B K PAVITRA AND ORS. versus THE UNION OF INDIA AND ORS

[2019] 7 S.C.R.

K PAVITRA AND ORS.

THE UNION OF INDIA AND ORS

(M. A. No. 1151 of 2018)

(Civil Appeal No. 2368 of 2011)

MAY 10, 2019

[UDAY UMESH LALIT AND

CDR. DHANANJAYA Y CHANDRACHUD, JJ.]

Karnataka Extension of Consequential Seniority toGovernment Servants Promoted on the Basis of Reservation (to thePosts in the Civil Services of the State) Act, 2018:

DValidity of – Held: Reservation Act 2018 is constitutionallyvalid – Reservation Act 2018 has cured the deficiency noticed by*B K Pavitra I in respect of the Reservation Act 2002 – ReservationAct 2018 does not amount to usurpation of judicial power by thestate legislature – The Act is valid exercise of the enabling powerconferred by Art. 16 (4A) – Karnataka Determination of SeniorityEof the Government Servants Promoted on the Basis of Reservation(to the Posts in the Civil Services of the State) Act, 2002 – Constitutionof India – Art. 16 (4A).

2018 Act, if overruled or nullified K Pavitra I case – InB K Pavitra I case, the Reservation Act 2002 was held to beFunconstitutional since the State did not collect the quantifiable dataon the three parameters enunciated in Nagaraj case-inadequacy ofrepresentation, backwardness and overall efficiency, beforeproviding for reservation in promotion and consequential seniority– Thereafter, enactment of 2018 Act – Held: Following the decisionin *B K Pavitra I, the State government duly carried out the exerciseGof collating and analysing data on the compelling factors advertedto in Nagaraj case – State legislature of Karnataka, by enactingthe Reservation Act 2018, has not nullified the judicial decision in*B K Pavitra I, but taken care to remedy the underlying cause whichled to declaration of invalidity in the first place – Thus, the

Reservation Act 2018 cured the deficiency noticedAby *B K Pavitra I in respect of the Reservation Act 2002 – Such alaw is valid because it removes the basis of the decision – KarnatakaDetermination of Seniority of the Government Servants Promotedon the Basis of Reservation (to the Posts in the Civil Services of theState) Act, 2002.

s. 4 – Protection of consequential seniority already accordedfrom 27.04.1978 onwards – Provision in regard to retrospectivity,whether arbitrary or unconstitutional – Held: Provisions are neitherarbitrary or unconstitutional – Section 4 stipulates that theconsequential seniority already granted to government servantsbelonging to the SCs and STs in accordance with the reservationorder with effect from 27.04.1978 shall be valid and shall beprotected – Since decision in Virpal Singh held that the catch-up rulewould be applied only from 10.02.1995, decision in Ajit Singh IIspecifically protected the promotions granted before 01.03.1996without following the catch-up rule; and in Badappanavar’s case,promotions of reserved candidates based on consequential senioritywhich took place before 01.03.1996 were specifically protected, itwas logical for the legislature to protect consequential seniority –Object of the Reservation Act 2018 is to accord consequentialseniority to promotees against roster points.

Constitution of India:

Arts. 200 and 201 – Assent to the Bill – Reservation of theBill( which led to Reservation Act, 2018) by the Governor for theconsideration of the President – Power u/Art. 200 – Exercise of –Held: Once the Bill was reserved by the Governor for theconsideration of the President, it was for the President to eithergrant or withhold assent to the Bill – President having assented tothe Bill, the requirements of Art. 201 were fulfilled – Validity of theassent by the President is non-justiciable – State Government, wasof the view that there was no necessity of reserving the Bill for theconsideration of the President, since in its view, the Governor hadnot recorded finding that it was unconstitutional, or fell afoul ofexisting central legislation on the subject or that it was beyondlegislative competence or derogated from the fundamental rights –This objection of the State Government cannot cast doubt upon thegrant of assent by the President – Karnataka Extension ofConsequential Seniority to Government Servants Promoted on the

FGH

ABasis of Reservation (to the Posts in the Civil Services of the State)Act, 2018.

Art. 16(4A) and (4B) – Ratna Prabha Committee report –Collection of data by State on adequacy of representation and impacton efficiency – Exercise of judicial power on propriety andBsufficiency – Held: Court should recognize the circumspection withwhich judicial power must be exercised – Judicial review musttraverse conventional categories by determining as to whether theRatna Prabha Committee considered material which was irrelevantor extraneous or had drawn conclusion which no reasonablebody of persons could have adopted.

Art. 16(4A) and (4B) – Ratna Prabha Committee report –Report, commissioned to collect information on cadre wiserepresentation of SC and ST employees in all governmentdepartments and on backwardness of SCs and STs; and study theeffect on the administration due to the promotion of SCs and STs –DReport, whether constituted an adequate and appropriate basis tosupport the validity of the Reservation Act and its implementation –Held: Ratna Prabha Committee report is valid – After the decisionin *B K Pavitra I, the Ratna Prabha Committee was correctlyappointed to carry out the required exercise – Committee has notEbased its conclusions on any extraneous or irrelevant material – Inadopting recourse to sampling methodologies, the Committee hasnot acted arbitrarily – The exercise cannot be invalidated only onthe ground that data pertaining to particular department or ofsome entities was not analysed – State analysed the data which isboth relevant and representative, before drawing its conclusions –FEven if there were some errors in data collection, that would notjustify the invalidation of law which the competent legislaturewas within its power to enact – Furthermore, there is no merit in thechallenge to the Ratna Prabha Committee report on the ground thatthe collection of data was on the basis of groups A, B, and asGopposed to cadres – Collection of data on the basis of groups toD does not by its very nature exclude data pertaining to cadres –Since, the group includes posts in all the cadres in that group, itcan logically be presumed that the State has collected quantifiabledata on the representation of SCs and STs in promotional posts inthe cadres as well – Karnataka Extension of Consequential Seniority

to Government Servants Promoted on the Basis of Reservation (tothe Posts in the Civil Services of the State) Act, 2018.

Art. 16(1) and (4) – Equality – Substantive versus formalequality – Constitutional content of – Held: For equality to be trulyeffective or substantive, the principle must recognise existinginequalities in society to overcome them – Reservations are not anexception to the rule of equality of opportunity, rather the truefulfilment of effective and substantive equality by accounting forthe structural conditions into which people are born.

Interpretation of the Constitution – Held: Constitution is atransformative document – Realization of its transformative potentialrests ultimately in its ability to breathe life and meaning into itsabstract concepts – Constitution was intended by its draftspersonsto be significant instrument of bringing about social change –Realisation of the transformative potential of the Constitution hasbeen founded on the evolution of equality away from its formalunderpinnings to its substantive potential.

Art. 335 proviso – Claims of Scheduled Castes and ScheduledTribes to services and posts – Constitutional justification forefficiency in administration – Held: Under Art. 335 considerationof the claims of SCs and STs in making appointments to servicesand posts in connection with the affairs of the Union or of State isto be in manner consistent with maintaining the efficiency ofadministration – Proviso to Art. 335 specifically protects provisionsin favour of the SCs and STs for relaxing qualifying marks in anexamination; lowering the standards of evaluation; or reservationin matters of promotion – Proviso recognises that special measuresneed to be adopted for considering the claims of SCs and STs inorder to bring them to level playing field – Proviso is not aqualification to the substantive part of Art. 335 but it embodies asubstantive effort to realise substantive equality – Need to maintainthe efficiency of administration cannot be construed as fetter onadopting these special measures designed to uplift and protect thewelfare of the SCs and STs.

Art. 335 – Phrase “efficiency of administration” – Definitionof – Held: Constitution does not define the phrase “efficiency ofadministration” – Art. 335 cannot be construed on an assumption

Athat roster point promotees drawn from SCs and STs are not efficientor that efficiency is reduced by appointing them – Benchmark forthe efficiency of administration is not the performance of qualifiedopen category candidate – Efficiency of administration in the affairsof the Union or of State must be defined in an inclusive sense,where diverse segments of society find representation as trueBaspiration of governance by and for the people – Inclusion togetherwith the recognition of the plurality and diversity of the nationconstitutes valid constitutional basis for defining efficiency –Hence, while interpreting Art. 335, it is necessary to liberate theconcept of efficiency from one sided approach which ignores theCneed for and the positive effects of the inclusion of diverse segmentsof society on the efficiency of administration – Since inclusion isinseparable from well governed society, there is, no antithesisbetween maintaining the efficiency of administration andconsidering the claims of the SCs and STs to appointments.DArts. 335, 16(4) and 46 – Reservation for SCs and STs –Principal of meritocracy – Held: Providing of reservations for SCsand the STs is not at odds with the principle of meritocracy – “Merit”must not be limited to narrow and inflexible criteria such as one’srank in standardised exam, but rather must flow from the actionsa society seeks to reward, including the promotion of equality inEsociety and diversity in public administration – Proviso to Art. 335allows for provisions to be made for relaxing the marks in qualifyingexams in the case of candidates from the SCs and the STs – If thegovernment’s sole consideration in appointments was to appointindividuals who were considered talented or successful inFstandardised examinations, by virtue of the inequality in access toresources and previous educational training (existing inequalitiesin society), the stated constitutional goal of uplifting these sectionsof society and having diverse administration would be undermined– Thus, “meritorious” candidate is not merely one who is “talented”or “successful” but also one whose appointment fulfils theGconstitutional goals of uplifting members of the SCs and STs andensuring diverse and representative administration.

Arts. 16 (4A), (4B), 16(1) and 14 – Reservation – Concept ofcreamy layer – Applicability to SCs and STs – Plea that concept ofcreamy layer is inapplicable to the SCs and STs; and that the SCsH

and STs cannot be split or bifurcated and the adoption of the creamylayer principle would amount to split in the homogenous groupsof the SCs and STs – Held: Cannot be accepted – Creamy layerprinciple sounds in Arts. 14 and 16(1) – Creamy layer principle is aprinciple of equality.

Arts. 16 (4A) and (4B) – Reservation – Concept of creamylayer – Application of the concept of creamy layer in assessing thevalidity of the Reservation Act 2018 – Held: Concept of creamylayer has no application in assessing the validity of the ReservationAct 2018 which is designed to protect consequential seniority uponpromotion of persons belonging to the SCs and STs – ReservationAct 2018 adopts the principle that consequential seniority is not anadditional benefit but consequence of the promotion which isgranted to the SCs and STs – Concept of creamy layer has norelevance to the grant of consequential seniority – Consequentialseniority is concept purely based in service jurisprudence – Thus,incorporation of consequential seniority would not violate theconstitutional mandate of equality – Protection of consequentialseniority as an incident of promotion does not require the applicationof the creamy layer test – Arts 16 (4A) and 16 (4B) were held to notobliterate any of the constitutional limitations and to fulfil the widthtest – Karnataka Extension of Consequential Seniority toGovernment Servants Promoted on the Basis of Reservation (to thePosts in the Civil Services of the State) Act, 2018.

Arts 16(4A) and (4B) – Reservation in promotion – Plea thatover representation for SCs and STs in Karnataka Power TransportCorporation Limited and PWD due to reservation in seniority in thecadre of Superintending Engineer and Engineer in Chief – Held:Cannot be accepted in view of the report of the Ratna PrabhaCommittee collected data from thirty one departments of the StateGovernment of Karnataka, which was taken as representative ofthe position in public employment under the State – KPTCL andPWD fall within the administrative control of one of the departments.

Legislation: Curative legislation – Scope and permissibilityof – Held: Curative legislation is constitutionally permissible – It isnot an encroachment on judicial power – Legislature has the plenarypower to enact law, both with prospective and retrospective effect– Where law has been invalidated by the decision of

Aconstitutional court, the legislature can amend the lawretrospectively or enact law which removes the cause forinvalidation – Legislature cannot overrule decision of the courton the ground that it is erroneous or is nullity – However, it caneither amend an existing law or to enact law which removes thebasis on which declaration of invalidity was issued in the exerciseBof judicial review – Declaration by court that law isconstitutionally invalid does not fetter the authority of the legislatureto remedy the basis on which the declaration was issued by curingthe grounds for invalidity – Legislature cannot simply override thedeclaration of invalidity – It has to remedy basis on which it wasCheld to be ultra vires – Law may have been held to be invalid on theground that the legislature which enacted the law had no legislativecompetence on the subject matter of the legislation, or law mayhave been declared invalid on the ground that there was breachof the fundamental rights contained in Part III of the Constitution.

DThe constitutional validity of the Karnataka Determinationof Seniority of the Government Servants Promoted on the Basisof the Reservation (to the Posts in the Civil Services of the State)Act 2002 providing for consequential seniority was challenged inB K Pavitra v Union of India case (*B K Pavitra I). This Courtinvalidated the Reservation Act 2002 since no exercise of dataEcollection was carried out by the State of Karnataka as mandatedby the M Nagraj case, to provide for consequential seniority tothe scheduled castes and scheduled tribe candidates. Thereafter,the Government of Karnataka constituted the Ratna PrabhaCommittee to submit report on backwardness and inadequacy of

Frepresentation of SCs and STs in the State Civil Services and theimpact of reservation on overall administrative efficiency in theState of Karnataka. On the basis of the report, the State ofKarnataka enacted the Karnataka Extension of ConsequentialSeniority to Government Servants Promoted on the Basis ofReservation (to the Posts in the Civil Services of the State) ActG2018, wherein section 3 provides for reservation in promotionand section 4 provides for protection of consequential seniorityfrom 27[th] April 1978 onwards. Hence, the instant matterschallenging the validity of the Reservation Act, 2018.

Dismissing the Writ Petitions, Review Petitions andMiscellaneous Applications, the Court

HELD : 1.The challenge to the constitutional validity ofthe Karnataka Extension of Consequential Seniority toGovernment Servants Promoted on the Basis of Reservation (tothe Posts in the Civil Services of the State) Act, 2018 is lackingin substance. Following the decision in *B K Pavitra I, the Stategovernment duly carried out the exercise of collating andanalysing data on the compelling factors adverted to by theConstitution Bench in Nagaraj. The Reservation Act 2018 hascured the deficiency which was noticed by * K Pavitra I inrespect of the Reservation Act 2002. The Reservation Act 2018does not amount to usurpation of judicial power by the statelegislature. It is Nagaraj and Jarnail compliant. The ReservationAct 2018 is valid exercise of the enabling power conferred byArt. 16(4A) of the Constitution. The constitutional validity of theReservation Act 2018 is upheld. [Para 144-145] [1218-C-E]

M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]7 Suppl. SCR 336 - followed.

*B K Pavitra v Union of India (2017) 4 SCC 620 :[2017] 1 SCR 631 ; Jarnail Singh v Lachhmi NarainGupta 2018 (10) SCC 396 - relied on.

Assent to the Bill

2.1 The framers carefully eschewed defining thecircumstances in which the Governor may reserve Bill for theconsideration of the President. By its very nature the confermentof the power cannot be confined to specific categories. Exigenciesmay arise in the working of the Constitution which justify arecourse to the power of reserving Bill for the consideration ofthe President. They cannot be foreseen with the vision of asoothsayer. The power having been conferred upon constitutionalfunctionary, it is conditioned by the expectation that it would beexercised upon careful reflection and for resolving legitimateconcerns in regard to the validity of the legislation. Theentrustment of constitutional discretion to the Governor ispremised on the trust that the exercise of authority would be

Agoverned by constitutional statesmanship. In federal structure,the conferment of this constitutional discretion is not intendedto thwart democratic federalism. The state legislatures representthe popular will of those who elect their representatives. Theyare the collective embodiments of that will. The act of reservinga Bill for the assent of the President must be undertaken uponBcareful reflection, upon doubt being entertained by the Governorabout the constitutional legitimacy of the Bill which has beenpassed. [Para 63] [1168-F-G; 1169-A-B]

2.2 Article 254(1) postulates inter alia, that in matter whichis governed by the Concurrent List, law which has been enactedCby the legislature of state shall be void to the extent of itsrepugnancy with law enacted by the Parliament. Clause (2) ofArticle 254 obviates that consequence where the law has beenreserved for the consideration of the President and has receivedassent. Article 254(1) is made subject to Clause (2), therebyDemphasizing that the assent of the President will cure arepugnancy of the state law with law enacted by the Parliamentin matter falling in the Concurrent List. The assent of thePresident should be sought in relation to repugnancy with aspecific provision contained in Parliamentary legislation so asto enable due consideration by the President of the ground onEwhich assent has been sought. Article 200 contains the source ofthe constitutional power which is conferred upon the Governorto reserve Bill for the consideration of the President. Article254 (2) is an illustration of the constitutional authority of theGovernor to reserve law enacted by the state legislature forFconsideration of the President in specified situation-where it isrepugnant to an existing law or to Parliamentary legislation ona matter falling in the Concurrent List. The eventuality which isspecified in Article 254 (2) does not exhaust the ambit of thepower entrusted to the Governor under Article 200 to reserve aBill for the consideration of the President. Apart from aGrepugnancy in matters falling in the Concurrent List betweenstate and Parliamentary legislation, Governor may have soundconstitutional reasons to reserve Bill for the consideration ofthe President. Article 200, in its second proviso mandates that

Bill which derogates from the powers of the High Court must bereserved for the consideration of the President. Apart from Billswhich fall within the description set out in the second proviso,the Governor may legitimately refer Bill for consideration ofthe President upon entertaining legitimate doubt about thevalidity of the law. By its very nature, it would not be possible forthis Court to reflect upon the situations in which the power underArticle 200 can be exercised. [Para 67] [1170-F-H; 1171-A-E]

2.3 Once the Bill (which led to the Reservation Act 2018)was reserved by the Governor for the consideration of thePresident, it was for the President to either grant or withholdassent to the Bill. The President having assented to the Bill, therequirements of Article 201 were fulfilled. The validity of theassent by the President is non-justiciable. [Para 69] [1172-D-E]

2.4 The State Government, in the course of its clarifications,was of the view that there was no necessity of reserving the Billfor the consideration of the President, since in its view, theGovernor had not recorded finding that it was unconstitutional,or fell afoul of existing central legislation on the subject or that itwas beyond legislative competence or derogated from thefundamental rights. All procedural requirements under theConstitution were according to the government duly compliedwith. This objection of the State Government cannot cast doubtupon the grant of assent by the President. [Para 70] [1173-B-C]

Hoechst Pharmaceuticals Ltd v State of Bihar (1983) 4SCC 45 : [1983] 3 SCR 130 - relied on.

Nabam Rebia and Bamang Felix v Deputy SpeakerArunachal Pradesh Legislative Assembly (2016) 8SCC 1 : [2016] 6 SCR 1 ; Gram Panchayat of VillageJamalpur v Malwinder Singh (1985) 3 SCC 661 ;Kaiser-I-Hind Pvt Ltd v National Textile CorporationLtd (2002) 8 SCC 182 : [2002] 2 Suppl. SCR 555- referred to.

Does the Reservation Act 2018 overrule or nullify KPavitra I

1096SUPREME COURT REPORTS

A3.1 The foundation of the decision in K Pavitra I is theprinciple enunciated in Nagaraj that in order to sustain theexercise of the enabling power contained in Article 16 (4A), thestate is required to demonstrate “compelling necessity” bycollecting quantifiable data on: (i) inadequacy of representation;(ii) backwardness; and (iii) overall efficiency. The judgment in BBK Pavitra I held that no such exercise was undertaken by theState of Karnataka before providing for reservation in promotionand providing for consequential seniority. On the ground thatthe state had not collected quantifiable data on the threeparameters enunciated in Nagaraj, the Reservation Act 2002 wasCheld to be unconstitutional. The Constitution Bench in Nagarajupheld the validity of Article 16 (4A) on the basis that beforetaking recourse to the enabling power the state has to carry outthe exercise of collecting quantifiable data and fulfilling the threeparameters noted above. K Pavitra I essentially held that therewas failure on the part of the state to undertake this exercise,Dwhich was pre-condition for the exercise of the enabling powerto make reservations in promotions and to provide forconsequential seniority. [Para 71] [1173-D-G]

M Nagaraj v Union of India (2006) 8 SCC 212 : [2006]7 Suppl. SCR 336 - followed.E*B K Pavitra v Union of India (2017) 4 SCC 620 :[2017] 1 SCR 631 - relied on.

3.2 The decision in K Pavitra I did not restrain the statefrom carrying out the exercise of collecting quantifiable data soFas to fulfil the conditionalities for the exercise of the enablingpower under Article 16 (4A). The legislature has the plenarypower to enact law. That power extends to enacting legislationboth with prospective and retrospective effect. Where law hasbeen invalidated by the decision of constitutional court, thelegislature can amend the law retrospectively or enact law whichGremoves the cause for invalidation. legislature cannot overrulea decision of the court on the ground that it is erroneous or isnullity. But, it is certainly open to the legislature either to amendan existing law or to enact law which removes the basis on

which declaration of invalidity was issued in the exercise ofjudicial review. Curative legislation is constitutionally permissible.It is not an encroachment on judicial power. In the instant case,state legislature of Karnataka, by enacting the Reservation Act2018, has not nullified the judicial decision in K Pavitra I, buttaken care to remedy the underlying cause which led to adeclaration of invalidity in the first place. Such law isvalid because it removes the basis of the decision. [Para 72]

[1173-G-H; 174-A-C]

*B K Pavitra v Union of India (2017) 4 SCC 620 :[2017] 1 SCR 631 - relied on.

Utkal Contractors & Joinery (P) Ltd v State of Orissa(1987) Supp. SCC 751 : 1988 SCR 314 ;Bhubaneshwar Singh v Union of India (1994) 6 SCC77 : [1994] 1 Suppl. SCR 639 ; Indian Aluminium Co vState of Kerala (1996) 7 SCC 637 ; State of HimachalPradesh v. Narain Singh (2009) 13 SCC 165 : [2009]10 SCR 821 ; Cheviti Venkanna Yadav v State ofTelangana (2017) 1 SCC 283 : [2016] 7 SCR 689– referred to.

3.3 The legislature has the power to validate law which isfound to be invalid by curing the infirmity. As an incident of theexercise of this power, the legislature may enact validating lawto make the provisions of the earlier law effective from the dateon which it was enacted. [Para 74] [1175-A-B]

The United Provinces v Mst Atiqa Begum AIR 1941 FC16 ; Rai Ramkrishna v State of Bihar (1964) 1 SCR897 ; Shri Prithvi Cotton Mills Ltd v Broach BoroughMunicipality (1969) 2 SCC 283 : [1970] 1 SCR 388 ;State of T N v Arooran Sugars Ltd (1997) 1 SCC 326 :[1996] 8 Suppl. SCR 193 ; Virender Singh Hooda vState of Haryana (2004) 12 SCC 588 : [2004] 5 Suppl.SCR 720 – referred to.

3.4 declaration by court that law is constitutionallyinvalid does not fetter the authority of the legislature to remedythe basis on which the declaration was issued by curing the

Agrounds for invalidity. While curing the defect, it is essential tounderstand the reasons underlying the declaration of invalidity.The reasons constitute the basis of the declaration. Thelegislature cannot simply override the declaration of invaliditywithout remedying the basis on which the law was held to beultra vires. law may have been held to be invalid on the groundBthat the legislature which enacted the law had no legislativecompetence on the subject matter of the legislation. Obviously,in such case, legislature which has been held to lack legislativecompetence cannot arrogate to itself competence over subjectmatter over which it has been held to lack legislative competence.CHowever, legislature which has the legislative competence toenact law on the subject can certainly step in and enact alegislation on field over which it possesses legislativecompetence. Apart from legislative competence, law may havebeen declared invalid on the ground that there was breach ofthe fundamental rights contained in Part III of the Constitution.DIn that situation, if the legislature proceeds to enact new law onthe subject, the issue in essence is whether the re-enacted lawhas taken care to remove the infractions of the fundamental rightson the basis of which the earlier law was held to be invalid. Thetrue test therefore is whether the legislature has acted withinEthe bounds of its authority to remedy the basis on which the earlierlaw was held to suffer from constitutional infirmity. [Para 76][1176-G-H; 1177-A-B; D-E]

Madan Mohan Pathak v Union of India (1978) 2 SCC50 : [1978] 3 SCR 334 – distinguished.FSri Ranga Match Industries v Union of India 1994 Supp.(2) SCC 726 ; Indian Aluminium Co v State of Kerala(1996) 7 SCC 637 ; Agricultural Income Tax Officer vGoodricke Group Ltd (2015) 8 SCC 399 : [2015] 3SCR 612 - referred to.GIs the basis of K Pavitra I cured in enacting theReservation Act 2018

4. The Statement of Objects and Reasons of theReservation Act 2018 refers to the legislative history precedingits enactment. The Ratna Prabha Committee was constituted afterH

the Reservation Act 2002 was held to be invalid in K Pavitra Ion the ground that no compelling necessity had been shown bythe state to provide for reservation in matters of promotion forSCs and STs by collecting and analysing relevant data to satisfythe requirements laid out in Nagaraj. The Statement of Objectsand Reasons, cannot be used for restricting the plain meaning ofa legislation; cannot determine whether provision is valid; andmay not be definitive of the circumstances in which it was passed.The preamble to law may be statutory aid to consider themischief which the law seeks to address. While it cannot prevailover the provisions of the statute, it can be an aid to resolve anambiguity. [Para 82, 84, 85] [1180-F-G; 1181-A; 1182-E-G]

Bhaiji v Sub-Divisional Officer, Thandla (2003) 1 SCC692 : [2002] 5 Suppl. SCR 116 ; Manjula Bhashini vA P Monen’s Coor. Finance Corp. Ltd. (2009) 8 SCC431 : [2009] 10 SCR 634 ; Kerala State (Electricity)Board v Indian Aluminum (1976) 1 SCC 466 : [1976] 1SCR 552 ; K S Paripoornan v State of Kerala (1994) 5SCC 593 : [1994] 3 Suppl. SCR 405 ; WelfareAssociation v Ranjit (2003) 9 SCC 358 : [2003] 2 SCR139 ; Burrakur Coal Co. Ltd. v Union of India AIR1961 SC 954 : 1962 SCR 44 ; Indra Sawhney v Unionof India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR454 ; M Nagaraj v Union of India (2006) 8 SCC 212 :[2006] 7 Suppl. SCR 336 ; Jarnail Singh v LachhmiNarain Gupta 2018 (10) SCC 396 - referred to.

The Ratna Prabha Committee report

5.1 The Ratna Prabha Committee report was commissionedto collect information on cadre wise representation of SC and STemployees in all government departments; collect informationon backwardness of SCs and STs; and study the effect on theadministration due to the promotion of SCs and STs. [Para 88][1183-F-G]

5.2 It is relevant for this Court to recognize thecircumspection with which judicial power must be exercised onmatters which pertain to propriety and sufficiency, in the contextof scrutinizing the underlying collection of data by the State on

Athe adequacy of representation and impact on efficiency. TheCourt, is above all, considering the validity of law which wasenacted by the State legislature for enforcing the substantive rightto equality for the SCs and STs. Judicial review must hencetraverse conventional categories by determining as to whetherthe Ratna Prabha Committee report considered material whichBwas irrelevant or extraneous or had drawn conclusion which noreasonable body of persons could have adopted. In this area, thefact that an alternate line of approach was possible or may evenappear to be desirable cannot furnish foundation for theassumption by the court of decision making authority which inCthe legislative sphere is entrusted to the legislating body and inthe administrative sphere to the executive arm of the government.[Para 95] [1188-E-G]5.3 The collection of data and its analysis are governed byvarying and often divergent approaches in the social sciences.DThe methodology which was adopted by the Ratna PrabhaCommittee has not been demonstrated to be alien to conventionalsocial science methodologies. It cannot be said that theCommittee has based its conclusions on any extraneous orirrelevant material. In adopting recourse to samplingmethodologies, the Committee cannot be held to have actedEarbitrarily. If, sampling is valid methodology for collection ofdata, the necessary consequence is that the exercise cannot beinvalidated only on the ground that data pertaining to particulardepartment or of some entities was not analysed. The data whichwas collected pertained to thirty one departments which areFrepresentative in character. The State has analysed the data whichis both relevant and representative, before drawing itsconclusions. There are limitations on the power of judicial reviewin entering upon factual arena involving the gathering, collationand analysis of data. [Para 97, 99] [1190-C; 1191-F-H; 1192-A]

GEmpircal Political Analysis – Quantitative andQualitative Research Methods Ninth Edn. Richard C.Rich, Craig Leonard Brians, Jarol Manheim andLars Willnat, Longman Publishers – referred to.

5.4 Once an opinion has been formed by the StateGovernment on the basis of the report submitted by an expertcommittee which collected, collated and analysed relevant data,it is impossible for the Court to hold that the compelling reasonswhich Nagaraj requires the State to demonstrate have not beenestablished. Even if there were to be some errors in datacollection, that will not justify the invalidation of law which thecompetent legislature was within its power to enact. After thedecision in K Pavitra I, the Ratna Prabha Committee wascorrectly appointed to carry out the required exercise. Once thatexercise has been carried out, the Court must be circumspect inexercising the power of judicial review to re–evaluate the factualmaterial on record. The adequacy of representation has to beassessed with reference to benchmark on adequacy.Conventionally, the State and the Central governments havelinked the percentage of reservation for the SCs and STs to theirpercentage of population, as measure of adequacy. Thus, it isopen to the State to make reservation in promotion for SCs andSTs proportionate to their representation in the generalpopulation. [Para 101, 102] [1192-D-G; 1193-A]

5.5 The submission that the quota must be reckoned onthe basis of the posts which are actually filled up or the workingstrength and not the sanctioned posts cannot be accepted. Thepercentage of reservation has to be worked out in relation tonumber of posts which form part of the cadre strength. There isno merit in the challenge to the Ratna Prabha Committee reporton the ground that the collection of data was on the basis of groupsA, B, and as opposed to cadres. For one thing, the expression‘cadre’ has no fixed meaning ascribed to it in servicejurisprudence. But that apart, Nagaraj requires the collection ofquantifiable data inter alia, on the inadequacy of representationin services under the State. Clause 4A of Article 16 specificallyrefers to the inadequacy of representation in the services underthe State. The collection of data on the basis of groups to Ddoes not by its very nature exclude data pertaining to cadres.The State has studied in the instant case the extent of reservationfor SCs and STs in groups to D, consisting of several cadres.

[2019] 7 S.C.R.

ASince, the group includes posts in all the cadres in that group, itcan logically be presumed that the State has collected quantifiabledata on the representation of SCs and STs in promotional postsin the cadres as well. [Para 103, 104] [1194-G-H; 1195-A-C]

5.6 In Indra Sawhney’s case, it was observed thatBreservation under Article 16 (4) does not operate on communalgrounds. Hence, if member belonging to reserved categoryis selected in the general category, the selection would not countagainst the quota prescribed for the reserved category. Thedecision in Sabharwal also noted that while candidates belongingto the general category are not entitled to fill reserved posts,Creserved category candidates are entitled to compete for postsin the general category. In several group posts, such asmunicipal sweepers, large segment of applicants consists ofpersons belonging to the SCs and STs. Over representation ingroup posts as result of candidates belonging to the generalDcategory staying away from those posts cannot be valid or logicalbasis to deny promotion to group employees recruited fromthe reserved category. [Para 105] [1195-D-F]

Amalgamated Tea Estates Co Ltd v State of Kerala (1974)4 SCC 415 : [1974] 3 SCR 820 ; V Shukla v StateE(Delhi Administration) (1980) Supp SCC 249 : 1980SCR 500 ; State of Himachal Pradesh v Satpal Saini(2017) 11 SCC 42 : [2017] 1 SCR 658 ; Indra Sawhneyv Union of India 1992 Supp (3) SCC 217 : [1992] 2Suppl. SCR 454 ; Barium Chemicals Ltd. v CompanyLaw Board AIR 1967 SC 295 : 1966 SCR 311 ; MFNagaraj v Union of India (2006) 8 SCC 212 : [2006] 7Suppl. SCR 336 ; Jarnail Singh v Lachhmi NarainGupta 2018 (10) SCC 396 ; Sabharwal v State ofPunjab (1995) 2 SCC 745 : [995] 2 SCR 35 - referredto.

GSubstantive versus formal equality

6.1 For equality to be truly effective or substantive, theprinciple must recognise existing inequalities in society toovercome them. Reservations are thus not an exception to the

rule of equality of opportunity. They are rather the true fulfilmentof effective and substantive equality by accounting for the structuralconditions into which people are born. If Article 16(1) merelypostulates the principle of formal equality of opportunity, thenArticle 16(4) (by enabling reservations due to existinginequalities) becomes an exception to the strict rule of formalequality in Article 16(1). However, if Article 16(1) itself sets outthe principle of substantive equality (including the recognition ofexisting inequalities) then Article 16(4) becomes the enunciationof one particular facet of the rule of substantive equality set outin Article 16 (1). One method of overcoming the inequalities inthe society is reservations for the SCs and STs in the legislaturesand state services. Therefore, for the members of the ConstituentAssembly who supported reservations, key rationale forincorporating reservations for SCs and STs in the Constitutionwas the existence of inequalities in society based on discriminationand prejudice within the caste structure. This is evidenced bythe statements in support of reservations for minorities bymembers. By recognising that formal equality of opportunity willbe insufficient in fulfilling the transformative goal of theConstitution, these members of the Assembly recognised thatthe conception of equality of opportunity must recognise andaccount for existing societal inequalities. Members debated draftarticle 10 (which would go on to become Article 16 of theConstitution). In these debates, some members understood sub-clause (4) (providing for reservations) as an exception to thegeneral rule of formal equality enunciated in sub-clause (1). [Paras107, 109] [1195-G-H; 1196-A-B; D-E; 1197-F-G; 1198-A]

The Constitution as transformative instrument

7. The Constitution is transformative document. Therealization of its transformative potential rests ultimately in itsability to breathe life and meaning into its abstract concepts. For,above all, the Constitution was intended by its draftspersons tobe significant instrument of bringing about social change in acaste based feudal society witnessed by centuries of oppressionof and discrimination against the marginalised. As ourconstitutional jurisprudence has evolved, the realisation of the

DEF

Atransformative potential of the Constitution has been founded onthe evolution of equality away from its formal underpinnings toits substantive potential. [Para 111] [1199-E-F]

T Devadasan v The Union of India AIR 1964 SC 179 :1964 SCR 680 ; State of Kerala v N M Thomas (1976)B2 SCC 310 : [1976] 1 SCR 906 ; ABS Sangh (Railways)v Union of India (1981) 1 SCC 246 : [1981] 2 SCR185 ; Indra Sawhney v Union of India 1992 Supp (3)SCC 217 : [1992] 2 Suppl. SCR 454 ; M Nagaraj vUnion of India (2006) 8 SCC 212 : [2006] 7 Suppl.SCR 336 - referred to.

Efficiency in administration

8.1 The substantive part of Article 335 contains mandate:a requirement to take into consideration the claims of SCs andSTs in making appointments to services and posts in connectionwith the affairs of the Union or of State. Consideration is muchDbroader in its ambit than reservation. The consideration of theirclaims to appointment is to be in manner consistent withmaintaining the efficiency of administration. The provisospecifically protects provisions in favour of the SCs and STs forrelaxing qualifying marks in an examination; lowering theEstandards of evaluation; or reservation in matters of promotion.Reservation is encompassed within the special provision but theuniverse of the latter is wider. The proviso recognises that specialmeasures need to be adopted for considering the claims of SCsand STs in order to bring them to level playing field. CenturiesFof discrimination and prejudice suffered by the SCs and STs in afeudal, caste oriented societal structure poses real barriers ofaccess to opportunity. The proviso contains realistic recognitionthat unless special measures are adopted for the SCs and STs,the mandate of the Constitution for the consideration of theirclaim to appointment will remain illusory. The proviso is an aid ofGfostering the real and substantive right to equality to the SCsand STs. It protects the authority of the Union and the States toadopt any of these special measures, to effectuate realistic (asopposed to formal) consideration of their claims to appointment

in services and posts under the Union and the States. The provisois not qualification to the substantive part of Article 335 but itembodies substantive effort to realise substantive equality. Theproviso also emphasises that the need to maintain the efficiencyof administration cannot be construed as fetter on adoptingthese special measures designed to uplift and protect the welfareof the SCs and STs. [Para 117, 118] [1202-G-H; 1203-A-F]

8.2 The Constitution does not define what the framers meantby the phrase “efficiency of administration”. Article 335 cannotbe construed on the basis of stereotypical assumption that rosterpoint promotees drawn from the SCs and STs are not efficient orthat efficiency is reduced by appointing them. This is stereotypicalbecause it masks deep rooted social prejudice. The benchmarkfor the efficiency of administration is not some disembodied,abstract ideal measured by the performance of qualified opencategory candidate. Efficiency of administration in the affairs ofthe Union or of State must be defined in an inclusive sense,where diverse segments of society find representation as trueaspiration of governance by and for the people. If, as it is held,the Constitution mandates realisation of substantive equality inthe engagement of the fundamental rights with the directiveprinciples, inclusion together with the recognition of the pluralityand diversity of the nation constitutes valid constitutional basisfor defining efficiency. Our benchmarks will define the outcomes.If this benchmark of efficiency is grounded in exclusion, it willproduce pattern of governance which is skewed against themarginalised. If this benchmark of efficiency is grounded in equalaccess, our outcomes will reflect the commitment of theConstitution to produce just social order. Otherwise, the pastwill haunt the inability of our society to move away from beingdeeply unequal to one which is founded on liberty and fraternity.Hence, while interpreting Article 335, it is necessary to liberatethe concept of efficiency from one sided approach which ignoresthe need for and the positive effects of the inclusion of diversesegments of society on the efficiency of administration of theUnion or of State. Establishing the position of the SCs and STsas worthy participants in affairs of governance is intrinsic to an

Aequal citizenship. Equal citizenship recognizes governance whichis inclusive but also ensures that those segments of our societywhich have suffered history of prejudice, discrimination andoppression have real voice in governance. Since inclusion isinseparable from well governed society, there is, no antithesisbetween maintaining the efficiency of administration andBconsidering the claims of the SCs and STs to appointments toservices and posts in connection with the affairs of the Union orof State. [Para 119] [1203-F-H; 1204-A-E]8.3 The substantive right to equality is for all segments ofsociety. Articles 15 (4) and 16 (4) represent the constitutionalCaspiration to ameliorate the conditions of the SCs and STs. Anassumption implicit in the critique of reservations is that awardingopportunities in government services based on “merit” resultsin an increase in administrative efficiency. Administrativeefficiency is an outcome of the actions taken by officials after theyDhave been appointed or promoted and is not tied to the selectionmethod itself. The submission that one selection method producesofficials capable of taking better actions than second methodmust be empirically proven based on an evaluation of theoutcomes produced by officials selected through both methods.Secondly, arguments that attack reservations on the grounds ofEefficiency equate “merit” with candidates who perform better thanother candidates on seemingly “neutral” criteria, e.g.standardised examinations. Thus, candidates who score beyonda particular “cut–off point” are considered “meritorious” andothers are “non–meritorious”. However, this is distortedFunderstanding of the function “merit” plays in society.[Para 121,122] [1205-E; -FG; 1206-A-B]

K Vasanth Kumar v State of Karnataka (1985) Supp.SCC 714 : 1985 Suppl. SCR 352 ; Indra Sawhney vUnion of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl.GSCR 454 – referred to.

8.4 Once “merit” is understood as instrumental in achievinggoods that we as society value, the equation of “merit” withperformance at few narrowly defined criteria is incomplete.

meritocratic system is one that rewards actions that result in theoutcomes that we as society value. Based on the text of Articles335, 16 (4) and 46, it is evident that the uplifting of the SCs andSTs through employment in government services, and having aninclusive government are other outcomes that the process ofappointments in government services seeks to achieve. Thus,the providing of reservations for SCs and the STs is not at oddswith the principle of meritocracy. “Merit” must not be limited tonarrow and inflexible criteria such as one’s rank in standardisedexam, but rather must flow from the actions society seeks toreward, including the promotion of equality in society and diversityin public administration. [Para 124, 125] [1207-B-D; 1208-A-B]

Sen A, Merit and Justice, in Arrow, KJ, Meritocracyand Economic Inequality (Princeton University Press2000) (Amartya Sen, Merit and Justice) - referred to.

8.5 The proviso to Article 335 seeks to mitigate this riskby allowing for provisions to be made for relaxing the marks inqualifying exams in the case of candidates from the SCs and theSTs. If the government’s sole consideration in appointments wasto appoint individuals who were considered “talented” or“successful” in standardised examinations, by virtue of theinequality in access to resources and previous educational training(existing inequalities in society), the stated constitutional goal ofuplifting these sections of society and having diverseadministration would be undermined. Thus, “meritorious”candidate is not merely one who is “talented” or “successful”but also one whose appointment fulfils the constitutional goals ofuplifting members of the SCs and STs and ensuring diverse andrepresentative administration. [Para 126]

8.6 Existing inequalities in society can lead to seemingly“neutral” system discriminating in favour of privileged candidates.It is stated that three broad kinds of resources are necessary toproduce the results in competitive exams that qualify as indicatorsof “merit”. These are economic resources (for prior education,training, materials, freedom from work etc.); social and culturalresources (networks of contacts, confidence, guidance and advice,

DEF

Ainformation, etc.); and intrinsic ability and hard work. The firsttwo criteria are evidently not the products of candidate’s ownefforts but rather the structural conditions into which they areborn. By the addition of upliftment of SCs and STs in the moralcompass of merit in government appointments and promotions,the Constitution mitigates the risk that the lack of the first twoBcriteria will perpetuate the structural inequalities existing insociety. [Para 127, 128] [1208-G-H; 1209-A-C]

Galanter M, Competing Equalities: Law and theBackward Classes in India, (Oxford University Press,New Delhi 1984), cited by Deshpande S, InclusionCversus excellence: Caste and the framing of fair accessin Indian higher education, 40:1 South African Reviewof Sociology 127 - 147 – referred to.

8.7 The Ratna Prabha Committee report considers therelationship between reservation in promotion and maintenanceDof efficiency in administration. Moreover, even in formal legalsense, promotions, including those in respect of roster points,are made on the basis of seniority–cum–merit and candidate tobe promoted has to meet this criteria. candidate on promotionhas to serve statutory period of officiation before beingEconfirmed. This rule applies across the board including toroster point promotees. This ensures that the efficiency ofadministration is, in any event, not adversely affected. [Paras 129,130] [1209-C; E-G]

The issue of creamy layerF

9.1 It cannot be said that Jarnail is not per curium on theissue of creamy layer. For one thing, Jarnail specifically examinedthe decision in Indra Sawhney, noticing that eight of the nineJudges applied the creamy layer principle as facet of the largerequality principle. In fact, the decision in Indra Sawhney IIGsummarised the judgments in Indra Sawhney I on the aspect ofcreamy layer. The judgment in Jarnail approved Indra SawhneyII when it held that the creamy layer principle sounds in Articles14 and 16 (1). Jarnail discussed the decision in Chinnaiah andheld that it dealt with the lack of legislative competence on thepart of the State legislatures to create sub–categories among theH

Presidential lists under Articles 341 and 342. The decision inJarnail therefore held that Chinnaiah did not deal with any of theaspects on which the constitutional amendments were upheld inNagaraj and hence it was not necessary for Nagaraj to refer toChinnaiah at all. In this view of the matter, it is held that Jarnail,on construction of Indra Sawhney holds that the creamy layerprinciple is principle of equality. [Para 137] [1214-D-E;125-C-D]

9.2 The challenge in the instant case is to the validity ofthe Reservation Act 2018 which provides for consequentialseniority. In other words, the nature or extent of reservationgranted to the SCs and STs at the entry level in appointment isnot under challenge. The Reservation Act 2018 adopts theprinciple that consequential seniority is not an additional benefitbut consequence of the promotion which is granted to the SCsand STs. In protecting consequential seniority as an incident ofpromotion, the Reservation Act 2018 constitutes an exercise ofthe enabling power conferred by Article 16 (4A). The concept ofcreamy layer has no relevance to the grant of consequentialseniority. Progression in cadre based on promotion cannot betreated as the acquisition of creamy layer status. The decision inJarnail rejected the submission that member of an SC or STwho reaches higher post no longer has taint of untouchabilityor backwardness. [Para 138] [1215-E-H]9.3 In sustaining the validity of Articles 16(4A) and 16(4B)against challenge of violating the basic structure, Nagarajapplied the test of width and the test of identity. The ConstitutionBench ruled that the catch–up rule and consequential seniorityare not constitutional requirements. They were held not to beimplicit in clauses (1) to (4) of Article 16. Nagaraj held that theyare not constitutional limitations or principles but are conceptsderived from service jurisprudence. Hence, neither theobliteration of those concepts nor their insertion would violatethe equality code contained in Articles 14, 15 and 16. The principlepostulated in Nagaraj is that consequential seniority is conceptpurely based in service jurisprudence. The incorporation ofconsequential seniority would hence not violate the constitutionalmandate of equality. This being the true constitutional position,

Athe protection of consequential seniority as an incident ofpromotion does not require the application of the creamy layertest. Articles 16 (4A) and 16 (4B) were held to not obliterate anyof the constitutional limitations and to fulfil the width test. In viewthereof, it is evident that the concept of creamy layer has noapplication in assessing the validity of the Reservation Act 2018Bwhich is designed to protect consequential seniority uponpromotion of persons belonging to the SCs and STs. [Para 139][1216-C-F]

Jarnail Singh v Lachhmi Narain Gupta 2018 (10) SCC396 – Explained and followed.C

Indra Sawhney v Union of India 1992 Supp (3) SCC217 : [1992] 2 Suppl. SCR 454 ; Indra Sawhney II vUnion of India (2000) 1 SCC 168 : [1999] 5 Suppl.SCR 229 ; M Nagaraj v Union of India (2006) 8 SCC212 : [2006] 7 Suppl. SCR 336 ; V Chinnaiah v StateDof AP (2005) 1 SCC 394 : [2004] 5 Suppl. SCR 972 ;State of Tripura v Jayanta Chakraborty (2018) 1 SCC146 : [2017] 11 SCR 247 ; State of Maharashtra v VijayGhogre (2018) 15 SCC 64 - referred to.

RetrospectivityE

10. Sections 3 and 4 of the Reservation Act 2018 came intoforce on 17 June 1995. The other provisions came into force “atonce” as provided in Section 1(2). Section 4 stipulates that theconsequential seniority already granted to government servantsbelonging to the SCs and STs in accordance with the reservationForder with effect from 27 April 1978 shall be valid and shall beprotected. The decision in Virpal Singh held that the catch-uprule would be applied only from 10 February 1995 which was thedate of the judgment in Sabharwal; The decision in Ajit Singh IIspecifically protected the promotions which were granted beforeG1 March 1996 without following the catch-up rule. InBadappanavar, promotions of reserved candidates based onconsequential seniority which took place before 1 March 1996were specifically protected. Since promotions granted prior to 1March 1996 were protected, it was logical for the legislature toprotect consequential seniority. The object of the ReservationH

Act 2018 is to accord consequential seniority to promotees againstroster points. In this view of the matter, there is no reason tohold that the provisions in regard to retrospectivity in theReservation Act, 2018 are either arbitrary or unconstitutional.The benefit of consequential seniority has been extendedfrom the date of the Reservation Order 1978 under whichpromotions based on reservation were accorded. [Paras 140–142] [1216-G-H; 1217-A-E]

Union of India v Virpal Singh Chauhan (1995) 6 SCC684 : [1995] 4 Suppl. SCR 158 ; R K Sabharwal v Stateof Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 ; AjitSingh Januja v State of Punjab (1996) 2 SCC 715 :[1996] 3 SCR 125 ; M Badappanavar v State ofKarnataka (2001) 2 SCC 666 : [2000] 5 Suppl. SCR302 – referred to.

Over representation in KPTCL and PWD

11. The Ratna Prabha Committee collected data from thirtyone departments of the State Government of Karnataka. Thecorporations such as KPTCL and other public sectorundertakings fall within the administrative control of one of thedepartments of the State government. The position in thirty onedepartments was taken as representative of the position in publicemployment under the State. The over representation in KPTCLand PWD has been projected by the petitioners with referenceto the total number of posts which have been filled. On the otherhand, the quota is fixed and the roster applies as regards thetotal sanctioned posts as held in Sabharwal and Nagaraj’s case.On the contrary, the data submitted by the State of Karnatakaindicates that if consequential seniority is not allowed, there wouldbe under representation of the reserved categories. Under theGovernment Order dated 13.04.1999, reservation in promotionin favour of SC’s and ST’s has been provided until therepresentation for these categories reaches 15 per cent and 3per cent, respectively. The State has informed the Court that thesaid Government Order is applicable to KPTCL and PWD.[Para 143] [1217-F-H; 1218-A-B]

AR K Sabharwal v State of Punjab (1995) 2 SCC 745 :[995] 2 SCR 35 ; M Nagaraj v Union of India (2006) 8SCC 212 : [2006] 7 Suppl. SCR 336 ; BhaktaRamegowda v State of Karnataka (1997) 2 SCC 661 :[1997] 1 SCR 535 ; Jagdish Lal v State of Haryana(1997) 6 SCC 538 ; Suraj Bhan Meena v State ofBRajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532 ;Uttar Pradesh Power Corporation Ltd v Rajesh Kumar(2012) 7 SCC 1 : [2012] 4 SCR 118 ; S Panneer Selvamv State of Tamil Nadu (2015) 10 SCC 292 ; S R Bhagwatv State of Mysore (1995) 6 SCC 16 : [1995] 3 Suppl.CSCR 545 ; Bakhtawar Trust v M Narayan (2003) 5SCC 298 : [2003] 1 Suppl. SCR 1 ; Delhi Cloth &General Mills Co. Ltd v State of Rajasthan (1996) 2SCC 449 : [1996] 1 SCR 518 ; Re Cauvery (1993) Supp(1) SCC 96 : [1991] 2 Suppl. SCR 497 ; S T Sadiq vState of Kerala (2015) 4 SCC 400 : [2015] 3 SCR D287 ; Medical Council of India v State of Kerala (2018)11 SCALE 141 : 2018 SCR 213 ; I R Coelho v State ofTN (2007) 2 SCC 1 : [2007] 1 SCR 706 ; Pandit M S MSharma v Dr Krishna Sinha AIR 1960 SC 1186 ; Stateof West Bengal v Kamal Sengupta (2008) 8 SCCE612 : [2008] 10 SCR 4 ; Rohtas Industries v S DAgarwal (1969) 1 SCC 325 : [1969] 3 SCR 108 ;Rustom Cavasjee Cooper v Union of India (1970) 1SCC 248 : [1970] 3 SCR 530 ; Ritesh Sah v Y L Yamul(1996) 3 SCC 253 : [1996] 2 SCR 695 – referred to.

[1996] 1 SCR 518[1991] 2 Suppl. SCR 497[2015] 3 SCR 2872018 SCR 213[2007] 1 SCR 706AIR 1960 SC 1186[2008] 10 SCR 4[1969] 3 SCR 108[1970] 3 SCR 530[1996] 2 SCR 695[2016] 6 SCR 1[2002] 2 Suppl. SCR 555(1985) 3 SCC 661[1983] 3 SCR 130[2017] 1 SCR 631

[2006] 7 Suppl. SCR 336

[2016] 7 SCR 689[1988] SCR 314[1994] 1 Suppl. SCR 639[2009] 10 SCR 821(1996) 7 SCC 637AIR 1941 FC 16

1114SUPREME COURT REPORTS

[1985] Suppl. SCR 352

[2017] 11 SCR 247(2018) 15 SCC 64

[2004] 5 Suppl. SCR 972(2018) 10 SCC 396

[1999] 5 Suppl. SCR 229[1995] 4 Suppl. SCR 158[1996] 3 SCR 125[1999] 2 Suppl. SCR 521

[2000] 5 Suppl. SCR 302

CIVIL APPELLATE / INHERENT / ORIGINALJURISDICTION : Miscellaneous Application No. 1151 of 2018 in CivilAppeal No. 2368 of 2011.

From the Judgment and Order dated 23.12.2010 of the HighCourt of Karnataka at Bangalore in Writ Petition No. 14672 of 2010.

With

Review Petition (C) Diary Nos. 7833, 10240, 10258, 10859, 12622,12674, 13047, 14563, 16896 of 2017, M.A. No. 1152 of 2018 inC.A. No. 2369 of 2011, Writ Petition (C) Nos. 764, 769, 791, 823, 827,850, 875, 872, 901, 879 1209 of 2018.

Devadatt Kamat, AAG, Dr. Rajeev Dhavan, Basava Prabhu Patil,Ms. Indira Jaising, V. Lakshminarayana, Dinesh Dwivedi, Nidhesh Gupta,Sr. Advs., Kumar Parimal, Smarhar Singh, Ms. Siddhi Padia, V.N.Raghupathy, Ms. Rachitha Herimath, Chinmay Deshpande, Parikshit P.Angadi, Geet Ahuja, Anuj Saxena, Ms. Nehmat Kaur, Ms. Ajita Sharma,Rameshwar Prasad Goyal, Dinesh K. Garg, Dhananjay Garg, AbhishekGarg, Deepak Mishra, Krishnam Mishra, Yasharth Kant, Nishant Singh,Mohd. Naved, Sarbendra Kumar, Ms. Payal Gaikwad, Prakash Sharma,Ms. Prakrati Raj, Ms. Ila Gandhi, Satpal Singh, Puneet Jain, Ms. ChristiJain, Abhinav Gupta, Harsh Jain, Ms. Arpita Gupta, Dr. K.S. Chauhan,Ajit Kumar Ekka, Ravi Prakash, Chand Kiran, S.P. Singh, Anand Sanjay

AM. Nuli, Dharm Singh, Nanda Kumar K.B. (for M/s. Nuli & Nuli), NaveenR. Nath, Rahul Jain, Darpan K.M., Siddharth Agarwal, S.K. Kulkarni,M. Gireesh Kumar, Ankur S. Kulkarni, Joseph Aristotle S., Ms. PriyaAristotle, Shiva P., R. Balasubramanian, Ms. Shraddha Deshmukh, B.V.Balaram Das, Sharanagouda Patil, Shirish K. Deshpande, Ms. ShraddhaDeshmukh, B.V. Balram Das, M/s. Devasa & Co., S. N. Bhat, PulkitBTare, Ms. Anagha S. Desai, E.C. Vidya Sagar, Dr. (Ms.) Vipin Gupta,Sudhir Nagar, Kabir Dixit, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.CThis judgment has been divided into sections to facilitate analysis.They are

A. The constitutional challenge

B. The constitutional backdrop to reservations in Karnataka

DC. Submissions

C.IPetitioners

C.2Submissions for the respondents and intervenors

D. Assent to the Bill

EE. Does the Reservation Act 2018 overrule or nullifyB K Pavitra I

E.IIs the basis of K Pavitra I cured in enacting theReservation Act 2018

E.2 The Ratna Prabha Committee report

F. Substantive versus formal equality

F.I The Constituent Assembly’s understanding of Article16 (4)

F.2 The Constitution as transformative instrument

G. Efficiency in administration

H. The issue of creamy layer

I. Retrospectivity

J. Over representation in KPTCL and PWDH

K. Conclusion

A. The constitutional challenge

1. The principal challenge in this batch of cases is to the validityof the Karnataka Extension of Consequential Seniority to GovernmentServants Promoted on the Basis of Reservation (to the Posts in the CivilServices of the State) Act 2018[1]. The enactment provides, among otherthings, for consequential seniority to persons belonging to the ScheduledCastes[2] and Scheduled Tribes[3] promoted under the reservation policy ofthe State of Karnataka. The law protects consequential seniority from24 April 1978.

2. The Reservation Act 2018 was preceded in time by theKarnataka Determination of Seniority of the Government ServantsPromoted on the Basis of the Reservation (to the Posts in the CivilServices of the State) Act 2002[4]. The constitutional validity of theReservation Act 2002 was challenged in K Pavitra v Union of India[5],(“B K Pavitra I”). two judge Bench of this Court (consisting ofJustice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of theConstitution on the ground that an exercise for determining “inadequacyof representation”, “backwardness” and the impact on “overallefficiency” had not preceded the enactment of the law. Such an exercisewas held to be mandated by the decision of Constitution Bench of thisCourt in M Nagaraj v Union of India[6](“Nagaraj”).In the absence of the State of Karnataka having collectedquantifiable data on the above three parameters, the Reservation Act2002 was held to be invalid.

3. The legislature in the State of Karnataka enacted theReservation Act 2018 after this Court invalidated the Reservation Act2002 in K Pavitra I. The grievance of the petitioners is that the statelegislature has virtually re-enacted the earlier legislation without curingits defects. According to the petitioners, it is not open to legislativebody governed by the parameters of written constitution to override

1 Reservation Act 20182 SCs3 STs

4 Reservation Act 2002

5 (2017) 4 SCC 6206 (2006) 8 SCC 212

Ajudicial decision, without taking away its basis. On the other hand, theState government has asserted that an exercise for collecting “quantifiabledata” was in fact carried out, consistent with the parameters requiredby the decision in Nagaraj. The petitioners question both the processand the outcome of the exercise carried out by the state for collectingquantifiable data.B

B. The constitutional backdrop to reservations in Karnataka

4. The present case necessitates that this Court weave throughthe body of precedent which forms part of our constitutionaljurisprudence on the issue of reservations. In many ways, the issuesCbefore the Court are unique. For, in the post Nagaraj world which governsthis body of law, the State government defends its legislation on theground that it has fulfilled the constitutional requirement of collectingquantifiable data before it enacted the law. If such an exercise has beencarried out, the Court will need to address itself to the standard of judicialreview by constitutional court of legislation enacted by competentDlegislature. The extent to which data collection exercise by thegovernment, which precedes the enactment of the law, may be reviewedby the Court is seminal issue. K Pavitra I involved situationwhere this Court invalidated law on the ground that no exercise ofdata collection was carried out by the State of Karnataka. In the presentEbatch of cases, (herein referred to as K Pavitra II), there is aconstitutional challenge to the validity of law enacted after the Statehad undertaken the exercise of collecting quantifiable data. Whetherthat exercise of data collection and the enactment of the new law whichhas emerged on its foundation takes away the basis of or the cause forthe invalidation of the Reservation Act 2002 in K Pavitra I is anFessential question for our consideration.In this background, we set out the significant facts, in thechequered history of the present case.

5. In exercise of the power conferred by the proviso to ArticleG309 of the Constitution, the Governor of Karnataka framed the KarnatakaGovernment Servant (Seniority Rules) 1957[7]. Rules 2 and 4 provide forseniority on the basis of the period of service in given cadre. Therewas no specific rule governing seniority in respect of roster promotions.

Rule 2 inter alia, provides as follows:

“2. Subject to the provisions hereinafter contained the seniority ofa person in particular cadre of service or class of post shall bedetermined as follows:-

(a) Officers appointed substantively in clear vacancies shallbe senior to all persons appointed on officiating or anyother basis in the same cadre of service or class of post;

(b) The seniority inter se of officers who are confirmed shallbe determined according to dates of confirmation, butwhere the date of confirmation of any two officers is thesame, their relative seniority will be determined by theirseniority inter se while officiating in the same post and ifnot, by their seniority inter se in the lower grade.

(c) Seniority inter se of persons appointed on temporary basiswill be determined by the dates of their continuousofficiation in that grade and where the period of officiationis the same the seniority inter se in the lower grade shallprevail.”

Rule 4 provides for the determination of seniority where promotionsare made at the same time on the basis of seniority-cum-merit to classof posts or cadre:

“4. When promotions to class of post or cadre are made on thebasis of seniority-cum-merit at the same time, the relative seniorityshall be determined.-

(i) if promotions are made from any one cadre or class ofpost, by their seniority inter se in the lower cadre or classof post;

(ii) if promotions are made from several cadres or classes ofposts of the same grade, by the period of service in thosegrades;

(iii) if promotions are made from several cadres or classes ofposts, the grades of which are not the same, by the orderin which the candidates are arranged by the authoritymaking the promotion, in consultation with Public ServiceCommission where such consultation is necessary, taking

1120SUPREME COURT REPORTS

Ainto consideration the order in which promotions are to bemade from those several cadres or classes of post.”

Rule 4-A provides for the determination of the seniority wherepromotion is made by selection:

“4-AWhen promotions to class of post or cadre are madeBby selection at the same time either from several cadres or classesof post or from same cadre or class of post by the order in whichthe candidates are arranged in order of merit by the AppointingAuthority making the selection, in consultation with Public Service

Commission where such consultation is necessary.

[Explanation – For purposes of this rule, “several cadres or classesof post” shall be deemed to include cadres or classes of post ofdifferent grades from which recruitment is made in any specifiedorder of priority in accordance with any special rules ofrecruitment.].”

D6. Reservation for persons belonging to SCs and STs in specifiedcategories of promotional posts was introduced by Government Order[8]dated 27 April 1978 of the Government of Karnataka. Reservation inpromotional posts for SCs was set at 15 per cent and for STs at 3 percent in all cadres up to and inclusive of the lowest category of Class IEposts in which there is no element of direct recruitment or where thedirect recruitment does not exceed 66[2/3] per cent. 33 point roster wasapplicable to each cadre of posts under appointing authorities. Inter-seseniority amongst persons promoted on any occasion was to bedetermined in accordance with Rules 4 and 4-A, as the case may be, ofthe Rules 1957. It also stipulated that vacancies would not be carriedFforward.

7. On 1 June 1978, the State government issued an OfficialMemorandum[9] providing guidelines and clarifications for implementingthe Government Order dated 27 April 1978. The Official Memorandumstipulated that after promotion, seniority among candidates promoted onGthe basis of seniority-cum-merit shall, on each occasion, be fixed inaccordance with Rule 4 of the Rules 1957. In other words, senioritywould be governed by the inter se seniority in the cadre from whichcandidates were promoted. For candidates promoted by selection,

8 G.O. No. DPAR 29 SBC 77

9 O.M. No. DPAR 29 SBC 77

seniority would be governed by Rule 4-A : the ranking would be asassigned in the list of selected candidates by the appointing authority.The Official Memorandum dated 1 June 1978 thus provided, what canbe described as the principle of consequential seniority to reservedcategory candidates.

8. By notification[10] dated 1 April 1992, proviso was inserted toRule 8 of the Karnataka Civil Services (General Recruitment) Rules1977[11] which provided that vacancies not filled by SCs and STs wouldbe treated as backlog and would be made good in the future. Thisprovision was upheld by two judge Bench of this Court in BhaktaRamegowda v State of Karnataka[12](“Bhakta Ramegowda”).

9. On 16 November 1992, nine judge Bench of this Courtdelivered judgment in Indra Sawhney v Union of India[13](“IndraSawhney”). The issue as to whether reservations of promotional postswere contemplated by Article 16 (4)[14] - when it used the expression‘appointment’ was among the issues dealt with. Justice P Jeevan Reddyspeaking for plurality of four judges held that:

(i)Reservations contemplated by Article 16 (4) of theConstitution should not exceed 50 per cent[15]. While 50 percent shall be the rule, “it is necessary not to put out ofconsideration certain extraordinary situations inherent in thegreat diversity of this country and the people”[16]. But, anyrelaxation of the strict rule must be with extreme cautionand on special case being made out[17];

10 No. DPAR 13 SRR 9211 The Rules 1977

12 (1997) 2 SCC 661

13 1992 Supp (3) SCC 217

14 Clauses (1) and (4) of Article 16 provide:

(1) There shall be equality of opportunity for all citizens in matters relating toemployment or appointment to any office under the State.

(4) Nothing in this article shall prevent the State from making any provision forthe reservation of appointments or posts in favour of any backward class ofcitizens which, in the opinion of the State, is not adequately represented in theservices under the State.

15 Supra 13, paragraph 809 at page 735

16 Ibid, paragraph 810 at page 735

17 Ibid, paragraph 810 at page 735

A(ii)Reservations under Article 16 (4) could only be provided atthe time of entry into government service but not in mattersof promotion. However, this principle would operate onlyprospectively and not affect promotions already made.Moreover, reservations already provided in promotions shallcontinue in operation for period of five years from the dateBof the judgment[18];

(iii) The creamy layer can be and must be excluded. Justice PJeevan Reddy held :

“792…While we agree that clause (4) aims at groupbackwardness, we feel that exclusion of such sociallyadvanced members will make the ‘class’ truly backwardclass and would more appropriately serve the purpose andobject of clause (4). (This discussion is confined to OtherBackward Classes only and has no relevance in the caseof Scheduled Tribes and Scheduled Castes).”[19]

(iv) The adequacy of the representation of backward class ofcitizens in services “is matter within the subjective satisfactionof the State”[20], since the requirement in Article 16 (4) ispreceded by the words “in the opinion of the State”. Thebasis of the standard of judicial review was formulated thus:

“798…This opinion can be formed by the State on its own,i.e., on the basis of the material it has in its possession alreadyor it may gather such material through Commission/Committee, person or authority. All that is required is, theremust be some material upon which the opinion is formed.FIndeed, in this matter the court should show due deferenceto the opinion of the State, which in the present contextmeans the executive. The executive is supposed to knowthe existing conditions in the society, drawn as it is fromamong the representatives of the people in Parliament/GLegislature. It does not, however, mean that the opinionformed is beyond judicial scrutiny altogether. The scopeand reach of judicial scrutiny in matters within subjective

18 Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771

19 Ibid at page 725

H20 Ibid, paragraph 798 at page 728

satisfaction of the executive are well and extensively statedin Barium Chemicals v. Company Law Board [1966 SuppSCR 311 : AIR 1967 SC 295] which need not be repeatedhere. Suffice it to mention that the said principles applyequally in the case of constitutional provision like Article16(4) which expressly places the particular fact (inadequaterepresentation) within the subjective judgment of the State/executive.”[21]

(v) The backward class of citizens cannot be identified only andexclusively with reference to an economic criterion[22]. It ispermissible to identify backward class of citizens withreference to occupation, income as well caste.

10. In view of the decision of this Court in Indra Sawhney, theprovisions for reservation in matters of promotion under the GovernmentOrder of 1978, as clarified by the Official Memorandum dated 1 June1978 were saved for period of five years from 16 November 1992.Promotions already made were saved.

11. On 17 June 1995, Parliament acting in its constituent capacityadopted the seventy-seventh amendment by which clause (4A) wasinserted into Article 16 to enable reservations to be made in promotion infavour of the SCs and STs[23]. The amendment came into force on 17June 1995, before the expiry of five years from 16 November 1992 (thedate on which the decision in Indra Sawhney was pronounced). As aresult of the decision in Indra Sawhney and the seventy-seventhamendment to the Constitution, the provision for reservations made bythe Government of Karnataka under the Government Order of 1978stood saved and continued to operate.

12. On 10 February 1995, Constitution Bench of this Courtrendered judgment in R K Sabharwal v State of Punjab[24](“Sabharwal”) and held that:

21 Ibid at page 728

22 Ibid, paragraph 799 at page 728

23 Clause 16 (4A) : Nothing in this article shall prevent the State from making anyprovision for reservation in matters of promotion to any class or classes of posts in theservices under the State in favour of the Scheduled Castes and the Scheduled Tribeswhich, in the opinion of the State, are not adequately represented in the services underthe State.

24 (1995) 2 SCC 745

A(i)Once the prescribed percentage of posts is filled by reservedcategory candidates by the operation of the roster, thenumerical test of adequacy is satisfied and the roster wouldcease to operate[25];

(ii) The percentage of reservation has to be worked out in relationBto the number of posts which form the cadre strength. Theconcept of vacancy has no relevance in operating thepercentage of reservation[26]; and

(iii) The interpretation placed on the working of the roster shalloperate prospectively[27] from 10 February 1995.

13. On 1 October 1995, two judge Bench of this Court held inUnion of India v Virpal Singh Chauhan[28] (“Virpal Singh”) that thestate could provide that even if candidate belonging to the SC or ST ispromoted earlier on the basis of reservation and on the application of theroster, this would entitle such person to seniority over senior belongingDto the general category in the feeder cadre. However, senior belongingto the general category who is promoted to higher post subsequentlywould regain seniority over the reserved candidate who was promotedearlier. This rule came to be known as the catch-up rule. The two judgeBench directed that the above principle would be followed with effectfrom the date in the judgment in Sabharwal[29].E

14. Six months after the decision in Virpal Singh, on 1 March1996, three judge Bench of this Court in Ajit Singh Januja v State ofPunjab[30](“Ajit Singh I”), adopted the catch-up rule propounded inVirpal Singh, to the effect that the seniority between reserved categorycandidates and general candidates in the promoted category shall continueFto be governed by their inter se seniority in the lower grades. This Courtheld that balance has to be maintained so as to avoid “reversediscrimination” and, rule or circular which gives seniority to candidatebelonging to the reserved category promoted on the basis of roster pointswould violate Articles 14 and 16 of the Constitution.

25 Ibid, paragraph 5 at page 750

26 Ibid, paragraph 6 at page 751

27 Ibid, paragraph 11 at page753

28 (1995) 6 SCC 684

29 10 February 1995

H30 (1996) 2 SCC 715

15. On 24 June 1997, the Government of Karnataka issued aGovernment Order[31] formulating guidelines in regard to the manner inwhich backlog vacancies were required to be filled. On 3 February 1999,the Government of Karnataka issued another Government Order[32]pursuant to Article 16 (4A) stipulating modified policy of reservation inmatters of promotion. The 1999 Order provides for reservation inpromotion to the extent of 15 per cent for SCs and 3 per cent for STs ofthe posts in cadre up to and inclusive of the lowest category of groupA posts in each service for which there is no element of direct recruitmentor, where the proportionate of direct recruitment does not exceed 66[2/3]per cent. While providing for the continuance of reservations in promotion,the Government Order stipulated that reservation in favour of personsbelonging to the SCs shall continue to operate until their representationin cadre reaches 15 per cent. Reservations in promotion for the STswould continue to operate until their representation in cadre reaches 3per cent. Thereafter, reservation in promotion shall continue only tomaintain the representation to the extent of the above percentages forthe respective categories. On 13 April 1999, the Government of Karnatakaissued another Government Order[33] modifying the 1999 Order to providethat reservations in promotions in favour of the SCs and STs shall continueto operate by applying the existing roster to the vacancies till therepresentation of persons belonging to these categories reached 15 percent or 3 per cent as the case may be, respectively. Moreover, after theexisting backlog was cleared, the representation of persons belonging toSCs and STs would be maintained to the extent of 15 per cent and 3 percent of the total working strength.16. In Jagdish Lal v State of Haryana[34], (“Jagdish Lal”) athree judge Bench of this Court took view contrary to the decision inAjit Singh I. The decision in Jagdish Lal held that by virtue of theprinciple of continuous officiation, candidate belonging to reservedcategory who is promoted earlier than general category candidate dueto an accelerated promotion would not lose seniority in the higher cadre.This conflict of decisions was resolved by Constitution Bench in AjitSingh v State of Punjab[35](“Ajit Singh II”). The Constitution Bench

31 G.O. No. DPAR 10 SCBC 97

32 G.O. No. DPAR 21 SBC 97

33 Ibid

34 (1997) 6 SCC 538

35 (1999) 7 SCC 209

Aheld that Article 16 (4A) is only an enabling provision for reservation inpromotion. In consequence, roster point promotees belonging to thereserved categories could not count their seniority in the promotedcategory from the date of continuance officiation in the promoted post inrelation to general category candidates who were senior to them in thelower category and who were promoted later. Where senior generalBcandidate at the lower level is promoted later than reserved categorycandidate, but before the further promotion of the latter, such personwill have to be treated as senior at the promotional level in relation to thereserved candidate who was promoted earlier. The Constitution Benchaccordingly applied the catch-up rule for determining the seniority ofCroster point promotees vis-à-vis general category candidates. The Courtheld that any circular, order or rule that was issued to confer seniority toroster point promotees would be invalid. However, the Constitution Benchdirected that candidates who were promoted contrary to the aboveprinciples of law before 1 March 1999 (the date of the decision in AjitSingh I) need not be reverted.D

17. Contending that there was no provision permitting seniority tobe granted in respect of roster point promotees belonging to the reservedcategories, the reservation policy of the State of Karnataka came to bechallenged before this Court in M Badappanavar v State ofKarnataka[36](“Badappanavar”). three judge Bench, relying on theEdecisions in Ajit Singh I, Ajit Singh II and Sabharwal reiterated theprinciple that Article 16 (4A) does not permit the conferment of seniorityto roster point promotees. This Court held that there was no specificrule in the State of Karnataka permitting seniority to be counted in respectof roster promotion. It held thus:F“12…The roster promotions were, it was held, meant only for thelimited purpose of due representation of backward classes atvarious levels of service. If the rules are to be interpreted in amanner conferring seniority to the roster-point promotees, whohave not gone through the normal channel where basic seniorityGor selection process is involved, then the rules, it was held will beultra vires Article 14 and Article 16 of the Constitution of India.Article 16(4-A) cannot also help. Such seniority, if given, wouldamount to treating unequals equally, rather, more than equals.”[37]

36 (2001) 2 SCC 66637 Ibid at page 672H

18. The conferment of seniority to roster point promotees of thereserved categories would, in view of the court in Badappanavar, violatethe equality principle which was part of the basic structure of theConstitution. The Court directed that the seniority lists and promotionsbe reviewed in accordance with its directions but those who werepromoted before 1 March 1996 on principles contrary to Ajit Singh IIand those who were promoted contrary to Sabharwal before 10 February1995 need not be reverted.

19. The Constitution (Eighty-fifth Amendment) Act 2001 wasenacted with effect from 17 June 1995. Article 16 (4A), as amended,reads thus:

“Nothing in this article shall prevent the State from making anyprovision for reservation in matters of promotion, withconsequential seniority, to any class or classes of posts in theservices under the State in favour of the Scheduled Castes andthe Scheduled Tribes which, in the opinion of the State, are notadequately represented in the services under the State.”

(Emphasis supplied)

The purpose of the amendment was to enable the grant ofconsequential seniority to reserved categories promotees. The significanceof the date on which the eighty-fifth amendment came into force – 17June 1995 – is that it coincides with the coming into force of the seventy-seventh amendment which enabled reservations in promotions to be madefor the SCs and STs.

20. In 2002, the Karnataka State Legislature enacted theReservation Act 2002. The law came into force on 17 June 1995. Itprovided for consequential seniority to roster point promotees based onthe length of service in cadre, making the catch-up rule propounded inAjit Singh II inapplicable. The earlier decision of this Court inBadappanavar had held that there was no specific rule for the confermentof seniority to roster point promotees. By the enactment of theReservation Act 2002 with effect from 17 June 1995, the principle ofconsequential seniority was statutorily incorporated as legislativemandate.

21. The validity of the seventy-seventh and eighty-fifthamendments to the Constitution and of the legislation enacted in pursuance

Aof those amendments was challenged before Constitution Bench ofthis Court in Nagaraj. The Constitution Bench analysed whether thereplacement of the catch-up rule with consequential seniority violatedthe basic structure and equality principle under the Constitution. Upholdingthe constitutional validity of the amendments, this Court held that thecatch-up rule and consequential seniority are judicially evolved conceptsBbased on service jurisprudence. Hence, the exercise of the enablingpower under Article 16 (4A) was held not to violate the basic featuresof the Constitution:

“79. Reading the above judgments, we are of the view that theconcept of “catch-up” rule and “consequential seniority” areCjudicially evolved concepts to control the extent of reservation.The source of these concepts is in service jurisprudence. Theseconcepts cannot be elevated to the status of an axiom likesecularism, constitutional sovereignty, etc. It cannot be said thatby insertion of the concept of “consequential seniority” theDstructure of Article 16(1) stands destroyed or abrogated. It cannotbe said that “equality code” under Articles 14, 15 and 16 is violatedby deletion of the “catch-up” rule. These concepts are based onpractices. However, such practices cannot be elevated to the statusof constitutional principle so as to be beyond the amending powerof Parliament. Principles of service jurisprudence are differentEfrom constitutional limitations. Therefore, in our view neither the“catch-up” rule nor the concept of “consequential seniority” isimplicit in clauses (1) and (4) of Article 16 as correctly held in VirpalSingh Chauhan.”[38]

22. The Constitution Bench held that Article 16 (4A) is an enablingFprovision. The state is not bound to make reservations for the SCs andSTs in promotions. But, if it seeks to do so, it must collect quantifiabledata on three facets:

(i)The backwardness of the class;

G(ii)The inadequacy of the representation of that class in publicemployment; and

(iii)The general efficiency of service as mandated by Article 335would not be effected.

23. The principles governing this approach emerge from thefollowing extracts from the decision:

“107. …If the State has quantifiable data to show backwardnessand inadequacy then the State can make reservations in promotionskeeping in mind maintenance of efficiency which is held to be aconstitutional limitation on the discretion of the State in makingreservation as indicated by Article 335. As stated above, theconcepts of efficiency, backwardness, inadequacy ofrepresentation are required to be identified and measured…[39]

117… in each case the Court has got to be satisfied that the Statehas exercised its opinion in making reservations in promotions forSCs and STs and for which the State concerned will have to placebefore the Court the requisite quantifiable data in each case andsatisfy the Court that such reservations became necessary onaccount of inadequacy of representation of SCs/STs in particularclass or classes of posts without affecting general efficiency ofservice as mandated under Article 335 of the Constitution.[40]

123. … In this regard the State concerned will have to show ineach case the existence of the compelling reasons, namely,backwardness, inadequacy of representation and overalladministrative efficiency before making provision for reservation.As stated above, the impugned provision is an enabling provision.The State is not bound to make reservation for SCs/STs in mattersof promotions. However, if they wish to exercise their discretionand make such provision, the State has to collect quantifiable datashowing backwardness of the class and inadequacy ofrepresentation of that class in public employment in addition tocompliance with Article 335. It is made clear that even if theState has compelling reasons, as stated above, the State will haveto see that its reservation provision does not lead to excessivenessso as to breach the ceiling limit of 50% or obliterate the creamylayer or extend the reservation indefinitely.”[41]

39 Ibid at pages 270-271

40 Ibid at pages 276-277

41 Ibid at page 278

[2019] 7 S.C.R.

AThe Constitution Bench held that the constitutional amendmentsdo not abrogate the fundamentals of equality:

“110…the boundaries of the width of the power, namely, the ceilinglimit of 50% (the numerical benchmark), the principle of creamylayer, the compelling reasons, namely, backwardness, inadequacyBof representation and the overall administrative efficiency are notobliterated by the impugned amendments. At the appropriate time,we have to consider the law as enacted by various States providingfor reservation if challenged. At that time we have to see whetherlimitations on the exercise of power are violated. The State isfree to exercise its discretion of providing for reservation subjectCto limitation, namely, that there must exist compelling reasons ofbackwardness, inadequacy of representation in class of post(s)keeping in mind the overall administrative efficiency. It is madeclear that even if the State has reasons to make reservation, asstated above, if the impugned law violates any of the aboveDsubstantive limits on the width of the power the same would beliable to be set aside.”[42]These observations emphasise the parameters which must beapplied where law has been enacted to give effect to the provisions ofArticle 16 (4A). The legislative power of the state to enact such law isEpreserved. The exercise of the power to legislate is conditioned by theexistence of “compelling reasons” namely; the existence ofbackwardness, the inadequacy of representation and overall administrativeefficiency. Elsewhere in the decision, the Constitution Bench treatedthese three parameters as “controlling factors” for making reservationsin promotions for SCs and STs. They were held to be constitutionalFrequirements crucial to the preservation of “the structure of equality ofopportunity” in Article 16. The Constitution Bench left the validity of theindividual enactments of the states to be adjudicated upon separately byBenches of this Court.

24. In K Pavitra I, two judge Bench of this Court consideredGa challenge to the Reservation Act 2002 providing for consequentialseniority on the ground that the exercise which was required to be carriedout in Nagaraj had not been undertaken by the State and there was noprovision for the exclusion of the creamy layer. The validity of the

H42 Ibid at page 272

Reservation Act 2002 had been upheld by Division Bench of theKarnataka High Court. In K Pavitra I, this Court struck down Sections3 and 4 of the Reservation Act 2002 as ultra vires Articles 14 and 16.The petitioner contended that the law laid down by this Court inBadappanavar, Ajit Singh II and Virpal Singh remained applicabledespite the Constitution (Eighty-fifth Amendment) Act 2001. Moreover,it was contended that the Government of Karnataka had not compliedwith the tests laid down in Nagaraj and had failed to provide any materialor data to show inadequacy of representation. Moreover, no considerationwas given to the issue of overall administrative efficiency. The principalchallenge was that an exercise for determining “backwardness”,“inadequacy of representation”, and “overall efficiency” in terms of thedecision in Nagaraj had not been carried out.

25. Relying on the decisions of this Court in Suraj Bhan Meenav State of Rajasthan[43], Uttar Pradesh Power Corporation Ltd vRajesh Kumar[44] and S Panneer Selvam v State of Tamil Nadu[45](“Panneer Selvam”), two judge Bench of this Court affirmed thatthe exercise laid down in Nagaraj for determining “inadequacy ofrepresentation”, “backwardness” and “overall efficiency” is necessaryfor recourse to the enabling power under Article 16 (4A) of theConstitution. The Court held that the Government of Karnataka hadfailed to place material on record showing that there was compellingnecessity for the exercise of the power under Article 16 (4A). Hence,the directions laid down by this Court in Nagaraj were not followed.Striking down Sections 3 and 4 of the Reservation Act 2002, this Courtheld thus:

“29. It is clear from the above discussion in S. Panneer Selvamcase that exercise for determining “inadequacy of representation”,“backwardness” and “overall efficiency”, is must for exerciseof power under Article 16(4-A). Mere fact that there is noproportionate representation in promotional posts for the populationof SCs and STs is not by itself enough to grant consequentialseniority to promotees who are otherwise junior and therebydenying seniority to those who are given promotion later on accountof reservation policy. It is for the State to place material on record

43 (2011) 1 SCC 467

44 (2012) 7 SCC 1

45 (2015) 10 SCC 292

Athat there was compelling necessity for exercise of such powerand decision of the State was based on material including thestudy that overall efficiency is not compromised. In the presentcase, no such exercise has been undertaken. The High Courterroneously observed that it was for the petitioners to plead andprove that the overall efficiency was adversely affected by givingBconsequential seniority to junior persons who got promotion onaccount of reservation. Plea that persons promoted at the sametime were allowed to retain their seniority in the lower cadre isuntenable and ignores the fact that senior person may bepromoted later and not at the same time on account of rosterCpoint reservation. Depriving him of his seniority affects his furtherchances of promotion. Further plea that seniority was not afundamental right is equally without any merit in the presentcontext. In absence of exercise under Article 16(4-A), it is the“catch-up” rule which fully applies. It is not necessary to go intothe question whether the Corporation concerned had adopted theDrule of consequential seniority.”[46]

The Court clarified that the decision will not affect those whohave already retired and availed of financial benefits. It was furtherdirected that promotions granted to existing employees based onconsequential seniority are liable to be reviewed and that the seniorityElist be revised in terms of the decision. Three months were granted totake further consequential action. Petitions seeking review of thedecision have been tagged with the present proceedings.

26. After the decision of this Court in K Pavitra I, on 22 March2017, the Government of Karnataka constituted the Ratna PrabhaFCommittee[47] headed by the Additional Chief Secretary to the State ofKarnataka to submit report on the backwardness and inadequacy ofrepresentation of SCs and STs in the State Civil Services and the impactof reservation on overall administrative efficiency in the State ofKarnataka. The tasks entrusted to the Committee were to:G“1) Collect information on the cadre-wise representation ofScheduled Castes and Scheduled Tribes in all the GovernmentDepartments;

46 Supra 6 at page 64147 G.O. No. DPAR 182 SeneNi 2011H

2) Collect information regarding backwardness of ScheduledCastes and Scheduled Tribes; and

3) Study the effect on the administration due to the provision ofreservation in promotion to the Scheduled Castes and ScheduledTribes.”

27. On 5 May 2017, the Ratna Prabha Committee submitted areport, titled as the ‘Report on Backwardness, Inadequacy ofRepresentation and Administrative Efficiency in Karnataka’[48]. TheGovernment of Karnataka, through its Department of Personnel andAdministrative Reforms, submitted the Ratna Prabha Committee reportto the Law Commission of Karnataka on 8 June 2017. The LawCommission sought to opine on ‘whether the data collected and reasonsassigned by the Ratna Prabha Committee constitute valid basis forvalidating the law’ and submitted its report on 27 July 2017.

28. In the meantime, the petitioners filed contempt petitionscontending that the directions of this Court in K Pavitra I to the Stateof Karnataka to review the seniority list were not complied with. TheState of Karnataka filed applications for extension of time for compliance.On 20 March 2018, this Court disposed of the petitions rejecting theapplications for extension of time for compliance with the decision in BK Pavitra I and granted one month time to take any consequential action.The State of Karnataka subsequently filed compliance affidavits beforethis Court stating that the exercise directed by the decision in K PavitraI had been carried out.29. On the basis of the Ratna Prabha Committee report, theGovernment of Karnataka introduced the Karnataka Extension ofConsequential Seniority to Government Servants Promoted on the Basisof Reservation (to the Posts in the Civil Services of the State) Bill 2017.The Bill was passed by the Legislative Assembly on 17 November 2017and by the Legislative Council on 23 November 2017. On 16 December2017, the Governor of the Karnataka reserved the Bill for the considerationof the President of India under Article 200 of the Constitution. The Billreceived the assent of the President on 14 June 2018 and was publishedin the official Gazette on 23 June 2018.

30. Sections 3, 4 and 5 of the Reservation Act 2018 provides asfollows :

48 Ratna Prabha Committee report

“3. Determination of Seniority of the Government ServantsPromoted on the basis of Reservation.- Notwithstandinganything contained in any other law for the time being in force,the Government Servants belonging to the Scheduled Castes andthe Scheduled Tribes promoted in accordance with the policy ofreservation in promotion provided for in the Reservation Ordershall be entitled to consequential seniority. Seniority shall bedetermined on the basis of the length of service in cadre:

Provided that the seniority inter-se of the Government Servantsbelonging to the Scheduled Castes and the Scheduled Tribes aswell as those belonging to the unreserved category, promoted to acadre, at the same time by common order, shall be determinedon the basis of their seniority inter-se, in the lower cadre.

Provided further that where the posts in cadre, according to therules of recruitment applicable to them are required to be filled bypromotion from two or more lower cadres,-

(i) The number of vacancies available in the promotional (higher)cadre for each of the lower cadres according to the rules ofrecruitment applicable to it shall be calculated; and

(ii) The roster shall be applied separately to the number ofvacancies so calculated in respect of each of those lower cadres:

Provided also that the serial numbers of the roster points specifiedin the Reservation Order are intended only to facilitate calculationof the number of vacancies reserved for promotion at time andsuch roster points are not intended to determine inter-se seniorityof the Government Servants belonging to the Scheduled Castesand the Scheduled Tribes vis-a-vis the Government Servantsbelonging to the unreserved category promoted at the same timeand such inter-se seniority shall be determined by their seniorityinter-se in the cadre from which they are promoted, as illustratedin the Schedule appended to this Act.

4. Protection of consequential seniority already accordedfrom 27th April 1978 onwards.- Notwithstanding anythingcontained in this Act or any other law for the time being in force,the consequential seniority already accorded to the Governmentservants belonging to the Scheduled Castes and the Scheduled

Tribes who were promoted in accordance with the policy ofreservation in promotion provided for in the Reservation Orderwith effect from the Twenty Seventh Day of April, NineteenHundred and Seventy Eight shall be valid and shall be protectedand shall not be disturbed.

5. Provision for review.- All promotions to the posts belongingto the State Civil Services shall be within the extent and inaccordance with the provisions of the reservation orders and otherrules pertaining to method of recruitment and seniority. TheAppointing Authority shall revise and redraw the existing senioritylists to ensure that the promotions are made accordingly:

Provided that subsequent to such review, wherever it is foundthat Government Servants belonging to the Scheduled Castes andScheduled Tribes were promoted against reservation and backlogvacancies in excess or contrary to extent of reservation providedin the reservation orders shall be adjusted and fitted with referenceto the roster points in accordance with the reservation orders issuedfrom time to time by assigning appropriate dates of eligibility. Incase, if persons belonging to the Scheduled Castes and theScheduled Tribes who have already been promoted againstreservation or backlog vacancies in excess or contrary to theextent of reservation provisions cannot get adjusted and fittedagainst the roster points they shall be continued againstsupernumerary posts, to be created by the concerned administrativedepartment presuming concurrence of Finance Department, inthe cadres in which they are currently working, till they get thedate of eligibility for promotion in that cadre.”

Section 9 provides for the validation of action taken in respect ofpromotions since 27 April 1978:

“9. Validation of action taken under the provisions of thisAct.- Notwithstanding anything contained in any Judgment,Decree or Order of any court, tribunal or other authority contraryto section 3 and 4 of this Act any action taken or done in respectof any promotions made or purporting to have been made and anyaction or thing taken or done, all proceedings held and any actionspurported to have been done since 27th April, 1978 in relation topromotions as per sections 3 and 4 of this Act, before the

1136SUPREME COURT REPORTS

Apublication of this Act shall be deemed to be valid and effectiveas if such promotions or action or thing has been made, taken ordone under this Act and accordingly:- (a) no suit or otherproceedings shall be maintained or continued in any court or anytribunal or before any authority for the review of any suchpromotions contrary to the provisions of this Act; and (b) no courtBshall enforce any decree or order to direct the review of any suchcases contrary to the provisions of this Act.”

Section 1 (2) provides that the Reservation Act 2018 came intoforce with effect from 17 June 1995 (the effective date of the seventy-seventh and eighty-fifth constitutional amendments).C

31. These proceedings were instituted to assail the vires of theReservation Act 2018. The principal contention which has been urged isthat the Reservation Act 2018 does not take away basis of the decisionof this Court in K Pavitra I and is ultra vires. All matters have beenadmitted for hearing and tagged together.D

32. On 27 July 2018, when the batch of cases was listed for hearing,it was suggested by this Court that the status quo may not be alteredpending consideration of the matter. The Advocate General for the Stateof Karnataka orally agreed and accepted an order of status quo. TheGovernment of Karnataka issued circular on 3 August 2018 with aEdirection to maintain status quo and not affect the process of promotion/demotion till further orders from the government. These directions wereissued to all autonomous bodies, universities, public enterprises,commissions, corporations, boards and to institutions availing aid fromthe government under their administrative control.F33. In v[[49]]Jarnail

33. In Jarnail Singh v Lachhmi Narain Gupta[[49]], (“Jarnail”) aConstitution Bench of this Court considered whether the decision inNagaraj requires to be referred to larger Bench since:

(i)It requires the state to collect quantifiable data showingbackwardness of the SCs and STs contrary to the nine judgeGBench decision in Indra Sawhney;

(ii)The creamy layer principle was not applied to SCs and STs inIndra Sawhney; and

(iii)In applying the creamy layer principle, Nagaraj conflicts withthe decision in V Chinnaiah v State of AP[50](“Chinnaiah”).

34. In Jarnail, the Constitution Bench held that :

(i)The decision in Chinnaiah holds, in essence, that state law[51]cannot further sub-divide the SCs into sub categories. Such anexercise would be violative of Article 341(2) since only an Actof Parliament and not the state legislatures can make changesin the Presidential list. Chinnaiah did not dwell on any aspecton which the constitutional amendments were upheld in Nagaraj.Hence, it was not necessary for Nagaraj to advert to the decisionin Chinnaiah. Chinnaiah dealt with completely differentproblem and not with the constitutional amendments, which weredealt with in Nagaraj[52];

(ii)The decision of the Constitution Bench in Nagaraj, insofar as itrequires the state to collect quantifiable data on backwardnessin relation to the SCs and STs is contrary to Indra Sawhneyand would have to be declared to be bad on this ground[53]; and

(iii)Constitutional courts, when applying the principle of reservationwill be within their jurisdiction to exclude the creamy layer on aharmonious construction on Articles 14 and 16 along with Articles341 and 342[54]. The creamy layer principle is an essential aspectof the equality code.

35. On 12 October 2018, the State of Karnataka submitted beforethis Court that since legislation has been enacted by the state legislatureand in view of the judgment of the Constitution Bench in Jarnail, theState would no longer proceed on the oral assurance of the AdvocateGeneral and would not be bound to it. On the other hand, it was urged bylearned Counsel appearing for the petitioners that the intent of theReservation Act 2018 was only to nullify the effect of the judgment in BK Pavitra I. Counsel urged that in view of the decisions of this Courtincluding those in Shri Prithvi Cotton Mills Ltd v Broach Borough

50 (2005) 1 SCC 394

51 The court was considering the provisions of the Andhra Pradesh Scheduled Caste

(Rationalisation of Reservations) Act 2000

52 Supra 49, paragraph 22 at page 422-423

53 Ibid, paragraph 24 at page 424

54 Ibid, paragraph 26 at page 425-426

55 (1969) 2 SCC 283

AMunicipality[55](“Prithvi Cotton Mills Ltd”) and Madan MohanPathak v Union of India (“Madan Mohan Pathak”)[56], it was notopen to the legislature to render judgment of this Court ineffectivewithout taking away its basis or foundation. Since the case was of anurgent nature, the proceedings were listed on 23 October 2018 forcommencement of final hearing.B

36. On 27 February 2019, the State of Karnataka issued aGovernment Order[57] directing that:

“In the circumstances explained in the preamble, the followinginstructions are hereby issued subject to the conditions that theCofficers/officials, who have been reverted, shall be reposted tothe cadres held by them immediately prior to their reversion and ifvacant posts are not available in those cadres, supernumeraryposts shall be created to accommodate them. It is also ordered

that the officers/officials working at present in those cadres,belonging to any category, shall not be reverted.”D

The Government Order was made subject to the outcome of theseproceedings. On 1 March 2019, this Court granted stay on the operationof the Government Order dated 27 February 2019. This Court observedthat since the case was in the concluding stages of the hearing, it wouldnot be appropriate to alter the present status when the matter was inEseisin of the Court.

C. Submissions

C.I. Petitioners

37. In adjudicating upon the challenge to the constitutional validityFof the Reservation Act 2018, we have heard the erudite submissions ofDr Rajeev Dhavan, learned Senior Counsel appearing on behalf of thePetitioners. Prefacing his submissions, Dr Rajeev Dhavan has advertedto the following issues which arise for the determination of this Court:

A. Is the Reservation Act 2018 valid?G(a)Does it not peremptorily overrule the decision of thisCourt in K Pavitra I without altering the basis of thedecision?

(b)Does it violate the law laid down by this Court inBadappanavar on seniority?

(c)Does the background to the enactment to the ReservationAct 2018 reveal manifest intent to overrule the decisionin K Pavitra I?

(d)Was the reference of the Bill by the Governor ofKarnataka to the President under Article 200 of theConstitution and the subsequent events which took placeconstitutionally valid? In this context, could the Bill havebeen brought into force without the assent of theGovernor?

BIs the Reservation Act 2018 compliant with the principlesenunciated in the Constitution Bench decisions in Nagarajand Jarnail? Does the report of the Ratna PrabhaCommittee dated 5 May 2017 constituted an adequateand appropriate basis to support the validity of the Actand its implementation?

CDoes the Reservation Act 2018 apply in the present writpetitions (instituted by K Pavitra and Shivakumar) tothose departments where there is over representation orin public corporations not covered by the Ratna Prabhareport or the legislation?38. While we will be dealing with the submissions urged by DrDhavan in the course of our analysis, it would be appropriate at thisstage to advert to the salient aspects of the submissions under the followingheads:

A. Usurpation of judicial power

39. Dr Dhavan has urged that the Reservation Act 2018 wasenacted in hurry with no purpose other than to overrule the decision inB K Pavitra I, while the issue of implementation was still pending. Thedecision in K Pavitra I was rendered on 19 February 2017. On 22March 2017, Government Order was issued appointing the AdditionalChief Secretary to submit report on backwardness, inadequacy ofrepresentation and the impact of reservation on efficiency. The reportwas submitted on 5 May 2017. On 26 July 2017, the report was acceptedby the State Cabinet which constituted sub-committee to examine the

Amatter and submit draft Bill. The State Law Commission recommendedthe State to pass legislation with retrospective effect by curing theinfirmities and factors noticed in the decision in K Pavitra I. On 4August 2017, the Cabinet Sub-Committee submitted its decision basedon the report. On 7 August 2017, the Cabinet approved the proposedBill. The Bill was introduced in the Karnataka State Legislative AssemblyBon 14 November 2017 and was passed on 17 November 2017. The Billwas passed by the State Legislative Council on 23 November 2017 andwas submitted to the Governor on 6 December 2017. The Bill wasreserved by the Governor for the consideration of the President. On 15February 2018, 9 March 2018 and 18 April 2018, the Union GovernmentCin the Ministry of Home Affairs sought clarifications from the Stategovernment which were provided on 16 March 2018 and 23 April 2018.The Bill received the assent of the President on 14 June 2018, and waspublished in the official Gazette and came into force on 23 June 2018.40. On the basis of the above facts, Dr Dhavan submitted that:

D(i)There was no compelling necessity to overrule K Pavitra I“except political necessities”;

(ii)A comparison of the provisions of the Reservation Act 2002with the Reservation Act 2018 indicates that:

(a)The Reservation Act 2018 is substantively the same asEthe Reservation Act 2002;

(b)The change in the basis of the decision in K Pavitra I ison the factum of the Ratna Prabha Committee report;

(c)“Compelling necessities” are mentioned but their existenceis not demonstrated;F

(d)The title of the Reservation Act 2018 is limited toconsequential seniority which is not mentioned in the law;

(e)Section 5 allows for an unlimited backlog and the creationof supernumerary posts for SCs and STs;

G(f)Section 5 presumes the permission of the FinanceDepartment and visualizes an “excess”, which willinvalidate the law; and

(g)Section 9 brazenly overrules and goes beyond the date of17 June 1995 and postulates that in future review of theHcases is forbidden.

B. Violation of the separation of powers

41. Separation of powers postulates constitutional divisionbetween legislative and judicial functions. In this context, the submission

(a)The legislative power is distinct from the judicial power;

(b)The legislature cannot lawfully usurp judicial power by sitting inappeal over any judicial decision by attempting to overturn it;

(c)Any statute which seeks to overturn judicial decision must bewithin the legislative competence of the legislature under theSeventh Schedule to the Constitution;

(d)Any such statute must change the basis of the law;

(e)The decision of court will always be binding unless the law orconditions underlying the legislation which was held to be invalidare so fundamentally altered so that different result wouldenure;

(f)While legislation may be retroactive, an interim or final directionmust be obeyed especially when rights are conferred;

(g)A new legislation can be challenged on the basis that it violatesthe fundamental rights; and

(h)Unless the basis of legislation which is found to be ultra vireshas been altered, the mere enactment of new legislation wouldconstitute brazen overruling of the law, which is impermissible.

42. Dr Dhavan urges that Reservation Act 2018 will not passmuster, when it is assessed in the context of the principles enunciated bythe decisions of this Court in (i) Prithvi Cotton Mills Ltd, (ii) MadanMohan Pathak, (iii) S R Bhagwat v State of Mysore[58], (iv)Bakhtawar Trust v M Narayan[59], (v) Delhi Cloth & GeneralMills Co. Ltd v State of Rajasthan[60], (vi) Re Cauvery[61], (vii) S TSadiq v State of Kerala[62] and (viii) Medical Council of India v Stateof Kerala[63].

57 G.O. No. DPAR 186 SRS 201858 (1995) 6 SCC 1659 (2003) 5 SCC 29860 (1996) 2 SCC 44961 (1993) Supp (1) SCC 9662 (2015) 4 SCC 40063 (2018) 11 SCALE 141

A43. Explaining the applicability of the above principles on facts,Dr Dhavan urged that after the decision of this Court in K Pavitra I,the State Government filed applications for extension of time on 9 May2017 and 8 September 2017[64]. This Court extended time to revise theseniority lists till 30 November 2017 and for consequential actions by 15January 2018. On 15 January 2018, the State Government moved beforeBthis Court seeking extension of time for implementing the decision inB K Pavitra I. On 29 January 2018, this Court finally granted time until15 March 2018. On 17 March 2018, the State moved before this Courtfor extension of time and on 20 March 2018, while disposing of certaincontempt petitions and other applications, one month’s time was grantedCto take consequential action. On 25 April 2018, this Court directed theState to file further affidavit (by 1 May 2018) indicating that promotionsand demotions have been duly effected. On 9 May 2018, this Courtdirected the State to file an affidavit to the effect that the judgment inB K Pavitra I had been fully complied with and the hearing was posted

for 4 July 2018. On 28 June 2018, the State of Karnataka informed thisDCourt that the “further process have been stalled because of theenactment of the new legislation and its publication in the Gazette on 23June 2018”. On 7 August 2018, the State of Karnataka filed an interimapplication seeking permission of this Court to implement the ReservationAct 2018. It has been urged that contrary to what was stated by theEstate Government, there was no compliance of the decision inB K Pavitra I. In this background, it has been submitted that the statehas undertaken an exercise to overrule K Pavitra I which constitutesa clear usurpation of judicial power.

C. Lack of compliance with Nagaraj and JarnailF44. Dr Dhavan assails the report of the Ratna Prabha Committeeon the ground that is was not in compliance with Nagaraj and Jarnail.Nagaraj postulates that:

(i)The backlog should not extend beyond three years;

G(ii)Excessive reservation would invalidate the exercise of power;and

(iii)There is theory of guided power under which failure to followthe above conditionalities would result in reverse discrimination.

45. According to the submission, the decision in Nagaraj:

(a)Deploys the methodology that the seventy-seventh, eighty-first,eighty- second and eighty-sixth amendments were only enablingand were valid. The conditionalities for valid exercise of theenabling power are two-fold:

(i) The existence of compelling reasons namely, backwardness,inadequacy of representation and overall administrativeefficiency requiring quantifiable data; and

(ii) Excessiveness, which postulates that the ceiling limit offifty per cent is not transgressed, the creamy layer is notCobliterated and reservation is not extended indefinitely.

(b)The methodology of Nagaraj was approved both in I R Coelhov State of TN[65]and Jarnail; and

(c)The decision in Jarnail, while upholding the methodology adoptedin Nagaraj held that there is constitutional presumption whichobviates the need for quantifiable data on the backwardness ofSCs and STs and hence that part of Nagaraj was held to becontrary to the decision in Indra Sawhney. The application ofthe creamy layer test was held to be requirement for SCs andSTs and other principles or applications enunciated in Nagarajwere held to be valid.

46. In this background, the Ratna Prabha Committee report isassailed on the following grounds:

(i)The chapter on backwardness is not necessary;

(ii)Inadequacy of representation is examined over 30 pages;

(iii)The data collected is over 32 years in thirty one governmentdepartments;

(iv)No data exists in 1986;

(v)The data indicates that STs are adequately represented fromG1999 to 2015 but the average of 31 years is 2.70;

(vi)No data has been collected from public sector undertakings,boards, corporations, local bodies, grant-in-aid institutions, amongothers, and it is assumed that the data is representative in nature;

65 (2007) 2 SCC 1

A(vii)The representation in Public Works Department (“PWD”) andKarnataka Power Transport Corporation Limited (“KPTCL”)is adequate;

(viii) The data collected is with respect to the availability of vacanciesand not posts, contrary to the requirements laid out inBSabharwal’s case;

(ix)The data is on sanctioned posts and not posts which have beenfilled;

(x)The data is not cadre based but based on grades A, B, and Deven though Jarnail requires the data to be on the basis ofCcadre;

(xi)The report erroneously assumed that grades A, B, and Dcorrespond to cadres;

(xii)The report candidly admits that “in some departments,Dcorporations like PWD and KPTCL there may be overrepresentation of the percentage mandated”;

(xiii) On administrative efficiency:

(a)The data is based on general considerations such aseconomic development;

(b)The efficiencies adverted to in matters of administrative,policy and service are general; and

(c)Reliance which has been placed is on performancereports.F(xiv) The state has followed strange method of back door entry byfilling up vacancies not by selection but through toppers fromuniversities in various departments for gazetted grade and Bposts.

D. Reservation of the Bill to the PresidentG47. Dr Dhavan urged that from the counter affidavit filed by theState Government, it is evident that:

(i)The view of the State government was that given the legislativecompetence of the state legislature, the “Bill was not requiredto be reserved” for the assent of the President;H

(ii)On 6 December 2017, the Governor of Karnataka considered itappropriate to refer the Bill to the President in view of thedecision in K Pavitra I and the “importance of the issue andthe constitutional interpretation involved in the matter” underArticle 200;

(iv)The State government on the Bill being forwarded to the Presidentcontinued to maintain that the Bill neither attracted the secondproviso to Article 200 nor did it deal with matter which wasrepugnant to Union law on an entry falling in List III of theSeventh Schedule. Hence, the State government opined thatthere did not appear to be any situation warranting the reservationof the Bill for the consideration of the President. Hence, it hasbeen urged that it may be:

(a)The reference by the Governor on 6 December 2017 tothe President simply stated that since constitutionalinterpretation was required, the Bill was reserved forthe President; however no specific issues were referred;and

(b)The State government forwarded the Bill to thePresident, recording at the same time that there was noreason to refer.

(v)The Union Government invited reasons for the reference to whichresponses were made by the State Government in its clarification;

(vi)The Governor was altogether by-passed in this process; and

(vii)The Governor has the exclusive authority under Article 200 onthe reference and must formulate specific reference, whichwas not done. The Central Government, it was urged, cannotcreate reference which has not been made by the state.

48. In order to buttress his submissions, Dr Dhavan relied uponthe decisions in Kaiser-I-Hind Pvt Ltd v National TextileCorporation Ltd[66], Gram Panchayat of Village Jamalpur vMalwinder Singh[67](“Gram Panchayat of Village Jamalpur”),Hoechst Pharmaceuticals Ltd v State of Bihar[68] (“Hoechst

66 (2002) 8 SCC 18267 (1985) 3 SCC 66168 (1983) 4 SCC 45

APharmaceuticals Ltd”) and Nabam Rebia and Bamang Felix vDeputy Speaker Arunachal Pradesh Legislative Assembly[69](“Nabam Rebia”).

Dr Dhavan urged that:

(i)There was no valid reference by the Governor in the absenceBof specificity on the matter of reference;

(ii)The State government consistently indicated that there was noreason to refer the Bill to the President;

(iii) The Union Government could not have created reference whereCnone existed; and

(iv)The reference was unconstitutional and the assent of theGovernor was not obtained.

E. Seniority including consequential seniority

49. The submissions of Dr Dhavan are:D

(i)Seniority is determined by the Seniority Rules 1957;

(ii)The decision in Badappanavar held that there was no specificrule providing for consequential seniority in the Seniority Rules1957;

E(iii)The amendments in the Seniority Rules 1957 on 18 August 2006did not effect any change to unsettle the decision inBadappanavar;

(iv)The Reservation Act 2002 attempted to overrule Badappanavarand was eventually invalidated in K Pavitra I;F

(v)The Reservation Act 2018 mentions consequential seniority inits title yet Section 5 makes no reference of it and in factreinforces the Seniority Rules 1957 by implication. The referenceto the Rules in Section 5 can only be in the context of the SeniorityRules 1957 as amended. The Seniority Rules 1957 will overrideGthe administrative orders of 27 April 1978;

(vi)The Government Order dated 27 April 1978 specifically advertsto Rules 4 or 4-A (as the case may be) of the Seniority Rules1957;

H69 (2016) 8 SSC 1

(vii)No seniority can be conveyed by filling up of backlog and creatingexcess or supernumerary posts; and(viii) The proviso to Section 5 would be liable to be struck down forits excessiveness.

50. In substance, Dr Dhavan’s are as follows:

(i)Every administrative action or legislation has to be Nagarajcompliant as explained in Jarnail;

(ii)After the decision in K Pavitra I, the State of Karnatakahurriedly enacted the Reservation Act 2018 withoutdemonstrating any compelling necessity;

(iii)The Governor of Karnataka reserved the Bill for the Presidentwithout delineating the exact reasons for doing so. Even whileforwarding the Bill, the State government maintained that therewas no reason to make reference to the President. The queriesexchanged subsequently would not constitute valid reference;

(iv)The Ratna Prabha Committee report is flawed and does notestablish inadequacy of representation and impact onadministrative efficiency;

(v)The Reservation Act 2018 is similar to the Reservation Act 2002except for (i) Section 5 while mandates reservations; and (ii)Section 9 which overrules all decisions of the past and pre-emptschallenges in the future;

(vi)The Seniority Rules 1957 continue not to cover consequentialseniority and by the repeal of the Reservation Act 2002, thedecision in Badappanavar continues to be good law;

(vii)The uncontrolled backlog is not valid;

(viii) proper exercise must be post and not vacancy based, it mustbe based on cadres and not on groups to D;

(ix)The counter affidavit of the State admits the flaws of the processdenying curative effect to the exercise; and

(x)The Reservation Act 2018 has failed to pass muster and its non-compliant with the decisions in Nagaraj and Jarnail.

A51. Mr Shekhar Naphade, learned Senior Counsel submitted

that:

(i) The decision in K Pavitra I has attained finality and subsequentchange in law cannot abrogate the principle of res judicata;

(ii) As held in the decision of this Court in Pandit M S M SharmaBv Dr Krishna Sinha[70], whether an earlier judgment is right orwrong is not material to the applicability of the doctrine of resjudicata;

(iii) The subsequent decision in Jarnail is not ground for reviewand, in any event, review of K Pavitra I by the state willCnot lie;

(iv)In view of the explanation to Order XLVII of the CPC, reversalon question of law in subsequent decision of superior courtis not ground for review;

D(v)An error of law is no ground for review (State of West Bengalv Kamal Sengupta[71]);

(vi)The Reservation Act 2018 is based on report which furnishesfactual data: this could have been furnished in the earlier round.The legislature has taken recourse to exercise of judicial power;

E(vii)The provisions of the Reservation Act 2018 are virtually thesame as those of the Reservation Act 2002;

(viii) The basis of legislative intervention was the collection of data:the attempt is to place fresh material before the Court to reviewits decision in K Pavitra I. There is no change in law;F(ix)Retrospectivity of the Reservation Act 2018 from 1978 isarbitrary;

(x)There is no change in the basis of the law. The basis is changein the factual matrix which is not available as ground for review;

G(xi)The Ratna Prabha Committee report has collected no substantivematerial on the impact of reservation in promotion on theefficiency of administration;

70 AIR 1960 SC 118671 (2008) 8 SCC 612H

(xii)The second proviso to Article 200 and Article 254 (2) of theConstitution are exhaustive of the constitutional power of theGovernor to reserve Bill for the assent of the President;

(xiii) The Ratna Prabha Committee report does not deal with theaspect of creamy layer which had been duly considered inJarnail;

(xiv) The Ratna Prabha Committee dwelt on groups and not on cadres.The data includes direct recruits as well as promotees, whereasthe present case is only about promotion; and

(xv)Data was collected only from thirty one government departmentsand not from public sector undertakings.

52. Supplementing the submissions of Dr Dhavan, Mr Puneet Jain,learned Counsel appearing on the behalf of the petitioners has advertedto the following issues which arise for the consideration of this Court:

(i)Section 3 of the Reservation Act 2018 only seeks to extendconsequential seniority retrospectively to vacancy based rosterpoint promotees and is not concerned with the state exercisingits enabling power to provide for reservation in promotions. TheGovernment Order[72] dated 27 April 1978 by which reservationfor persons belonging to SCs and STs in specified categories ofpromotional posts was introduced cannot be “justified” by asatisfaction on the basis of the Ratna Prabha Committee report;

(ii)Article 16 (4A) confers discretion upon the state to providefor reservations in promotion with or without consequentialseniority. Nagaraj mandates that there have to exist compellingreasons and the satisfaction of the state before exercise of itspowers under Article 16 (4A). In view of the decision in PanneerSelvam, automatic conferment of consequential seniority canno longer be sustained; and

(iii)The fact that the eighty-fifth amendment has been maderetrospective from 17 June 1995 cannot enable the state to makea provision for the first time by exercising powers retrospectivelyand consequently taking away vested rights which legitimatelyaccrued upon the general category employees.

AC.2. Submissions for the respondents and intervenors

53. Appearing for the State of Karnataka, Mr Basava Prabhu SPatil, learned Senior Counsel submitted thus:

A. The basis of K Pavitra I has been altered

B(i)The Reservation Act 2018 has taken away the basis of thejudgment in K Pavitra I and the protection of seniority withretrospective effect which is permissible in law:

(a)The Reservation Act 2018 does not seek to overrule ornullify simpliciter the decision in K Pavitra I. TheClaw was enacted to provide consequential seniority forroster point promotees after collecting data showing theexistence of the compelling reasons of : (i)backwardness; (ii) inadequacy of representation; and(iii) overall efficiency. Hence, the Reservation Act 2018removes the basis of the decision in K Pavitra I;

(b)The state legislature is competent to enact law withretrospective or retroactive operation. The legislativecompetence of the State Legislature to enact law istraceable to Article 16 (4A). Merely because thelegislation confers seniority with effect from 1978, willEnot lead to its invalidation (Cheviti Venkanna Yadav vState of Telangana[73](“Cheviti Venkanna Yadav”),Utkal Contractors & Joinery (P) Ltd v State ofOrissa[74](“Utkal Contractors and Joinery (P) Ltd”)and State of Himachal Pradesh v Narain Singh[75](“Narain Singh”);F

(c)Sections 3 and 4 of the Reservation Act 2018 came intooperation on 17 June 1995, on which date the seventy-seventh and eighty-fifth amendments to the Constitutioncame into effect, thereby enabling reservations to bemade in promotion together with consequential seniority.GThe Reservation Act 2018 protects consequentialseniority accorded from 27 April 1978 (the date of the

73 (2017) 1 SCC 28374 (1987) Supp. SCC 75175 (2009) 13 SCC 165H

reservation order) in light of the data collected whichshows the inadequacy of representation;

(d)In terms of the decision in Virpal Singh, the catch-uprule was to be applied with effect from 10 February1995 (i.e. the date of the judgment in Sabharwal).According to the decision in Ajit Singh II, promotionsBgranted prior to 1 March 1996 without following thecatch-up rule are protected. Badappanavar protectsthe promotions of reserved candidates based onconsequential seniority which took place before 1 March1996;

(e)While judicial review allows courts to declare statuteas unconstitutional if it transgresses constitutional limits,courts are precluded from inquiring into the propriety orwisdom underlying the exercise of the legislative power.The motives of the legislature in enacting law areincapable of being judicially evaluated; and

(f)Seniority is not vested or an accrued right and henceit is open for the legislature to enact law for dealingwith it.

(ii)The Reservation Act 2018 is not of the same genre of legislationdealt with in the decision of Madan Mohan Pathak:

(a)Madan Mohan Pathak involved challenge by theemployees of the Life Insurance Corporation to theconstitutional validity of Parliamentary law whichattempted to render ineffective settlement withemployees for the payment of bonus. The judgment doesnot deal with case where the basis of the invalidity ofa legislation noticed in judicial decision is taken awayby subsequent law; and

(b) Madan Mohan Pathak in fact, notices that in the caseof declaratory judgment holding an action to be invalid,validating legislation to remove the defect is permissible.

(iii)The collection of data by the State must demonstrate thepresence of compelling reasons namely, (a) inadequacy ofrepresentation; (b) backwardness; and (c) overall administrativeefficiency as enunciated in Nagaraj and K Pavitra I;

A(iv)The decision in Indra Sawhney holds that the question as towhether backward class of citizens is not adequatelyrepresented in the services under the state is matter of subjectivesatisfaction;

(v)Nagaraj also notices the position that there is presumptionBthat the state is in the best position to define and measure meritand that there is no fixed yardstick to identify and measure thethree factors on which quantifiable data has to be collected;

(vi)The decision in Jarnail also holds that the test of determiningthe adequacy of representation in promotional posts is left wiselyCto the states; and

(vii)The Reservation Act 2018 was enacted after the State wassatisfied about the existence of the three compelling reasons.

B. The Ratna Prabha Committee has dealt with all the threefacets constituting the ‘compelling reasons’:D1. Backwardness

(i) The decision in Jarnail has clarified that there is no requirementof collecting quantifiable data on the backwardness of SCs andSTs. The observation in Nagaraj is contrary to the larger Benchdecision in Indra Sawhney.E

(ii)Yet, in any event, the Ratna Prabha Committee considered thebackwardness of SCs and STs in view of the dictum in Nagarajwhich then held the field. The Committee after carrying out theexercise came to the conclusion that the requirement ofbackwardness is satisfied.F

2. Inadequacy of representation

(i)Chapter II of the Ratna Prabha Committee report consideredthe inadequacy of representation and records summary of itsconclusions in paragraphs 2.5 and 2.6;

G(ii)It is misleading to assert that the State did not collect cadre wisedata. Para 2.4.1 indicates that the government took into accountthe data for groups A, B, and to draw conclusion aboutthe inadequacy of representation;

(iii)The decisions in Indra Sawhney and Sabharwal are clear inHpostulating that persons belonging to the SCs and STs who are

appointed against general category posts/vacancies are not tobe reckoned for ascertaining over representation; and

(iv)It is matter of common experience that for most of the groupD posts such as municipal sweepers, only persons belonging toSCs and STs apply. Over representation in group posts whichresults from general category candidates keeping away fromthem is no ground to deny promotion to group employeesrecruited against the reserved category.

3. Administrative efficiency

(i)Para 3.12 of Chapter III of the Ratna Prabha Committee reporthas considered all relevant aspects before coming to theconclusion that reservations in promotion do not affectadministrative efficiency;

(ii)Promotions are made on the basis of seniority-cum-merit. [Rule19(3)(a) of the Rules 1977] Only those candidates who fulfil thecriteria of merit/suitability are promoted based on seniority. Sincethis criterion is applicable even in respect of roster promotions,the efficiency of administration is not adversely impacted; and

(iii)On promotion, candidate is required to serve statutory periodof officiation before being confirmed in service. This applies toall candidates including roster point promotees and ensures thatthe efficiency of administration is not adversely affected.

C. The challenge on the ground that the Reservation Act2018 does not exclude the benefit of consequential seniority inrespect of the creamy layer in terms of the decision in Jarnail isbaseless:

(i)Creamy layer as concept can be applied only at the entry levelor at appointment and has no application while grantingreservations in promotion and allowing for consequentialseniority. The Reservation Act 2018 provides only forconsequential seniority and the extent of reservation granted toSCs and STs at the entry level/ in appointment is not underchallenge;

(ii)Even assuming that the concept of creamy layer can be appliedat the stage of promotion, it is inapplicable to the conferment of

1154SUPREME COURT REPORTS

Aconsequential seniority. Consequential seniority is not an additionalbenefit but consequence of promotion;

(iii)Appointment to post or progression in career based onpromotion cannot be treated as acquisition of creamy layerstatus. In fact, the decision in Jarnail makes it clear that theBconcept of creamy layer applies only to the entry stage;

(iv)Nagaraj does not hold that the exclusion of the creamy layer isa pre-condition for the exercise of the enabling power underArticle 16 (4A) for providing promotion or consequentialseniority;

C(v)In the decision in K Pavitra I, the challenge to the ReservationAct 2002 was accepted on the ground that the State had notcarried out an exercise for determining inadequacy ofrepresentation, backwardness and overall efficiency ofadministration. K Pavitra I did not accept the plea of theDapplicability of creamy lawyer principle to consequential seniority;and

(vi)Under the Reservation Order 1978, reservations in promotionare restricted up to the lowest category of class I post.

D. There is no basis in the challenge that the ReservationEAct 2018 does not meet the proportionality test and results inover representation.

(i)In view of the Reservation Order 1999 providing that reservationin promotion in favour of SCs and STs shall continue only tilltheir representation reaches 15 per cent and 3 per centFrespectively, it is ensured that there is no over representation;and

(ii)Since the Reservation Act 2018 provides only for consequentialseniority and not for reservation in appointment or promotion, itcannot be asserted that reservation for the purpose of seniorityGis vacancy-based and not post-based, contrary to the decision inSabharwal. Reservations in promotion are provided by theGovernment Order 1978 which provides for roster pointpromotion and not roster point seniority. The Government Orderdated 13 April 1999 provides for making promotions (after theexisting backlog is filled) in favour of SCs and STs by maintainingH K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS[DR. DHANANJAYA Y CHANDRACHUD, J.]

their representation to the extent of 15 per cent and 3 per centof the total working strength (and not vacancies).

E. There was no constitutional infirmity in the Governor ofKarnataka having reserved the Reservation Act 2018 for theconsideration of the President.

The Governor in reserving the Bill for consideration of the Presidentacted in pursuance of the provisions of Article 200 of the Constitution.The Governor may under Article 200 (i) declare assent to Bill; or (ii)declare the withholding of assent; or (iii) reserve Bill for considerationof the President. The power of the Governor to reserve Bill forconsideration of the President is not subject to the existence of arepugnancy under Article 254 (2). The action of the Governor is non-justiciable. (Hoechst Pharmaceuticals Ltd)

F. The assent of the Governor is not contemplated oncethe President has given assent to Bill.

Neither Article 200 nor Article 201 contemplates that the Bill shouldbe presented again before the Governor after it has been assented to bythe President. Section 5(1)(iv) of the Karnataka General Clauses Act1899 postulates that an Act passed by the Karnataka legislature shallcome into operation on the day on which the assent of the Governor or,as the case may be, of the President is granted and is first published inthe Official Gazette. Hence, once the assent of the President is granted,the necessity of further assent by the Governor is obviated.

G. The submission that in Karnataka Power TransportCorporation Limited, as consequence of the reservation inseniority in the cadre of Superintending Engineer and Engineer-in-Chief, there was over representation for SCs and ST between2005 and 2016 is erroneous.

(i)There is no reservation for promotion to the posts ofSuperintending Engineer and Engineer-in-Chief in KPTCL.Reservation in promotion and consequential seniority is availableonly up to the post of Assistant Executive Engineer. In fact, ifconsequential seniority were not to be granted on promotion upto the post of Assistant Executive Engineer, there would beexcessive under-representation of reserved category candidates.The Ratna Prabha Committee report, in paragraph 2.4, tooknote of the total number of officials/employees working in thirty

Aone government departments of the State Government. It notedthat 80.35 per cent of the sanctioned posts are concentrated insix major Government departments namely; Education, Home,Health, Revenue, Judicial and Finance. The data pertaining tothirty one government departments was taken in the totality toanalyse and assess the adequacy of representation. The data ofBsmaller departments may not be representative of the State CivilServices as whole.On the above grounds, it was urged that the challenge to theReservation Act 2018 must fail.

C54. Ms Indira Jaising[76], learned Senior Counsel appearing on behalfof the intervenors (Karnataka SC/ST Engineer’s Welfare Association)contended that the Reservation Act 2018 is constitutionally valid. MsJaising urged the following submissions:

(i)The decisions of this Court in State of Kerala v N M Thomas[77]D(“N M Thomas”) and Nagaraj affirmed that Article 16 (4) isan emphatic declaration of Article 16 (1). The principle of‘proportional equality’ entails substantive equality which isreflected in affirmative action to remedy injustice to SCs, STsand Other Backward Classes[78]. Social justice is concerned withthe distribution of benefits and burdens. The Reservation ActE2018, in providing for consequential seniority, furthers the visionof substantive equality and is valid;(ii)Affirmative action under Article 15 (4) and reservation underArticle 16 (4) of the Constitution are intended to ensure that allsections of the society are represented equally in services underFthe state. The Reservation Act 2018 underlies this salient objectiveand furthers the promotion of the interests of the SCs, STs andother weaker sections as stipulated in Article 46 of theConstitution;

(iii)Article 16 (4A) is an enabling provision which empowers theGState to frame rules or enact legislation granting reservationsin promotions with consequential seniority subject to the fulfilmentof the conditions laid down in Nagaraj and modified by Jarnail.

76 In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 201877 (1976) 2 SCC 310H78 OBCs

Following the decision in Jarnail, the state is required to showdata only on the inadequacy of representation and efficiency ofadministration. The State of Karnataka, in exercise of theenabling power under Article 16 (4A) enacted the ReservationAct 2018 in compliance with the conditions precedent to theexercise of the power stipulated in that Article;

(iv)The decision in Sabharwal lays down that in determining theinadequacy of representation of SCs and STs in promotionalposts, the state may take the total population of particularclass and its representation in the service. The State has studiedthe extent of reservation in posts for SCs and STs in ‘group’which is collection of cadres. Hence, it cannot be said that thestate failed to collect quantifiable data on the representation ofSCs and STs in promotional posts. Without the grant ofconsequential seniority, the percentage of reservation will notreach the prescribed percentage;

(v)No statistical studies have been provided to show that the grantof consequential seniority has led to the lowering of efficiencyin administration. It cannot be presumed that the appointment ofSCs and STs will lead to lowering of efficiency as at theindividual level, all individuals belonging to SCs and STs mustalso achieve the minimum benchmark of ‘good’;

(vi)The Reservation Act 2002 was struck down on the basis of thefailure of the state to collect quantifiable data. The ReservationAct 2018 has been enacted on the basis of data collected andstudied in the Ratna Prabha Committee report. Hence, the basisof the decision in K Pavitra I has been removed. Additionally,no mandamus was issued in K Pavitra I;

(vii)The collection of data required to be carried out by the State isa matter of social science and is carried out by experts. Datacollection is both qualitative and quantitative. As long as themethodology adopted by the state is scientifically sound, theassessment of the data collected is the prerogative of the state.The court may intervene in judicial review only when there is acomplete absence of data or if the data relied on is irrelevant;and

A(viii) The principles laid down by this Court in Indra Sawhney on theexclusion of the creamy layer apply only to OBCs and cannotextend to SCs and STs. No question arose in Nagaraj on theexclusion of the creamy layer in respect of SCs and STs. Hence,the decision is not an authority for the principle that the statesare bound to exclude the creamy layer in respect of SCs andBSTs. The decision of this Court in Jarnail dealt with thecompetence of Parliament to enact law in relation to the creamylayer and did not lay down general proposition on its exclusion.The concept of creamy layer, if applicable, can only be appliedat the entry level and not in promotions.C55. Mr Dinesh Dwivedi[79], learned Senior Counsel appearing onbehalf of the intervenor (Karnataka SC/ST Engineers’ WelfareAssociation), urged the following submissions:(i)The decision in Nagaraj was concerned with whether reservationin promotion as inserted in Article 16 (4A) by the ConstitutionD(Seventy-seventh Amendment) Act 1995 and the enablingprovision for the grant of consequential seniority under Article16 (4A) inserted by the Constitution (Eighty-fifth Amendment)Act 2001 violated the basic structure of the Constitution. Thedecision in Nagaraj was concerned with reservations inEpromotion and did not equate reservation in promotion with thegrant of consequential seniority. In this view, the four controllingfactors, namely (i) backwardness; (ii) adequacy of representation;(iii) elimination of the creamy layer; and (iv) efficiency ofadministration have relevance only to the exercise of the enablingpower under Article 16 (4A) for making reservation in promotionFand not the exercise of the enabling power to grant consequentialseniority;

(ii)Reservation in promotion was introduced in the State ofKarnataka by the Government Order dated 27 April 1978 andcontinues to be in operation. The Reservation Act 2018 stipulatesGthe grant of consequential seniority which is premised on theprior existence and operation of reservation in promotion. Absenta challenge to the Government Order dated 27 April 1978 in thepresent proceedings, the petitioner is precluded from challengingthe grant of consequential seniority in the Reservation Act 2018;H79 In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018

(iii)Consequential seniority is nothing but the normal rule of senioritywhich accords seniority to roster point promotees from the dateof their substantive promotion. The catch-up rule is an exceptionto the normal rule of seniority. Prior to the decision in IndraSawhney, accelerated seniority to roster point promotees existedin the State of Karnataka with the application of the continuousofficiation rule. This is supported by Rule 2(b) of the 1957 Rules.Para III (d) of the Government Order dated 27 April 1978provided for the application of the catch-up rule only in limitedmanner. Rule 4 is restricted in its application to appointmentsmade on the same day which implies that in the absence of itsapplication to given case, consequential seniority must begranted;

(iv)The decision in Virpal Singh concerned rule that specificallyprovided for the application of the catch-up rule in departurefrom the normal rule of seniority. This Court held that statemay prescribe either consequential seniority based on continuousofficiation or the catch-up rule of seniority in case of rosterpoint promotions. harmonious reading of Articles 14 and 16(1)of the Constitution does not stipulate that the catch-up rule mustapply in the case of roster point promotions. Thus, balancingof Articles 14, 16(1) and 16(4) of the Constitution denotes thatthe catch-up rule is not mandatory. The decisions of this Courtin Ajit Singh I, Ajit Singh II and Badappanavar, in holding tothe contrary, have been expressly overruled by the seventy-seventh and the eighty-fifth amendments to the Constitution,following which the principles enunciated in Virpal Singhcontinue to govern the field. The eighty-fifth amendment wasintended to make consequential seniority constitutional principleand revive consequential seniority as the normal rule of seniority;

(v)The principles enunciated in Virpal Singh are fortified by thedecision in Nagaraj which held that the catch-up rule andconsequential seniority are principles of service jurisprudenceand cannot be elevated to constitutional status. The discretionto choose between consequential seniority and catch-up vestswith the state. The Reservation Act 2018, in stipulating forconsequential seniority, is valid exercise of discretion by theState; and

A(vi)In the alternative, the tests laid down by the four controllingfactors in Nagaraj and Jarnail have been satisfied prior to theenactment of the Reservation Act 2018. The satisfaction of thestate in this regard cannot be subjected to review by this Court.

56. Mr Lakshminarayana, learned Senior Counsel has submittedBthus:

(i)The issue as to whether reservation under Article 16 (4A) canbe provided by an executive order was answered in theaffirmative in the judgment of Justice BP Jeevan Ready speakingfor plurality of judges in Indra Sawhney. The word ‘provision’Cin Article 16 (4) was interpreted in contrast with the word ‘law’in clauses (3) and (5) of Article 16. The word ‘any’ and theword ‘provision’ in Article 16 (4) must be given their due meaning.Article 16 (4) is exhaustive as special provision in favour ofthe backward class of citizens. Backward classes having beenclassified by the Constitution as class deserving specialDtreatment and the Constitution itself having specified the natureof the special treatment, it should be presumed that no furtherclassification or special treatment is permissible in their favouroutside Article 16 (4). In light of the decision in Indra Sawhney,it is now settled principle that provision for reservation canEbe made by the legislature, by statutory rules and by executiveorders;

(ii)Provisions for reservation in promotions were introduced inKarnataka by the Government Order dated 27 April 1978 onthe basis of the inadequacy of representation of SCs and STs inFpublic services under Article 16 (4). After the report on theinadequacy of representation dated 30 August 1979, first andsecond roster points were reserved for SCs and STs. Theprinciple of consequential seniority is adopted by clause (vii) ofthe Government Order dated 27 April 1978 and clause (d) ofthe Government Order dated 1 June 1978;

(iii)Clause (vii) of the Government Order dated 27 April 1978 as itoriginally stood provided that inter se seniority amongst personspromoted “on any occasion” shall be determined under Rules 4and 4 (A) of the Seniority Rules 1957;

(iv)The words “on any occasion” in clause (vii) were amended byclause (d) of the Government Order dated 1 June 1978 so thatthe determination of seniority among reserved promotees andgeneral candidates on the basis of seniority-cum-merit shall “oneach occasion” be fixed under Rule 4 of the Seniority Rules1957;

(v)The substitution of the expression “on any occasion” with theexpression “on each occasion” denotes the intention of thegovernment to provide consequential seniority to reservedcategory candidates promoted on the basis of roster;

(vi)The legislature enacted provisions pertaining to the policy ofreservation in promotion in the State Civil Services and PublicSector Undertakings as follows :

(a)The Rules 1977 including the proviso to Rule 8, upheldby this Court in Bhakta Ramegowda;

(b)The Karnataka Scheduled Castes, Scheduled Tribes andOther Backward Classes (Reservation of Appointmentetc.,) Act 1990;

(c)The Karnataka Scheduled Castes, Scheduled Tribes andOther Backward Classes (Reservation of Appointmentetc.,) Rules 1992; and

(d)The Karnataka State Civil Services (Unfilled VacanciesReserved for the persons belonging to the ScheduledCastes and the Scheduled Tribes) (Special Recruitment)Rules 2001.

The above provisions were followed by the Reservation Acts of2002 and 2017.

(vii)With effect from 1 April 1992, the State of Karnataka insertedthe proviso to Rule 8 in the Rules 1977 which reads as follows:

“8. Provision for reservation of appointments or posts.-

Appointments or posts shall be reserved for the members ofthe Scheduled Castes, Scheduled Tribes, and Other BackwardClasses to such extent and in such manner as may be specifiedby the government under clause (4) of Article 16 of theConstitution of India.

1162SUPREME COURT REPORTS

AProviso to Rule 8

80[Provided that, notwithstanding anything in the rules ofRecruitment specially made in respect of any Service or Post,the backlog vacancies in the promotional quota shall bedetermined and implemented with effect from 27[th] April,1978.

Note.– The backlog vacancy means the extent of thenumber of vacancies available under the roster system up tothe level of lowest category in Group-A post calculated from27[th] April, 1978.].”

The above Rule was upheld in Bhakta Ramegowda;

(viii) The Government Order dated 24 June 1997 provided additionalroster points to cover up backlog promotional roster points, bothin promotion and direct recruitment. Clauses (iv) and (v) ofpara 8 of the Government Order dated 24 June 1997 reads asfollows :

“Clause (IV).

After effecting review of promotion and adjustment and fitmentas indicated in item (iii) above, if some more persons belongingto scheduled castes and scheduled tribes who have alreadybeen promoted against backlog cannot get adjusted due to wantEof adequate number of vacancies as per the aforesaid rosterpoints, such persons shall be adjusted and fitted in accordancewith the procedure specified in item (iii) while effectingpromotion in respect of future vacancies. Until such time, shallbe continued against supernumerary posts to be created byFthe concerned Administrative Department. For this purpose,the Secretaries to Government are hereby delegated the powerto create supernumerary posts presuming the concurrence ofFinance Department and to that extent the Government OrderNo. FD 1 TFP 96, dated 10.07.1996, shall be deemed to havebeen modified accordingly.

Clause (V)

While adjusting and fitting promote[e]s as indicated in item (iii)and (iv) above, the inter-se seniority among the General category,

80 Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992H

the scheduled caste category and the scheduled tribe categoryshall be determined in accordance with rule 4 or rule 4 asthe case may be, of the Karnataka Government ServantsSeniority Rules 1957. The roster points are meant only forcalculating the number of vacancies that become available forthe different categories on each occasion and they do notdetermine the seniority.”

The above clauses reiterated the purpose of assessing inter seseniority after promotion of roster promotees in reckoning consequentialseniority among two groups.

(ix)The State Government is entitled to prescribe the percentage ofCreservation based on the total population of particular backwardclass and its representation in the services of the State underArticle 16 (4). Once the prescribed percentage of reservationsis determined, the numerical test of adequacy is satisfied. Thepercentage of reservation is the desired representation of theDbackward classes in the state services and is consistent withthe demographic estimate, based on the proportion worked outin relation to their population;

(x)The operation of the roster points and filling of the cadre strengthensures that the reservation remains within the limit of 50 percent;

(xi)Reserved candidates who have been appointed or promoted onmerit as general candidates cannot be included in calculatingadequacy of representation of backward classes in operatingthe roster points. Only reserved candidates promoted againstroster points are to be taken into account in considering theadequacy of representation;

(xii)A cadre includes different grades and reservation can be providedin different grades within the cadre. The reservation policycontained in the Government Order dated 27 April 1978 hasbeen re-issued on 17 April 1993 and 11 May 1993 after thedecision in Indra Sawhney;

(xiii) Both clauses (1) and (4) of Article 16 operate in the same field.Both are directed towards achieving equality of opportunity inservices under the State. The formation of opinion by the Stateon the adequacy of representation is matter of subjective

Asatisfaction and the test is whether there was some materialbefore the State to justify its opinion. In the exercise of judicialreview, the court would extend due deference to the judgmentand discretion of the executive. Even if there are some errorson the part of the State Government, that would not in any wayresult in the invalidation of the entire exercise;B

(xiv) Efficiency of administration means governance which providesresponsive service to the people. Merit alone is not componentof efficiency. Once an employee is promoted, efficiency is judgedon the basis of the annual confidential reports;

C(xv)A curative legislation does not constitute an encroachment onjudicial power by the State Legislature. Similarly, it is open tothe legislature to enact legislation both with retrospective andprospective effect;

(xvi) Judicial review cannot extend to examine the adequacy of theDmaterial available before the President and unless, there is asituation involving fraud on power or conduct actuated byoblique motive, the court would not intervene;

(xvii) The principle of creamy layer has no application to in-servicecandidates; andE(xviii) The State having rectified the lacuna which was pointed out inB K Pavitra I, by carrying out the exercise of data collection,the opinion formed by the State after analysing the data lies inits subjective satisfaction. The reservation policy dated 27 April1978 which introduced provisions for reservations in promotionsfor SCs and STs in public services has continued until date withoutFinterruption.

57. Mr Nidhesh Gupta, learned Senior Counsel urged the followingsubmissions:

(i)The phrase ‘in the opinion of the state’ in Article 16(4) of theGConstitution indicates that the issue with regard to adequacy ofrepresentation is within the subjective satisfaction of the state.The role of the court is limited to examining whether the opinionformed by the government was on the basis of data availablewith it. While the existence of circumstances requiring stateaction may be reviewed, the opinion formed is outside the purviewHof judicial review. These propositions have been accepted in the

decisions of this Court in Indra Sawhney, Barium ChemicalsLtd. v Company Law Board[81](“Barium Chemicals Ltd.”),Rohtas Industries v S Agarwal[82] and Rustom CavasjeeCooper v Union of India[83];

(ii)The expression ‘to any class or classes of posts’ in Article 16(4)makes it abundantly clear that the phrase refers to ‘class’ or‘group’ and not cadre. The use of the word ‘services’ in thephrase ‘services under the state’ in Article 16 (4A) supportsthis contention. The decisions in Sabharwal and Nagaraj clarifythat cadre strength is to be applied in the operation of the roster.The reference to ‘entire cadre strength’ in Sabharwal advertedto the fact that the entire cadre strength should be taken intoaccount in determining whether reservation up to the quota limithas been reached. In this view, ‘entire cadre strength’ is thereference point to (i) ascertain the position of representation inthe entire service; (ii) determine whether reservation up to thequota limit has been reached in the application of the roster; and(iii) the cadre strength has been applied in the operation of theroster. It was urged that if the percentages were calculated onthe basis of vacancies, the actual appointments made mayexceed the prescribed quota. Reliance has been placed on thedecisions of this Court in Indra Sawhney, Nagaraj, and Jarnail;

(iii)The decision in Indra Sawhney does not deal with SCs andSTs in regard to the creamy layer principle. In any case, even ifthe principle applies to SCs and STs, it would only be applicableat the stage of appointments and not for promotional posts; and

(iv)The percentages in the PWD which are marginally above thestipulated quota are by way of including those reserved categorycandidates who were selected on general merit. This is contraryto the law laid down by this Court in Sabharwal, Indra Sawhneyand Ritesh Sah v Y L Yamul[84].

58. The rival submissions now fall for consideration.

59. Other Counsel, who argued and submitted their writtensubmissions, have with certain nuances, reiterated similar arguments.

81 AIR 1967 SC 29582 (1969) 1 SCC 32583 (1970) 1 SCC 24884 (1996) 3 SCC 253

[2019] 7 S.C.R.

AD. Assent to the Bill

60. Besides the Governor, the legislatures of the States consist ofa bicameral legislature for some States and unicameral legislature forothers.[85]

61. Article 200 is the provision which enunciates the power of theBGovernor to assent to Bill, withhold assent or reserve Bill for consideringof the President:

“200. When Bill has been passed by the Legislative Assemblyof State or, in the case of State having Legislative Council,has been passed by both Houses of the Legislature of the State, itCshall be presented to the Governor and the Governor shall declareeither that he assents to the Bill or that he withholds assenttherefrom or that he reserves the Bill for the consideration of thePresident:

Provided that the Governor may, as soon as possible after theDpresentation to him of the Bill for assent, return the Bill if it is nota Money Bill together with message requesting that the Houseor Houses will reconsider the Bill or any specified provisionsthereof and, in particular, will consider the desirability of introducingany such amendments as he may recommend in his message and,Ewhen Bill is so returned, the House or Houses shall reconsiderthe Bill accordingly, and if the Bill is passed again by the House orHouses with or without amendment and presented to the Governorfor assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shallreserve for the consideration of the President, any Bill which inFthe opinion of the Governor would, if it became law, so derogatefrom the powers of the High Court as to endanger the positionwhich that Court is by this Constitution designed to fill.”

G85 Article 168. (1) For every State there shall be Legislature which shall consist of theGovernor, and —

(a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra],[Karnataka], [[Tamil Nadu, Telangana]] [and Uttar Pradesh], two Houses;

(b) in other States, one House.

(2) Where there are two Houses of the Legislature of State, one shall be known as theLegislative Council and the other as the Legislative Assembly, and where there is onlyHone House, it shall be known as the Legislative Assembly.

Article 201 deals with what is to happen when the Governorreserves Bill for the consideration of the President.

“201. When Bill is reserved by Governor for the considerationof the President, the President shall declare either that he assentsto the Bill or that he withholds assent therefrom:

Provided that, where the Bill is not Money Bill, the Presidentmay direct the Governor to return the Bill to the House or, as thecase may be, the Houses of the Legislature of the State togetherwith such message as is mentioned in the first proviso to article200 and, when Bill is so returned, the House or Houses shallreconsider it accordingly within period of six months from thedate of receipt of such message and, if it is again passed by theHouse or Houses with or without amendment, it shall be presentedagain to the President for his consideration.”

Upon Bill being passed by the Houses of the legislature (or bythe sole House where there is only legislative assembly), it has to bepresented to the Governor. The Governor can (i) assent to the Bill; (ii)withhold assent; or (iii) reserve the Bill for the consideration of thePresident.

62. Where Bill is not Money Bill, the Governor may return theBill for reconsideration upon which the House or Houses, as the casemay be, will reconsider the desirability of introducing the amendmentswhich the Governor has recommended. If the Bill is passed again by theHouse (or Houses as the case may be), the Governor cannot thereafterwithhold assent. The second proviso to Article 200 stipulates that theGovernor must not assent to Bill but necessarily reserve it for theconsideration of the President if the Bill upon being enacted wouldderogate from the powers of the High Court in manner that endangersits position under the Constitution. Save and except for Bills falling withinthe description contained in the second proviso (where the Governormust reserve the Bill for consideration of the President), discretion isconferred upon the Governor to follow one of the courses of actionenunciated in the substantive part of Article 200. Aside from Bills whichare covered by the second proviso, where the Governor is obliged toreserve the Bill for the consideration of the President, the substantivepart of Article 200 does not indicate specifically, the circumstances inwhich the Governor may reserve Bill for the consideration of thePresident. The Constitution has entrusted this discretion to the Governor.

AThe nature and scope of the discretionary power of the Governor to actindependent of, or, contrary to aid and advice of Council of Ministersunder Article 163 was discussed in Nabam Rebia, Justice J S Khehar(as the learned Chief Justice then was) held thus:

“154. We are, therefore, of the considered view that insofar asBthe exercise of discretionary powers vested with the Governor isconcerned, the same is limited to situations, wherein constitutionalprovision expressly so provides that the Governor should act inhis own discretion. Additionally, Governor can exercise hisfunctions in his own discretion, in situations where an interpretationof the constitutional provision concerned, could not be construedCotherwise…”[86]

Justice Dipak Misra (as the learned judge then was), observed

thus:

“375. …The Governor is expected to function in accordance withDthe provisions of the Constitution (and the history behind theenactment of its provisions), the law and the rules regulating hisfunctions. It is easy to forget that the Governor is constitutionalor formal head—nevertheless like everybody else, he has to playthe game in accordance with the rules of the game—whether it isin relation to the Executive (aid and advice of the Council ofEMinisters) or the Legislature (Rules of Procedure and Conduct ofBusiness of the Arunachal Pradesh Legislative Assembly). Thisis not to say that the Governor has no powers—he does, but thesetoo are delineated by the Constitution either specifically or bynecessary implication…”[87]

63. The framers carefully eschewed defining the circumstancesin which the Governor may reserve Bill for the consideration of thePresident. By its very nature the conferment of the power cannot beconfined to specific categories. Exigencies may arise in the working ofthe Constitution which justify recourse to the power of reserving BillGfor the consideration of the President. They cannot be foreseen with thevision of soothsayer. The power having been conferred upon aconstitutional functionary, it is conditioned by the expectation that it wouldbe exercised upon careful reflection and for resolving legitimate concerns

86 Supra 69 at page 159H87 Ibid at page 244

in regard to the validity of the legislation. The entrustment of aconstitutional discretion to the Governor is premised on the trust that theexercise of authority would be governed by constitutional statesmanship.In federal structure, the conferment of this constitutional discretion isnot intended to thwart democratic federalism. The state legislaturesrepresent the popular will of those who elect their representatives. Theyare the collective embodiments of that will. The act of reserving Billfor the assent of the President must be undertaken upon careful reflection,upon doubt being entertained by the Governor about the constitutionallegitimacy of the Bill which has been passed.

64. Dr Dhavan in the course of his submissions, has dwelt atlength on the power which is entrusted to the Governor to reserve Billfor the consideration of the President under Article 254 (2). Article 254(2) deals with situation where law which has been enacted by thelegislature of state on matter which is enumerated in the ConcurrentList of the Seventh Schedule contains any provision which is repugnanteither to an earlier law made by Parliament or an existing law withrespect to that matter. In such an eventuality, the law made by thelegislature of the state can prevail in that state only if it has received theassent of the President on being reserved for consideration.65. When the reservation of Bill for the assent of the Presidenthas been occasioned on the ground of repugnancy with an existing lawor law enacted by the Parliament, there are decisions of this Courtwhich hold that the President has to be apprised of the reason why theassent was sought. In Gram Panchayat of Village Jamalpur, lawenacted by the Punjab legislature in 1953, extinguished all private interestsin Shamlat-deh lands and vested them in the village Panchayats as amatter of agrarian reform. This Court held that the Punjab enactmenthad not been reserved for the assent of the President on the ground thatit was repugnant to an earlier Act enacted by Parliament in 1950 but theassent was sought for different and specific purpose. In thisbackground, the Constitution Bench held that the assent of the Presidentwould not avail the state government to accord precedence to the lawenacted by the state legislature over the law made by Parliament. TheConstitution Bench held:

“12…The assent of the President under Article 254(2) of theConstitution is not matter of idle formality. The President has, atleast, to be apprised of the reason why his assent is sought if,

1170SUPREME COURT REPORTS

Athere is any special reason for doing so. If the assent is soughtand given in general terms so as to be effective for all purposes,different considerations may legitimately arise. But if, as in theinstant case, the assent of the President is sought to the Law fora specific purpose, the efficacy of the assent would be limited tothat purpose and cannot be extended beyond it.”[88]B

66. similar principle was adopted in Kaiser-I-Hind Pvt Ltd.The case concerned rent legislation in Maharashtra and the PublicPremises (Eviction of Unauthorized Occupants) Act 1971 enacted byParliament. This Court held that where the assent was given afterconsidering the repugnancy between the Bombay Rent Act, the TransferCof Property Act and the Presidency Small Cause Courts Act, it was notcorrect to hold that the state law would prevail over another parliamentaryenactment for which no assent had been sought. In that context, theCourt held:

“65… 2. (a) Article 254(2) contemplates “reservation forDconsideration of the President” and also “assent”. Reservationfor consideration is not an empty formality. Pointed attention ofthe President is required to be drawn to the repugnancy betweenthe earlier law made by Parliament and the contemplated Statelegislation and the reasons for having such law despite theEenactment by Parliament.(b) The word “assent” used in clause (2) of Article 254 would incontext mean express agreement of mind to what is proposed bythe State.”[89]

67. These decisions are specifically in the context of Article 254.FArticle 254(1) postulates inter alia, that in matter which is governedby the Concurrent List, law which has been enacted by the legislatureof state shall be void to the extent of its repugnancy with law enactedby the Parliament. Clause (2) of Article 254 obviates that consequencewhere the law has been reserved for the consideration of the PresidentGand has received assent. Article 254(1) is made subject to Clause (2),thereby emphasizing that the assent of the President will cure arepugnancy of the state law with law enacted by the Parliament in amatter falling in the Concurrent List. It is in this context, that the decisions

88 Supra 67 at pages 668-669H89 Supra 66 at pages 215-216

of this Court hold that the assent of the President should be sought inrelation to repugnancy with specific provision contained in aParliamentary legislation so as to enable due consideration by thePresident of the ground on which assent has been sought. Article 200contains the source of the constitutional power which is conferred uponthe Governor to reserve Bill for the consideration of the President.Article 254 (2) is an illustration of the constitutional authority of theGovernor to reserve law enacted by the state legislature forconsideration of the President in specified situation - where it isrepugnant to an existing law or to Parliamentary legislation on matterfalling in the Concurrent List. The eventuality which is specified in Article254 (2) does not exhaust the ambit of the power entrusted to the Governorunder Article 200 to reserve Bill for the consideration of the President.Apart from repugnancy in matters falling in the Concurrent List betweenstate and Parliamentary legislation, Governor may have soundconstitutional reasons to reserve Bill for the consideration of thePresident. Article 200, in its second proviso mandates that Bill whichderogates from the powers of the High Court must be reserved for theconsideration of the President. Apart from Bills which fall within thedescription set out in the second proviso, the Governor may legitimatelyrefer Bill for consideration of the President upon entertaining alegitimate doubt about the validity of the law. By its very nature, it wouldnot be possible for this Court to reflect upon the situations in which thepower under Article 200 can be exercised. This was noticed in thejudgment of this Court in Hoechst. Excluding it from judicial scrutiny,the Court held:

“86…There may also be Bill passed by the State Legislaturewhere there may be genuine doubt about the applicability of anyof the provisions of the Constitution which require the assent ofthe President to be given to it in order that it may be effective asan Act. In such case, it is for the Governor to exercise hisdiscretion and to decide whether he should assent to the Bill orshould reserve it for consideration of the President to avoid anyfuture complication. Even if it ultimately turns out that there wasno necessity for the Governor to have reserved Bill for theconsideration of the President, still he having done so and obtainedthe assent of the President, the Act so passed cannot be held tobe unconstitutional on the ground of want of proper assent. Thisaspect of the matter, as the law now stands, is not open to scrutiny

Aby the courts. In the instant case, the Finance Bill which ultimatelybecame the Act in question was consolidating Act relating todifferent subjects and perhaps the Governor felt that it wasnecessary to reserve it for the assent of the President. We haveno hesitation in holding that the assent of the President is notjusticiable, and we cannot spell out any infirmity arising out of hisBdecision to give such assent.”[90]

68. Hoechst is an authority for the proposition that the assent ofthe President is non - justiciable. Hoechst also lays down that even if,as it turns out, it was not necessary for the Governor to reserve Bill forthe consideration of the President, yet if it was reserved for and receivedCthe assent of the President, the law as enacted cannot be regarded asunconstitutional for want of ‘proper’ assent.

69. The above decisions essentially answer the submissions whichwere urged by Dr Dhavan. The law as propounded in the line ofprecedents adverted to above must negate the submissions which wereDurged on behalf of the petitioners. Once the Bill (which led to theReservation Act 2018) was reserved by the Governor for theconsideration of the President, it was for the President to either grant orwithhold assent to the Bill. The President having assented to the Bill, therequirements of Article 201 were fulfilled. The validity of the assent byEthe President is non-justiciable. The Governor, while reserving the Bill inthe present case for the consideration of the President on 6 December2017 observed thus:

“The Supreme Court in the case of BK Pavitra Case, whileconsidering the issue of grant of promotion to persons belongingFto SC and STs has observed the necessity of applying the test ofinadequacy of representation, backwardness and overall efficiency,for exercise of power under Article 16 (4A) of the Constitutionand has directed the State Government to revise the seniority listwithin the time frame.

The State Government to overcome the situation which was foundGfault with by the Supreme Court in the aforesaid judgment hascome out with Bill, which is now sent for my assent.

Having regard to the judgment of the Supreme Court in theaforesaid case and importance of the issue and the Constitutional

H90 Supra 68 at pages 100-101

interpretation involved in the matter, I deem it appropriate to reservethe matter for the consideration of the President. Accordingly, theBill is reserved for the consideration of the President under Article200 of the Constitution of India.”

70. The state government, in the course of its clarifications, wasof the view that there was no necessity of reserving the Bill for theconsideration of the President, since in its view, the Governor had notrecorded finding that it was unconstitutional, or fell afoul of existingcentral legislation on the subject or that it was beyond legislativecompetence or derogated from the fundamental rights. All proceduralrequirements under the Constitution were according to the governmentduly complied with. This objection of the state government cannot castdoubt upon the grant of assent by the President. The law having receivedthe assent of the President, the submissions which were urged on behalfof the petitioners cannot be countenanced.

E. Does the Reservation Act 2018 overrule or nullify KPavitra I

71. The foundation of the decision in K Pavitra I is the principleenunciated in Nagaraj that in order to sustain the exercise of the enablingpower contained in Article 16 (4A), the state is required to demonstratea “compelling necessity” by collecting quantifiable data on: (i) inadequacyof representation; (ii) backwardness; and (iii) overall efficiency. Thejudgment in K Pavitra I held that no such exercise was undertakenby the State of Karnataka before providing for reservation in promotionand providing for consequential seniority. On the ground that the statehad not collected quantifiable data on the three parameters enunciatedin Nagaraj, the Reservation Act 2002 was held to be unconstitutional.The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A)on the basis that before taking recourse to the enabling power the statehas to carry out the exercise of collecting quantifiable data and fulfillingthe three parameters noted above. K Pavitra I essentially held thatthere was failure on the part of the state to undertake this exercise,which was pre-condition for the exercise of the enabling power tomake reservations in promotions and to provide for consequential seniority.

72. The decision in K Pavitra I did not restrain the state fromcarrying out the exercise of collecting quantifiable data so as to fulfil theconditionalities for the exercise of the enabling power under Article 16(4A). The legislature has the plenary power to enact law. That power

Aextends to enacting legislation both with prospective and retrospectiveeffect. Where law has been invalidated by the decision of constitutionalcourt, the legislature can amend the law retrospectively or enact lawwhich removes the cause for invalidation. legislature cannot overrulea decision of the court on the ground that it is erroneous or is nullity. But,it is certainly open to the legislature either to amend an existing law or toBenact law which removes the basis on which declaration of invaliditywas issued in the exercise of judicial review. Curative legislation isconstitutionally permissible. It is not an encroachment on judicial power.In the present case, state legislature of Karnataka, by enacting theReservation Act 2018, has not nullified the judicial decision in K PavitraCI, but taken care to remedy the underlying cause which led to declarationof invalidity in the first place. Such law is valid because it removes thebasis of the decision.

73. These principles have consistently been reiterated in line ofprecedents emerging from this Court. In Utkal Contractors andDJoinery (P) Ltd, this Court held:

“15. …The legislature may, at any time, in exercise of the plenarypower conferred on it by Articles 245 and 246 of the Constitutionrender judicial decision ineffective by enacting valid law. Thereis no prohibition against retrospective legislation. The power ofEthe legislature to pass law postulates the power to pass itprospectively as well as retrospectively. That of course, is subjectto the legislative competence and subject to other constitutionallimitations. The rendering ineffective of judgments or orders ofcompetent courts by changing their basis by legislative enactmentis well-known pattern of all validating acts. Such validatingFlegislation which removes the causes of ineffectiveness or invalidityof action or proceedings cannot be considered as encroachmenton judicial power. The legislature, however, cannot by baredeclaration, without more, directly overrule, reverse or set asideany judicial decision…”[91]G(See also in this context : Bhubaneshwar Singh v Union ofIndia[92], Indian Aluminium Co v State of Kerala[93](“IndianAluminium Co”), Narain Singh[94]and Cheviti Venkanna Yadav).

91 Supra 74 at page 75992 (1994) 6 SCC 7793 (1996) 7 SCC 637H94 (2009) 13 SCC 165

74. The legislature has the power to validate law which is foundto be invalid by curing the infirmity. As an incident of the exercise of thispower, the legislature may enact validating law to make the provisionsof the earlier law effective from the date on which it was enacted (TheUnited Provinces v Mst Atiqa Begum[95] and Rai Ramkrishna vState of Bihar[96]). These principles were elucidated in the decision ofthis Court in Prithvi Cotton Mills Ltd. The judgment makes distinctionbetween law which simply declares that decision of the court will notbind (which is impermissible for the legislature) and law whichfundamentally alters the basis of an earlier legislation so that the decisionwould not have been given in the altered circumstances. This distinctionis elaborated in the following extract:

“4. … Granted legislative competence, it is not sufficient to declaremerely that the decision of the Court shall not bind for that istantamount to reversing the decision in exercise of judicial powerwhich the Legislature does not possess or exercise. court’sdecision must always bind unless the conditions on which it isbased are so fundamentally altered that the decision could nothave been given in the altered circumstances. Ordinarily, courtholds tax to be invalidly imposed because the power to tax iswanting or the statute or the rules or both are invalid or do notsufficiently create the jurisdiction. Validation of tax so declaredillegal may be done only if the grounds of illegality or invalidity arecapable of being removed and are in fact removed and the taxthus made legal.”[97]

75. In State of T N v Arooran Sugars Ltd[98], ConstitutionBench of this Court recognized the power of the legislature to enact alaw retrospectively to cure defect found by the Court. It was held thatin doing so, the legislature did not nullify writ or encroach upon judicialpower. The legislature in remedying deficiency in the law acted withinthe scope of its authority. This Court held:

“16…It is open to the legislature to remove the defect pointed outby the court or to amend the definition or any other provision ofthe Act in question retrospectively. In this process it cannot be

95 AIR 1941 FC 16

96 (1964) 1 SCR 897

97 Supra 55 at pages 286-287

98 (1997) 1 SCC 326

Asaid that there has been an encroachment by the legislature overthe power of the judiciary. court’s directive must always bindunless the conditions on which it is based are so fundamentallyaltered that under altered circumstances such decisions could nothave been given. This will include removal of the defect in statutepointed out in the judgment in question, as well as alteration orBsubstitution of provisions of the enactment on which such judgmentis based, with retrospective effect.”[99]The same principle was formulated in the decision of this Court inVirender Singh Hooda v State of Haryana[100]:

C“59. …vested rights can be taken away by retrospective legislationby removing the basis of judgment so long as the amendmentdoes not violate the fundamental rights. We are unable to acceptthe broad proposition… that the effect of the writs issued by thecourts cannot be nullified by the legislature by enacting law withretrospective effect. The question, in fact, is not of nullifying theDeffect of writs which may be issued by the High Court or thisCourt. The question is of removing the basis which resulted inissue of such writ. If the basis is nullified by enactment of avalid legislation which has the effect of depriving person of thebenefit accrued under writ, the denial of such benefit is incidentalEto the power to enact legislation with retrospective effect. Suchan exercise of power cannot be held to be usurpation of judicialpower…”[101]76. declaration by court that law is constitutionally invaliddoes not fetter the authority of the legislature to remedy the basis onFwhich the declaration was issued by curing the grounds for invalidity.While curing the defect, it is essential to understand the reasons underlyingthe declaration of invalidity. The reasons constitute the basis of thedeclaration. The legislature cannot simply override the declaration ofinvalidity without remedying the basis on which the law was held to beultra vires. law may have been held to be invalid on the ground thatGthe legislature which enacted the law had no legislative competence onthe subject matter of the legislation. Obviously, in such case, legislaturewhich has been held to lack legislative competence cannot arrogate to

99 Ibid at page 340100 (2004) 12 SCC 588H101 Ibid at page 616

itself competence over subject matter over which it has been held tolack legislative competence. However, legislature which has thelegislative competence to enact law on the subject can certainly stepin and enact legislation on field over which it possesses legislativecompetence. For instance, where law has been invalidated on theground that the state legislature lacks legislative competence to enact alaw on particular subject – Parliament being conferred with legislativecompetence over the same subject – it is open for the Parliament,following declaration of the invalidity of the state law, to enact newlaw and to regulate the area. As an incident of its validating exercise,Parliament may validate the collection of levy under the earlier law.The collection of levy under law which has been held to be invalid isvalidated by the enactment of legislation by legislative body – Parliamentin the above example – which has competence over the subject matter.Apart from legislative competence, law may have been declared invalidon the ground that there was breach of the fundamental rights containedin Part III of the Constitution. In that situation, if the legislature proceedsto enact new law on the subject, the issue in essence is whether there-enacted law has taken care to remove the infractions of thefundamental rights on the basis of which the earlier law was held to beinvalid. The true test therefore is whether the legislature has acted withinthe bounds of its authority to remedy the basis on which the earlier lawwas held to suffer from constitutional infirmity.

77. The petitioners have placed considerable degree of relianceon the decision in Madan Mohan Pathak, where law – The LifeInsurance Corporation (Modification of Settlements) Act 1976 wasenacted by Parliament to render ineffective settlement which wasarrived at between LIC and its employees for the payment of bonus.The law was challenged by the employees. In that case, there was ajudgment of the Calcutta High Court which had given effect to the rightof the employees to an annual cash bonus under an industrial settlement,by the issuance of writ of mandamus. The mandamus bound the partiesto the dispute. It was in this backdrop that the Constitution Benchobserved that the effect of the mandamus issued by the High Courtcould not simply be nullified by enacting law overriding the industrialsettlement. This Court held:

“9...Here the judgment given by the Calcutta High Court, whichis relied upon by the petitioners, is not mere declaratory judgmentholding an impost or tax to be invalid, so that validation statute

Acan remove the defect pointed out by the judgment amending thelaw with retrospective effect and validate such impost or tax. Butit is judgment giving effect to the right of the petitioners to annualcash bonus under the Settlement by issuing writ of mandamusdirecting the Life Insurance Corporation to pay the amount ofsuch bonus. If by reason of retrospective alteration of the factualBor legal situation, the judgment is rendered erroneous, the remedymay be by way of appeal or review, but so long as the judgmentstands, it cannot be disregarded or ignored and it must be obeyedby the Life Insurance Corporation. We are, therefore, of the viewthat, in any event, irrespective of whether the impugned Act isCconstitutionally valid or not, the Life Insurance Corporation is boundto obey the writ of mandamus issued by the Calcutta High Courtand to pay annual cash bonus for the year April 1, 1975 to March31, 1976 to Class III and Class IV employees.”[102]

78. The decision in Madan Mohan Pathak is henceDdistinguishable from the facts of the present case. The above observationsrecognized the constitutional position that in the case of declaratoryjudgment holding an action to be invalid, validating legislation to removethe defect is permissible. Applying this principle, it is evident that thedecision in K Pavitra I declared the Reservation Act 2002 to beinvalid and consequent upon the declaration of invalidity, certain directionsEwere issued. If the basis on which Reservation Act 2002 was held to beinvalid is cured by validating legislation, in this case the ReservationAct 2018, this would constitute permissible legislative exercise. Thegrounds which weighed in Madan Mohan Pathak would hence not beavailable in the present case.F79. The decision in Madan Mohan Pathak has been adverted toand clarified in several decisions of this Court rendered subsequently.These include:

(i) Sri Ranga Match Industries v Union of India[103], where itwas held that:G

“14. While appreciating the ratio of the said opinions, it is necessaryto bear in mind the basic fact that the settlement between theCorporation and its employees was not based upon any statute or

102 Supra 56 at page 67H103 1994 Supp. (2) SCC 726

statutory provision. Sub-sections (1) and (3) of Section 18 of theIndustrial Disputes Act provide merely the binding nature of suchsettlements; they do not constitute the basis of the settlements.The settlement between the parties was directed to beimplemented by the High Court. In other words, it was nota case where the High Court either struck down statutoryprovision nor was it case where statutory provision wasinterpreted in particular manner or directed to beimplemented. It was also not case where the statutoryprovision, on which the judgment was based, was amendedor altered to remove/rectify the defect.”[104]

(Emphasis supplied)

(ii) Indian Aluminium Co, where it was held that:

“49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC 50: 1978 SCC (L&S) 103 : (1978) 3 SCR 334]…

From the observations made by Bhagwati, J. per majority, it isclear that this Court did not intend to lay down thatParliament, under no circumstance, has power to amendthe law removing the vice pointed out by the court. Equally,the observation of Chief Justice Beg is to be understood in thecontext that as long as the effect of mandamus issued by thecourt is not legally and constitutionally made ineffective,the State is bound to obey the directions. Thus understood, itis unexceptionable. But it does not mean that the learned ChiefJustice intended to lay down the law that mandamus issued bycourt cannot at all be made ineffective by valid law made by thelegislature, removing the defect pointed out by the court.”[105](Emphasis supplied)

(iii). Agricultural Income Tax Officer v Goodricke GroupLtd[106], where it was held:

“14. We are of the view that Madan Mohan Pathak case [(1978)2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334] would notapply to the facts in the present case for the simple reason that

104 Ibid at pages 736-737

105 Supra 93 at page 660106 (2015) 8 SCC 399

Awhat has been undone by Section 4-B and Section 78-C isnot mandamus issued by superior court. What is undoneis the very basis of the judgment in Buxa Dooars Tea Co.Ltd. case[(1989) 3 SCC 211 : 1989 SCC (Tax) 394] byretrospectively changing the levy of rural employment cess andeducation cess.”[107] (Emphasis supplied)B

80. Madan Mohan Pathak involved situation where aparliamentary law was enacted to override mandamus which wasissued by the High Court for the payment of bonus under an industrialsettlement. The case did not involve situation where law was held tobe ultra vires and the basis of the declaration of invalidity of the lawCwas sought to be cured.

81. Dr Dhavan adverted to the legal basis of K Pavitra I asset out in the following extract from the conclusion:

“30. In view of the above, we allow these appeals, set aside theDimpugned judgment and declare the provisions of the impugnedAct to the extent of doing away with the ‘catch-up’ rule andproviding for consequential seniority under Sections 3 and 4 topersons belonging to SCs and STs on promotion against roster”[108]points to be ultra vires Articles 14 and 16 of the Constitution.

EDr Dhavan is entirely correct, if we may say so with respect, insubmitting “that what has to be shown is whether the Reservation Act2018 is, in law Articles 14 and 16 compliant”. This necessitates anexamination of the constitutionality of the Reservation Act 2018. Thatwould require this Court to examine the challenge on the ground thatthere has been violation of the equality code contained in Articles 14Fand 16.E.I. Is the basis of K Pavitra I cured in enacting theReservation Act 2018

82. The Statement of Objects and Reasons of the ReservationAct 2018 refers to the legislative history preceding its enactment. TheGRatna Prabha Committee was constituted after the Reservation Act2002 was held to be invalid in K Pavitra I on the ground that nocompelling necessity had been shown by the state to provide for

107 Ibid at page 407108 Supra 5 at page 641H

reservation in matters of promotion for SCs and STs by collecting andanalysing relevant data to satisfy the requirements laid out in Nagaraj.The constitution of the Ratna Prabha Committee was consequentupon the Reservation Act 2002 having been held to be invalid in KPavitra I.

83. The Statement of Objects and Reasons is extracted below,insofar as it is material:

“The Hon’ble Supreme Court of India in its judgment dated:09.02.2017 in the case of BK Pavitra and others Vs Union ofIndia and others in Civil Appeal No. 2368 of 2011 and connectedmatters while dealing with the issue of consequential seniorityprovided to the Scheduled Castes and Scheduled Tribes, havingregard to the ratio of the decision of the Constitution Bench inM.Nagaraj in Writ Petition No. 61 of 2002 has observed that aproper exercise for determining ‘inadequacy of representation’‘backwardness’ and ‘overall efficiency’ is must for exercise ofpower under Article 16 (4A). The court held that in the absenceof this exercise under Article 16 (4A) it is the “catch-up” rule thatshall be applicable. Having observed this the Court declared theprovisions of Sections 3 and 4 of the Karnataka Act 10 of 2002 tobe ultra vires of Articles 14 and 16 of the Constitution. The Hon’bleSupreme Court directed that revision of the Seniority lists beundertaken and completed within three months and furtherconsequential action be taken within the next three months;

In order to comply with the directions of the Hon’ble SupremeCourt in BK Pavitra and others vs Union of India and others inCivil Appeal No. 2368 of 2011 the Government has issued ordervide Government order No. DPAR 182 SRR 2011 dated 06.05.2017to all appointing authorities to revise the seniority lists;

While in compliance of the Supreme Court order, the Governmentconsidering the need and taking note of the decision of theConstitution Bench in M Nagaraj, in Writ Petition No. 61 of 2002,has entrusted the task of conducting study and submitting reporton the backwardness of the Scheduled Castes and ScheduledTribes in the state, inadequacy of their representation in the StateCivil Services and the effect of reservation in promotion on theState administration, to the Additional Chief Secretary to

DEF

[2019] 7 S.C.R.

AGovernment in Government order No. DPAR 182 SRR 2011 dated22.03.2017;

The Additional Chief Secretary to Government with the assistanceof officers from various departments has collated the scientific,quantifiable and relevant data collected and having made detailedBstudy of quantifiable data has submitted report on backwardnessof Scheduled Castes and Scheduled Tribes in the state, inadequacyof their representation in the State Civil Services and the effect ofreservation in promotion on the State administration to the StateGovernment;

CThe report confirms the backwardness of the Scheduled Castesand Scheduled Tribes in the state, inadequacy of their representationin the State Civil Services and that the overall efficiency ofadministration has not been affected or hampered by extendingreservation in promotion to the Scheduled Castes and ScheduledTribes in the state and continuance of reservation in promotionDwithin the limits will not affect or hamper overall efficiency ofadministration;”

84. The first principle of statutory interpretation guides us towardsthe view that undoubtedly, the Statement of Objects and Reasons:

E(i)Cannot be used for restricting the plain meaning of alegislation[109];

(ii) Cannot determine whether provision is valid[110]; and

(iii) May not be definitive of the circumstances in which it waspassed[111].F[[112]]

[See in this context Welfare Association v Ranjit[[112]]].

85. The preamble to law may be statutory aid to consider themischief which the law seeks to address. While it cannot prevail overthe provisions of the statute, it can be an aid to resolve an ambiguity[113].

109 Bhaiji v Sub-Divisional Officer, Thandla : (2003) 1 SCC 692 at page 700, Manjula Bhashini v P Monen’s Coor. Finance Corp. Ltd. : (2009) 8 SCC 431 at paras 34, 40

110 Kerala State (Electricity) Board v Indian Aluminum : (1976) 1 SCC 466.

111 K S Paripoornan v State of Kerala : (1994) 5 SCC 593

112 (2003) 9 SCC 358113 Burrakur Coal Co. Ltd. v Union of India : AIR 1961 SC 954 at pages 956-957H

86. In the course of his submissions, Dr Dhavan has emphasizedthe “new provisions” contained in the Reservation Act 2018. Theseaccording to him, are:

(i)Section 2 (d) which defines ‘backlog’;

(ii)Section 5 under which the appointing authority is to reviseand redraw the existing seniority lists;

(iii)Section 7 which deals with the power to remove difficulties;

(iv) Section 8 which provides for the repeal of the ReservationAct 2002; and

(v)Section 9 which is validating provision.

87. The essential issue which now needs to be addressed by thisCourt is whether the basis of the decision in K Pavitra I has beencured. The decision of the Constitution Bench in Nagaraj mandates thatbefore the State can take recourse to the enabling power contained inClauses (4A) and (4B) of Article 16, it must demonstrate the existenceof “compelling reasons” on three facets: (i) backwardness; (ii)inadequacy of representation; and (iii) overall administrative efficiency.In Jarnail, the Constitution Bench clarified that the first of the abovefactors – “backwardness” has no application in the case of reservationsfor the SCs and STs. Nagaraj to that extent was held to be contrary tothe decision of the larger Bench in Indra Sawhney.

E.2. The Ratna Prabha Committee report

88. The decision in K Pavitra I was rendered on 9 February2017. The Ratna Prabha Committee was established on 22 March 2017.Its report was examined by Cabinet Sub-Committee on 4 August 2017and was eventually approved by the Cabinet on 7 August 2017. TheRatna Prabha Committee report was commissioned to : (i) collectinformation on cadre wise representation of SC and ST employees in allgovernment departments; (ii) collect information on backwardness ofSCs and STs; and (iii) study the effect on the administration due to thepromotion of SCs and STs.

89. Dr Dhavan’s challenge to the report is basically founded onthe following features:

(i)Only thirty one out of sixty two government departments wereexamined;

A(ii)No data was collected for public sector undertakings, boards,corporations, local bodies, grant-in-aid institutions andautonomous bodies;

(iii)In PWD and KPTCL, the representation is excessive;

(iv)The data is vacancy based and not post based as required byBSabharwal;

(v)The data is on sanctioned posts and not of filled posts;

(vi)The data is based on grades A, B, and and not cadre based;andC(vii)On efficiency, there is only general reference to the economicdevelopment of the State of Karnataka.

90. Based on the above features, the petitioners have invoked thepower of judicial review. Dr Dhavan emphasized that the decision inNagaraj upheld the constitutional validity of successive constitutionalDamendments to Article 16 conditional upon the existence of compellingreasons which must be demonstrated by the State by collecting andanalysing relevant data. It is submitted that the flaws in the report of theRatna Prabha Committee would indicate that the compelling reasonswhich constitute the foundation for the exercise of the enabling powercontained in Article 16 are absent, which must result in the invalidationEof the Reservation Act 2018.

91. Before we deal with the merits of the attack on the RatnaPrabha Committee report, it is necessary to set down the parameters onwhich judicial review can be exercised. Essentially, the exercise whichthe petitioners require this Court to undertake is to scrutinize the underlyingFcollection of data by the State on two facets laid out in Nagaraj, as nowclarified by Jarnail: (i) the adequacy of representation; and (ii) impacton efficiency in administration.

Clause (4) of Article 16 contains an enabling provision to empowerthe State to make reservations in appointments or posts in favour of anyGbackward class of citizens “which, in the opinion of the State, is notadequately represented in the services under the State”. Clause (4A)contains an enabling provision that allows the state to provide forreservations in promotion with consequential seniority in posts or classesof posts in services under the State in favour of SCs and STs. ClauseH(4A) also uses the expression “which, in the opinion of the State, are not

adequately represented in the services under the State”. In IndraSawhney, while construing the nature of the satisfaction which has tobe arrived at by the State, this Court held:

“798….The language of clause (4) makes it clear that the questionwhether backward class of citizens is not adequately representedin the services under the State is matter within the subjectivesatisfaction of the State. This is evident from the fact that the saidrequirement is preceded by the words “in the opinion of the State”.This opinion can be formed by the State on its own, i.e., on thebasis of the material it has in its possession already or it maygather such material through Commission/Committee, personor authority. All that is required is, there must be some materialupon which the opinion is formed. Indeed, in this matter the courtshould show due deference to the opinion of the State, which inthe present context means the executive. The executive issupposed to know the existing conditions in the society, drawn asit is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed isbeyond judicial scrutiny altogether. The scope and reach ofjudicial scrutiny in matters within subjective satisfaction ofthe executive are well and extensively stated in BariumChemicals v. Company Law Board [1966 Supp SCR 311 : AIR1967 SC 295] which need not be repeated here. Suffice it tomention that the said principles apply equally in the case ofa constitutional provision like Article 16 (4) which expresslyplaces the particular fact (inadequate representation) withinthe subjective judgment of the State/executive.”[114] (Emphasissupplied)The above extract from the decision in Indra Sawhney presentstwo mutually complementary and reinforcing principles. The first principleis that the executive arm of the state is aware of prevailing conditions.The legislature represents the collective will of the people through theirelected representatives. The presumption of constitutionality of lawenacted by competent legislature traces itself to the fundamentaldoctrine of constitutional jurisprudence that the legislature is accountableto those who elect their representatives. Collectively, the executive andthe legislature are entrusted with the constitutional duty to protect social

114 Supra 13 at page 728

Awelfare. This Court explained in Amalgamated Tea Estates Co Ltd vState of Kerala[115], the rationale for the principles of constitutionality:

“11.The reason why statute is presumed to be constitutional isthat the Legislature is the best judge of the local conditions andcircumstances and special needs of various classes of persons.B“(T)he Legislature is the best judge of the needs of particularclasses and to estimate the degree of evil so as to adjust itslegislation according to the exigency found to exist.”[116]

This principle was reiterated in V Shukla v State (DelhiAdministration)[117]:

C“11…Furthermore, the legislature which is in the best position tounderstand the needs and requirements of the people must begiven sufficient latitude for making selection or differentiationand so long as such selection is not arbitrary and has rationalbasis having regard to the object of the Act, Article 14 would notbe attracted. That is why this Court has laid down that presumptionDis always in favour of the constitutionality of an enactment andthe onus lies upon the person who attacks the statute to show thatthere has been an infraction of the constitutional concept ofequality.”[118]

92. More recently, this was emphasized in State of HimachalEPradesh v Satpal Saini[119]:

“12…The duty to formulate policies is entrusted to the executivewhose accountability is to the legislature and, through it, to thepeople. The peril of adopting an incorrect policy lies in democraticaccountability to the people…”[120]

93. The second of the reinforcing principles which emerges fromIndra Sawhney is that the opinion of the government on the adequacyof representation of the SCs and STs in the public services of the state isa matter which forms part of the subjective satisfaction of the state.Significantly, the extract from Indra Sawhney reproduced earlier advertsGto the decision in Barium Chemicals Ltd, which emphasises that when

115 (1974) 4 SCC 415116 Ibid at page 420117 (1980) Supp SCC 249118 Ibid at page 259119 (2017) 11 SCC 42H120 Ibid at page 47

an authority is vested with the power to form an opinion, it is not openfor the court to substitute its own opinion for that of the authority, norcan the opinion of the authority be challenged on grounds of propriety orsufficiency. In Nagaraj, while dealing with the parameters governingthe assessment of the adequacy of representation or of the impact onefficiency, the Constitution Bench held:

“45… The basic presumption, however, remains that it isthe State who is in the best position to define and measuremerit in whatever ways it consider it to be relevant to publicemployment because ultimately it has to bear the costsarising from errors in defining and measuring merit.Similarly, the concept of “extent of reservation” is not an absoluteconcept and like merit it is context-specific.

49. Reservation is necessary for transcending caste and not forperpetuating it. Reservation has to be used in limited senseotherwise it will perpetuate casteism in the country. Reservationis underwritten by special justification. Equality in Article 16(1)is individual-specific whereas reservation in Article 16 (4) andArticle 16(4A) is enabling. The discretion of the State is, however,subject to the existence of “backwardness” and “inadequacy ofrepresentation” in public employment. Backwardness has to bebased on objective factors whereas inadequacy has to factuallyexist. This is where judicial review comes in. However,whether reservation in given case is desirable or not, asa policy, is not for us to decide as long as the parametersmentioned in Articles 16 (4) and 16 (4A) are maintained. As statedabove, equity, justice and merit (Article 335)/efficiency arevariables which can only be identified and measured by theState.

102…equity, justice and efficiency are variable factors. Thesefactors are context-specific. There is no fixed yardstick toidentify and measure these three factors, it will depend onthe facts and circumstances of each case.”[121] (Emphasissupplied)

A94. The element of discretion vested in the state governments todetermine adequacy of representation in promotional posts is once againemphasized in the following extract from the decision in Jarnail:

“35…According to us, Nagaraj has wisely left the test fordetermining adequacy of representation in promotionalBposts to the States for the simple reason that as the post getshigher, it may be necessary, even if proportionality test to thepopulation as whole is taken into account, to reduce the numberof Scheduled Castes and Scheduled Tribes in promotional pots, asone goes upwards. This is for the simple reason that efficiency ofadministration has to be looked at every time promotions are made.CAs has been pointed out by P Jeevan Reddy, J.’s judgment inIndra Sawhney, there may be certain posts right at the top, wherereservation is impermissible altogether. For this reason, we makeit clear that Article 16 (4A) has been couched in languagewhich would leave it to the States to determine adequateDrepresentation depending upon the promotional post thatis in question.”[122] (Emphasis supplied)

95. In dealing with the submissions of the petitioners on this aspect,it is relevant for this Court to recognize the circumspection with whichjudicial power must be exercised on matters which pertain to proprietyEand sufficiency, in the context of scrutinizing the underlying collection ofdata by the State on the adequacy of representation and impact onefficiency. The Court, is above all, considering the validity of lawwhich was enacted by the State legislature for enforcing the substantiveright to equality for the SCs and STs. Judicial review must hence traverseconventional categories by determining as to whether the Ratna PrabhaFCommittee report considered material which was irrelevant or extraneousor had drawn conclusion which no reasonable body of persons couldhave adopted. In this area, the fact that an alternate line of approachwas possible or may even appear to be desirable cannot furnish afoundation for the assumption by the court of decision making authorityGwhich in the legislative sphere is entrusted to the legislating body and inthe administrative sphere to the executive arm of the government.

96. On the inadequacy of representation, the summary whichemerges from the Ratna Prabha Committee report is as follows:

“2.5: Summary:

1) The analysis of time series data collected for the last 32 years(1984-2016 except for 1986) across 31 Departments of the StateGovernment provides the rich information on the inadequacy ofrepresentation of SCs and STs employees in various cadres ofKarnataka Civil Services.

2) The total number of sanctioned posts as per the data of 2016 is7,45,593 of which 70.22 percent or 5,23,574 are filled up across31 Departments.

3) The vacancies or posts are filled up through Direct Recruitment(DR) and Promotions including consequential promotion.

4) The overall representation of the SC and ST employees of all31 Departments in comparison with total sanctioned postscomprises of 10.65 per cent and 2.92 per cent respectively. Thisproves inadequacy of representation of SCs and STs.

5) On an average the representation in Cadre for SCs is at12.07 per cent and STs 2.70 per cent which sufficiently provesthe inadequacy of representation.

6) The extent of representation in Cadre is on an average of9.79 per cent and 2.34 per cent for ST for all the years of thestudy period.

7) It is observed that on an average 3.05 per cent of SCrepresentation is inadequate in the Cadre ‘C’ whereas, 0.05 percent excess representation is seen for ST.

8) On an average of 2 per cent and 1 per cent over representationof employees of SCs and STs is found in Cadre respectively.However, in the last 5 years, inadequacy of representation of SCsby 3 per cent is found in this cadre.

9) The representation of Scheduled Caste in Cadre A, and ison an average 12, 9.79 and 12.04 per cent respectively whereasin Cadre it is 16.91.

10) In case of STs in the cadres and the representation is2.70 and 2.34 per cent. However, excess representation of 0.04and 0.93 per cent is found in case of Group and Group Drespectively.

A11) Over representation in some years and departments is attributedto either Direct Recruitment or retirement of employees or fillingup of backlog vacancies as the later does not fall under 50 percent limitation of reservation.

2.6: Conclusion:B

The data clearly shows the inadequacy of representation of SCsand STs in the civil services in Groups A, and and adequaterepresentation in Group D.”

97. Collection of data and its analysis are governed by varyingand often divergent approaches in the social sciences. An informativeCtreatise on the subject titled Empirical Political Analysis – Quantitativeand Qualitative Research Methods[123] distinguishes between obtainingknowledge and using knowledge. The text seeks to explain empiricalanalysis on the one hand and normative analysis on the other hand:

“Social Scientists distinguish between obtaining knowledge andDusing knowledge. Dealing with factual realities is termed empiricalanalysis. Dealing with how we should use our knowledge of theworld is termed normative analysis.

Empirical analysis is concerned with developing and using acommon, objective language to describe and explain reality. ItEcan be quantitative or qualitative. Quantitative analyses are basedon math-based comparisons of the characteristics of the variousobjects or events that we study. Qualitative analyses are basedon the researcher’s informed and contextual understanding ofobjects or events.

FNormative analysis is concerned with developing and examiningsubjective values and ethical rules to guide us in judging andapplying what we have learned about reality. Although the emphasisin this book is on empirical analysis, it seeks to develop anappreciation of the larger, normative perspective within whichknowledge is acquired, interpreted, and applied through aGdiscussion of the ethics of research.

Normative analysis without an empirical foundation can leadto value judgments that are out of touch with reality. Empirical

123 Ninth edition, Richard Rich, Craig Leonard Brians, Jarol Manheim and Lars BH Willnat, Longman Publishers

analysis in the absence of sensitivity to normative concerns, onthe other hand, can lead to the collection of observations whosesignificance we are not prepared to understand fully. The objectivein undertaking political inquiry is to draw upon both types of analysis– empirical and normative – so as to maximize not only our factualknowledge, but also our ability to use the facts we discover wisely.”

98. In supporting the methodology which has been adopted by theRatna Prabha Committee, Ms Indira Jaising, learned Senior Counselemphasized that:

(i)Save and except where national census is proposed to beconducted, data collection is based on valid sampling methodson which conclusions are drawn;

(ii)Research methodology can be qualitative as well as quantitative– the present case deals with the collection of quantitative data;

(iii)Quantitative data is also collected on the basis of sample surveys.In this case, the purpose of the study was to collect data on theadequacy of representation in promotional posts and the samplewhich was chosen was representative sample from whichconclusions were drawn; and

(iv)In the study conducted by the State of Karnataka, statistics of anumber of persons belonging to the SCs and STs in promotionalposts were collected group wise. The groups include cadres.Hence, it stands to reason that if the data is collected in relationto group, it will include data pertaining to cadres as well since,every cadre within the group has been statistically enquired.

99. We find merit in the above submissions. The methodologywhich was adopted by the Ratna Prabha Committee has not beendemonstrated to be alien to conventional social science methodologies.We are unable to find that the Committee has based its conclusions onany extraneous or irrelevant material. In adopting recourse to samplingmethodologies, the Committee cannot be held to have acted arbitrarily.If, as we have held above, sampling is valid methodology for collectionof data, the necessary consequence is that the exercise cannot beinvalidated only on the ground that data pertaining to particulardepartment or of some entities was not analysed. The data which wascollected pertained to thirty one departments which are representativein character. The State has analysed the data which is both relevant and

Arepresentative, before drawing its conclusions. As we have noted earlier,there are limitations on the power of judicial review in entering upon afactual arena involving the gathering, collation and analysis of data.

100. Dr Dhavan has painstakingly compiled charts for the purposeof his argument. We may also note at this stage that Ms Jaising in responseBto the charts relied upon by Dr Dhavan, also placed on records chartsindicating:

(i)Current representation after demotion of SC and ST employeesin the PWD of Karnataka;

(ii)Percentage of SCs and STs in the post of Executive EngineerCwithout consequential seniority in the PWD; and

(iii)Corresponding figures in the post of Executive Engineer withoutconsequential seniority in the PWD.

101. We are of the view that once an opinion has been formed bythe State government on the basis of the report submitted by an expertDcommittee which collected, collated and analysed relevant data, it isimpossible for the Court to hold that the compelling reasons whichNagaraj requires the State to demonstrate have not been established.Even if there were to be some errors in data collection, that will notjustify the invalidation of law which the competent legislature wasEwithin its power to enact. After the decision in K Pavitra I, the RatnaPrabha Committee was correctly appointed to carry out the requiredexercise. Once that exercise has been carried out, the Court must becircumspect in exercising the power of judicial review to re-evaluate thefactual material on record.F102. The adequacy of representation has to be assessed withreference to benchmark on adequacy. Conventionally, the State andthe Central governments have linked the percentage of reservation forthe SCs and STs to their percentage of population, as measure ofadequacy. The Constitution Bench noticed this in Sabharwal, where itobserved:G

“4. When percentage of reservation is fixed in respect of aparticular cadre and the roster indicates the reserve points, it hasto be taken that the posts shown at the reserve points are to befilled from amongst the members of reserve categories and thecandidates belonging to the general category are not entitled to beHconsidered for the reserved posts. On the other hand the reserve

category candidates can compete for the non-reserve posts andin the event of their appointment to the said posts their numbercannot be added and taken into consideration for working out thepercentage of reservation. Article 16 (4) of the Constitution ofIndia permits the State Government to make any provision for thereservation of appointments or posts in favour of any BackwardClass of citizens which, in the opinion of the State is not adequatelyrepresented in the Services under the State. It is, therefore,incumbent on the State Government to reach conclusion thatthe Backward Class/Classes for which the reservation is made isnot adequately represented in the State Services. While doing sothe State Government may take the total population of particularBackward Class and its representation in the State Services. Whenthe State Government after doing the necessary exercise makesthe reservation and provides the extent of percentage of posts tobe reserved for the said Backward Class then the percentage hasto be followed strictly. The prescribed percentage cannot be variedor changed simply because some of the members of the BackwardClass have already been appointed/promoted against the generalseats. As mentioned above the roster point which is reserved fora Backward Class has to be filled by way of appointment/promotionof the member of the said class. No general category candidatecan be appointed against slot in the roster which is reserved forthe Backward Class…”[124]

Explaining this further, the Constitution Bench held:

“5...Once the prescribed percentage of posts is filled the numericaltest of adequacy is satisfied and thereafter the roster does notsurvive. The percentage of reservation is the desired representationof the Backward Classes in the State Services and is consistentwith the demographic estimate based on the proportion workedout in relation to their population. The numerical quota of posts isnot shifting boundary but represents figure with due applicationof mind. Therefore, the only way to assure equality of opportunityto the Backward Classes and the general category is to permitthe roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster…”[125]

124 Supra 24 at page 750

125 Ibid at page 751

ABCDE

AConsequently, it is open to the State to make reservation inpromotion for SCs and STs proportionate to their representation in thegeneral population.

103. One of the submissions which has been urged on behalf ofthe petitioners is that the quota has to be reckoned with reference toBposts which are actually filled up or the working strength and not withreference to sanctioned posts. This submission is answered by the decisionin Sabharwal, which holds that the percentage of reservation has to beworked out in relation to the number of posts which form part of thecadre strength. The Constitution Bench held:C“6. The expressions ‘posts’ and ‘vacancies’, often used in theexecutive instructions providing for reservations, are ratherproblematical. The word ‘post’ means an appointment, job, officeor employment. position to which person is appointed.‘Vacancy’ means an unoccupied post or office. The plain meaningof the two expressions make it clear that there must be ‘post’ inDexistence to enable the ‘vacancy’ to occur. The cadre-strengthis always measured by the number of posts comprising thecadre. Right to be considered for appointment can only beclaimed in respect of post in cadre. As consequencethe percentage of reservation has to be worked out inErelation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance inoperating the percentage of reservation.”[126] (Emphasissupplied)

Similarly, in Nagaraj, the Constitution Bench held:F“83. In our view, the appropriate Government has to apply thecadre strength as unit in the operation of the roster in order toascertain whether given class/group is adequately representedin the service. The cadre strength as unit also ensures that upperceiling limit of 50% is not violated. Further, roster has to be post-Gspecific and not vacancy based.”[127]Hence, the submission that the quota must be reckoned on thebasis of the posts which are actually filled up and not the sanctionedposts cannot be accepted.

126 Ibid at pages 751-752H127 Supra 6 at page 261

104. We find no merit in the challenge to the Ratna PrabhaCommittee report on the ground that the collection of data was on thebasis of groups A, B, and as opposed to cadres. For one thing, theexpression ‘cadre’ has no fixed meaning ascribed to it in servicejurisprudence. But that apart, Nagaraj requires the collection ofquantifiable data inter alia, on the inadequacy of representation inservices under the state. Clause 4A of Article 16 specifically refers tothe inadequacy of representation in the services under the state. Thecollection of data on the basis of groups to does not by its verynature exclude data pertaining to cadres. The state has studied in thepresent case the extent of reservation for SCs and STs in groups to D,consisting of several cadres. Since, the group includes posts in all thecadres in that group, it can logically be presumed that the state hascollected quantifiable data on the representation of SCs and STs inpromotional posts in the cadres as well.105. Another facet of the matter is that in the judgment of JusticeJeevan Reddy in Indra Sawhney, it was observed that reservation underArticle 16 (4) does not operate on communal grounds. Hence, if memberbelonging to reserved category is selected in the general category, theselection would not count against the quota prescribed for the reservedcategory. The decision in Sabharwal also noted that while candidatesbelonging to the general category are not entitled to fill reserved posts,reserved category candidates are entitled to compete for posts in thegeneral category. In several group posts, such as municipal sweepers,the sobering experience of administration is that the overwhelminglylarge segment of applicants consists of persons belonging to the SCsand STs. Over representation in group posts as result of candidatesbelonging to the general category staying away from those posts cannotbe valid or logical basis to deny promotion to group employeesrecruited from the reserved category.

F. Substantive versus formal equality

106. The core of the present case is based on the constitutionalcontent of equality.

107. For equality to be truly effective or substantive, the principlemust recognise existing inequalities in society to overcome them.Reservations are thus not an exception to the rule of equality ofopportunity. They are rather the true fulfilment of effective andsubstantive equality by accounting for the structural conditions into which

Apeople are born. If Article 16(1) merely postulates the principle of formalequality of opportunity, then Article 16(4) (by enabling reservations dueto existing inequalities) becomes an exception to the strict rule of formalequality in Article 16 (1). However, if Article 16 (1) itself sets out theprinciple of substantive equality (including the recognition of existinginequalities) then Article 16 (4) becomes -the enunciation of oneBparticular facet of the rule of substantive equality set out in Article16 (1).

F.I. The Constituent Assembly’s understanding of Article

C(I). Reservations to overcome existing inequalities in society

(a). There is substantial evidence that the members of theConstituent Assembly recognised that (i) Indian society suffered fromdeep structural inequalities; and (ii) the Constitution would serve as atransformative document to overcome them. One method of overcomingDthese inequalities is reservations for the SCs and STs in the legislaturesand state services. Therefore, for the members of the ConstituentAssembly who supported reservations, key rationale forincorporating reservations for SCs and STs in the Constitutionwas the existence of inequalities in society based on discriminationand prejudice within the caste structure. This is evidenced by theEstatements in support of reservations for minorities by members. Forexample, in the context of legislative reservations for minoritiesMonomohan Das noted:

“… Therefore, it is evident from the Report of the MinoritiesCommittee that it is on account of the extremely low educationalFand economic conditions of the scheduled castes and the grievoussocial disabilities from which they suffer that the political safeguardof reservation of seats had been granted to them...”[128]

(b) Prof. Yashwant Rai used similar statements to supportreservations for backward communities in employment:

“… Therefore, if you want to give equal status to thosecommunities which are backward and depressed and onwhom injustice has been perpetrated for thousands of yearsand if you want to establish Indian unity, so that the country may

progress and so that many parties in the country may not misleadthe poor, I would say that there should be provision in theconstitution under which the educated Harijans may beprovided with employment….”[129] (Emphasis supplied)

(II). Recognition of the insufficiency of formal equality bythe Constituent Assembly

108. During the debates on the principles of equality underlyingArticle 16 (then draft Article 10), certain members of the Assemblyrecognised that in order to give true effect to the principle of equality ofopportunity, the Constitution had to expressly recognise the existinginequalities. For example, Shri Phool Singh noted:

“… Much has been made of merit in this case; but equal meritpre-supposes equal opportunity, and I think it goes withoutsaying that the toiling masses are denied all those opportunitieswhich few literate people living in big cities enjoy. To ask thepeople from the villages to compete with those city peopleis asking man on bicycle to compete with another on amotorcycle, which in itself is absurd. Then again, merit shouldalso have some reference to the task to be discharged…”[130](Emphasis supplied)

Similarly, P Kakkam stated,

“… If you take merit alone into account, the Harijans cannotcome forward. I say in this house, that the Government musttake special steps for the reservation of appointment for theHarijans for same years. I expect the government will take thenecessary steps to give more appointments in police and militaryservices also...”[131] (Emphasis supplied)

109. By recognising that formal equality of opportunity will beinsufficient in fulfilling the transformative goal of the Constitution, thesemembers recognised that the conception of equality of opportunity mustrecognise and account for existing societal inequalities. The most revealingdebates as to how the Constituent Assembly understood equality ofopportunity under the Constitution took place on 30 November 1948.Members debated draft article 10 (which would go on to become Article16 of the Constitution). In these debates, some members understood

129 (Volume XI) Debate on 23 August 1949.

130 (Volume XI) Debate on 23 August 1949.

131 (Volume VII) Debate on 30 May 1948.

Asub-clause (4) (providing for reservations) as an exception to the generalrule of formal equality enunciated in sub-clause (1). Illustratively, anarticulation of this position was made by Mohammad Ismail Khan, whostated,

“… There can be only one of these two things—either thereBcan be clear equal opportunity or special consideration.Article 10 says there shall be equality of opportunity, then itemphasises the fact by negative clause that no citizen shall bediscriminated on account of religion or race. It is quite good, butwhen no indication is given whether this would override article296 or article 296 is independent of it, we are certainly left in theClurch. What would be the fate of the minorities? [Article 296stated that special considerations shall be shown tominorities to ensure representation in the services]…”[132](Emphasis supplied)

110. Dr R Ambedkar’s response summarises the differentDconceptions of equality of opportunity that the members of the assemblyput forward. Dr Ambedkar argued that the inclusion of sub-clause (4)was method of recognising the demand that mere formal equality insub-clause (1) would be insufficient, and balance between formalequality of opportunity and the needs of the disadvantaged classes ofEsociety was needed. Dr Ambedkar presciently observed:

“… If members were to try and exchange their views on thissubject, they will find that there are three points of view which itis necessary for us to reconcile if we are to produce workableproposition which will be accepted by all…

FThe first is that there shall be equality of opportunity for all citizens.It is the desire of many Members of this House that everyindividual who is qualified for particular post should be free toapply for that post, to sit for examinations and to have hisqualifications tested so as to determine whether he is fit for thepost or not and that there ought to be no limitations…G

Another view mostly shared by section of the House is that, ifthis principle is to be operative—and it ought to be operative intheir judgment to its fullest extent—there ought to be noreservations of any sort for any class or community at all…

Then we have quite massive opinion which insists that, althoughtheoretically it is good to have the principle that there shallbe equality of opportunity, there must at the same time bea provision made for the entry of certain communities whichhave so far been outside the administration. As I said, theDrafting Committee had to produce formula which wouldreconcile these three points of view, firstly, that there shall beequality of opportunity, secondly that there shall be reservationsin favour of certain communities which have not so far had a‘proper look-in’ so to say into the administration…

The view of those who believe and hold that there shall be equalityof opportunity, has been embodied in sub-clause (1) ofArticle 10. It is generic principle. At the same time, as Isaid, we had to reconcile this formula with the demand madeby certain communities that the administration which hasnow—for historical reasons—been controlled by onecommunity or few communities, that situation shoulddisappear and that the others also must have an opportunity ofgetting into the public services…”[133] (Emphasis supplied)

F.2. The Constitution as transformative instrument

111. The Constitution is transformative document. The realizationof its transformative potential rests ultimately in its ability to breathe lifeand meaning into its abstract concepts. For, above all, the Constitutionwas intended by its draftspersons to be significant instrument of bringingabout social change in caste based feudal society witnessed by centuriesof oppression of and discrimination against the marginalised. As ourconstitutional jurisprudence has evolved, the realisation of thetransformative potential of the Constitution has been founded on theevolution of equality away from its formal underpinnings to its substantivepotential.

112. In the context of reservations, the decision in T Devadasanv The Union of India[134] construed Article 16 (4) to be proviso or anexception to Article 16 (1). In dissent which embodied vision statementof the Constitution, Justice Subba Rao held:

133 (Volume VII) Debate on 30 May 1948.

134 AIR 1964 SC 179

A“26. Article 14 lays down the general rule of equality. Article 16is an instance of the application of the general rule with specialreference to opportunity of appointments under the State. It saysthat there shall be equality of opportunity for all citizens in mattersrelating to employment or appointment to any office under theState… Centuries of calculated oppression and habitual submissionBreduced considerable section of our community to life ofserfdom. It would be well nigh impossible to raise their standardsif the doctrine of equal opportunity was strictly enforced in theircase. They would not have any chance if they were made toenter the open field of competition without adventitious aids tillCsuch time when they could stand on their own legs. That is whythe makers of the Constitution introduced clause (4) in Article 16.The expression “nothing in this article” is legislative device toexpress its intention in most emphatic way that the powerconferred thereunder is not limited in any way by the main provisionbut falls outside it. It has not really carved out an exception, butDhas preserved power untrammelled by the other provisions ofthe article.”

113. Subsequently, in N M Thomas, the Constitution Benchadopted an interpretation of Articles 15 and 16 which recognized theseprovisions as but facet of the doctrine of equality under Article 14.EJustice K K Mathew observed:

“78…Article 16(4) is capable of being interpreted as an exceptionto Article 16(1) if the equality of opportunity visualized in Article16(1) is sterile one, geared to the concept of numerical equalitywhich takes no account of the social, economic, educationalFbackground of the members of Scheduled Castes and ScheduledTribes. If equality of opportunity guaranteed under Article 16 (1)means effective material equality, then Article 16(4) is not anexception to Article 16(1). It is only an emphatic way of puttingthe extent to which equality of opportunity could be carried viz.,Geven up to the point of making reservation.”[135]

In his own distinctive style, Justice Krishna Iyer observed:

“139. It is platitudinous constitutional law that Articles 14 to 16are common code of guaranteed equality, the first laying down

the broad doctrine, the other two applying it to sensitive areashistorically important and politically polemical in climate ofcommunalism and jobbery.”[136]

This court has set out this latter understanding in several casesincluding ABS Sangh (Railways) v Union of India[137].

114. Ultimately, Bench of nine judges of this Court in IndraSawhney recognized that Article 16 (4) is not an exception to but afacet of equality in Article 16 (1). Justice Jeevan Reddy delivering thejudgment of plurality of four judges observed:

“741…Article 16(4) is not an exception to Article 16(1) but that itis only an emphatic way of stating the principle inherent in themain provision itself...

In our respectful opinion, the view taken by the majorityin Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976)1 SCR 906] is the correct one. We too believe that Article 16(1)does permit reasonable classification for ensuring attainment ofthe equality of opportunity assured by it.”[138]

115. Justice Mathew in N M Thomas spoke of the need forproportional equality as means of achieving justice. Highlighting thenotion that equality under the Constitution is based on the substantiveidea of providing equal access to resources and opportunities, learnedjudge observed:

“73. There is no reason why this Court should not also require theState to adopt standard of proportional equality which takesaccount of the differing conditions and circumstances of classof citizens whenever those conditions and

circumstances stand in the way of their equal access to theenjoyment of basic rights or claims.”[139]

Carrying these precepts further Justice S Kapadia (as the learnedjudge then was) speaking for the Constitution Bench in Nagaraj observed:

“51…Therefore, there are three criteria to judge the basis ofdistribution, namely, rights, deserts or need. These three criteria136 Ibid at page 369

137 (1981) 1 SCC 246

138 Supra 13 at page 691

139 Supra 77 at page 346

Acan be put under two concepts of equality— “formal equality”and “proportional equality”. “Formal equality” means that lawtreats everyone equal and does not favour anyone either becausehe belongs to the advantaged section of the society or to thedisadvantaged section of the society. Concept of “proportionalequality” expects the States to take affirmative action in favourBof disadvantaged sections of the society within the framework ofliberal democracy.”[140]

Social justice, in other words, is matter involving the distributionof benefits and burdens.

CG. Efficiency in administration

116. Critics of affirmative action programs in government servicesargue that such programs adversely impact the overall competence or“efficiency” of government administration. Critics contend that the onlymethod to ensure “efficiency” in the administration of government is toDuse “merit” based approach – whereby candidates that fulfil more,seemingly “neutral”, criteria than others are given opportunities ingovernment services. The constitutional justification for this “efficiency”argument is centred around Article 335.

“335. The claims of the members of the Scheduled Castes andEthe Scheduled Tribes shall be taken into consideration, consistentlywith the maintenance of efficiency of administration, in the makingof appointments to services and posts in connection with the affairsof the Union or of State:

[Provided that nothing in this article shall prevent in making ofany provision in favour of the members of the Scheduled CastesFand the Scheduled Tribes for relaxation in qualifying marks in anyexamination or lowering the standards of evaluation, for reservationin matters of promotion to any class or classes of services orposts in connection with the affairs of the Union or of State.].”

The proviso was inserted by the Constitution (Eighty-secondGAmendment) Act 2000.

117. The substantive part of Article 335 contains mandate : arequirement to take into consideration the claims of SCs and STs inmaking appointments to services and posts in connection with the affairs

H140 Supra 6 at page 250

of the Union or of State. Consideration is much broader in its ambitthan reservation. The consideration of their claims to appointment is tobe in manner consistent with maintaining the efficiency ofadministration. The proviso specifically protects provisions in favour ofthe SCs and STs for: (i) relaxing qualifying marks in an examination; (ii)lowering the standards of evaluation; or (iii) reservation in matters ofpromotion. Reservation is encompassed within the special provision butthe universe of the latter is wider.118. The proviso recognises that special measures need to beadopted for considering the claims of SCs and STs in order to bringthem to level playing field. Centuries of discrimination and prejudicesuffered by the SCs and STs in feudal, caste oriented societal structureposes real barriers of access to opportunity. The proviso contains arealistic recognition that unless special measures are adopted for theSCs and STs, the mandate of the Constitution for the consideration oftheir claim to appointment will remain illusory. The proviso, in other words,is an aid of fostering the real and substantive right to equality to the SCsand STs. It protects the authority of the Union and the States to adoptany of these special measures, to effectuate realistic (as opposed to aformal) consideration of their claims to appointment in services and postsunder the Union and the states. The proviso is not qualification to thesubstantive part of Article 335 but it embodies substantive effort torealise substantive equality. The proviso also emphasises that the needto maintain the efficiency of administration cannot be construed as afetter on adopting these special measures designed to uplift and protectthe welfare of the SCs and STs.

119. The Constitution does not define what the framers meant bythe phrase “efficiency of administration”. Article 335 cannot be construedon the basis of stereotypical assumption that roster point promoteesdrawn from the SCs and STs are not efficient or that efficiency is reducedby appointing them. This is stereotypical because it masks deep rootedsocial prejudice. The benchmark for the efficiency of administration isnot some disembodied, abstract ideal measured by the performance of aqualified open category candidate. Efficiency of administration in theaffairs of the Union or of State must be defined in an inclusive sense,where diverse segments of society find representation as true aspirationof governance by and for the people. If, as we hold, the Constitutionmandates realisation of substantive equality in the engagement of thefundamental rights with the directive principles, inclusion together with

Athe recognition of the plurality and diversity of the nation constitutes avalid constitutional basis for defining efficiency. Our benchmarks willdefine our outcomes. If this benchmark of efficiency is grounded inexclusion, it will produce pattern of governance which is skewed againstthe marginalised. If this benchmark of efficiency is grounded in equalaccess, our outcomes will reflect the commitment of the Constitution toBproduce just social order. Otherwise, our past will haunt the inability ofour society to move away from being deeply unequal to one which isfounded on liberty and fraternity. Hence, while interpreting Article 335,it is necessary to liberate the concept of efficiency from one sidedapproach which ignores the need for and the positive effects of theCinclusion of diverse segments of society on the efficiency of administrationof the Union or of State. Establishing the position of the SCs and STsas worthy participants in affairs of governance is intrinsic to an equalcitizenship. Equal citizenship recognizes governance which is inclusivebut also ensures that those segments of our society which have suffered

history of prejudice, discrimination and oppression have real voice inDgovernance. Since inclusion is inseparable from well governed society,there is, in our view, no antithesis between maintaining the efficiency ofadministration and considering the claims of the SCs and STs toappointments to services and posts in connection with the affairs of theUnion or of State.E120. This part of the philosophy of the Constitution wasemphasized in powerful exposition contained in the judgment of JusticeO Chinnappa Reddy in K Vasanth Kumar v State of Karnataka[141](“K Vasanth Kumar”). The learned Judge held:“35. One of the results of the superior, elitist approach is that theFquestion of reservation is invariably viewed as the conflict betweenthe meritarian principle and the compensatory principle. No, it isnot so. The real conflict is between the class of people, who havenever been in or who have already moved out of the desert ofpoverty, illiteracy and backwardness and are entrenched in theGoasis of convenient living and those who are still in the desert andwant to reach the oasis. There is not enough fruit in the gardenand so those who are in, want to keep out those who are out. Thedisastrous consequences of the so-called meritarian principle tothe vast majority of the under-nourished, poverty-stricken, barely

literate and vulnerable people of our country are too obvious to bestated. And, what is merit? There is no merit in system whichbrings about such consequences…”[142]

Speaking of efficiency, the learned Judge held:

“36. Efficiency is very much on the lips of the privileged wheneverreservation is mentioned…

One would think that the civil service is Heavenly Paradise intowhich only the archangels, the chosen of the elite, the very bestmay enter and may be allowed to go higher up the ladder. But thetruth is otherwise. The truth is that the civil service is no paradiseand the upper echelons belonging to the chosen classes are notnecessarily models of efficiency. The underlying assumption thatthose belonging to the upper castes and classes, who are appointedto the non-reserved posts will, because of their presumed merit,“naturally” perform better than those who have been appointedto the reserved posts and that the clear stream of efficiency willbe polluted by the infiltration of the latter into the sacred precinctsis vicious assumption, typical of the superior approach of theelitist classes…”[143]

121. The substantive right to equality is for all segments of society.Articles 15 (4) and 16 (4) represent the constitutional aspiration toameliorate the conditions of the SCs and STs. While, we are consciousof the fact that the decision in Indra Sawhney did not accept K CVasanth Kumar[144]on certain aspects, the observations have beencited by us to explain the substantive relationship between equalopportunity and merit. It embodies the fundamental philosophy of theConstitution towards advancing substantive equality.

122. An assumption implicit in the critique of reservations is thatawarding opportunities in government services based on “merit”results in an increase in administrative efficiency. Firstly, it mustbe noted that administrative efficiency is an outcome of the actionstaken by officials after they have been appointed or promoted and is nottied to the selection method itself. The argument that one selectionmethod produces officials capable of taking better actions than second

142 Ibid at pages 737-738

143 Ibid at page 738

144 Supra 139 at paragraph 613

Amethod must be empirically proven based on an evaluation of theoutcomes produced by officials selected through both methods.

Secondly, arguments that attack reservations on the grounds ofefficiency equate “merit” with candidates who perform better than othercandidates on seemingly “neutral” criteria, e.g. standardised examinations.BThus, candidates who score beyond particular “cut-off point” areconsidered “meritorious” and others are “non-meritorious”. However,this is distorted understanding of the function “merit” plays in society.

123. As Amartya Sen notes in his chapter on “Merit and Justice”,[145]the idea of merit is fundamentally derivative of our views of goodCsociety. Sen notes,

“Actions may be rewarded for the good they do, and systemof remunerating the activities that generate good consequenceswould, it is presumed, tend to produce better society. Therationale of incentive structures may be more complex than thisDsimple statement suggests, but the idea of merit in this instrumentalperspective relates to the motivation of producing better results.In this view, actions are meritorious in derivative andcontingent way, depending on the good they do, and moreparticularly, the good that can be brought about byrewarding them….

…The concept of merit is deeply contingent on our views of agood society. Indeed, the notion of merit is fundamentally derivative,and thus cannot be qualified and contingent. There is someelementary tension between (1) the inclination to see meritin fixed and absolute terms, and (2) the ultimatelyFinstrumental character of merit – its dependence on theconcept of “the good” in the relevant society.

This basic contrast is made more intense by the tendency, inpractice, to characterise “merit” in inflexible forms reflecting valuesand priorities of the past, often in sharp conflict with conceptionsGthat would be needed for seeing merit in the context ofcontemporary objectives and concerns…

Even though the typical “objective functions” that areimplicitly invoked in most countries to define and assess

145 Sen A, Merit and Justice, in Arrow, KJ, MERITOCRACY AND ECONOMIC INEQUALITYH (Princeton University Press 2000) (Amartya Sen, Merit and Justice).

what is to count as merit tend to be indifferent to (ornegligent of) distributive aspects of outcomes, there is nonecessity to accept that ad hoc characterisation. This is nota matter of “natural order” of “merit” that is independentof our value system….” (Emphasis supplied)

124. Once we understand “merit” as instrumental in achievinggoods that we as society value, we see that the equation of “merit”with performance at few narrowly defined criteria is incomplete. Ameritocratic system is one that rewards actions that result in theoutcomes that we as society value.

125. For example, performance in standardised examinations(distinguished from administrative efficiency) now becomes one amongmany of the actions that the process of appointments in governmentservices seeks to achieve. Based on the text of Articles 335, Articles 16(4), and 46, it is evident that the uplifting of the SCs and STs throughemployment in government services, and having an inclusive governmentare other outcomes that the process of appointments in governmentservices seeks to achieve. Sen gives exactly such an example.

“If, for example, the conceptualisation of good society includesthe absence of serious economic inequalities, then in thecharacterisation of instrumental goodness, including theassessment of what counts as merit, note would have to betaken of the propensity of putative merit to lessen – or togenerate – economic inequality. In this case, the rewarding ofmerit cannot be done independent of its distributive consequences.

system of rewarding of merit may well generate inequalities ofwell-being and of other advantages. But, as was argued earlier,much would depend on the nature of the consequences that aresought, on the basis of which merits are to be characterised. Ifthe results desired have strong distributive component,with preference for equality, then in assessing merits(through judging the generating results, including itsdistributive aspects), concerns about distribution andinequality would enter the evaluation.”[146]

(Emphasis supplied)

AThus, the providing of reservations for SCs and the STs is not atodds with the principle of meritocracy. “Merit” must not be limited tonarrow and inflexible criteria such as one’s rank in standardised exam,but rather must flow from the actions society seeks to reward, includingthe promotion of equality in society and diversity in public administration.In fact, Sen argues that there is risk to excluding equality from theBoutcomes.

“In most versions of modern meritocracy, however, the selectedobjectives tend to be almost exclusively oriented towardsaggregate achievements (without any preference againstinequality), and sometimes the objectives chosen are even biasedC(often implicitly) towards the interests of more fortunate groups(favouring the outcomes that are more preferred by “talented”and “successful” sections of the population. This can reinforceand augment the tendency towards inequality that mightbe present even with an objective function that inter alia,Dattaches some weight to lower inequality levels.”[147](Emphasis supplied)

126. The Proviso to Article 335 of the Constitution seeks to mitigatethis risk by allowing for provisions to be made for relaxing the marks inqualifying exams in the case of candidates from the SCs and the STs. IfEthe government’s sole consideration in appointments was to appointindividuals who were considered “talented” or “successful” instandardised examinations, by virtue of the inequality in access toresources and previous educational training (existing inequalities insociety), the stated constitutional goal of uplifting these sections of societyand having diverse administration would be undermined. Thus, aF“meritorious” candidate is not merely one who is “talented” or“successful” but also one whose appointment fulfils the constitutionalgoals of uplifting members of the SCs and STs and ensuring diverseand representative administration.

127. It is well settled that existing inequalities in society can leadGto seemingly “neutral” system discriminating in favour of privilegedcandidates. As Marc Galanter notes, three broad kinds of resources arenecessary to produce the results in competitive exams that qualify asindicators of “merit”. These are:

“… (a) economic resources (for prior education, training, materials,freedom from work etc.); (b) social and cultural resources(networks of contacts, confidence, guidance and advice,information, etc.); and (c) intrinsic ability and hard work...” [148]

128. The first two criteria are evidently not the products of acandidate’s own efforts but rather the structural conditions into whichthey are born. By the addition of upliftment of SCs and STs in the moralcompass of merit in government appointments and promotions, theConstitution mitigates the risk that the lack of the first two criteria willperpetuate the structural inequalities existing in society.

129. The Ratna Prabha Committee report considers in ChapterIII, the relationship between reservation in promotion and maintenanceof efficiency in administration. Finally, it concludes:

“3.12: Conclusion:

Karnataka has been showing high performance in all the sectorsof development viz., finance, health, education, industry, services,etc., to support sustainable economic growth. The analysis onperformance of the state in economic development clearly indicatesthat reservation in promotions has not affected the overallefficiency of administration.

130. Moreover, even in formal legal sense, promotions, includingthose in respect of roster points, are made on the basis of seniority-cum-merit and candidate to be promoted has to meet this criteria [See inthis context Rule 19(3) and of the Karnataka Civil Services GeneralRecruitment Rules 1977 which states that subject to other provisions allappointments by promotion shall be on an officiating basis for period ofone year and at the end of the period of officiation, if appointing authorityconsiders the person not suitable for promotion, she/he may be revertedback to the post held prior to the promotion]. candidate on promotionhas to serve statutory period of officiation before being confirmed.This rule applies across the board including to roster point promotees.This ensures that the efficiency of administration is, in any event, notadversely affected.

148 Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in Indian higher education, 40:1 South African Review of Sociology 127-147.

AH. The issue of creamy layer

131. At the outset, we analyse the submission of Ms Indira Jaising,learned Senior Counsel that the concept of creamy layer is inapplicableto the SCs and STs. This submission which has been urged by the learnedCounsel is founded on two hypotheses which we have extracted belowBfrom the written submissions:

“(i) This Court in Indra Sawhney seems to suggest that the creamylayer should be excluded, however there was no unanimity fordetermining what is creamy layer. Some judges took the viewthat the criteria for creamy layer exclusion is social advancementC(i.e. based on social basis, educational, and economical basis) andothers took the view that it will be economic basis alone. It issubmitted that it must be kept in mind that the said judgment relatedonly to OBCs; and

(ii) Jarnail is not an authority for the proposition that the creamyDlayer principle applies to SCs and STs. It dealt only with thecompetence of the Parliament to enact law in relation to creamylayer without affecting Articles 341 and 342.”

132. Dr Dhavan, learned Senior Counsel in his response has urgedthat the above submissions are incorrect because:

E(i)Indra Sawhney decided the issue of creamy layer as aprinciple of equality; and

(ii) Jarnail affirmed that if Nagaraj is rightly applied, creamylayer is principle of equality and of the basic structure.

133. Ms Jaising’s argument is based on the decision in ChinnaiahFthat the SCs and STs cannot be split or bifurcated and the adoption ofthe creamy layer principle would amount to spilt in the homogenousgroups of the SCs and STs. This argument according to Dr Dhavan,was rejected in Jarnail by the Constitution Bench.

134. As Bench of two judges we are bound by the decision inGIndra Sawhney as indeed, we are by the construction placed on thatdecision by the Constitution Benches in Nagaraj and Jarnail. Construingthe decision in Indra Sawhney. Nagaraj held:

“120…Concept of egalitarian equality is the concept of proportionalequality and it expects the States to take affirmative action inHfavour of disadvantaged sections of society within the framework

of democratic polity. In Indra Sawhney [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the Judgesexcept Pandian, J. held that the “means test” should be adoptedto exclude the creamy layer from the protected group earmarkedfor reservation. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has, therefore,accepted caste as determinant of backwardness and yet it hasstruck balance with the principle of secularism which is thebasic feature of the Constitution by bringing in the concept ofcreamy layer. Views have often been expressed in this Court thatcaste should not be the determinant of backwardness and that theeconomic criteria alone should be the determinant ofbackwardness. As stated above, we are bound by the decisionin Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)Supp 1 : (1992) 22 ATC 385] . The question as to the “determinant”of backwardness cannot be gone into by us in view of the bindingdecision. In addition to the above requirements this Court in IndraSawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :(1992) 22 ATC 385] has evolved numerical benchmarks like ceilinglimit of 50% based on post-specific roster coupled with the conceptof replacement to provide immunity against the charge ofdiscrimination.”[149]

Then again, in paragraphs 121, 122 and 123, the Constitution Bench

held:

“121. The impugned constitutional amendments by which Articles16 (4A) and 16 (4B) have been inserted flow from Article 16(4).They do not alter the structure of Article 16(4). They retain thecontrolling factors or the compelling reasons, namely,backwardness and inadequacy of representation which enablesthe States to provide for reservation keeping in mind the overallefficiency of the State administration under Article 335. Theseimpugned amendments are confined only to SCs and STs. Theydo not obliterate any of the constitutional requirements, namely,ceiling limit of 50% (quantitative limitation), the concept of creamylayer (qualitative exclusion), the sub-classification between OBCson one hand and SCs and STs on the other hand as held in IndraSawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :(1992) 22 ATC 385] , the concept of post-based roster with inbuilt

concept of replacement as held in R.K. Sabharwa [(1995) 2 SCC745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .

122. We reiterate that the ceiling limit of 50%, the concept ofcreamy layer and the compelling reasons, namely, backwardness,inadequacy of representation and overall administrative efficiencyBare all constitutional requirements without which the structure ofequality of opportunity in Article 16 would collapse.

123. However, in this case, as stated above, the main issueconcerns the “extent of reservation”. In this regard the Stateconcerned will have to show in each case the existence of thecompelling reasons, namely, backwardness, inadequacy ofrepresentation and overall administrative efficiency before makingprovision for reservation. As stated above, the impugned provisionis an enabling provision. The State is not bound to make reservationfor SCs/STs in matters of promotions. However, if they wish toexercise their discretion and make such provision, the State hasto collect quantifiable data showing backwardness of the classand inadequacy of representation of that class in publicemployment in addition to compliance with Article 335. It is madeclear that even if the State has compelling reasons, as stated above,the State will have to see that its reservation provision does notlead to excessiveness so as to breach the ceiling limit of 50% orobliterate the creamy layer or extend the reservationindefinitely.”[150]

135. The reference before the Constitution Bench in Jarnail aroseout of an initial reference by two judge Bench in State of Tripura vJayanta Chakraborty (“State of Tripura”)[151] and then by three judgeFBench in State of Maharashtra v Vijay Ghogre[152]. The order in Stateof Tripura states:

“2…However, apart from the clamour for revisit, further questionswere also raised about application of the principle of creamy layerin situations of competing claims within the same races,Gcommunities, groups or parts thereof of SC/STs notified by thePresident under Articles 341 and 342 of the Constitution ofIndia.”[153]

150 Ibid at pages 278 -280151 (2018) 1 SCC 146152 (2018) 15 SCC 64H153 Supra 149 at pages 147-148

136. Before the Constitution Bench in Jarnail, the learned AttorneyGeneral specifically raised the following arguments:

“3…according to the learned Attorney General, the creamy layerconcept has not been applied in Indra Sawhney (1) [IndraSawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC(L&S) Supp 1] to the Scheduled Castes and the Scheduled Tribesand Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212: (2007) 1 SCC (L&S) 1013] has misread the aforesaid judgmentto apply this concept to the Scheduled Castes and the ScheduledTribes. According to the learned Attorney General, once theScheduled Castes and the Scheduled Tribes have been set out inthe Presidential List, they shall be deemed to be Scheduled Castesand Scheduled Tribes, and the said List cannot be altered byanybody except Parliament under Articles 341 and 342. Thelearned Attorney General also argued that Nagaraj [M.Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC(L&S) 1013] does not indicate any test for determining adequacyof representation in service. According to him, it is important thatwe lay down that the test be the test of proportion of ScheduledCastes and Scheduled Tribes to the population in India at all stagesof promotion, and for this purpose, the roster that has been referredto in R.K. Sabharwal v. State of Punjab [R.K.Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC(L&S) 548] can be utilised. Other counsel who argued, apart fromthe learned Attorney General, have, with certain nuances, reiteratedthe same arguments.”[154]

The decision in Jarnail specifically addressed the issue of creamy layer:

“28. Therefore, when Nagaraj [M. Nagaraj v. Union of India,(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamylayer test to Scheduled Castes and Scheduled Tribes in exerciseof application of the basic structure test to uphold the constitutionalamendments leading to Articles 16 (4A) and 16 (4B), it did not inany manner interfere with Parliament’s power under Article 341or Article 342. We are, therefore, clearly of the opinion that thispart of the judgment does not need to be revisited, andconsequently, there is no need to refer Nagaraj [M.

ANagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC(L&S) 1013] to seven-Judge Bench. We may also add at thisjuncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8SCC 212 : (2007) 1 SCC (L&S) 1013] is unanimous judgmentof five learned Judges of this Court which has held sway sincethe year 2006. This judgment has been repeatedly followed andBapplied…”[155]

Justice Rohinton Nariman speaking for the Constitution Bench inJarnail explained the reason for applying the creamy layer principle:

“25. However, when it comes to the creamy layer principle, it isCimportant to note that this principle sounds in Articles 14 and 16(1), as unequals within the same class are being treated equallywith other members of that class.”

137. We are thus unable to subscribe to the submission that Jarnailis not per curium on the issue of creamy layer. For one thing, JarnailDspecifically examined the decision in Indra Sawhney, noticing that eightof the nine learned Judges applied the creamy layer principle as facetof the larger equality principle. In fact, the decision in Indra SawhneyII v Union of India[156](“Indra Sawhney II”) summarised the judgmentsin Indra Sawhney I on the aspect of creamy layer. The judgment inJarnail approved Indra Sawhney II when it held that the creamy layerEprinciple sounds in Articles 14 and 16 (1):

“12. In para 27 of the said judgment, the three-Judge Bench ofthis Court clearly held that the creamy layer principle soundsin Articles 14 and 16(1) as follows: [Indra Sawhney (2)case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168 :F2000 SCC (L&S) 1] , SCC p. 190, para 27]

“(i) Equals and unequals, twin aspects

27. As the “creamy layer” in the backward class is to be treated“on par” with the forward classes and is not entitled to benefitsof reservation, it is obvious that if the “creamy layer” is notGexcluded, there will be discrimination and violation of Articles14 and 16(1) inasmuch as equals (forwards and creamy layerof Backward Classes) cannot be treated unequally. Again,non-exclusion of creamy layer will also be violative of

155 Ibid at page 426H156 (2000)1 SCC 168

Articles 14, 16(1) and 16(4) of the Constitution of Indiasince unequals (the creamy layer) cannot be treated asequals, that is to say, equal to the rest of the backwardclass…

Thus, any executive or legislative action refusing to exclude thecreamy layer from the benefits of reservation will be violativeof Articles 14 and 16(1) and also of Article 16(4). We shall examinethe validity of Sections 3, 4 and 6 in the light of the above principle.(emphasis in original)”[157]

Jarnail discussed the decision in Chinnaiah and held that it dealtwith the lack of legislative competence on the part of the State legislaturesto create sub- categories among the Presidential lists under Articles 341and 342. The decision in Jarnail therefore held that Chinnaiah did notdeal with any of the aspects on which the constitutional amendmentswere upheld in Nagaraj and hence it was not necessary for Nagaraj torefer to Chinnaiah at all. In this view of the matter, we are clearly ofthe view that Jarnail, on construction of Indra Sawhney holds thatthe creamy layer principle is principle of equality.138. Though, we have not accepted the above submission whichwas urged by Ms Jaising on behalf of the intervenors, we will have todecide as to whether the Reservation Act 2018 is unconstitutional. Thechallenge in the present case is to the validity of the Reservation Act2018 which provides for consequential seniority. In other words, thenature or extent of reservation granted to the SCs and STs at the entrylevel in appointment is not under challenge. The Reservation Act 2018adopts the principle that consequential seniority is not an additional benefitbut consequence of the promotion which is granted to the SCs andSTs. In protecting consequential seniority as an incident of promotion,the Reservation Act 2018 constitutes an exercise of the enabling powerconferred by Article 16 (4A). The concept of creamy layer has norelevance to the grant of consequential seniority. There is merit in thesubmission of the State of Karnataka that progression in cadre basedon promotion cannot be treated as the acquisition of creamy layer status.The decision in Jarnail rejected the submission that member of an SCor ST who reaches higher post no longer has taint of untouchabilityor backwardness. The Constitution Bench declined to accept the

Asubmission on the ground that it related to the validity of Article 16 (4A)and held thus:

“34…We may hasten to add that Shri Dwivedi’s argument cannotbe confused with the concept of “creamy layer” which, as hasbeen pointed out by us hereinabove, applies to persons within theBScheduled Castes or the Scheduled Tribes who no longer requirereservation, as opposed to posts beyond the entry stage,which may be occupied by members of the ScheduledCastes or the Scheduled Tribes.”[158](Emphasis supplied)

139. In sustaining the validity of Articles 16 (4A) and 16 (4B)Cagainst challenge of violating the basic structure, Nagaraj applied thetest of width and the test of identity. The Constitution Bench ruled thatthe catch-up rule and consequential seniority are not constitutionalrequirements. They were held not to be implicit in clauses (1) to (4) ofArticle 16. Nagaraj held that they are not constitutional limitations orprinciples but are concepts derived from service jurisprudence. Hence,Dneither the obliteration of those concepts nor their insertion would violatethe equality code contained in Articles 14, 15 and 16. The principlepostulated in Nagaraj is that consequential seniority is concept purelybased in service jurisprudence. The incorporation of consequentialseniority would hence not violate the constitutional mandate of equality.EThis being the true constitutional position, the protection of consequentialseniority as an incident of promotion does not require the application ofthe creamy layer test. Articles 16 (4A) and 16 (4B) were held to notobliterate any of the constitutional limitations and to fulfil the width test.In the above view of the matter, it is evident that the concept of creamylayer has no application in assessing the validity of the Reservation ActF2018 which is designed to protect consequential seniority upon promotionof persons belonging to the SCs and STs.

I. Retrospectivity

140. Sections 3 and 4 of the Reservation Act 2018 came intoGforce on 17 June 1995. The other provisions came into force “at once”as provided in Section 1(2). Section 4 stipulates that the consequentialseniority already granted to government servants belonging to the SCsand STs in accordance with the reservation order with effect from 27

April 1978 shall be valid and shall be protected. In this context, we mustnote from the earlier decisions of this Court that:

(i) The decision in Virpal Singh held that the catch-up rule wouldbe applied only from 10 February 1995 which was the date ofthe judgment in Sabharwal;

(ii) The decision in Ajit Singh II specifically protected thepromotions which were granted before 1 March 1996 withoutfollowing the catch-up rule; and

(iii) In Badappanavar, promotions of reserved candidates basedon consequential seniority which took place before 1 March1996 were specifically protected.

141. Since promotions granted prior to 1 March 1996 wereprotected, it was logical for the legislature to protect consequentialseniority. The object of the Reservation Act 2018 is to accordconsequential seniority to promotees against roster points. In this viewof the matter, we find no reason to hold that the provisions in regard toretrospectivity in the Reservation Act, 2018 are either arbitrary orunconstitutional.

142. The benefit of consequential seniority has been extendedfrom the date of the Reservation Order 1978 under which promotionsbased on reservation were accorded.

J. Over representation in KPTCL and PWD

143. The Ratna Prabha Committee collected data from thirty onedepartments of the State Government of Karnataka. It has been pointedout on behalf of the State that corporations such as KPTCL and otherpublic sector undertakings fall within the administrative control of one ofthe departments of the State government. The position in thirty onedepartments was taken as representative of the position in publicemployment under the State. The over representation in KPTCL andPWD has been projected by the petitioners with reference to the totalnumber of posts which have been filled. On the other hand, the quota isfixed and the roster applies as regards the total sanctioned posts as heldin Sabharwal and Nagaraj. On the contrary, the data submitted by theState of Karnataka indicates that if consequential seniority is not allowed,

Athere would be under representation of the reserved categories. Finally,it may also be noted that under the Government Order dated 13 April1999, reservation in promotion in favour of SC’s and ST’s has beenprovided until the representation for these categories reaches 15 percent and 3 per cent, respectively. The State has informed the Court thatthe above Government Order is applicable to KPTCL and PWD, asBwell.

K. Conclusion

144. For the above reasons, we have come to the conclusion thatthe challenge to the constitutional validity of the Reservation Act 2018 isClacking in substance. Following the decision in K Pavitra I, the Stategovernment duly carried out the exercise of collating and analysing dataon the compelling factors adverted to by the Constitution Bench inNagaraj. The Reservation Act 2018 has cured the deficiency whichwas noticed by K Pavitra I in respect of the Reservation Act 2002.The Reservation Act 2018 does not amount to usurpation of judicialDpower by the state legislature. It is Nagaraj and Jarnail compliant. TheReservation Act 2018 is valid exercise of the enabling power conferredby Article 16 (4A) of the Constitution.

145. We therefore find no merit in the batch of writ petitions asthe constitutional validity of the Reservation Act 2018 has been upheld.EThey shall stand dismissed. Accordingly, the review petitions andmiscellaneous applications shall also stand dismissed in view of thejudgment in the present case. There shall be no order as to costs. Allpending applications are disposed of.

146 Before concluding, the Court records its appreciation of theFerudite submissions of the learned Counsel who have ably assisted theCourt. We deeply value the assistance rendered by Dr Rajeev Dhavanand Mr Shekhar Naphade, learned Senior Counsel and Mr Puneet Jain,learned Counsel who led the arguments on behalf of the Petitioners. Weacknowledge the valuable assistance rendered to the Court by Ms IndiraGJaising, Mr Basava Prabhu S Patil, Mr Dinesh Dwivedi, Mr NidheshGupta and Mr V Lakshminarayana, learned Senior Counsel.

Nidhi Jain

Petitions and Applications dismissed.