Supreme Court of India
U.P. POWER CORPORATION LTD.versusRAJESH KUMAR & ORS.
- Citation
- 2012 INSC 189
- Decided
- 27 April 2012
- Disposal
- Disposed off
- Bench
- DALVEER BHANDARI
Holding
Section 3(7) of the 1994 Act and Rule 8‑A of the 1991 Rules are ultra vires and unconstitutional as they contravene the dicta of M. Nagaraj; only promotions made without reliance on those provisions remain valid.
Summary
The Supreme Court examined the constitutional validity of Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and Rule 8‑A of the Uttar Pradesh Government Servants Seniority Rules, 1991 (as inserted by the 2007 amendment), which provided reservation in promotion with consequential seniority for SC/ST employees. The Court held that the State had not complied with the conditions laid down in M. Nagaraj – namely, the collection of quantifiable data on backwardness and inadequate representation – before enacting the provisions, rendering them ultra vires. It also criticised the two Division Benches of the Allahabad High Court for not observing judicial decorum and for treating each other's decisions as per incuriam. Consequently, the Court set aside the Allahabad judgment, affirmed the Lucknow judgment with modifications, and declared that only promotions made without reliance on the impugned provisions would stand. The parties were each to bear their own costs.
Issues considered
- Whether Section 3(7) of the 1994 Act and Rule 8‑A of the 1991 Rules, as amended in 2007, are constitutionally valid under Articles 16(4A), 16(48) and the principles laid down in M. Nagaraj.
- Whether the State satisfied the prerequisite of a fresh exercise – collection of quantifiable data on backwardness and inadequacy of representation – before implementing reservation in promotion with consequential seniority.
- Whether the judgments of the two Division Benches of the Allahabad High Court constitute binding precedent and the appropriate procedure for resolving their conflict.
- Whether promotions effected under the impugned provisions should be set aside or left undisturbed.
Legislation cited
Subjects
Reservation in promotionConsequential seniorityArticle 16(4A)Article 335Ultra viresJudicial disciplinePrecedentQuantifiable dataBackwardnessInadequate representation
Judgment
[2012] 4 S.C.R. 118
A U.P. POWER CORPORATION LTD.
v.
RAJESH KUMAR & ORS.
(Civil Appeal No. 2608 of 2011 etc.)
APRIL 27, 2012
B
[DALVEER BHANDARI AND DIPAK MISRA, JJ.]
Constitution of India, 1950:
c Arts. 16(1), 16(4), 16(4A) and 16(48) - Reservation in
promotion - Consequential/Accelerated seniority- Principles
emerging from M. Nagraj - Culled out - Held: Articles 16(4A)
and 16(48) are enabling provisions and the State can make
the provisions for the same on certain basis or foundation -
0 In the instant case, the conditions precedent have not been
satisfied - No exercise as per decision in M. Naqraj has been
undertaken - Therefore, s.3(7) of the 1994 Act and r.8-A of
the Rules are ultra vires as they run counter to the dictum in
M. Nagraj - Uttar Pradesh Public Servants (Reservation for
E Scheduled Castes, Scheduled Tribes and other Backward
Classes) Act, 1994 - s. 3(7) - Uttar Pradesh Government
Servants Seniority Rules, 1991 - r.8-A as inserted by Uttar
Pradesh Government Servants Seniority (Third Amendment)
Rules, 2007.
F Judicial Discipline:
On a similar issue cases being heard by Lucknow Bench
of Allahabad High Court - Another Division Bench at
Allahabad entertained and decided a writ petition involving the
G same issue - Division Bench at Lucknow holding the said
decision as per incurium - Held: When Allahabad Bench was
apprised about the number of matters at Lucknow filed earlier
in point of time which were being part heard and the hearing
was in continuum, it would have been advisable to wait for the
H 118
U.P. POWER CORPORATION LTD. v. RAJ ESH 119
KUMAR & ORS.
verdict at Lucknow Bench or to bring it to the notice of the A
Chief Justice about the similar matters being instituted at both
the places - The judicial courtesy and decorum warranted
such discipline which was expected from the Judges -
Similarly, the Division Bench at Lucknow erroneously treated
the verdict of Allahabad Bench as per incuriam or not a B
binding precedent - Judicial d;scipline commands in such a
situation when there is disagreement, to refer the matter to a
larger Bench.
Writ petitions were filed before the Lucknow Bench C
of the Allahabad High Court challenging r.8-A as inserted
by the U.P. Government Servants Seniority (3rd
Amendment) Rules, 2007, in the U.P. Government
Servants Seniority Rules, 1991. The assail was also to the
constitutional validity of s. 3(7) of the Uttar Pradesh
Public Servants (Reservation for Scheduled Castes, D
Scheduled Tribes and other Backward Classes) Act,
1994. It was the case of the writ petitioners that the State
Government in gross violation of the constitutional
provisions enshrined under Arts. 16(4A) and 16(4B) of the
Constitution of India and the interpretation placed E
thereon by the Constitution Bench in M. Nagrap framed
the Rules and the U.P. Power Corporation adopted the
same by amending its Rules and introduced the concept
of reservation in promotion with accelerated seniority. It
was contended before the Lucknow Bench that neither F
the State Government nor the Corporation had carried out
the exercise as per the decision in M. Nagraj and in the
absence of the same, the provisions of the Act and the
Rules caused discomfort to the constitutional provisions.
While the said writ petitions were pending and were G
being dealt with on merit by a Division Bench at Lucknow,
another Division Bench of the High Court at Allahabad
entertained and decided writ petition No. 63217 of 2010
1. M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336. H
120 SUPREME COURT REPORTS [2012] 4 S.C.R.
A (Mukund Kumar Srivastava vs. State of UP. and Another)
upholding the validity of the provisions contained in r.8A
of the 1991 Rules. However, when the said decision was
brought to the notice of the Division Bench at Lucknow,
the said Bench, in Writ Petition no. 1389 (S/B) of 2007
B (Prem Kumar Singh and others v. State of UP. and others),
held that the decision in Mukund Kumar Srivastava was per
incurium and that s.3(7) of the 1994 Act and r.8-A of 1991
Rules were invalid, ultra vires and unconstitutional. It
quashed the orders relating to seniority passed by the
c State Government and clarified that in case the State
Government undertook to provide reservation in
promotion to any class or classes of posts in the services
under the State, it could do so after undertaking the
exercise as required under the constitutional provisions
in accordance with law laid down by this Court in M.
0
Nagraj. The instant appeals were filed challenging both
the judgments.
Disposing of the appeals, the Court
E HELD: 1.1 The Allahabad Bench was apprised about
the number of matters at Lucknow filed earlier in point of
time which were being part heard and the hearing was
in continuum. It would have been advisable to wait for
the verdict at Lucknow Bench or to bring it to the notice
F of the Chief Justice about the similar matters being
instituted at both the places. The judicial courtesy and
decorum warranted such discipline which was expected
from the Judges. Similarly, the Division Bench at
Lucknow erroneously treated the verdict of Allahabad
Bench not to be a binding precedent on the foundation
G that the principles laid down by the Constitution Bench
in M. Nagraj* are not being appositely appreciated and
correctly applied by the Bench when there was reference
to the said decision and number of passages were
quoted and appreciated albeit incorrectly, the same could
H
U.P. POWER CORPORATION LTD. v. RAJESH 121
KUMAR & ORS.
not have been a ground to treat the decision as per A
incuriam or not a binding precedent. Judicial discipline
commands in such a situation when there is
disagreement to refer the matter to a larger Bench.
Instead of doing that, the Division Bench at Lucknow
took the burden on themselves to decide the case. There B
are two decisions by two Division Benches from the
same High Court. This Court expresses its concern
about the deviation from the judicial decorum and
discipline by both the Benches and expect that in future,
they shall be appositely guided by the conceptual c
eventuality of such discipline as laid down by this Court
from time to time. [para 12 and 14] [137-B-F; 138-G~H; 139-
A]
Lala Shri Bhagwan and another v. Ram Chand and
another 1965 SCR 218 =AIR 1965 SC 1767; and Sundarjas D
Kanya/al Bhathija and others v. The Collector, Thane,
Maharashtra and others AIR 1991 SC 1893 - relied on.
2.1 It is axiomatic in service jurisprudence that any
promotions made wrongly in excess of any quota are to
be treated as ad hoc. This applies to reservation quota E
as much as it applies to direct recruits and promotee
cases. If a court decides that in order only to remove
hardship such roster-point promotees are not to face
reversions, then it would be necessary to hold -
consistent with Arts. 14 and 16(1) - that such promotees F
cannot plead for grant of any additional benefit of
seniority flowing from a wrong application of the roster.
While courts can relieve immediate hardship arising out
of a past illegality, courts cannot grant additional benefits
like seniority which have no element of immediate G
hardship. [para 20] [146-D-F]
Ajit Singh and others (//) v. State of Punjab and others
1999 (2) Suppl. SCR 521 = 1999 (7) SCC 209; and Union
of India and others v. Virpal Singh Chauhan and others 1995
(4) Suppl. SCR 158 = 1995 (6) sec 684 - relied on H
122 SUPREME COURT REPORTS (2012] 4 S.C.R.
A Indra Sawhney etc. v. Union. of India and others 1992 (2)
Suppl. SCR 454 =1992 Supp. (3) sec 217 : AIR 1993 SC
477; General Manager, S. Rly. v. Rangachari 1962 AIR 36 =
1962 SCR 586 =State of Punjab v. Hira Lal 1971 (3) SCR
267 = 1970 (3) SCC 567; Akhil Bharatiya Soshit Karamchari
B Sangh v. Union of India 1981 (2) SCR 185 = 1981 (1)
SCC 246 and Comptroller and Auditor General v. K. S.
Jagannathan 1986 (2) SCR 17 = 1986 (2) SCC 679; R.K.
Sabharwal v. State of Punjab 1995 (2) SCR 35 = 1995 (2)
SCC 745; Ajit Singh Januja and others v. State of Punjab
C and others 1996 (3) SCR 125 = 1996 (2) SCC 715; Jagdish
Lal and others v. State of Haryana and others 1997 AIR 2366
- referred to.
2.2 Arts. 16(4A) and 16 (48) were inserted in the
Constitution to confer promotion with consequential
D seniority and introduced the concept of carrying forward
vacancies treating the vacancies meant for reserved
category candidates as a separate class of vacancies.
The validity of the said Articles were challenged under Art.
32 before this Court and the Constitution Bench in M.
E Nagraj upheld the validity of the said Articles with certain
qualifiers/riders by taking recourse to the process of
interpretation. [para 21, 22] [147-B; 148-G]
M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336
F = (2006) 8 SCC 212 : AIR 2007 SC 71 - relied upon
A vinash Singh Bagri and Ors. v. Registrar /IT Delhi and
Another 2009 (13) SCR 258 = 2009 (8) SCC 220; Ashok
Kumar Thakur v. Union of India 2008 (4) SCR 1 = 2008 (6
) SCC 1; E. V. Chinniah v. State of Andhra Pradesh 2004
G (5) Suppl. SCR 972 = 2005 (1) SCC 394; Suraj Bhan
Meena and Another v. State of Rajasthan & Ors. 2010 (14)
SCR 532 = 2011 (1) SCC 467; Barium Chemicals v.
Company Law Board 1971 (3) SCR 267 = 1970 (3) SCC
567; Union of India v. Rakesh Kumar 2010 (1) SCR 483 =
H 2010 (4) SCC 50; Ashok Kumar Thakurv. Union of India and
U.P. POWER CORPORATION LTD. v. RAJESH 123
KUMAR & ORS.
others 2008 (4) SCR 1 = 2008 (6) SCC 1 - referred to. A
2.4 From the decision in M. Nagraj, the principles that
emerge are: (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, 8
particularly, if the State fails to identify and measure
backwardness and inadequacy keeping in mind the
efficiency of service as required under Article 335; (ii) Art.
16(4) which protects the interests of certain sections of
the society has to be balanced against Art. 16(1) which C
protects the interests of every citizen of the entire society.
They should be harmonized because they are
restatements of the principle of equality under Art. 14; (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 D
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 cadre strength
as a unit also ensures that the upper ceiling-limit of 50% E
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 (4A) of Art. 16 is an enabling
provision. It gives freedom to the State to provide for F
reservation in matters of promotion. Clause (4A) of Art.
16 applies only to SCs and STs. The said clause is carved
out of Art. 16(4). Therefore, Clause (4A) will be governed
by the two compelling reasons - "backwardness" and
"inadequacy of representation", as mentioned in Art. G
16(4). If the said two reasons do not exist, then the
enabling provision cannot be enforced; (vi) If the ceiling-
limit on the carry-over of unfilled vacancies is removed,
the other alternative time-factor comes in and in that
event, the time-scale has to be imposed in the interest of H
124 SUPREME COURT REPORTS [2012] 4 S.C.R.
A efficiency in administration as mandated by Art. 335. If the
time-scale is not kept, then posts will continue to remain
vacant for years which would b.e detrimental to the
administration. Therefore, in each case, the appropriate
Government will now have to introduce the duration
B depending upon the fact-situation; (vii) If the appropriate
Government enacts a law providing for reservation
without keeping in mind the parameters in Art. 16(4) and
Art. 335, then this Court will certainly set aside and strike
down such legislation; (viii) The constitutional limitation
c under Art. 335 is relaxed and not obliterated. Be it
reservation or evaluation, excessiveness in either would
result in violation of the constitutional mandate. This
exercise, however, will depend on the facts of each case;
(ix) The concepts of efficiency, backwardness and
inadequacy of representation are required to be identified
0
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
E optimize these conflicting claims can only be done by the
administration in the context of local prevailing
conditions in public employment; and (x) Art. 16(4),
therefore, creates a field which ena!;>les a State to provide
for reservation provided there exists backwardness of a
F class and inadequacy of representation in employment.
These are compelling reasons. They do not exist in Art.
16(1). It is only when these reasons are satisfied that a
State gets the power to provide for reservation in the
matter of employment. [para 38) [168-E-H; 169-A-H; 170-
G A-G]
2.5 There may be statutory rules or executive
instructions to grant promotion but it cannot be forgotten
that they are all subject to the pronouncement by this
H Court in Vir Pal Singh Chauhan and Ajit Singh (II) . This
U.P. POWER CORPORATION LTD. v. RAJESH 125
KUMAR & ORS.
Court is of the firm view that a fresh exercise in the light A
of the judgment of the Constitution Bench in M. Nagaraj
is a categorical imperative. The stand that the
constitutional amendments have facilitated the
reservation in promotion with consequential seniority and
have given the stamp of approval to the Act and the Rules B
cannot withstand close scrutiny inasmuch as the
Constitution Bench has clearly opined that Arts. 16(4A)
and 16(4B) are enabling provisions and the State can
make provisions for the same on certain basis or
foundation. The conditions precedent have not been c
satisfied. No exercise has been undertaken. It cannot be
ignored on the ground that the concept of reservation in
promotion was already in vogue. When· the provisions of
the Constitution are treated valid with certain conditions
or riders, it becomes incumbent on the part of the State 0
to appreciate and apply the test so that its amendments
can be tested and withstand the scrutiny on parameters
laid down therein. [para 41) [172-F-H; 173-A-C]
3. This Court concludes and holds that s.3(7) of the
1994 Act and r. SA of the 1991 Rules, as inserted by the E .
3rd Amendment Rules, 2007, are ultra vires as they run
counter to the dictum in M. Nagaraj. Any promotion that
has been given on the dictum of Indra Sawhney and
without the aid or assistance of s. 3(7) and r. SA shall
remain undisturbed. [para 42) [173-D] F
Case Law Reference:
2006 (7) Suppl. SCR 336 relied on para 2
1992 (2) Suppl. SCR 454 referred to para 7 and G
16
1965 SCR 21S relied on para 13
AIR 1991 SC 1S93 relied on para 14
1962 AIR 36 referred to para 16 H
126 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 1962 SCR 586 referred to para 16
1971 (3) SCR 267 referred to parci 16
1981 (2) SCR 185 referred to para 16
1986 (2) SCR 17 referred to para 16
8
1995 (4) Suppl. SCR 158relied on para 17
1995 (2) SCR 35 referred to para 17
1996 (3) SCR 125 referred to para 17
c
1996 (2) sec 715 referred to para 19
1999 (2) Suppl. SCR 521 relied on para 20
2009 (13) SCR 258 referred to para 28
D 2008 (4) SCR 1 referred to para 29
2004 (5) Suppl. SCR 972 referred to para 29
2010 (14) SCR 532 referred to para 30
.E 1971 (3) SCR 267 referred to para 31
2010 (1) SCR 483 referred to para 31
2008 (4) SCR 1 referred to para 35
F CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2608 of 2011 etc.
From the Judgment & Order dated 04.01.2011 of the High
Court of Judicature at Allahabad, Lucknow Bench in Writ
Petition No. 146 (S/B) ;of 2009.
G
WITH
C.A. Nos. 4009, 4022, 4027-4029 of 2012, 2605, 2607,
2609,2610,2614,2616,2629,2675,2676,2677,2678,2679,
2729, 2730, 2737 of2011, 4030, 4031, 4032, 4033, 4034,
H
U.P. POWER CORPORATION LTD. v. RAJESH 127
KUMAR & ORS.
4023, 4024, 4025 of 2012, 4691, 4697, 4699 of 2011, 4026, A
4016, 4021, 4017, 4018, 4019, 4020 of 2012, 2622, 2611,
2612,2613,2623,2624,2682-83,2684,2881, 2884-85,2886,
2908, 2909, 2944-2945 of 2011, 566 & 4067 of 2012.
P.S. Patwalia, Raju Ramachandran, P.P. Rao, Ranjit B
Kumar, Vijay Hansaria, Shanti Bhushan, Dr. Rajeev Dhawan,
Vinod A. Bobde, Shail Kumar Dwivedi, AAG Aman Preet Singh
Rahi, Ashok K. Mahajan, Ankur Talwar, Sanchit Asthana, Rajat
Singh, Ankur Mittal, P .N. Gupta, Manoj Kumar Dwivedi,
Vandana Mishra, Aviral Shukla, Abhinav Shrivastava, Ashutosh C
Sharma, Naresh Bakshi, Tushar Bakshi, S. Ranjith Kumar,
Natasha Vinayak, Namrata Sharma, Ajay Singh, Ranjith,
Jaiveer Shergill, Manoj Kumar Dwivedi, G. Venkateswara Rao,
Abhinav Srivatava, P.N. Gupta, Aviral Shukla, Sanjay Singh,
Rajeev Singh, Shaikh Chand Saheb, Moinuddin Ansari, R.K.
Gupta, Apeksha Sharan, Abhimanyu Tiwari, S.K. Gupta, Utsav D
Sidhu, Shekhar Kumar, T. Srinivas Murthy, Preetika Dwivedi,
Mukti Chaudhary, Sanskriti Pathak, Senthil Jagadeesan, Satya
Mitra, Rakesh Kumar Gupta, Shiv Ram Pandey, A Subba Rao,
Manoj Gorkela, A.T. Rao, Anand Tiwari, Vinod, Ajit Kumar
Gupta, Mridula Ray Bharadwaj, Pradeep Misra, Suraj Singh, E
Prashant Choudhary, Anuvrat Sharma, Vishwajit Singh,
Abhinda Maheswari, Kumar Parimal, Sanjeev K. Choudhary,
A.P. Mayee, Abhishek Chaudhary, Vishwajit Singh, Abhindra
Maheshwari (for Vidhi International), Kamakshi S. Mehwal,
Naresh Kaushik, Anirudh Joshi, Lalitha Kaushik, Mukesh F
Verma, Yash Pal Dhingra, Rajendra Singhvi, K.K.L. Gautam,
Brij Bhushan, Sameer Singh, Sneha Kalita, Vibhor Vardhan (for
Harsh Surana), Manish Pratap Singh, Ajit Singh, Rajan Roy,
Shailendra Tiwary, Prem Prakash, P.K. Manohar, C.D. Singh,
P.V. Yoeswaran, AK. Singh for the appearing parties. G
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted in Special Leave
Petitions.
H
128 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 2. The controversy pertaining to reservation in promotion
for the Scheduled Castes and Scheduled Tribes with
consequential seniority as engrafted under Articles 16(4A) and
16(48) and the facet of relaxation grafted by way of a proviso
to Article 335 of the Constitution of India being incorporated
B by the Constitution (Seventy-seventh Amendment) Act, 1995,
the Constitution (Eight-first Amendment) Act, 2000, the
Constitution (Eighty-second Amendment) Act, 2000 and the
Constitution (Eighty-fifth Amendment) Act, 2001 at various
stages having withstood judicial scrutiny by the dictum in M.
c Nagaraj v. Union of lndia 1, the issue of implementation of the
same through existing statutory enactment by the State
Legislature and the subsequent rules framed by the authorities
of the State or concerned corporation of the State of Uttar
Pradesh, has, as the learned counsel appearing for both sides
D in their astute and penetrating manner have pyramided the
concept in its essentiality, either appeared too simple that
simplification may envy or so complex that it could manifest as
the reservoir of imbalances or a sanctuary of uncertainties.
Thus, the net result commands for.an endeavour for a detailed
survey of the past and casts an obligation to dwell upon the
E controversy within the requisite parameters that are absolutely
essential for adjudication of the /is emanated in praesenti.
THE FACTUAL EXPOSE'
F 3. Extraordinary and, in a way, perplexing though it may
seem, yet as the factual scenario pronouncedly reveals, the
assail in some of the appeals of this batch of appeals is to the
judgment and order passed by the Division Bench of the High
Court of Judicature at Allahabad in Writ Petition No. 63217 of
G 2010 (Mukund Kumar Srivastava vs. State of UP. and
Another) upholding the validity of the provisions contained in
Rule 8-A of the U.P. Government Servants Seniority Rules,
1991 (for brevity 'the 1991 Rules') that were inserted by the
U.P. Government Servants Seniority (3rd Amendment) Rules,
H 1. (2006) 8 sec 212 : AIR 2007 SC 71.
U.P. POWER CORPORATION LTD. v. RAJESH 129
KUMAR & ORS. [DIPAK MISRA, J.]
2007 by the employees-appellants and in some of the appeals, A
the challenge by the State Government and the U.P. Power
Corporation Ltd. (for short 'the Corporation') is to the judgment
and order passed by the Division Bench of the High Court of
Judicature at Allahabad, Lucknow Bench. Lucknow, in Writ
Petition No. 1389 (SIB) of 2007 (Prem Kumar Singh and B
others v. State of U.P. and others) and other connected writ
petitions holding, inter alia, that the decision rendered by the
Division Bench in the case of Mukund Kumar Srivastava
(supra) at Allahabad is per incuriam and not a binding
precedent and further Section 3(7) of the Uttar Pradesh Public c
Servants (Reservation for Schedwed Castes, Scheduled Tribes
and other Backward Classes) Act, 1994 (for short 'the 1994
Act') and Rule BA of the 1991 Rules, as brought into force in
2007, are invalid, ultra vires and unconstitutional and, as a
necessary corollary, the consequential orders relating to D
seniority passed by the State Government deserved to be
quashed and, accordingly, quashed the same and further
clarified that in case the State Government decides to provide
reservation in promotion to any class or classes of posts in the
services under the State, it is free to do so after undertaking
E
the exercise as required under the constitutional provisions
keeping in mind the law laid down by this Court in M. Nagraj
(supra). It has been directed that till it is done, no reservation
in promotion on any post or classes of posts under the services
of the State including the Corporation shall be made hence
forth. However, the Division Bench observed that the promotions F
already made as per the provisions/Rules where the benefit of
Rule 8A has not been given while making the promotion shall
not be disturbed.
4. The cleavage has invited immense criticism by the G
learned senior counsel appearing for both sides on principles
of judicial discipline, decorum, propriety and tradition. Initially
the debate centred around the concept of precedent and the
duties of the Benches but gradually it was acceded to,
absolutely totally being seemly, to decide the controversy on H
130 SUPREME COURT REPORTS [2012] 4 S.C.R.
A merits instead of a remit and, accordingly, the learned counsel
for the parties addressed the Court at length. As advised, we
shall dwell upon the merits of the controversy but we shall not
abdicate our responsibility to delve into the first issue, i.e.,
judicial discipline as we are inclined to think that it is the duty·,
B nay, obligation in the present case to do so because despite
repeated concern shown by this Court, the malady subsists,
making an abode of almost permanency. Ergo, we proceed to
state the facts on the first issue and our opinion thereon and,
thereafter, shall deal with the assail and attack on both the
c judgments on merits.
5. One Rajesh Kumar and two others, the private
respondents in the appeal preferred by the Corporation, filed
Writ Petition No. 146 (SIB) of 2009 at the Lucknow Bench of
the High Court of Judicature at Allahabad seeking declaration
D to the effect that Rule 8A of the 1991 Rules and the resolution
passed by the Corporation are ultra vires. That apart, the assail
was to the constitutional validity of Section 3(7) of the 1994 Act
on the foundation that the State Government in gross violation
of the constitutional provisions enshrined under Articles 16(4A)
E and 16(4B) and the interpretation placed thereon by the
Constitution Bench in M. Nagraj (supra) has framed the Rules
and the Corporation has adopted the same by amending its
Rules and introduced the concept of reservation in promotion
with accelerated seniority.
F
6. It was contended before the Lucknow Bench that neither
the State Government nor the Corporation had carried out the
exercise as per the decision in M. Nagraj (supra) and in the
absence of the same, the provisions of the Act and the Rules
G caused discomfort to the constitutional provisions. The stand
and stance put forth by the writ petitioners was combated by
the Corporation contending, inter alia, that the Scheduled
Castes and Scheduled Tribes were inadequately represented
in the service and the chart wise percentage of representation
.H to direct recruitment of reserved categories incumbents would
U.P. POWER CORPORATION LTD. v. RAJESH 131
KUMAR & ORS. [DIPAK MISRA, J.]
clearly reflect the inadequacy. We are not referring to the A
pleadings in detail as that will be adverted to at a later stage.
Suffice to say at present, in view of the assertions made by the
parties and the records produced the Division Bench framed
the question for determination whether Rule 8-A of the Rules
is ultra vires and unconstitutional. During the course of hearing B
of the writ petition, the Corporation brought to the notice of the
Division Bench at Lucknow the judgment dated 21.10.2010
passed by the Division Bench at Allahabad in Writ Petition No.
63127 of 2010 (Mukund Kumar Srivastava v. State of UP. and
another). It was urged that the same was a binding precedent c
and, therefore, the Division Bench was bound to follow the
same. But, the Bench hearing the writ petition declared the said
decision as not binding and per incuriam as it had not correctly
interpreted, appreciated and applied the ratio laid down in M.
Nagraj (supra) and, on that base, declared Section 3(7) of the D
1994 Act and Rule 8A of the 1991 Rules as unconstitutional
and issued the directions as have been stated hereinbefore.
7. It is the admitted position at the Bar that certain writ
petitions were filed at Lucknow Bench and they were being
heard. They were filed on earlier point of time and were being E
dealt with on merits by the concerned Division Bench. At that
juncture, the Division Bench at Allahabad entertained Writ
Petition No. 63127 of 2010. The Bench was of the view that
without calling for a counter affidavit from any of the respondents
the writ petition could be decided. Be it noted, the petitioner F
therein was an Executive Engineer in Rural Engineering
Service at Sonebhadra Division and had challenged the
seniority list of Executive Engineers of Rural Engineering
Service published vide Office Memorandum No. 2950/62-3-
2010-45-RES/2010 dated 8.9.2010 and further sought G
declaration of Rule 8A of the 2007 Rules as unconstitutional.
A prayer for issue of a writ of mandamus was sought not to
proceed with and promote any person on the next higher post
on the basis of the impugned seniority list of Executive
Engineers of Rural Engineering Service. The Bench, as is H
132 SUPREME COURT REPORTS [2012) 4 S.C.R.
A manifest from the order, adverted to the facts and then dwelled
upon the validity of the Rules. It scanned Rules 6, 7, 8 and SA
and referred to the decision of this Court in Indra Sawhney etc.
v. Union of India and others 2, Section 3 of the 1994 Act, Article
335 of the Constitution and quoted in extenso from M. Nagraj
s (supra) and came to hold as follows: -
"The Constitutional validity of Amending Act 77th
Amendment Act 1995 and 85th Amendment Act 2001
whereby clause (4A) has been inserted after clause (4)
under the Article 16 of the Constitution has already been
c upheld by the Constitution Bench of Hon'ble Apex Court
in M. Nagraj case (supra) holding that neither the catch
up rule nor the Constitutional seniority is implicit in Clause
(1) and Clause (4) of Article 16 rather the concept of catch
up rule and consequential seniority are judicially evolved
D concepts to control the extent of reservation. The source
of these concepts is in service jurisprudence. These
concepts cannot be elevated to the status of an axiom, like
secularism, constitutional sovereignty, equality code etc.
forming basic structure of the Constitution. It cannot be
E said that by insertion of concept of consequential seniority
the structure of Article 16 stands destroyed or abrogated.
It cannot be said that equality code contained under
Articles 14, 15, 16 is violated by deletion of catch-up rule.
F We are bound by the aforesaid decision of Hon'ble
Apex Court in M. Nagraj case (supra). Therefore, there can
be no scope for doubt to hold that deletion of catch-up rule
and conferring the benefits of consequential seniority upon
the members of SC and ST on account of reservation in
promotion in a particular service or grade or post has any
G
way obliterated the equality code contained under Articles
14, 15 and 16 of the Constitution as concept of catch-up
rule of seniority does not directly flow from Article 16(1)
and (4) of the Constitution of India. We are of the
H 2. 1992 Supp. (3) sec 217: AIR 1993 SC 477.
U.P. POWER CORPORATION LTD. v. RAJ ESH 133
KUMAR & ORS. [DIPAK MISRA, J.]
considered opinion that Rule 8A of 1991 Rules has merely A
effectuated the provisions contained under Article 16(4A)
of the Constitution of India whereby benefit of
consequential seniority has been given to the members of
scheduled castes and scheduled tribes due to reservation/
roster in promotion by obliterating the concept of catch-up 8
Rule of seniority. Rule 8A of 1991 Rules specifically
stipulates that if any member of scheduled castes or
scheduled tribes is promoted on any post or grade in
service earlier to other categories of persons, the member
of SC/ST shall be treated to be senior to such other c
categories of persons who are promoted subsequently
after promotion of members of SC/ST, despite anything
contained in Rules 6, 7 and 8 of 1991 Rules. In our view
Rule 8A of 1991 Rules has constitutional sanctity of Article
16(4A) of the Constitution and cannot be found faulty D
merely on account of violation of judicially evolved concept
of catch-up rule of seniority which has been specifically
obliterated by Article 16(4A) of the Constitution. Likewise
the said rule can also not be held to be unconstitutional or
invalid on account of obliteration of any other judicially E
evolved principle of seniority or any other contrary rules of
seniority existing under Rules 6, 7 and 8 of 1991 Rules,
as Rule 8A of 1991 Rules opens with non-obstante clause
with overriding effect upon Rules 6, 7 and 8 of 1991 Rules,
therefore, we do not find any justification to strike down the
provisions contained under Rule 8-A of 1991 Rules on the F
said ground and on any of the grounds mentioned in the
writ petition."
After so stating, the Division Bench proceeded to observe as
follows: - G
"27. In this connection, we make it clear that deletion of
the said concept of catch-up Rule of seniority and addition
of consequential seniority due to reservation in promotion
on any post or grade in service are applicable to the H
134 SUPREME COURT REPORTS (2012] 4 S.C.R.
A member of scheduled castes and scheduled tribes only,
whereas inter-se seniority of other categories employees
shall continue to be determined according to their existing
seniority rules as contemplated by the provisions of Rules
6, 7 and 8 of 1991 Rules, subject to aforesaid limitations.
B Thus the concept of catch-up Rule of Seniority stands
obliterated only to the extent of giving benefit of
consequential seniority to the members of scheduled
castes and scheduled tribes on account of their promotion
on any post or grade in service due to reservation,
c therefore, the scope of obliteration of concept of catch-up
rule is limited to that extent. In this view of the matter the
petitioner is not entitled to get the relief sought for in the
writ petition questioning the validity of said Rule 8A of 1991
Rules. Thus we uphold the validity of said Rules and the
question formulated by us is answered accordingly."
D
It is interesting to note that in paragraph 29 of the said judgment
the Division Bench expressed thus: -
"29. However, since the petitioner did not challenge the
E Constitutional Validity of Law regarding reservation in
promotion in favour of scheduled castes and scheduled
tribes existing in State of Uttar Pradesh which is applicable
to the services and posts in connection of affairs of State
of Uttar Pradesh inasmuch as other services and posts
F covered by said Reservation Act 1994, in our opinion, the
petitioner shall not be permitted to raise this question by
filing any other writ petition again. In given facts and
circumstances of the case, we are not inclined to issue any
mandamus, commanding the respondents, not to proceed
with impugned seniority list for the purpose of promotion
G
on the next higher post without expressing any opinion on
the merit of said seniority list. We are also not inclined to
issue any such restraint order, staying any promotion on
the next higher post, if the respondents are intending to
make such promotion on the basis of impugned seniority
H list."
U.P. POWER CORPORATION LTD. v. RAJESH 135
KUMAR & ORS. [DIPAK MISRA, J.J
8. We have been apprised at the Bar that it was brought A
to the notice of the Division Bench at Allahabad that certain writ
petitions, where there was comprehensive challenge, were
part-heard and the hearing was in continuance at Lucknow
Bench, but, as is vivid from the first paragraph of the said
judgment, the Bench heard the learned counsel for the petitioner B
and the standing counsel for the State and caveator and
proceeded to decide the matter without a counter affidavit.
9. Presently, we shall advert to how the Lucknow Bench
dealt with this decision.
c
10. After stating the basic pleas, the Division Bench at
Lucknow proceeded to state as follows:-
"....... but before we proceed to decide the validity of the
challenge made and the defence put, we find it expedient D
to respond to the foremost plea of the respondents that the
aforesaid Rule 8-A of the U.P. Government Servants
Seniority Rules, 1991, (hereinafter referred to as 'the
Rules, 1991 ), was challenged before a Division Bench
(Hon'ble Sheo Kumar Singh and Hon'ble Sabhajeet E
Yadav, JJ) at Allahabad in Writ Petition No. 63127 of 2010
in re: Mukund Kumar Srivastava versus State of U.P. and
another, which writ petition has been dismissed upholding
the validity of the aforesaid Rule 8-A, therefore, this Court
is bound by the said judgment passed by a Bench of equal
F
strength and hence all these petitions need be dismissed
only on this ground."
Before the said Bench, it was contended that the judgment
rendered by the Division Bench at Allahabad is per incuriam
and is not a binding precedent. G
11. Various grounds were urged to substantiate the
aforesaid stand. The Division Bench, after analysing the
reasoning of the Allahabad Bench in great detail and after
H
136 SUPREME COURT REPORTS [2012] 4 S.C.R.
A referring to certain decisions and the principles pertaining to
binding precedent, opined as follows:-
"The Division Bench at Allahabad, did not enter into the
question of exercise of power by the State Government
under the enabling provisions of the Constitution and
B
upheld the validity of Rule 8-A only for the reason, that
there did exist such a power to enact the Rule, whereas
the Apex Court, very clearly has pronounced, that if the
given exercise has not been undertaken by the State
Government while making a rule for reservation with or
c without accelerated seniority, such a rule may not stand the
test of judicial review.
In fact, M. Nagraj obliges the High Court that when
a challenge is made to the reservation in promotion, it shall
D scrutinize the same on the given parameters and it also
casts a corresponding duty upon the State Government to
satisfy the Court about the exercise undertaken in making
such a provision for reservation. The Division Bench did
not advert upon this issue, nor the State Government
E fulfilled its duty as enumerated in M. Nagraj.
The effect of the judgment delivered at Allahabad is
also to be seen in the light of the fact that though the
Division Bench at Allahabad did not adjudicate on the
dispute with regard to the seniority for which the petitioner
F Mukund Kumar Srivastava has been relegated to the
remedy of State Public Services Tribunal, but upheld the
validity of Rule 8-A. which could not be said to be the main
relief, claimed by the petitioner.
G For the aforesaid reasons and also for the reason,
that the present writ petitions do challenge the very rule of
reservation in promotion, which challenge we have upheld
for the reasons hereinafter stated, because of which the
rule of accelerated seniority itself falls to the ground, we,
H with deep respect, are unable to subscribe to the view
U.P. POWER CORPORATION LTD. v. RAJESH 137
KUMAR & ORS. [DIPAK MISRA, J.]
taken by the Division Bench at Allahabad and hold that the A
said judgment cannot be considered as binding precedent
having been rendered per incuriam."
12. We have reproduced the paragraphs from both the
decisions in extenso to highlight that the Allahabad Bench was B
apprised about the number of matters at Lucknow filed earlier
in point of time which were being part heard and the hearing
was in continuum. It would have been advisable to wait for the
verdict at Lucknow Bench or to bring it to the notice of the
learned Chief Justice about the similar matters being instituted C
at both the places. The judicial courtesy and decorum warranted
such discipline which was expected from the learned Judges
but for the unfathomable reasons, neither of the courses were
taken recourse to. Similarly, the Division Bench at Lucknow
erroneously treated the verdict of Allahabad Bench not to be a
binding precedent on the foundation that the principles laid D
down by the Constitution Bench in M. Nagraj (supra) are not
being appositely appreciated and correctly applied by the
Bench when there was reference to the said decision and
number of passages were quoted and appreciated albeit
incorrectly, the same could not have been a ground to treat the E
decision as per incuriam or not a binding precedent. Judicial
discipline commands in such a situation when there is
disagreement to refer the matter to a larger Bench. Instead of
doing that, the Division Bench at Lucknow took the burden on
themselves to decide the case. F
13. In this context, we may profitably quote a passage from
Lala Shri Bhagwan and another v. Ram Chand and another3:-
" 18 ... It is hardly necessary to emphasise that
considerations of judicial propriety and decorum require G
that if a learned single Judge hearing a matter is inclined
to take the view that the earlier decisions of the High Court,
whether of a Division Bench or of a single Judge, need to
3. AIR 1965 SC 1767. H
138 SUPREME COURT REPORTS (2012] 4 S.C.R.
A be reconsidered, he should not embark upon that enquiry
sitting as a single Judge, but should refer the matter to a
Division Bench or, in a proper case, place the relevant
papers before the Chief Justice to enable him to constitute
a larger Bench to examine the question. That is the proper
B and traditional way to deal with such matters and it is
founded on healthy principles of judicial decorum and
propriety. It is to be regretted that the learned single Judge
departed from this traditional way in the present case and
chose to examine the question himself."
c 14. In Sundarjas Kanya/a/ Bhathija and others v. The
Collector, Thane, Maharashtra and others4 while dealing with
judicial discipline, the two-Judge Bench has expressed thus:-
"One must remember that pursuit of the law, however,
D glamorous it is, has its own limitation on the Bench. In a
multi-Judge Court, the Judges are bound by precedents
and procedure. They could use their discretion only when
there is no declared principle to be found, no rule and no
authority. The judicial decorum and legal propriety demand
E that where a learned single Judge or a Division Bench
does not agree with the decision of a Bench of co-ordinate
jurisdiction, the matter shall be referred to a larger Bench.
It is a subversion of judicial process not to follow this
procedure."
F The aforesaid pronouncements clearly lay down what is
expected from the Judges when they are confronted with the
decision of a Co-ordinate Bench on the same issue. Any
contrary attitude, however adventurous and glorious may be,
would lead to uncertainty and inconsistency. It has precisely so
G happened in the case at hand. There are two decisions by two
Division Benches from the same High Court. We express our
concern about the deviation from the judicial decorum and
discipline by both the Benches and expect that in future, they
H 4. AIR 1991 SC 1767.
U.P. POWER CORPORATION LTD. v. RAJESH 139
KUMAR & ORS. [OIPAK MISRA, J.]
shall be appositely guided by the conceptual eventuality of such A
discipline as laid down by this Court from time to time. We have
said so with the fond hope that judicial enthusiasm should not
obliterate the profound responsibility that is expected from the
Judges.
B
15. Having dealt with the judicial dictum and the propriety
part, we shall now proceed to deal with the case on merit as a
common consensus was arrived at the Bar for the said purpose.
The affected employees have filed certain civil appeals against
the judgment of the Allahabad High Court and the employees
who are affected by the verdict of the Lucknow Bench have also C
preferred appeals. That apart, the State of U.P. and the
Corporation have also challenged the decision as the rules
framed have been declared ultra vires. The main controversy
relates to the validity of Section 3(7) of the 1994 Act and Rule
8A of the 1991 Rules. Thus, we really have to advert to the D
constitutional validity of the said provisions.
16. Prior to the advertence in aforesaid regard, it is
necessary to have a certain survey pertaining to reservation in
promotional matters. The question of reservation and the E
associated promotion with it has been a matter of debate in
various decisions of this Court. After i~dependence, there were
various areas in respect of which decisions were pronounced.
Eventually, in the case of Indra Sawhney and another v. Union
of India and others (supra) the nine-Judge Bench, while dealing F
with the question whether clause (4) of Article 16 of the
Constitution provides for reservation only in the matter of initial
appointment, direct recruitment or does it contemplate and
provide for reservations being made in the matter of promotion
as well, recorded the submissions of the petitioners in G
paragraph 819 which reads as follows: -
"The petitioners' submission is that the reservation
of appointments or posts contemplated by clause (4) is
only at the stage of entry into State service, i.e., direct
H
140 SUPREME COURT REPORTS [2012] 4 S.C.R.
A recruitment. It is submitted that providing for reservation
thereafter in the matter of promotion amounts to a double
reservation and if such a provision is made at each
successive stage of promotion it would be a case of
reservation being provided that many times. It is also
B submitted that by providing reservation in the matter of
promotion, the member of a reserved category is enabled
to leap-frog over his compatriots, which is bound to
generate acute heartburning and may well lead to
inefficiency in administration. The members of the open
c competition category would come to think that whatever be
their record and performance, the members of reserved
categories would steal a march over them, irrespective of
their performance and competence. Examples are give
how two persons (A) and (B), one belonging to O.C.
category and the other belonging to reserved category,
D
having been appointed at the same time, the member of
the reserved category gets promoted earlier and how even
in the promoted category he jumps over the members of
the O.C. category already there and gains a further
promotion and so on. This would generate, it is submitted,
E a feeling of disheartening which kills the spirit of
competition and develops a sense of disinterestedness
among the members of O.C. category. It is pointed out that
once persons coming from different sources join a
category or class, they must be treated alike thereafter in
F all matters including promotions and that no distinction is
permissible on the basis of their "birth-mark". It is also
pointed out that even the Constituent Assembly debates
on draft Article 10(3) do not indicate in any manner that it
was supported to extend to promotions as well. It is further
G submitted that if Article 16(4) is construed as warranting
reservation even in the matter of promotion it would be
contrary to the mandate of Article 335 viz., maintenance
of efficiency in administration. It is submitted that such a
provision would amount to putting a premium upon
H inefficiency. The members of the reserved category would
U.P. POWER CORPORATION LTD. v. RAJESH 141
KUMAR & ORS. [DIPAK MISRA, J.]
not work hard since they do not have to compete with all A
their colleagues but only within the reserved category and
further because they are assured of promotion whether
they work hard and efficiently or not. Such a course would
also militate against the goal of excellence referred to in
clause (j) of Article 51-A (Fundamental Duties)." B
Thereafter, the Bench referred to the decisions in General
Manager, S. Rly. v. Rangachari5, State of Punjab v. Hira Lal6,
Akhil Bharatiya Soshit Karamchari Sangh v. Union of lndia 7
and Comptroller and Auditor General v. K. S. Jagannathan 8 C
and did not agree with the view stated in Rangachari (supra),
despite noting the fact that Rangachari has been a law for more
than thirty years and that attempt to reopen the issue was
repelled in Akhil Bharatiya Soshit Karamchari Sangh (supra).
Thereafter, their Lordships addressed to the concept of
promotion and, eventuall,y after adverting to certain legal D
principles, stated thus: -
"831. We must also make it clear that it would not be
impermissible for the State to extend concessions and
relaxations to members of reserved categories in the E
matter of promotion without compromising the efficiency
of the administration. The relaxation concerned in State of
Kera/a v. N.M. Thomas [(1976) 2 SCC 310] and the
concessions namely carrying forward of vacancies and
provisions for in-service coaching/training in Karamchari F
Sangh are instances of such concessions and relaxations.
However, it would not be permissible to prescribe lower
qualifying marks or a lesser level of evaluation for the
members of reserved categories since that would
compromise the efficiency of administration. We reiterate G
that while it may be permissible to prescribe a reasonably
5. AIR 1962 SC 36.
6. (1970) 3 sec 567.
7. (1981) 1 sec 246.
8. (1986) 2 sec 679. H
142 SUPREME COURT REPORTS [2012] 4 S.C.R.
A lesser qualifying marks or evaluation for the OBCs, SCs
and STs - consistent with the efficiency of administration
and the nature of duties attaching to the office concerned
- in the matter of direct recruitment, such a course would
not be permissible in the matter of promotions for the
B reasons recorded hereinabove."
In paragraph 859, while summarising the said aspect, it has
been ruled thus: -
"859. We may summarise our answers to the various
C questions dealt with and answered hereinabove:
(7) Article 16(4) does not permit provision for
reservations in the matter of promotion. This rule
D
shall, however, have only prospective operation and
shall not affect the promotions already made,
whether made on regular basis or on any other
basis. We direct that our decision on this question
shall operate only prospectively and shall not affect
E promotions already made, whether on temporary,
officiating or regular/permanent basis. It is further
directed that wherever reservations are already
provided in the matter of promotion - be it Central
Services or State Services, or for that matter
F services under any Corporation, authority or body
falling under the definition of 'State' in Article 12 -
such reservations may continue in operation for a
period of five years from this day. Within this
period, it would be open to the appropriate
G authorities to revise, modify or re-issue the relevant
rules to ensure the achievement of the objective of
Article 16(4). If any authority thinks that for ensuring
adequate representation of 'backward class of
citizens' in any service, class or category, it is
H necessary to provide for direct recruitment therein,
U.P. POWER CORPORATION LTD. v. RAJESH 143
KUMAR & ORS. [DIPAK MISRA, J.]
it shall be open to it to do so (Ahmadi, J expresses A
no opinion on this question upholding the
preliminary objection of Union of India). It would not
be impermissible for the State to extend
concessions and relaxations to members of
reserved categories in the matter of promotion B
without compromising the efficiency of the
administration."
17. After the said decision, another decision, namely,
Union of India and others v. Virpal Singh Chauhan and others 9 C
came to the field. In the said case, the two-JudgeBench was
concerned with the nature of rule and reservation in promotions
obtaining in the railway service and the rule concerning the
determination of seniority between general candidates and
candidates belonging to reserved classes in the promotional
category. The Bench referred to the decision in R.K. Sabharwal D
v. State of Punjab 10, various paragraphs of the Indian Railways
Establishment Manual and paragraphs 692 and 693 of the
Indra Sawhney (supra) and opined that the roster would only
ensure the prescribed percentage of reservation but would not
affect the seniority. It has been stated that while the reserved E
candidates are entitled to accelerated promotion, they would
not be entitled to consequential seniority.
18. Thereafter, in Ajit Singh Januja and others v. State
of Punjab and others 11 , the three-Judge Bench posed the F
question in the following terms: -
"The controversy which has been raised in the present
appeals is: whether, after the members of Scheduled
Castes/Tribes or Backward Classes for whom specific
percentage of posts have been reserved and roster has G
been provided having been promoted against those posts
9. (1995) e sec 684.
10. (19950 2 sec 745.
11. (1996)2SCC715. H
144 SUPREME COURT REPORTS [2012] 4 S.C.R.
A on the basis of "accelerated promotion" because of
reservation of posts and applicability of the roster system,
can claim promotion against general category posts in still
higher grade on the basis of their seniority which itself is
the result of accelerated promotion on the basis of
B reservation and roster?"
The Bench referred to the decisions in Virpal Singh
Chauhan (supra), R.K. Sabharwal (supra) and Indra Sawhney
(supra) and ultimately concurred with the view expressed in
C Virpal Singh Chauhan by stating as follows: -
"16. We respectfully concur with the view in Union
of India v. Virpal Singh Chauhan, that seniority between
the reserved category candidates and general candidates
in the promoted category shall continue to be governed by
D their panel position i.e. with reference to their inter se
seniority in the lower grade. The rule of reservation gives
accelerated promotion, but it does not give the accelerated
"consequential seniority". If a Scheduled Caste/Scheduled
Tribe candidate is promoted earlier because of the rule of
E reservation/roster and his senior belonging to the general
category is promoted later to that higher grade the general
category candidate shall regain his seniority over such
earlier promoted Scheduled Caste/Tribe candidate. As
already pointed out above that when a Scheduled Caste/
F Tribe candidate is promoted earlier by applying the rule
of reservation/roster against a post reserved for such
Scheduled Caste/Tribe candidate, in this process he does
not supersede his seniors belonging to the general
category. In this process there was no occasion to
examine the merit of such Scheduled Caste/Tribe
G
candidate vis-a-vis his seniors belonging to the general
category. As such it will be only rational, just and proper
to hold that when the general category candidate is
promoted later from the lower grade to the higher grade,
he will be considered senior to a candidate belonging to
H
U.P. POWER CORPORATION LTD. v. RAJESH 145
KUMAR & ORS. [DIPAK MISRA, J.]
the Scheduled Caste/Tribe who had been given A
accelerated promotion against the post reserved for him.
Whenever a question arises for filling up a post reserved
for Scheduled Caste/Tribe candidate in a still higher grade
then such candidate belonging to Scheduled Caste/Tribe
shall be promoted first but when the consideration is in B
respect of promotion against the general category post in
a still higher grade then the general category candidate
who has been promoted later shall be considered senior
and his case shall be considered first for promotion
applying either principle of seniority-cum-merit or merit- c
cum-seniority. If this rule and procedure is not applied then
result will be that majority of the posts in the higher grade
shall be held at one stage by persons who have not only
entered service on the basis of reservation and roster but
have excluded the general category candidates from being
0
promoted to the posts reserved for general category
candidates merely on the ground of their initial accelerated
promotions. This will not be consistent with the requirement
or the spirit of Article 16(4) or Article 335 of the
Constitution."
E
19. In Jagdish Lal and others v. State of Haryana and
others 12, a three-Judge Bench opined that seniority granted to
the Scheduled Caste and Scheduled Tribe candidates over a
general candidate due to his accelerated promotion does not
in all events get wiped out on promotion of general candidate. F
The Bench explained the decisions in Vir Pal Singh Chauhan
(supra) and Ajit Singh Januja (supra).
20. In Ajit Singh and others (II) v. State of Punjab and
others, 13 the Constitution Bench was concerned with the issue G
whether the decisions in Vir Pal Singh Chauhan (supra) and
Ajit Singh Januja (supra) which were earlier decided to the
effect that the seniority of general candidates is to be confirmed
12. AIR 1997 SC 2366.
13. (1999) 7 sec 209. H
146 SUPREME COURT REPORTS [2012] 4 S.C.R.
A or whether the later deviation made in Jagdish Lal (supra)
against the general candidates is to be accepted. The
Constitution Bench referred to Articles 16(1), 16(4) and 16(4A)
of the Constitution and discussed at length the concept of
promotion based on equal opportunity and seniority and treated
B them to be facets of Fundamental Right under Article 16(1) of
the Constitution. The Bench posed a question whether Articles
16(4) and 16(4A) guarantee any Fundamental Right to
reservation. Regard being had to the nature of language
employed in both the Articles, they were to be treated in the
c nature of enabling provisions. The Constitution Bench opined
that Article 16(1) deals with the Fundamental Right and Articles
16(4) and 16(4A) are the enabling provisions. After so stating,
they proceeded to analyse the ratio in Indra Sawhney (supra),
Akhil Bharatiya Soshit Karamchari Sangh (supra) and certain
D other authorities in the field and, eventually, opined that it is
axiomatic in service jurisprudence that any promotions made
wrongly in excess of any quota are to be treated as ad hoc.
This applies to reservation quota as much as it applies to direct
recruits and promotee cases. If a court decides that in order
only to remove hardship such roster-point promotees are not
E to face reversions, - then it would, in our opinion be, necessary
to hold - consistent with our interpretation of Articles 14 and
16(1) - that such promotees cannot plead for grant of any
additional benefit of seniority flowing from a wrong application
of the roster. While courts can relieve immediate hardship
F arising out of a past illegality, courts cannot grant additional
benefits like seniority which have no element of immediate
hardship. Ultimately while dealing with the promotions already
given before 10.2.1995 the Bench directed as follows: -
G "Thus, while promotions in excess of roster made before
10-2-1995 are protected, such promotees cannot claim
seniority. Seniority in the promotional cadre of such excess
roster-point promotees shall have to be reviewed after 10-
2-1995 and will count only from the date on which they
H would have otherwise got normal promotion in any future
U.P. POWER CORPORATION LTD. v. RAJESH 147
KUMAR & ORS. [DIPAK MISRA, J.]
vacancy arising in a post previously occupied by a A
reserved candidate. That disposes of the "prospectivity"
point in relation to Sabharwal."
21. At this juncture, it is condign to note that Article 16(4A)
and Article 16 (48) were inserted in the Constitution to confer
8
promotion with consequential seniority and introduced the
concept of carrying forward vacancies treating the vacancies
meant for reserved category candidates as a separate class
of vacancies. The said Articles as amended from time to time
read as follows: -
c
"16(4A) Nothing in this Article shall prevent the State from
making any provision for reservation in matters of
promotion, with consequential seniority, to any class or
classes of posts in the services under the State in favour
of the Scheduled Castes and the Scheduled Tribes which, D
in the opinion of the State, are not adequately represented
in the services under the State.
16(48) Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with E
any provision for reservation made under clause (4) or (4A)
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 F
of fifty per cent reservation on total number of that year."
22. The validity of the said Articles were challenged under
Article 32 of the Constitution of India before this Court and the
Constitution Bench in M. Nagraj (supra) upheld the validity of G
the said Articles with certain qualifiers/riders by taking recourse
to the process of interpretation. As the controversy rests mainly
on the said decision, we will advert to it in detail at a later stage.
23. Presently, we shall dwell upon the provisions that were
under challenge before the High Court. The Legislative H
148 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Assembly of Uttar Pradesh brought in a legislation, namely, the
Uttar Pradesh Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and other Backward Classes) Act,
1994 (UP Act No. 4of1994) to provide for reservation in public
services and posts in favour of the persons belonging to
B Scheduled Castes, Scheduled Tribes and other Backward
Classes of citizens and for matters connected therewith or
incidental thereto. Section 3(7), which is relevant for our present
purpose, reads as follows: -
"Reservation in favour of Scheduled Castes,
C Scheduled Tribes and other Backward Classes. -
(7) If, on the date of commencement of this Act, reservation
was in force under Government Orders for appointment to
D posts to be filled by promotion, such Government Orders
shall continue to be applicable till they are modified or
revoked."
Sub-section (7) of Section 3 was the subject-matter of
E assail before the High Court.
24. As the factual matrix would reveal, the State of Uttar
Pradesh brought into existence the Uttar Pradesh Government
Servants Seniority (First Amendment) Rules, 2002 on the 18th
of October, 2002 in exercise of the power conferred under
F Article 309 of the Constitution whereby after Rule 8, new Rule
8-A was inserted. The said Rule reads as follows: -
"8-A. Notwithstanding anything contained in Rule s6,7 or
8 of these rules, a person belonging to the Scheduled
G Castes or Scheduled Tribes shall on his promotion by
virtue of rule of reservation/ roster, be entitled to
consequential seniority also."
25. It is worth noting that on May 13, 2005, by the Uttar
H Pradesh Government Servants Seniority (Second Amendment)
U.P. POWER CORPORATION LTD. v. RAJESH 149
KUMAR & ORS. [DIPAK MISRA, J.]
Rules, 2005, Rule 8-A was omitted. However, it was provided A
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 September 14, 2007, by the Uttar Pradesh
Government Servants Seniority (Third Amendment) Rules, B
2007, Rule 8-A was inserted in the same language which we
have already reproduced hereinabove. It has been mentioned
in the said Rule that it shall be deemed to have come into force
on June 17, 1995. It is germane to note here that the U.P.
Power Corporation Limited adopted the said Rules as there c
is no dispute about the fact that after the Rules came into
existence and have been given effect to at some places and
that is why the challenge to the constitutional validity of the Act
and the Rules was made before the High Court. We have
already indicated how both the Benches have dealt with the said 0
situation.
26. At this stage, we may usefully state that though number
of appeals have been preferred, yet some relate to the assail
of the interim orders and some to the final orders. We may only
state for the sake of clarity and convenience that if Section 3(7) E
and Rule 8-A as amended in 2007 are held to be constitutionally
valid, all the appeals are bound to be dismissed and if they are
held to be ultra vires, then the judgment passed by the Lucknow
Bench shall stand affirmed subject to any clarification/
modification in our order. F
27. As has been noticed hereinbefore, the Allahabad
Bench had understood the dictum in M. Nagaraj (supra) in a
different manner and the Division Bench at Lucknow in a
different manner. The learned counsel appearing for various G
parties have advanced their contentions in support of the
provisions in the enactment and the Rules. We would like to
condense their basic arguments and endeavour to pigeon-hole
keeping in view the facts which are requisite to be referred to
at the time of analysis of the said decision in the backdrop of H
the verdict in M. Nagaraj (supra).
150 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 28. Mr. Andhyarujina and Mr. Raju Ram Chandran, learned
senior counsel criticising the decision passed by the Lucknow
Bench, have submitted that the High Court has fallen into grave
error by not scrutinising the materials produced before it, as a
consequence of which a sanctuary of errors have crept into it.
B If the counter affidavit and other documents are studiedly
scanned, it would be luminescent that opinion has been formed
as regards inadequate representation in promotional posts
and, therefore, it had become an imperative to provide for
reservation. The opinion formed by the Government need not
c be with mathematical precision to broad spectrum and such
exercise has already been done by the State of U .P., since
reservation in promotional matters was already in vogue by
virtue of administrative circulars and statutory provisions for few
decades. It is urged that the concept of inadequate
representation and backwardness have been accepted by the
0
amending power of the Constitution and, therefore, the High
Court has totally flawed by laying unwarranted emphasis on the
said concepts. The High Court could not have sat in appeal
on the rule of reservation solely on the factual bedrock. The
E chart brought on record would reflect department wise how the
persons from backward classes have not been extended the
benefit of promotion and the same forms the foundation for
making the enactment and framing the rule and hence, no fault
could have been found with the same. Once an incumbent
belongs to Scheduled Castes/ Scheduled Tribes category, it
F is conclusive that he suffers from backwardness and no further
enquiry is necessary. It has been clearly held in the case of
Indra Sawhney (supra) that the test or requirement of social
and educational backwardness cannot be applied to Scheduled
Castes/ Scheduled Tribes who indubitably fall within the
G expression 'Backward Classes of Citizen'. It is beyond any
shadow of doubt that Scheduled Castes/ Scheduled Tribes are
a separate class by themselves and the creamy layer principle
is not applicable to them. It has been so held in Avinash Singh
H
U.P. POWER CORPORATION LTD. v. RAJESH 151
KUMAR & ORS. [DIPAK MISRA, J.]
Bagri and Ors. v. Registrar /IT Delhi and Another14 . Article 16 A
(4A) uses the phrase 'in the opinion of and the said word carries
a different meaning to convey that it is subjective in nature
rather than objective. The Report of the "Social Justice
Committee" dated 28.06.2001 clearly ascertains the need for
implementation of reseNation in promotional matters in public B
seNice in U. P. and the said Report deseNes acceptance. The
State Government was possessed of sufficient materials to
implement the promotional provisions which are enabling in
nature and the same is justified by the "Social Justice
Committee Report" which has examined the current status of c
implementation of Scheduled Castes/ Scheduled Tribes and
other backward classes in other public seNices with respect
to their quota, their participation and progress in various
services, the substantial backlog in promotional posts in
category A, B and C posts and the inadequacy of
0
representation in promotional posts and various departments
and State owned corporations. The High Court has completely
erred specially when there was sufficient data available with the
State Government. Regard being had to the factum that the
said promotions were being given for few decades, a fresh
E
exercise regarding adequacy was not necessary. The concept
of efficiency as stipulated under Article 335 of the Constitution
is in no way affected if the reseNation does not exceed 50%.
The consequential seniority being vested by the Constitution,
it follows as natural corollary and hence, no further exercise was
required to be undertaken. The learned counsel for the State F
has drawn the attention of this Court with respect to the
percentage of representation to justify that requisite data was
available and no further exercise was needed and, therefore,
the decision of the High Court is fundamentally fallacious.
G
29. Mr. P. S Patwalia, learned senior counsel appearing
in some appeals for the corporation, has submitted that. the
requirement of having quantifiable data is not a new concept
propounded in the case of M. Nagraj (supra) but is a reiteration
14. (2009) a sec 220 H
152 SUPREME COURT REPORTS [2012] 4 S.C.R.
A of the earlier view enunciated in Indra Sawhney case (supra)
and, therefore, the provision could not have been declared as
ultra vires. The emphasis on backwardness is absolutely
misconceived, for Scheduled Castes/ Scheduled Tribes are
duly notified as such in the Presidential list by virtue of Articles
B 34'1 and 342 of the Constitution. Their exclusion from the list
can alone be done by the amendment of the Presidential Order
and hence, any kind of collection of data as regards the
backwardness is an exercise in futility. The concept of creamy
layer principle cannot be applied to Scheduled Castes/
c Scheduled Tribes as has been held in the case of Ashok Kumar
Thakur v. Union of lndia 15. Learned senior counsel has placed
reliance on the decision in E. V. Chinniah v. State of Andhra
Pradesh 16 to highlight that there may be only one list of
Scheduled Castes/Scheduled Tribes and this list constitutes
one group for the purpose of reservation and the same cannot
0
be interfered with, disturbed, re-grouped or re-classified by the
State. In essence, the submission is that there may not be
exclusion by engrafting the principle of backwardness for the
purpose of reservation in promotion. Commenting on the
adequacy of representation, it is urged by Mr. Patwalia that the
E data was immediately collected after the 1994 Act and
thereafter, no fresh data was necessary to be collected after
the decision rendered by the Constitution Bench in M. Nagraj
(supra). It is further submitted by the learned counsel that even
if quantifiable data is not collected, the State can be asked to
F do so in view of the order passed by this Court in S. B Joshi
v. State of Karnatka and Others in W.P. 259 of 1994 decided
on 13.07 .2010. The efficiency of service as encapsuled in
Article 335 of the Constitution has been duly respected by
providing a uniform minimum standard of the matters of
G promotion as far as the Corporation is concerned and,
therefore, no fault can be found in that regard.
30. Mr. P. P. Rao, learned senior counsel appearing for
15. (2ooa) 6 sec 1.
H 16. (2005) 1 sec 394.
U.P. POWER CORPORATION LTD. v. RAJESH 153
KUMAR & ORS. [DIPAK MISRA, J.]
some of the private respondents assailing the decision of the A
Lucknow Bench, has urged that when there was no challenge
to the orders issued prior the amendment for reservation in
promotion, no quantifiable data is necessary. Section 3 (7) of
the 1994 Act does not make any change except recognising
the earlier orders which lay down that they shall continue to be B
applicable till it is modified or revoked and, therefore, it has only
been conferred statutory recognition. The High Court has
misunderstood the decision in M. Nagraj (supra) while stating
that the collection of quantifiable data was not undertaken
though the said decision clearly lays down that a collection of c
quantifiable data showing backwardness for the class would be
required while demonstrating the same in Court to the extent
of promotion when it is under challenge. In the case at hand,
the issue is not the extent of reservation or excessive
reservation but reservation in promotion. That apart, the 0
principles laid down in M. Nagraj (supra) do not get attracted
if reservation in promotion is sought to be made for the first
time but not for continuing the reservation on the basis of
assessment made by the Parliament in exercise of its
constituent powers. The Constitutional Amendment removed the E
base of the decision in Indra Sawhney (supra) that reservation
in promotion is not permissible and the Government in its
wisdom has carried out the assessment earlier and decided
to continue the policy and, therefore, to lay down the principle
that in view of the decision in M Nagraj (supra), a fresh exercise
is necessary would tantamount to putting the concept in the F
realm of inherent fallacy. The decision in Suraj Bhan Meena
and Another v. State of Rfljasthan & Ors. 17 is not a binding
precedent inasmuch as it takes note of the contention (at
paragraph 24 at page no. 474-475 of the Report) but does not
deal with it. The 85th Amendment which provides for G
consequential seniority wipes out the 'catch up' rule 'from its
inception and the general principle of seniority from the date
of promotion operates without any break and for the same
11. (2011) 1 sec 467. H
154 SUPREME COURT REPORTS [2012] 4 S.C.R.
A reason the said amendment had been given retrospective
effect'. The intention of the Parliament at the time of exercise
of its constitutional power clearly states that the representation
of Scheduled Castes/ Scheduled Tribes in the services in the
States had not reached the required level and it is necessary
B to continue the existing position of providing reservation in
promotion in the case of Scheduled Castes/ Scheduled Tribes.
The learned senior counsel has laid immense emphasis on the
intention of the Parliament and the Legislature to continue the
policy and, pyramiding the said submission, he has contended
c that no fresh exercise is required. It is propounded by Mr. Rao
that Article 16 basically relates to classes and not backward
individuals and therefore, no stress should be given on the
backwardness. Alternatively, the learned senior counsel has
submitted that the matter should be referred to a larger Bench,
regard being had to the important issue involved in the case.
0
31. Mr. Rakesh Dwivedi, learned senior counsel who
represents some of the petitioners aggrieved by the Lucknow
Bench decision, has urged that backwardness is presumed in
view of the nine-Judge Bench decision in Indra Sawhney
E (supra) and the same has to be regarded beyond any cavil. The
dictum in M. Nagraj (supra) cannot be understood to mandate
collection of quantifiable data for judging the backwardness of
the Scheduled Castes/ Scheduled Tribes while making
reservation in promotion. But, unfortunately, the High Court has
F understood the Judgment in the aforesaid manner. There is no
material produced on record to establish that Scheduled
Castes/ Scheduled Tribes candidates having been conferred
the benefit of promotion under reservation have ceased to be
backward. Though the decision in Indra Sawhney (supra) held
G that the promotion in reservation is impermissible, yet it
continued the reservation in promotion for a period of five years
and, therefore, the Constitution Amendment came into force in
this backdrop Section 3 (7) of the 1994 Act could not have been
treated to be invalid. But the stand that the refixation of seniority
H
U.P. POWER CORPORATION LTD. v. RAJ ESH 155
KUMAR & ORS. [DIPAK MISRA. J.]
after coming into existence of Rule 8-A of the Rules or the rule A
by the corporation is basically fallacious, for persons who were
promoted earlier to the higher post are entitled to seniority from
the date of promotion. The learned senior counsel has
contended that after coming into force of the amendment of the
Constitution by inserting Article 16 (4A), the decisions in B
Rangachary (supra) and Akhil Bhartiya Karmachari Sangh
(supra) have been restored and the concept of 'catch up' rule
as propounded in Ajit Singh II (supra) has also been nullified.
Article 16 (4A) only makes it explicit what is implicit under
service jurisprudence in matters of promotion and the said C
benefit was always enjoyed by the Scheduled Castes/
Scheduled Tribes people and M. Nagraj (supra) does not
intend to affect the said aspect. The learned counsel has
referred to paragraph 798 of Indra Sawhney (supra) to highlight
the scope of judicial scrutiny in matters which are within the
0
subjective satisfaction of the executive and are to be tested as
per the law laid down in Barium Chemicals v. CompaAy Law
Board18 • In essence, the submission is that in adequacy of
representation is in the domain of subjective satisfaction of the
State Government and is to be regarded as a policy decision
of the State. The learned senior counsel has distinguished the E
principle enunciated in Suraj Bhan Meena (supra). In that case,
the court was not dealing with an issue where the reservation
had already been made and was in continuance. It is highlighted
by Mr Dwivedi that in the present case the issue is not one
where there is no material on record to justify the subjective F
satisfaction, but, on the contrary, there is adequate material to
show that the State Government was justified in introducing the
provision in the Act and the Rule. As regards the efficiency in
administration has mandate under Article 335 of the
Constitution, the submission of Mr. Dwivedi is that the G
constitutional amendment has been made keeping in mind the
decision in Indra Sawhney (supra) and the amendment of
Article 335 facilitates the reservations in promotion. The learned
1s. c1s7o) 3 sec 567. H
156 SUPREME COURT REPORTS [2012] 4 S.C.R
A senior counsel would contend that maintenance of efficiency
basically would convey laying a prescription by maintaining the
minimum standard and in the case of the Corporation it has
been so done. It has been propounded by him that if
backwardness becomes the criterion, it would bring out the
B internal conflict in the dictum of M. Nagraj (supra) and then in
that case it has to be reconciled keeping in view the common
thread of judgment or the matter should be referred to a larger
Bench. In any case, M. .Nagraj (supra) does not lay down that
the quantifiable data of backwardness should be collected with
C respect to eligible Scheduled Castes/ Scheduled Tribes
employees seeking promotion. Mr. Dwivedi has commended
to the decision in Union of India v. Rakesh Kumar19 to highlight
that the proportion of population is the thumb rule as far as the
Scheduled Castes/ Scheduled Tribes are concerned and that
should be the laser beam to adjudge the concept of inadequacy
D of reservation. Reservation in promotion involves a balancing
act between the national need to equalise by affirmative action
and to do social justice on one hand and to ensure that equality
of opportunity as envisaged under Article 14 is not unduly
affected by the benefit of promotion which has been conferred
E by the Act and Rules on the Scheduled Castes/ Scheduled
Tribes as a balancing act and same has always been upheld
by this Court.
32. Mr. Shanti Bhushan, learned senior counsel, has
F submitted that the Constitution Bench in M. Nagaraj (supra) has
clearly laid down certain conditions, namely, that there must be
compelling reasons for making reservation in promotion; that
the State is not bound to make reservation for Scheduled
Castes/ Scheduled Tribes in matters of promotion; that if the
G State thinks that there are compelling reasons to make such
reservation in promotion, it is obligatory on the part of the State
to collect quantifiable data showing the backwardness of the
class and inadequacy of representation of that class in public
employment and also by making such reservation in promotion,
H 19. 2010 4 sec so.
U.P. POWER CORPORATION LTD. v. RAJESH 157
KUMAR & ORS. [DIPAK MISRA, J.]
the efficiency in administration is not affected; that the exercise A
is required to be made before making any reservation for
promotion; that the State has not applied its mind to the
question as to what could be regarded as an adequate
representation for Scheduled Castes/Scheduled Tribes in
respect of promotion; that the provision for reservation in B
matters of promotion has to be considered in any class or
classes of posts not adequately represented in the services
under the State but unfortunately, the exercise in that regard has
not at all been taken up but amendments have been
incorporated; that the concept of backwardness and c
inadequacy of representation as understood in the case of M.
Nagaraj (supra) has been absolutely misunderstood and
misconstrued by the State Government as a consequence of
which the Rules of the present nature have come into existence;
that the overall efficiency as enshrined under Article 335 of the 0
Constitution has been given a total go-bye which makes
Section 3(7) of the 1994 Act and Rule 8-A absolutely vulnerable
and thereby invites the frown of the enabling provision and the
dictum in M. Nagaraj (supra); that Rule 8-A which confers
accelerated seniority would leave no room for the efficient E
general category officers which is not the intention of the
framers of the Constitution and also as it is understood by
various decisions of this Court.
33. Dr. Rajeev Dhavan, learned senior counsel, supporting
the decision of the Division Bench which has declared the Rule F
as ultra vires, has submitted that if M. Nagaraj (supra) is
properly read, it does clearly convey that social justice is an
over reaching principle of the Constitution like secularism,
democracy, reasonableness, social justice, etc. and it
emphasises on the equality code and the parameters fixed by G
the Constitution Bench as the basic purpose is to bring in a
state of balance but the said balance is destroyed by Section
3(7) of the 1994 Act and Rule 8-A inasmuch as no exercise
has been undertaken during the post M. Nagaraj (supra)
period. In M. Nagraj (supra), there has been emphasis on H
158 SUPREME COURT REPORTS [2012] 4 S.C.R.
A interpretation and implementation, width and identity, essence
of a right, the equality code and avoidance of reverse
discrimination, the nuanced distinction between the adequacy
and proportionality, backward class and backwardness, the
concept of contest specificity as regards equal justice and
B efficiency, permissive nature of the provisions and conceptual
essence of guided power, the implementation in concrete terms
which would not cause violence to the constitutional mandate;
and the effect of accelerated seniority and the conditions
prevalent for satisfaction of the conditions precedent to invoke
c the settled principles. The learned senior counsel further
submitted that M. Nagaraj (supra) deals with cadre and the
P,Osts but the State has applied it across the board without any
kind of real quantifiable data after pronouncement of the M.
Nagaraj (supra). It is his further submission that after Section
3(7) of the 1994 Act and Rule 8-A are allowed to stand, the
0
balancing factor which has so far been sustained by this Court
especially pertaining to reservation would stand crucified. It is
urged by him that the chart supplied by the State only refers to
the number and, seniority of officers but it does not throw any
light on the core issue and further, a mere submission of a chart
E would not meet the requisite criteria as specified in M. Nagaraj
(supra).
34. Mr. Vinod Bobde, learned senior counsel, has
submitted that if accelerated seniority is confirmed on the roster
F by the promotees, the consequences would be disastrous
inasmuch as the said employee can reach the fourth level by
the time he attains the age of 45 years and at the age of 49,
he would reach the highest level and stay there for nine years
whereas a general merit promotee would reach the third level
G out of the six levels at the age of 56 and by the time he gets
eligibility to get into the fourth level, he would reach the age of
superannuation. It is urged by him that if reservation in
promotion is to be made, there has to be collection of
quantifiable data, regard being had to the backwardness and
H inadequacy of representation in respect of the posts in a
U.P. POWER CORPORATION LTD. v. RAJ ESH 159
KUMAR & ORS. [DIPAK MISRA, J.]
particular cadre and while doing so, the other condition as A
engrafted under Article 335 of the Constitution relating to the
efficiency of administration has to be maintained. It is his further
submission that in M. Nagaraj (supra), Articles 16(4A) and
16(48) have been treated to be enabling provisions and an
enabling provision does not create a fundamental right. If the B
State thinks to exercise the power, it has to exercise the power
strictly in accordance with the conditions postulated in the case
of M. Nagaraj (supra). The State of U.P. has totally misguided
itself by harbouring the notion that merely because there has
to be representation of Scheduled Castes and Scheduled C
Tribes in the services, the State is obliged to provide for
reservation in promotion under Article 16(4A). The learned
senior counsel would vehemently contend that nothing has been
brought on record to show that after pronouncement of M.
Nagaraj (supra), the State had carried out an exercise but has
built a castle in Spain by stating that the provision being always D
there, the data was available. It is canvassed that the stand of
the State runs counter to the principles laid down in M. Nagaraj
(supra) which makes Section 3(7) and Rule 8-A sensitively
susceptible. The consequential seniority was introduced on
18.10.2002 but was obliterated on 13.5.2005 and thereafter, E
it was revived on 14.9.2007 with retrospective effect and the
reason is demonstrable from the order/circular dated
17.10.2007 which is based on total erroneous understanding
and appreciation of the law laid down by this Court. It is argued
by him that the Act and the Rules were amended solely keeping F
in view the constitutional provision totally ignoring how the said
Articles were interpreted by this Court. It is propounded by Mr.
Bobde that the State has referred to certain data and the
"Social Justice Committee Report" of 2001 but the same
cannot save the edifice of the impugned statutory provision and G
the Rules as the State could not have anticipated what this
Court was going to say while upholding the constitutional
validity.
35. Mr. Ranjit Kumar, learned senior counsel, has laid
H
160 SUPREME COURT REPORTS [2012] 4 S.C.R.
A immense emphasis on paragraphs 121 to 123 of M. Nagaraj
(supra) to buttress the stand that reservation in promotional
matters is subject to the conditions enumerated in the said
paragraphs. The learned senior counsel has drawn inspiration
from an order dated 11.3.2010 passed by a two-Judge Bench
B in Writ Petition (civil) 81 of 2002 wherein the direction was
given that the validity may be challenged and on such challenge,
the same shall be decided in view of the final decision in M.
Nagaraj (supra). The learned senior counsel has placed
reliance on Ashok Kumar Thakur v. Union of India and
C others20 to highlight that any privilege given to a class should
not lead to inefficiency. Emphasis has also been laid on the
term backwardness having nexus with the reservation in
promotion and collection of quantifiable data in a proper
perspective. He has drawn inspiration from various paragraphs
in M. Nagaraj (supra) to show that when an enabling provision
D is held valid, its exercise can be arbitrary and in the case at
hand, the provisions are absolutely arbitrary, Ui1reasonable and
irrational.
36. To appreciate the rival submissions raised at the bar
E and the core controversy, it is absolutely seemly to understand
what has been held in M. Nagraj (supra) by the Constitution
Bench. While assailing the validity of Article 16(4A) of the
Constitution which provides for reservation in promotion with a
consequential seniority, it was contended that equity in the
F context of Article 16(1) connotes accelerated promotion so as
not to include consequential seniority and as consequential
seniority has been attached to the accelerated promotion, the
constitutional amendment is violative of Article 14 read with
Article 16(1) of the Constitution. Various examples were cited
G about the disastrous affects that would be ushered in, in view
of the amendment. After noting all the contentions, the
Constitution Bench addressed to the concept of reservation in
the context of Article 16(4) and further proceeded to deal with
equity, justice and merit. In that context, the Bench stated thus:-
H 20. c2oos) s sec 1.
U.P. POWER CORPORATION LTD. v. RAJESH 161
KUMAR & ORS. [DIPAK MISRA, J.]
'This problem has to be examined, therefore, on the facts A
of each case. Therefore, Article 16(4) has to be construed
in the light of Article 335 of the Constitution. Inadequacy in
representation and backwardness of Scheduled Caste and
Scheduled Tribes are circumstances which enable the
State Government to act under Article 16(4) of the B
Constitution. However, as held by this Court the limitations
on the discretion of the Government in the matter of
reservation under Article 16(4) as well as
Article 16(4A) come in the form of Article 335 of the
Constitution." c
While dealing with reservation and affirmative action, the
Constitution Bench opined thus: -
"48. It is the equality "in fact" which has to be decided
looking at the ground reality. Balancing comes in where D
the question concerns the extent of reservation. If the extent
of reservation goes beyond cut-off point then it results in
reverse discrimination. Anti-discrimination legislation has
a tendency of pushing towards de facto reservation.
Therefore, a numerical benchmark is the surest immunity E
against charges of discrimination.
49. Reservation is necessary for transcending caste and
not for perpetuating it. Reservation has to be used in a
limited sense otherwise it will perpetuate casteism in the
F
country. Reservation is under-written by a special
justification. Equality in Article 16(1) is individual- specific
whereas reservation in Article 16(4) and Article 16 (4-A) is
enabling. The discretion of the State is, however, subject
to the existence of "backwardness" and "inadequacy of
representation" in public employment. Backwardness has G
to be based on objective factors whereas inadequacy has
to factually exist. This is where judicial review comes in.
However, whether reservation in a given case is desirable
or not, as a policy, is not for us to decide as long as the
parameters mentioned in Articles 16(4) and 16(4-A) are H
162 SUPREME COURT REPORTS [2012] 4 S.C.R.
A maintained. As stated above, equity, justice and merit
(Article 335)/efficiency are variables which can only be
identified and measured by the State. Therefore, in each
case, a contextual case has to be made out depending
upon different circumstances which may exist Statewise."
B
37. The Bench referred to the cases of Indra Sawhney
(supra), R.K. Sabharwal (supra), Vir Pal Singh Chauhan
(supra), Ajit Singh (I) (supra) and Ajit Singh (II) (supra) and
opined that the concept of catch-up rule and consequential
C seniority are judicially evolved concepts to control the extent in
reservation and the creation of this concept is relatable to
service jurisprudence. Thereafter, the Constitution Bench
referred to the scope of the impugned amendment and the
Objects and Reasons and, in paragraph 86, observed thus: -
D "Clause (4-A) follows the pattern specified in Clauses (3)
and (4) of Article 16. Clause (4-A) of Article 16
emphasizes the opinion of the States in the matter of
adequacy of representation. It gives freedom to the State
in an appropriate case depending upon the ground reality
E to provide for reservation in matters of promotion to any
class or classes of posts in the services. The State has to
form its opinion on the quantifiable data regarding
adequacy of representation. Clause (4-A) of Article 16 is
an enabling provision. It gives freedom to the State to
F 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). Therefore, Clause (4-
A) will be governed by the two compelling reasons -
"backwardness" and "inadequacy of representation", as
mentioned in Article 16(4). If the said two reasons do not
G
exist then the enabling provision cannot come into force.
The State can make provision for reservation only if the
above two circumstances exist. Further in Ajit Singh (//),
this Court has held that apart from "backwardness" and
"inadequacy of representation" the State shall also keep
H
U.P. POWER CORPORATION LTD. v. RAJ ESH 163
KUMAR & ORS. [DIPAK MISRA, J.]
in mind "overall efficiency" (Article 335). Therefore, all the A
three factors have to be kept in mind by the appropriate
Government in providing for reservation in promotion for
SCs and STs."
Thereafter, the Bench referred to the 2000 Amendment B
Act, the Objects and Reasons and the proviso inserted to Article
335 of the Constitution and held thus: -
"98. By the Constitution (Eighty-Second Amendment) Act.
2000, a proviso was inserted at the end of Article 335 of
the Constitution which reads as under: C
"Provided that nothing in this article shall
prevent in making of any provision in favour of the
members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks o
in any examination or lowering the standards of
evaluation, for reservation in matters of promotion
to any class or classes of services or posts in
connection with the affairs of the Union or of a
State."
E
99. This proviso was added following the benefit of
reservation in promotion conferred upon SCs and STs
alone. This proviso was inserted keeping in mind the
judgment of this Court in Vinod Kumarwhich took the view
that relaxation in matters of reservation in promotion was F
not permissible under Article 16(4) in view of the command
contained in Article 335. Once a separate category is
carved out of Clause (4) of Article 16 then that category is
being given relaxation in matters of reservation in
promotion. The proviso is confined to SCs and STs alone. G
The said proviso is compatible with the scheme of
Article 16(4-A)."
In paragraph 102, their Lordships have ruled thus: -
H
164 SUPREME COURT REPORTS [2012] 4 S.C.R.
A "Clause (4) of Article 16, however, states that the
appropriate Government is free to provide for reservation
in cases where it is satisfied on the basis of quantifiable
data that backward class is inadequately represented in
the services. Therefore, in every case where the State
B decides to provide for reservation there must exist two
circumstances, namely, "backwardness" and "inadequacy
of representation'. As stated above, equity, justice and
efficiency are variable factors. These factors are context-
specific. There is no fixed yardstick to identify and
c measure these three factors, it will depend on the facts and
circumstances of each case. These are the limitations on
the mode of the exercise of power by the State. None of
these limitations have been removed by the impugned
amendments. If the concerned State fails to identify and
D measure backwardness, inadequacy and overall
administrative efficiency then in that event the provision for
reservation would be invalid. These amendments do not
alter the structure of Articles 14, 15 and 16 (equity code).
The parameters mentioned in Article 16(4) are retained.
Clause (4-A) is derived from Clause (4) of Article 16.
E Clause (4-A) is confined to SCs and STs alone. Therefore,
the present case does not change the identity of the
Constitution."
After so stating, it was observed that there is no violation of the
F basic structure of the Constitution and the provisions are
enabling provisions. At that juncture, it has been observed as
follows: -
"Article 16(4) is enacted as a remedy for the past historical
G
discriminations against a social class. The object in
enacting the enabling provisions like Articles 16(4), 16(4-
A) and 16(4-B) is that the State is empowered to identify
and recognize the compelling interests. If the State has
quantifiable data to show backwardness and inadequacy
then the State can make reservations in promotions
H
U.P. POWER CORPORATION LTD. v. RAJESH 165
KUMAR & ORS. [DIPAK MISRA, J.]
keeping in mind maintenance of efficiency which is held A
to be a constitutional limitation on the discretion of the
State in making reservation as indicated by Article 335.
As stated above, the concepts of efficiency,
backwardness, inadequacy of representation are required
to be identified and measured. That exercise depends on B
availability of data. That exercise depends on numerous
factors. It is for this reason that enabling provisions are
required to be made because each competing claim
seeks to achieve certain goals. How best one should
optimize these conflicting claims can only be done by the c
administration in the context of local prevailing conditions
in public employment. This is amply demonstrated by the
various decisions of this Court discussed hereinabove.
Therefore, there is a basic difference between "equality in
law" and "equality in fact" (See Affirmative Action by 0
William Darity). If Articles 16(4-A) and 16(4-8) flow from
Article 16(4) and if Article 16(4) is an enabling provision
then Articles 16(4-A) and 16(4-B) are also enabling
provisions. As long as the boundaries mentioned in
Article 16(4), namely, backwardness, inadequacy and
efficiency of administration are retained in Articles 16(4- E
A) and 16(4-8) as controlling factors, we cannot attribute
constitutional invalidity to these enabling provisions.
However, when the State fails to identify and implement
the controlling factors then excessiveness comes in, which
is to be decided on the facts of each case. In a given case, F
where excessiveness results in reverse discrimination, this
Court has to examine individual cases and decide the
matter in accordance with law. This is the theory of "guided
power''. We may once again repeat that equality is not
violated by mere conferment of power but it is breached G
by arbitrary exercise of the power conferred."
In paragraph 108, the Bench analyzed the concept of
application of the doctrine of guided power under Article 335
of the Constitution and, in that context, opined thus: - H
166 SUPREME COURT REPORTS [2012] 4 S.C.R.
A "Therefore, the question before us is - whether the State
could be empowered to relax qualifying marks or standards
for reservation in matters of promotion. In our view, even
after insertion of this proviso, the limitation of overall
efficiency in Article 335 is not obliterated. Reason is that
8 "efficiency" is a variable factor. It is for State concerned to
decide in a given case, whether the overall efficiency of
the system is affected by such relaxation. If the relaxation
is so excessive that it ceases to be qualifying marks then
certainly in a given case, as in the past, the State is free
c not to relax such standards. In other cases, the State may
evolve a mechanism under which efficiency, equity and
justice, all three variables, could be accommodated.
Moreover, Article 335 is to be read with Article 46 which
provides that the State shall promote with special care the
educational and economic interests of the weaker sections
D
of the people and, in particular, of the scheduled castes
and scheduled tribes, and shall protect them from social
injustice. Therefore, where the State finds compelling
interests of backwardness and inadequacy, it may relax
the qualifying marks for SCs/STs. These compelling
E interests however have to be identified by weighty and
comparable data."
Thereafter, the Constitution Bench proceeded to deal with
the test to judge the validity of the impugned State Acts and
F opined as follows: -
"110. As stated above, the boundaries of the width of the
power, namely, the ceiling-limit of 50% (the numerical
benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of
G
representation and the overall administrative efficiency are
not obliterated by the impugned amendments. At the
appropriate time, we have to consider the law as enacted
by various States providing for reservation if challenged.
At that time we have to see whether limitations on the
H
U.P. POWER CORPORATION LTD. v. RAJESH 167
KUMAR & ORS. [DIPAK MISRA, J.]
exercise of power are violated. The State is free to A
exercise its discretion of providing for reservation subject
to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation
in a class of post(s) keeping in mind the overall
administrative efficiency. It is made clear that even if the B
State has reasons to make reservation, as stated above,
if the impugned law violates any of the above substantive
limits on the width of the power the same would be liable
to be set aside."
In paragraph 117, the Bench laid down as follows: -
c
"The extent of reservation has to be decided on facts of
each case. The judgment in Indra Sawhney does not deal
with constitutional amendments. In our present judgment,
we are upholding the validity of the constitutional D
amendments subject to the limitati_ons. Therefore, in each
case the Court has got to be satisfied that the State has
exercised its opinion in making reservations in promotions
for SCs and STs and for which the State concerned will
have to place before the Court the requisite quantifiable E
data in each case and satisfy the Court that such
reservations became necessary on account of inadequacy
of representation of SCs/ STs in a particular class or
classes of posts without affecting general efficiency of
service as mandated under Article 335 of the Constitution." F
In the conclusion portions, in paragraphs 123 and 124, it has
been ruled thus: -
"123. However, in this case, as stated above, the main
issue concerns the "extent of reservation". In this regard G
the State concerned 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 H
168 SUPREME COURT REPORTS [2012] 4 S.C.R.
A an enabling provision. The State is not bound to make
reservation for SCs/STs in matter of promotions. However,
if they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of
B representation of that class in public employment in
addition to compliance with Article 335. It is made clear
that even if the State has compelling reasons, as stated
above, the State will have to see that its reservation
provision does not lead to excessiveness so as to breach
c 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,
D 2000; the Constitution (Eighty-Second Amendment) Act,
2000 and the Constitution (Eighty-Fifth Amendment) Act,
2001."
38. From the aforesaid decision and the paragraphs we
E have quoted hereinabove, the following principles can be carved
out: -
(i) Vesting of the power by an enabling provision may
be constitutionally valid and yet 'exercise of power'
by the State in a given case may be arbitrary,
F particularly, if the State fails to identify and measure
backwardness and inadequacy keeping in mind the
efficiency of service as required under Article 335.
(ii) Article 16(4) which protects the interests of certain
G 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
harmonized because they are restatements of the
principle of equality under Article 14.
H
U.P. POWER CORPORATION LTD. v. RAJESH 169
KUMAR & ORS. [DIPAK MISRA, J.]
(iii) Each post gets marked for the particular category A
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 B
strength as a unit in the operation of the roster in
order to ascertain whether a given class/group is
adequately represented in the service. The cadre
strength as a unit also ensures that the upper ceiling-
limit of 50% is not violated. Further roster has to be C
post-specific and not vacancy based.
(v) The State has to form its opinion on the quantifiable
data regarding adequacy of representation. Clause
(4A) of Article 16 is an enabling provision. It gives
freedom to the State to provide for reservation in D
matters of promotion. Clause (4A) of Article 16
applies only to SCs and STs. The said clause is
carved out of Article 16(4A). Therefore, Clause (4A)
will be governed by the two compelling reasons -
"backwardness" and "inadequacy of E
representation", as mentioned in Article 16(4). If the
said two reasons do not exist, then the enabling
provision cannot be enforced.
(vi) If the ceiling-limit on the carry-over of unfilled
F
vacancies is removed, the other alternative time-
factor comes in and in that event, the time-scale
has to be imposed in the interest of efficiency in
administration as mandated by Article 335. If the
time-scale is not kept, then posts will continue to
remain vacant for years which would be detrimental G
to the administration. Therefore, in each case, the
appropriate Government will now have to introduce
the duration depending upon the fact-situation.
H
170 SUPREME COURT REPORTS [2012] 4 S.C.R.
A (vii) If the appropriate Government enacts a law
providing for reservation without keeping in mind the
parameters in Article 16(4) and Article 335, then
this Court will certainly set aside and strike down
such legislation.
B
(viii) The constitutional limitation under Article 335 is
relaxed and not obliterated. As stated above, be it
reservation or evaluation, excessiveness in either
would result in violation of the constitutional
mandate. This exercise, however, will depend on
c the facts of each case.
(ix) The concepts of efficiency, backwardness and
inadequacy of representation are required to be
identified and measured. That exercise depends on
D 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 optimize these
E conflicting claims can only be done by the
administration in the context of local prevailing
conditions in public employment.
(x) Article 16(4), therefore, creates a field which
enables a State to provide for reservation provided
F
there exists backwardness of a class and
inadequacy of representation in employment. These
are compelling reasons. They do not exist in Article
16(1). It is only when these reasons are satisfied
that a State gets the power to provide for
G reservation in the matter of employment.
39. At this stage, we think it appropriate to refer to the case
··of Suraj Bhan Meena and another (supra). In the said case,
while interpreting the case in M. Nagaraj (supra), the two-Judge
H Bench has observed: -
U.P. POWER CORPORATION LTD. v. RAJESH 171
KUMAR & ORS. [DIPAK MISRA, J.]
"10. In M. Nagaraj case, this Court while upholding the A
constitutional validity of the Constitution (77thAmendment)
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 B
in case the State Government wanted to frame such rules
in this regard, then it would have to satisfy itself by
quantifiable data, that there was backwardness,
i~adequacy of representation in public employment and
overall administrative inefficiency and unless such an c
exercise was undertaken by the State Government, the rule
relating to reservation in promotion with consequential
seniority could not be introduced."
40. In the said case, the State Government had not
undertaken any exercise as indicated in M. Nagaraj (supra). D
The two-Judge Bench has noted three conditions in the said
judgment. It was canvassed before the Bench that exercise to
be undertaken as per the direction in M. Nagaraj (supra) was
mandatory and the State cannot, either directly or indirectly,
circumvent or ignore or refuse to undertake the exercise by E
taking recourse to the Constitution (Eighty-Fifth Amendment)
Act providing for reservation for promotion with consequential
seniority. While dealing with the contentions, the two-Judge
Bench opined that the State is required to place before the
Court the requisite quantifiable data in each case and to satisfy F
the court that the said reservation became necessary on
account of inadequacy of representation of Scheduled Castes
and Scheduled Tribes candidates in a particular class or
classes of posts, without affecting the general efficiency of
service. Eventually, the Bench opined as follows: - G
"66. The position after the decision in M. Nagaraj case is
that reservation of posts in promotion is dependent on the
inadequacy of representation of members of the
Scheduled Castes and Scheduled Tribes and Backward H
172 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Classes and subject to the condition of ascertaining as to
whether such reservation was at all required.
67. The view of the High Court is based on the decision
in M. Nagaraj case as no exercise was undertaken in
8 terms of Article 16(4-A) to acquire quantifiable data
regarding the inadequacy of representation of the
Schedule Caste and Scheduled Tribe communities in
public services. The Rajasthan High Court has rightly
quashed the notifications dated 28.12.2002 and
25.4.2008 issued by the State of Rajasthan providing for
c consequential seniority and promotion to the members of
the Scheduled Caste and Scheduled Tribe communities
and the same does not call for any interference."
After so stating, the two-Judge Bench affirmed the view taken
D by the High Court of Rajasthan.
41. As has been indicated hereinbefore, it has been
vehemently argued by the learned senior counsel for the State
and the learned senior counsel for the Corporation that once
E the principle of reservation was made applicable to the
spectrum of promotion, no fresh exercise is necessary. It is also
urged that the efficiency in service is not jeopardized. Reference
has been made to the Social Justice Committee Report and
the chart. We need not produce the same as the said exercise
F was done regard being had to the population and vacancies
and not to the concepts that have been evolved in M. Nagaraj
(supra). It is one thing to think that there are statutory rules or
executive instructions to grant promotion but it cannot be
forgotten that they were all subject to the pronouncement by this
Court in Vir Pal Singh Chauhan (supra) and Ajit Singh {//)
G (supra). We are of the firm view 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 the stamp of approval
H
U.P. POWER CORPORATION LTD. v. RAJESH 173
KUMAR & ORS. [DIPAK MISRA, J.]
to the Act and the Rules cannot withstand close scrutiny A
inasmuch as the Constitution Bench has clearly opined that
Articles 16(4A) and 16(4B) are enabling provisions and the
State can make provisions for the same on certain basis or
foundation. The conditions precedent have not been satisfied.
No exercise has been undertaken. What has been argued with B
vehemence is that it is not necessary as the concept of
reservation in promotion was already in vogue. We are unable
to accept the said submission, for when the provisions of the
Constitution are treated valid with certain conditions or riders,
it becomes incumbent on the part of the State to appreciate c
and apply the test so that its amendments can be tested and
withstand the scrutiny on parameters laid down therein.
42. In the ultimate analysis, we conclude and hold that
Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules
are ultra vires as they run counter to the dictum in M. Nagaraj D
(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 8A shall remain undisturbed.
43. The appeals arising out of the final judgment of Division E
Bench at Allahabad are allowed and the impugned order is set
aside. The appeals arising out of the judgment from the Division
Bench at Lucknow is affirmed subject to the modification as
stated hereinabove. In view of the aforesaid, all other appeals
are disposed of. The parties shall bear their respective costs. F
R.P. Appeals disposed of.
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