissed.
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