BAJRANG LAL SHARMA versus C. K. MATHEW AND ORS.

[2020] 1 S.C.R.

BAJRANG LAL SHARMA

C. K. MATHEW AND ORS.

(Contempt Petition (Civil) Nos. 453-454 of 2012)

JANUARY 23, 2020

[UDAY UMESH LALIT, INDIRA BANERJEE AND

M. R. SHAH, JJ.]

Contempt of Court:C

Matter relating to reservation in promotion and consequentialseniority – Supreme Court in **Suraj Bhan Meena Case set asidenotifications providing for consequential seniority in promotion toSC/ST employees holding that no exercise was undertaken in termsof Article 16(4-A) of the Constitution, to acquire quantifiable dataDregarding inadequacy of representation of SC/ST communities inpublic services – Pursuant thereto Bhatnagar Committee constituted– Committee in its report concluded that backwardness of SC/ST isestablished on the basis of quantifiable data – Thereupon byNotification dated 11.9.2011 Administrative Service Rules wereamended providing that reservation for SC/ST employees withEconsequential seniority would continue till roster points areexhausted and adequacy of promotion is achieved – In ContemptPetition before High Court, the Court held that Notification dated11.9.2011 was void – In appeal Supreme Court, in #Salauddin casedid not hold the contemnors guilty of contempt – Present contemptFpetition before Supreme Court – Held: The Notification dated11.9.2011 was not found to be in contempt nor was invalidated fornon-compliance of any binding directions in #Salauddin Case – TheNotification dated 11.9.2011 was issued in exercise of powers vestedin the authorities concerned – Such issuance cannot be said to becontumacious to invite any action in contempt jurisdiction –GContempt petitions are closed.

Closing the contempt petitions, the Court

HELD : 1. The law declared by this Court in *M. Nagrajwhich was followed in **Suraj Bhan Meena is clear that in the

absence of any quantifiable data relating to the issue ofbackwardness and inadequacy of representation of the concernedclasses in public employment, no benefit of consequentialseniority could be extended. Therefore, in **Suraj Bhan Meena,the Notifications dated 28.12.2002 and 25.8.2008 providing forconsequential seniority in promotion to the Members of the SC/ST communities were set aside. [Para 14] [509-F-G]

2. Since the decision in **Suraj Bhan Meena Case was onthe premise that no such exercise was undertaken to acquirequantifiable data, the State Government constituted the BhatnagarCommittee. The Committee went into the issues and made certainrecommendations based on which Notification was issued bythe State Government on 11.9.2011. High Court by its judgmentand order dated 23.2.2012 found said Notification to be not incompliance of binding directions and to be invalid. The decisionin #Salauddin Case set aside the view taken by the High Court.Thus, the issuance of Notification dated 11.9.2011 was not foundto be in contempt nor was it invalidated for being non-compliantof any binding directions. [Para 15] [510-A-D]

3. The directions issued by this Court in #Salauddin Casewere clear that the State and its authorities were to act in termsof the report of the Bhatnagar Committee in accordance with thedecisions in *M. Nagraj and **Suraj Bhan Meena. The basicfoundation of the present contempt petitions projecting theissuance of Notification dated 11.9.2011 to be in contempt of thedirections issued by this Court, thus, does not survive. In anycase, challenge to said Notification and the report of the BhatnagarCommittee is still pending consideration before the High courtwhere the correctness and validity thereof will be gone into inaccordance with law. [Para 16] [510-D-F]

4. With the decision of this Court in ##Jarnail Singh case,the matter also stands on slightly modified footing. As concludedby this Court in ##Jarnail Singh case, the conclusion in *M.Nagraj that the State has to collect quantifiable data showingbackwardness of SC/ST, being contrary to the 9 Judges Benchdecision in ***Indra Sawhney case, was held to be invalid. The

Achallenge to the recommendations given by the BhatnagarCommittee and the quantifiable data adverted to by theCommittee will therefore have to be seen by the High Court inthe light of the directions issued by this Court in ##Jarnail Singhcase. [Para 17] [510-F-G]

B5. The issuance of Notification dated 11.9.2011 was inexercise of powers vested in the concerned authorities and if theapproach and the exercise is otherwise incorrect or wrong, thesame can be tested and considered while dealing with thesubstantive challenge but such issuance cannot be said to becontumacious to invite any action in contempt jurisdiction. Thus,Cthere is no reason to entertain these contempt petitions anylonger. These contempt petitons are directed to be closed.[Paras 18 and 19] [510-H; 511-A-B]

*M. Nagaraj v. Union of India (2006) 8 SCC 212 :[2006] 7 Suppl. SCR 336 ; **Suraj Bhan Meena andDanother v. State of Rajasthan and others (2011) 1 SCC467 : [2010] 14 SCR 532 ; ***Indra Sawhney v. Unionof India 1992 Supp (2) SCC 217 : [1992] 2 Suppl. SCR 454 ; #Salauddin Ahmed and another v. Samta Andolan(2012) 10 SCC 235 : [2012] 7 SCR 402 ; ##JarnailESingh and others v. Lachhmi Narain Gupta and others(2018) 10 SCC 396 : [2018] 10 SCR 663 – referred

Petitions filed for non-compliance of the order dated 29.08.2012passed in Civil Appeal Nos. 2504-2505 of 2012.

M. L. Lahoti, Paban K. Sharma, Anchit Sripat, Umesh PratapSingh, R. C. Kohli, Advs. for the Petitioner.

Dr. Manish Singhvi, Sr. Adv., Shailja Nanda, Arpit Prakash, D. K.Devesh, Milind Kumar, Advs. for the alleged contemnors/Respondents.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J.

1. These Contempt Petitions seek to highlight non-compliance ofdirections issued by this Court in its Judgments dated 07.12.2010 in SurajBhan Meena and another vs. State of Rajasthan and others[1] and29.08.2012 in Salauddin Ahmed and another vs. Samta Andolan[2]and seek initiation of contempt proceedings against the allegedcontemnors/respondents.

2. The Contempt Petitioner, Rajasthan Administrative Officerof 1982 batch, had preferred DB Civil Writ Petition No.8104 of 2008before the High Court[3] for following reliefs:-

(i)By an appropriate writ, order or direction the Hon’ble Courtmay be pleased to quash and set aside the notification dated25.04.2008.

(ii)By further appropriate writ order or direction the Hon’bleCourt may be pleased to direct respondents to strictly adhereEto the “catch-up rule” and revise the seniority of all thepetitioners in comparison to SC/ST candidates after givingthe benefit of regaining of the seniority by the generalcategory candidates as envisaged by the circular dated01.04.1997 and provisional seniority list dated 26.06.2000.

(iii)By further appropriate writ order or direction the Hon’bleCourt may be pleased to declare the circular dated20.10.2000 unconstitutional and illegal as the same is not inaccordance with the theory of compartmentalization.

(iv)By further appropriate writ order or direction the Hon’bleGCourt may be pleased to further direct respondents to revisethe seniority list since 1982 as the benefit of seniority given

1 (2011) 1 SCC 467

2 (2012) 10 SCC 235

3 High Court of Rajasthan, Jaipur Bench, Jaipur

488SUPREME COURT REPORTS

Ato the reserved category candidates before 1995 inaccordance with the Rule 33 of RAS Rules, 1954 is illegal.

(v)By further appropriate writ order or direction the Hon’bleCourt may be pleased to restrain the respondents to provideconsequential seniority of SC/ST candidates as the RulesBwere not framed in pursuance of Article 16(4-A). Inalternative if Rule 33 talks about giving benefit ofconsequential seniority then that rule be declaredunconstitutional to the extent it provides consequentialseniority to SC/ST employees.

C(vi)By further writ, order or direction the respondents be directedto strictly adhere to post based roster system as envisagedby R.K. Sabharwal’s case and respondents be furtherdirected to bifurcate 53 seats occurring in 2008 because ofthe selection to IAS post in their respective years of vacanciesfor the sake of holding year wise DPCs for those years.D

(vii) By further writ, order or direction the respondents berestrained to provide the benefit of reservation in promotionwith consequential seniority unless and until they establishthe existence of three compelling reasons as enunciated inthe judgment of M. Nagraj.E

(viii) By further writ, order or direction the respondents be directedto revise the seniority of all the petitioners and they shouldbe given the benefit of their seniority in pursuance of the“catch-up rule”.

F(ix)By further writ, order or direction the respondents berestrained to make any selection for IAS cadre throughpromotion till disposal of this writ petition.

3. The High Court by its judgment and order dated 05.02.2010[4]quashed the notifications dated 25.04.2008 and 28.12.2002 and allconsequential actions. The challenge to the judgment of the High CourtGwas considered by this Court and by its decision in Suraj Bhan[1]theview taken by the High Court was affirmed. The factual backgroundwas considered by this Court as under:-

4 Bajrang Lal Sharma vs. State of Rajasthan, WP (C)No.8104 of 2008 (Raj) and otherHconnected matters

“4. All the writ petitioners, as also the petitioners in SLP (C) No.6385 of 2010, are members of the Rajasthan AdministrativeService and are governed by the Rajasthan Administrative ServiceRules, 1954. The writ petitioners in their respective writ petitionschallenged the Notification dated 25-4-2008, issued by the Stateof Rajasthan in exercise of its powers conferred by the proviso toArticle 309 of the Constitution of India amending the Rajasthan“Various Service Rules” with effect from 28-12-2002.

5. According to the writ petitioners, they had been inducted in theRajasthan Administrative Service in December 1982, throughselection by the Rajasthan Public Service Commission. Vide noticedated 26-6-2000, the State Government issued provisionalseniority list of Rajasthan Administrative Service Selection Gradeas on 1-4-1997, in which Writ Petitioner 1, Bajrang Lal Sharma,was placed above Suraj Bhan Meena (Scheduled Tribe) and SriramChoradia (Scheduled Caste).

6. The said seniority list was published pursuant to the order ofthis Court dated 16-9-1999, passed in Ajit Singh (II) v. State ofPunjab[5] and another order of the same date in Ram Prasad v.D.K. Vijay[6]. Once again provisional seniority lists were publishedon 27-11-2003 and 12-5-2008. Subsequently, the State of Rajasthanpublished the final seniority lists of super-time scale and selectionscale of the service on 24-6-2008 as on 1-4-1997 and provisionalseniority list dated 2-7-2008 as on 1-4-2008, wherein the name ofBajrang Lal Sharma was shown below the names of both SurajBhan Meena and Sriram Choradia.7. The Notification dated 25-4-2008, which was the subject-matterof challenge in the writ petition was challenged on two grounds. Itwas firstly contended that the proviso dated 28-12-2002, whichhad been added to the Various Service Rules was subject to thefinal decision of this Court in Writ Petition (Civil) No. 234 of 2002filed in All India Equality Forum v. Union of India, but thesame was yet to be decided. Therefore, during the pendency ofthe writ petition before this Court, the respondents had actedimproperly in deleting the abovementioned proviso in the VariousService Rules by the Notification dated 25-4-2008, which amounted

5 (1999) 7 SCC 209

6 (1999) 7 SCC 251

Ato giving consequential seniority to candidates belonging to theScheduled Castes and Scheduled Tribes, which could not havebeen given without quantifying the figures of Scheduled Casteand Scheduled Tribe candidates to enable decision to be arrivedat that reservation was required in promotion and also to showthat the State had to pass such orders for compelling reasons,Bsuch as, backwardness, inadequacy of representation, as held bythis Court in M. Nagaraj v. Union of India[7]. It was contendedthat since the State Government had not complied with thedirections given by this Court in M. Nagaraj case[7], the notificationin question was liable to be quashed.

8. It was further urged on behalf of the writ petitioner BajrangLal Sharma, that in Indra Sawhney v. Union of India[8], this Courthad held that Article 16(4) of the Constitution of India did notpermit reservations in the matter of promotion. Thereafter, theConstitution (Seventy-seventh Amendment) Act, 1995, wasDenacted and came into force on 17-6-1995. The subsequent specialleave petitions filed in Union of India v. Virpal Singh Chauhan[9],Ajit Singh Januja v. State of Punjab[10] [Ajit Singh (I)] and AjitSingh (II) v. State of Punjab[5], introduced the “catch-up” ruleand held that if senior general candidate was promoted aftercandidates from the Scheduled Castes and Scheduled Tribes have

been promoted to particular cadre, the senior general candidatewould regain his seniority on promotion in relation to the juniorswho had been promoted against reserved vacancies.”

3.1 After considering the decision of the Constitution Bench ofthis Court in M. Nagaraj[7] the matter was concluded as under:-

“60. The vital issue which fell for determination was whether byvirtue of the implementation of the constitutional amendments,the power of Parliament was enlarged to such an extent so as toignore all constitutional limitations and requirements.

61. Applying the “width” test and “identity” test, the ConstitutionBench held that firstly, it is the width of the power under theimpugned amendments introducing amended Articles 16(4-A) and

7 (2006) 8 SCC 2128 1992 Supp. (3) SCC 2179 (1995) 6 SCC 684H10 (1996) 2 SCC 715

16(4-B) that had to be tested. Applying the said tests, theConstitution Bench, after referring to the various decisions of thisCourt on the subject, came to the conclusion that the Court has tobe satisfied that the State had exercised its power in makingreservation for Scheduled Caste and Scheduled Tribe candidatesin accordance with the mandate of Article 335 of the Constitution,for which the State concerned would have to place before theCourt the requisite quantifiable data in each case and to satisfythe Court that such reservation became necessary on account ofinadequacy of representation of Scheduled Caste and ScheduledTribe candidates in particular class or classes of posts, withoutaffecting the general efficiency of service.62. The Constitution Bench went on to observe that theconstitutional equality is inherent in the rule of law. However, itsreach is limited because its primary concern is not with efficiencyof the public law, but with its enforcement and application. TheConstitution Bench also observed that the width of the power andthe power to amend together with its limitations, would have to befound in the Constitution itself. It was held that the extension ofreservation would depend on the facts of each case. In case thereservation was excessive, it would have to be struck down.

63. It was further held that the impugned Constitution Amendments,introducing Articles 16(4-A) and 16(4-B), had been insertedand flow from Article 16(4), but they do not alter the structure ofArticle 16(4) of the Constitution. They do not wipe out any of theconstitutional requirements such as ceiling limit and the conceptof creamy layer on one hand and Scheduled Castes and ScheduledTribes on the other hand, as was held in Indra Sawhney case[8].

64. Ultimately, after the entire exercise, the Constitution Benchheld that the State is not bound to make reservation for ScheduledCaste and Scheduled Tribe candidates in matters of promotionbut if it wished, it could collect quantifiable data touchingbackwardness of the applicants and inadequacy of representationof that class in public employment for the purpose of compliancewith Article 335 of the Constitution.

65. In effect, what has been decided in M. Nagaraj case[7] is partrecognition of the views expressed in Virpal Singh Chauhan

case[9], but at the same time upholding the validity of the Seventy-seventh, Eighty-first, Eighty-second and Eighty-fifth Amendmentson the ground that the concepts of “catch-up” rule and“consequential seniority” are judicially evolved concepts and couldnot be elevated to the status of constitutional principle so as toplace them beyond the amending power of Parliament.Accordingly, while upholding the validity of the said amendments,the Constitution Bench added that, in any event, the requirementof Articles 16(4-A) and 16(4-B) would have to be maintained andthat in order to provide for reservation, if at all, the tests indicatedin Articles 16(4-A) and 16(4-B) would have to be satisfied, whichcould only be achieved after an inquiry as to identity.

66. The position after the decision in M. Nagaraj case[7] is thatreservation of posts in promotion is dependent on the inadequacyof representation of members of the Scheduled Castes andScheduled Tribes and Backward Classes and subject to thecondition of ascertaining as to whether such reservation was atall required.

67. The view of the High Court is based on the decision in M.Nagaraj case[7] as no exercise was undertaken in terms of Article16(4-A) to acquire quantifiable data regarding the inadequacy ofErepresentation of the Scheduled Caste and Scheduled Tribecommunities in public services. The Rajasthan High Court hasrightly quashed the Notifications dated 28-12-2002 and 25-4-2008issued by the State of Rajasthan providing for consequentialseniority and promotion to the members of the Scheduled Casteand Scheduled Tribe communities and the same does not call forFany interference.

68. Accordingly, the claim of petitioners Suraj Bhan Meena andSriram Choradia in Special Leave Petition (Civil) No. 6385 of2010 will be subject to the conditions laid down in M. Nagarajcase[7] and is disposed of accordingly. Consequently, Special LeavePetitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by theState of Rajasthan, are also dismissed.”

3.2. Thus, the view taken by the High Court that no exercise wasundertaken in terms of Article 16(4-A) of the Constitution to acquirequantifiable data regarding inadequacy of the representation of the

Scheduled Caste (SC) and Scheduled Tribe (ST) communities in publicservices, was accepted.

4. On 31.03.2011 the State Government constituted Committee,known as Bhatnagar Committee, to look into different aspects relatingto reservation in promotion and consequential seniority in terms of theJudgment of this Court in M. Nagaraj[7]. The Terms of Reference of theCommittee were:-

“1. Collection and analysis of quantifiable data of inadequacy ofrepresentation of SC and ST in matters of their promotions andconsequential seniority.

2. To ascertain the extent of representation of members of theSC/ST at each level of promotion in the various levels of eachcadre (There are 110 government cadres in the State).

3. Recommend the guiding principles of maintaining administrativeefficiency vis-à-vis reservation in promotion of SC/STs.”

4.1 The Committee submitted its Report to the State Governmenton 19.08.2011. Some of the relevant portions of the Report were asunder:-

“10.5. Overall analysis of inadequacy in State and SubordinateServices as on 1.4.2010

Total Number of State Service 11457

Subordinate 64803

Grand Total 76260

Total number of Levels/Grade Pay State Service 12

Subordinate 13

Total 25

The overall picture after analyzing the position in the Grade PayWise of State and Subordinate Services, in fact, indicates highlyinadequate representation for SC and ST in these services asfurther detailed below.

10.5.1. Inadequacy of Representation in Subordinate Services.

There are thirteen levels for Subordinate Services as described inSections 10.4.13 to 1.4.25 i.e. Grade Pays 1650 to 4800 and among

them they represent total of 64326 employees which is almost84% of the total of State and subordinate services. In the firstgroup taken up for detailed analysis of 6 levels i.e. 2800 to 4800.It would be seen that one level of 2800 has only 128 posts and canbe left out. In the remaining five levels it can be seen that out of20 results each for SC and ST in the five tables above, for the SCthere are results of Alarming Shortage, 5 for Substantial Shortage,5 for Moderate Shortage and 1 showing Marginal Shortage. Intwo cases the cadres are saturated and excess representationhas been indicated only in 3 cases (2 Moderate and 1 Marginal).In the case of ST there are 11 results showing Alarming Shortage,2 showing Substantial Shortage, 3 showing Moderate Shortageand 2 showing Marginal Shortage. In the remaining 2 cases cadresare saturated. In the remaining seven levels from 1650 to 2400,four out of them i.e., 1650, 1800, 1850 and 2100 consist of smallnumbers are of no consequence. In the remaining levels at 1900,2000 and 2400, 12 results each for SC and ST do not show anycase of alarming excess, there are two cases of moderate excessand 5 cases of marginal excess. On the contrary, there are 4cases of alarming shortages, 6 of substantial shortages, five ofmoderate shortages and one of marginal shortage.

10.5.2. Inadequacy of Representation in State Services.

Out of 12 levels for state services, the initial four levels i.e., 4800,5400, 6000 and 6600 represent 17408 employees, i.e. almost 87%of the total of state services. Again out of 15 results each for SCand ST, in case of SC 6 showing Alarming Shortage, 3 showSubstantial Shortage, 6 show Moderate Shortage and only 1 showsMarginal Excess. In the case of ST, there are 11 results showingAlarming Shortage, 3 showing substantial shortage and 1 showingModerate Shortage. The remaining one result is of MarginalExcess. In another group of two levels i.e., 7600 and 8700representing 2244 employees indicate mixed picture borderingtowards Inadequacy. Exactly out of 8 results for SC and ST eachfor SC there are 4 results showing Alarming Shortage and 1showing Marginal Shortage. There is one case of SubstantialExcess and one each of Moderate and Marginal Excess.

In the case of ST there are 2 results showing Alarming Shortage,1 result of Marginal Substantial Shortage. 1 case of Moderate

Shortage and 2 results of Marginal Shortage. Finally, there is onecase of Marginal Excess.

third group of two levels i.e., 7000 and 7200 representing only72 employees indicates saturation levels for both SC and ST. Thelast remaining group consisting of 4 levels i.e., 6800, 8200, 8900and 10000 representing only 240 employees generally indicateexcess representation. In fact, nut of total number of 16 resultsfor SC and ST each, for SC 3 indicate Alarming Shortage and 1shows Marginal Shortage. In 1 case the result shows saturationof the cadre. The remaining 11 results show 3 Alarming Excess,4 Substantial Excess, 2 Moderate Excess and 2 results are ofMarginal Excess. In the case of ST there are 6 cases of AlarmingShortage, 1 case of Substantial Shortage, 1 case of ModerateShortage and 2 cases of Marginal Shortage. In the remainingcases there are 4 cases of Alarming Excess, 1 case of MarginalExcess and 1 case of Cadre Saturation.”

4.2. From paragraphs 10.11.4 onwards the Committee consideredfigures of excess/shortage of reserved candidates in different gradesand put the concerned data in tabulated form and the conclusions weresummarized as under:-

“16.1. Annual Census of State Government Employees carriedout by Directorate of Statistics.

Figures of years 1997, 2001, 2005 and 2009 of the census indicatethat the representation of SC and ST in public services hasincreased from 18.59% to 27.19%. The Pay Range Wise censushas also indicated that the existing levels just seem to be reachingthe required percentage in the lowest pay ranges but they are stillfar behind in the higher pay ranges. (Section 9.1.2.2.).

16.7. Backwardness of SC and ST well established on the basisof Quantifiable Data.

The Committee finds that backwardness of SC and ST is wellestablished on the basis of quantifiable data. (Section 11.5).”

5. On 11.09.2011 notification was issued in the Gazette amendingthe Rajasthan Administrative Service Rules, 1954 as under:-

“DEPARTMENT OF PERSONNEL(A-Gr.-II)

NOTIFICATIONS

Jaipur, September 11, 2011

G.S.R. 67.- In exercise of the powers conferred by the proviso toArticle 309 of the Constitution of India, the Governor of Rajasthanhereby makes the following rules further to amend in the RajasthanAdministrative Service Rules, 1954, namely:-

1.Short title and commencement.- (1) These rules may becalled the Rajasthan Administrative Service (Amendment)Rules, 2011.

(2) They shall be deemed to have come into force w.e.f.1-4-1997.

2.Amendment of rule 33.- In sub-rule (1) of rule 33 of theRajasthan Administrative Service Rules, 1954 after theexisting last proviso, the following new proviso at the nextserial number shall be added, namely:-

“that reservation for Scheduled Castes and ScheduledTribes employees, with consequential seniority, shallcontinue till the roster points are exhausted; and adequacyof promotion is achieved.

Once the roster points are complete the theory ofreplacement shall thereafter be exercised in promotionwhenever vacancies earmarked for Scheduled Castes/Scheduled Tribes employees occur.

If on the application of these provisions ScheduledCastes/Scheduled Tribes employees who had beenpromoted earlier and are found in excess of adequacylevel, shall not be reverted and shall continue on ad-hocbasis, and also any employee who had been promoted inpursuance to Notification No. F7(1)DOP/A-II/96 dated1-4-1997 shall not be reverted.

Notification No. F.7(1)DOP/A-II/96 dated 1-4-1997 shallbe deemed to have been repealed w.e.f. 1-4-1997.

Explanation:- Adequate representation means 16%representation of the Scheduled Castes and 12%representation of the Scheduled Tribes in accordancewith the roster point.”

6. In DB Civil Contempt Petition No. 941 of 2010 which was filedearlier in the High Court seeking implementation of the directions issuedby the High Court in its judgment and order dated 05.02.2010 in DBCivil Writ Petition No.8104 of 2008, the High Court by its judgment andorder dated 23.02.2012 found the alleged contemnors to be guilty ofviolation of the judgment and order dated 05.02.2010. The High Courtheld the notification dated 11.09.2011 to be void holding that the samedid not amount to valid compliance.

7. The matter again reached this Court in the form of challenge tosaid decision of the High Court and was dealt with by this Court in itsdecision in Salauddin[2].

7.1. The submissions in respect of the notification dated 11.09.2011were noted as under:-

“18. Appearing for the appellants, the learned Attorney Generalpointed out that the Notification issued by the State Governmenton 11-9-2011, had been declared void by the High Court by holdingthat the same did not amount to valid compliance and theNotification dated 1-4-1997 should be given effect to. The learnedAttorney General submitted that since by the Notification dated11-9-2011, the earlier Notification dated 1-4-1997 had beenwithdrawn, the same could not be given effect to without firstdeclaring the Notification dated 11-9-2011 to be ultra vires.

19. The learned Attorney General submitted that the Notificationdated 11-9-2011 could not have been declared ultra vires in theabsence of substantive writ petition challenging the same, and,in any event, it could not be questioned in contempt proceedingor be declared ultra vires therein, particularly, when the BhatnagarCommittee had been appointed in terms of the order passed bythis Court in M. Nagaraj case[7] and the Notification dated 11-9-2011 was issued in pursuance of the report of the said Committee.

38. Dr Dhavan fairly conceded that an order may be violatedwithout any wilful intent to disobey the same. Referring to Para459 of Halsbury’s Laws of England, dealing with “unintentionaldisabilities”, Dr Dhavan pointed out that sometimes it may sohappen that an order of court is breached without any intention onthe part of the offender to do so. Dr Dhavan submitted that thiscould be such case and, accordingly, the contemnors could bedirected to purge themselves of the contempt by withdrawing allthe notifications, including the Notification dated 11-9-2011, andimplementing the order dated 5-2-2010[4], and also to punish thecontemnors without sentence.”

7.2. The issue whether the State and its authorities were guilty ofwillful and deliberate violation of binding directions was considered bythis Court as under:-

“41. Inasmuch as no further action was taken by the State and itsauthorities after the said notifications were quashed, the contemptpetition was filed mainly on the ground that the State and itsauthorities had by their inaction in complying with the requirementsset out in M. Nagaraj case[7], committed contempt of court andthe same was accepted and the appellants herein were foundguilty of having committed contempt of court by such inaction.

42. The next thing that we are required to consider is whethersuch inaction was on account of any circumstances whichprevented the State Government and its authorities from takingaction in terms of the observations made by the Division Benchof the High Court in its judgment dated 5-2-2010[4], or whethersuch inaction was on account of the deliberate intention of theState and its authorities not to give effect to the same.

43. The learned Attorney General, who had appeared for the Stateof Rajasthan and its authorities, had submitted that the order dated5-2-2010[4], was in two parts. While one part dealt with the quashingof the two notifications, the other was with regard to theobservations made in the said order with regard to the directionsgiven in M. Nagaraj case[7] for collection of the quantifiable databefore giving effect to the provisions of Article 16(4-A) of theConstitution. The learned Attorney General has also emphasisedthat in order to give effect to the second part of the judgment and

order of the Division Bench of the Rajasthan High Court and thedirections given in para 68 of the judgment in Suraj Bhan Meenacase[1], the Government of Rajasthan had appointed the BhatnagarCommittee to obtain the quantifiable data to comply with thedirections given in the two aforesaid judgments. The learnedAttorney General has also pointed out that directions have beengiven to all the different departments on 14-2-2011, to ensurecompliance with the directions contained in Suraj Bhan Meenacase[1].

44. Although, it has been urged on behalf of the respondents thatthere was restraint order on the State and its authorities fromgiving effect to the observations made in the order passed by theDivision Bench of the High Court on 5-2-2010[4], or even in theorder passed in Suraj Bhan Meena case[1], the State and itsauthorities remained inactive on the plea that it had appointed theBhatnagar Committee to collect the data necessary in terms ofthe judgment and order passed in M. Nagaraj case[7], which hadbeen reiterated by this Court in Suraj Bhan Meena case[1].

45. The explanation given on behalf of the State and its authoritiescannot be discounted, since in order to act in terms of thesentiments expressed by the High Court and this Court, it wasnecessary to collect the quantifiable data in respect of theScheduled Caste and Scheduled Tribe candidates. For collectionof such data, the State appointed the Bhatnagar Committee whichwas entrusted with the work of obtaining such quantifiable dataso that the provisions of the amended clause (4-A) included inArticle 16 of the Constitution could be given effect to in terms ofthe directions given in M. Nagaraj case[7], subsequently reiteratedin Suraj Bhan Meena case[1].

46. The various submissions advanced by Mr Salve, Dr Dhavanand Mr Sanjeev Prakash Sharma in support of the decision of theDivision Bench of the High Court, holding the appellants guilty ofcontempt of court and, in particular, the alleged inaction toimplement the judgment and orders in M. Nagaraj case[7] andSuraj Bhan Meena case[1] are not very convincing, since in orderto comply with the findings in M. Nagaraj case[7] and Suraj BhanMeena case[1], necessary data was required to be collected, in the

absence of which it was not possible for the State and its authoritiesto act in terms of the observations made in M. Nagaraj case[7]and in Suraj Bhan Meena case[1].

47. Accordingly, we are of the view that despite the fact thatthere has been delay on the part of the State and its authorities inBgiving effect to the observations made in the two aforesaid cases,there was no wilful or deliberate intention on their part to defy theorders of this Court. The very fact that the Bhatnagar Committeewas appointed indicates that the State and its authorities had everyintention to implement the aforesaid observations, though theprogress of such implementation has been tardy. Accordingly, weCare unable to sustain the impugned judgment[11] and order of theDivision Bench of the High Court holding the appellants guilty ofcontempt of court for purported violation of the order passed bythe Division Bench of the Jaipur Bench of the Rajasthan HighCourt on 5-2-2010[4], while disposing of Civil Writ Petition No. 8410Dof 2008. Consequently, the judgment and order under appeal hasto be set aside.

48. We accordingly allow the appeals and set aside the aforesaidjudgment, but with the further direction that the State and itsauthorities act in terms of the Report of the Bhatnagar Committee,Ein accordance with the decision rendered in M. Nagaraj case[7]and in Suraj Bhan Meena case[1], within two months from thedate of communication of this judgment and order. There will beno order as to costs.”

7.3. It was thus found by this Court in paragraphs 46 and 47 thatFthere was no willful and deliberate violation; that the State Governmenthad appointed the Bhatnagar Committee to collect the data necessary interms of the Judgment and Order passed by this Court in M. Nagaraj[7]case which principles were reiterated in the decision in Suraj Bhan[1].The directions issued by this Court in paragraph 48 were clear that theState Government and its authorities were to act in terms of the ReportGof the Bhatnagar Committee in accordance with the decision renderedin M. Nagaraj[7] case and in the decision in Suraj Bhan[1 ]within twomonths from the date of decision of this Court.

11 Bajrang Lal Sharma vs. Salauddin Ahmed, Civil Contempt Petitions Nos. 359 and941 of 2010 in WP(C)No.8104 of 2008, order dated 23-2-2012 (Raj)H

8. The aforesaid decision was rendered by this Court on 29.08.2012and the instant Contempt Petitions were filed in November, 2012 settingout the grievance as under:-

“13. That State of Rajasthan despite the judgment dated 29.8.2012passed by this Hon’ble Court, wherein notification dated 11.9.2011was not accepted as compliance to judgment dated 5.2.2010 &7.12.2010, had issued order dated 12.9.2012: whereby directionwas issued to all the departments to publish the seniority lists andmake promotions on the basis of the notification dated 11.9.2011.

14. That the action of the State of Rajasthan of making promotionson the basis of the Notification dated 11.9.2011 is in blatantcontempt to the directions given by this Hon’ble Court in judgmentdated 29.8.2012 despite of the understanding / conceding of theState of Rajasthan that after quashing of the Notifications dated25.4.2008 and 28.12.2002, the Notification dated 1.4.1997 revives.In order to make compliance of the judgment dated 5.2.2010, asalso required by this Hon’ble Court vide judgment dated 29.8.2012,the General Category employees are entitled for their vested andaccrued rights of regained seniority.

15. That this Hon’ble Court in directions dated 29.8.2012 hadclearly directed the State of Rajasthan to make the compliance ofthe judgment in terms of the report of the Bhatnagar Committee,in accordance with M. Nagraj[7] and Suraj Bhan Meena[1]. It isrelevant to mention that Bhatnagar Committee has no whererecommended giving of consequential Seniority to SC/ST w.e.f.1.4.1997. It is also to be noted that Bhatnagar Committee conductedstudy of only 17 services out of 117 services and out of those 17services in 16 services there is excessive representation of theSC/ST employees on promotional posts. In M. Nagraj[7] this Hon’bleCourt observed that study is to be conducted in each case andwhere there is adequate or excessive representation that powersunder Article 16(4A) cannot be excercised. … …”

9. Notice was issued by this Court on 09.01.2013 whereafterpleadings have been exchanged and certain additional documents havealso been placed on record.

A9.1. In the meantime, the notification dated 11.09.2011 and theBhatnagar Committee Report were challenged in the High Court in DBCivil Writ Petition No. 13476 of 2012 and in other connected mattersand the challenge is still pending. By order dated 20.09.2016 it wasobserved:-

B“Looking at the facts of the case we are of the view that the writpetitions, i.e., Civil Writ Nos. 14176, 20799, 13476, 16694 of 2012,pending in the High Court of Rajasthan should be decided finallyat an early date, preferably within three months from the date ofintimation of this order to the High Court.

CParties to the litigation shall appear before the High Court on 30[th]September, 2016, so that the date for final hearing can be fixed bythe High Court on that day.”

9.2. To similar effect was the Order dated 05.12.2017 by which itwas observed:-

D“We are informed that pursuant to our order dated 20.09.2016,Writ Petitions are listed before the Rajasthan High Court aftertwo weeks.

We request the High Court of Rajasthan to dispose of the CivilWrit Nos.14176, 20799, 13476, 16694 of 2012 without furtherEdelay.”

9.3. In view of the fact that by Order dated 15.11.2017[12] Benchof three Judges of this Court had referred the matter to larger Benchto consider whether the law declared by this Court in M. Nagaraj[7]needed to be revisited, the Writ Petitions were deferred by the HighFCourt.

9.4. The present Contempt Petitions were, therefore, adjournedvide Order dated 03.04.2018 with following observations:-

“Post the contempt petitions after the report is received from theHigh Court of Rajasthan on the disposal of WritGPetition(C)No.20119 of 2012 and other connected matters.

The parties are free to bring to the notice of this Court once thematters are disposed of by the High Court.”

H12 (2018) 17 SCC 261

10. Constitution Bench of this Court, in Jarnail Singh andothers vs. Lachhmi Narain Gupta and others[13] dealt with the matterwhile answering the reference as aforesaid and observed:-

“23. This brings us to whether the judgment in Nagaraj[7] needs tobe revisited on the other grounds that have been argued beforeus. Insofar as the State having to show quantifiable data as far asbackwardness of the class is concerned, we are afraid that wemust reject Shri Shanti Bhushan’s argument. The reference to“class” is to the Scheduled Castes and the Scheduled Tribes, andtheir inadequacy of representation in public employment. It is clear,therefore, that Nagaraj[7] has, in unmistakable terms, stated thatthe State has to collect quantifiable data showing backwardnessof the Scheduled Castes and the Scheduled Tribes. We are afraidthat this portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney (1)[8] Jeevan Reddy, J., speakingfor himself and three other learned Judges, had clearly held:

“[t]he test or requirement of social and educationalbackwardness cannot be applied to the Scheduled Castes andthe Scheduled Tribes, who indubitably fall within the expression“backward class of citizens”.” (See SCC p. 727, paras 796 to797.)

Equally, Dr Justice Thommen, in his conclusion at para 323(4),had held as follows: (SCC pp. 461-62)

“323. Summary

(4) Only such classes of citizens who are socially andeducationally backward are qualified to be identified asBackward Classes. To be accepted as Backward Classes forthe purpose of reservation under Article 15 or Article 16, theirbackwardness must have been either recognised by means ofa notification by the President under Article 341 or Article 342declaring them to be Scheduled Castes or Scheduled Tribes,or, on an objective consideration, identified by the State to besocially and educationally so backward by reason of identifiedprior discrimination and its continuing ill effects as to be

comparable to the Scheduled Castes or the Scheduled Tribes.In the case of the Scheduled Castes or the Scheduled Tribes,these conditions are, in view of the notifications, presumed tobe satisfied.””

24. In fact, Chinnaiah[14] has referred to the Scheduled Castes asbeing the most backward among the Backward Classes (see para43). This is for the reason that the Presidential List contains only

those castes or groups or parts thereof, which have been regardedas untouchables. Similarly, the Presidential List of ScheduledTribes only refers to those tribes in remote backward areas whoare socially extremely backward. Thus, it is clear that whenNagaraj[7] requires the States to collect quantifiable data onbackwardness, insofar as Scheduled Castes and Scheduled Tribesare concerned, this would clearly be contrary to Indra Sawhney(1)[8] and would have to be declared to be bad on this ground.

25. However, when it comes to the creamy layer principle, it isimportant to note that this principle sounds in Articles 14 and 16(1),as unequals within the same class are being treated equally withother members of that class. The genesis of this principle is to befound in State of Kerala v. N.M. Thomas[15]. This case wasconcerned with test-relaxation rule in promotions from lowerdivision clerks to upper division clerks. By 5:2 majority judgment,the said rule was upheld as rule that could be justified on thebasis that it became necessary as means of generally giving aleg-up to Backward Classes. In para 124, Krishna Iyer, J. opined:(SCC p. 363)

F“124. word of sociological caution. In the light of experience,here and elsewhere, the danger of “reservation”, it seems tome, is threefold. Its benefits, by and large, are snatched awayby the top creamy layer of the “backward” caste or class, thuskeeping the weakest among the weak always weak and leavingthe fortunate layers to consume the whole cake. Secondly, thisGclaim is overplayed extravagantly in democracy by large andvocal groups whose burden of backwardness has beensubstantially lightened by the march of time and measures of

14 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329

15 (1976) 2 SCC 310 : 1976 SCC (L&S) 227

better education and more opportunities of employment, butwish to wear the “weaker section” label as means to scoreover their near-equals formally categorised as the upperbrackets. Lastly, lasting solution to the problem comes onlyfrom improvement of social environment, added educationalfacilities and cross-fertilisation of castes by inter-caste andinter-class marriages sponsored as massive State programme,and this solution is calculatedly hidden from view by the higher“backward” groups with vested interest in the plums ofbackwardism. But social science research, not judicialimpressionism, will alone tell the whole truth and constantprocess of objective re-evaluation of progress registered bythe “underdog” categories is essential lest once deserving“reservation” should be degraded into “reverse discrimination”.Innovations in administrative strategy to help the reallyuntouched, most backward classes also emerge from suchsocio-legal studies and audit exercises, if dispassionately made.In fact, research conducted by the A.N. Sinha Institute of SocialStudies, Patna, has revealed dual society among harijans, atiny elite gobbling up the benefits and the darker layers sleepingdistances away from the special concessions. For them, Articles46 and 335 remain “noble romance” [As Huxley called it in“Administrative Nihilism” (Methods and Results, Vol. 4 ofCollected Essays).], the bonanza going to the “higher” Harijans.I mention this in the present case because lower division clerksare likely to be drawn from the lowest levels of Harijan humanityand promotion prospects being accelerated by withdrawing,for time, “test” qualifications for this category may perhapsdelve deeper. An equalitarian breakthrough in hierarchicalstructure has to use many weapons and Rule 13-AA perhapsis one.”

(emphasis in original)

26. The whole object of reservation is to see that Backward Classesof citizens move forward so that they may march hand in handwith other citizens of India on an equal basis. This will not bepossible if only the creamy layer within that class bag all the covetedjobs in the public sector and perpetuate themselves, leaving the

CDE

rest of the class as backward as they always were. This beingthe case, it is clear that when court applies the creamy layerprinciple to Scheduled Castes and Scheduled Tribes, it does not inany manner tinker with the Presidential List under Articles 341 or342 of the Constitution of India. The caste or group or sub-groupnamed in the said List continues exactly as before. It is only thosepersons within that group or sub-group, who have come out ofuntouchability or backwardness by virtue of belonging to thecreamy layer, who are excluded from the benefit of reservation.Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. Itis only when it comes to the application of the reservation principleunder Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation.27. We do not think it necessary to go into whether Parliamentmay or may not exclude the creamy layer from the PresidentialLists contained under Articles 341 and 342. Even on the assumptionthat Articles 341 and 342 empower Parliament to exclude thecreamy layer from the groups or sub-groups contained within theseLists, it is clear that constitutional courts, applying Articles 14 and16 of the Constitution to exclude the creamy layer cannot be saidto be thwarted in this exercise by the fact that persons stated tobe within particular group or sub-group in the Presidential Listmay be kept out by Parliament on application of the creamy layerprinciple. One of the most important principles that has beenfrequently applied in constitutional law is the doctrine of harmoniousinterpretation. When Articles 14 and 16 are harmoniouslyinterpreted along with other Articles 341 and 342, it is clear thatParliament will have complete freedom to include or excludepersons from the Presidential Lists based on relevant factors.Similarly, constitutional courts, when applying the principle ofreservation, will be well within their jurisdiction to exclude thecreamy layer from such groups or sub-groups when applying theprinciples of equality under Articles 14 and 16 of the Constitutionof India. We do not agree with Balakrishnan, C.J.’s statement inAshoka Kumar Thakur[16] that the creamy layer principle is merelya principle of identification and not principle of equality.

16 Ashoka Kumar Thakur v. union of India, (2008) 6 SCC 1 : 3 SCEC 35

28. Therefore, when Nagaraj[7] applied the creamy layer test toScheduled Castes and Scheduled Tribes in exercise of applicationof the basic structure test to uphold the constitutional amendmentsleading to Articles 16(4-A) and 16(4-B), it did not in any mannerinterfere with Parliament’s power under Article 341 or Article342. We are, therefore, clearly of the opinion that this part of thejudgment does not need to be revisited, and consequently, there isno need to refer Nagaraj[7] to seven-Judge Bench. We may alsoadd at this juncture that Nagaraj[7] is unanimous judgment offive learned Judges of this Court which has held sway since theyear 2006. This judgment has been repeatedly followed and appliedby number of judgments of this Court, namely:

28.1. Anil Chandra v. Radha Krishna Gaur[17] (two-Judge Bench)(see paras 17 and 18).

28.2. Suraj Bhan Meena v. State of Rajasthan[1] (two-JudgeBench) (see paras 10, 50, and 67).

28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar[18] (two-JudgeBench) [see paras 61, 81(ix), and 86].

28.4. S. Panneer Selvam v. State of T.N.[19] (two-Judge Bench)(see paras 18, 19, and 36).

28.5. Central Bank of India v. SC/ST Employees Welfare Assn.[20](two-Judge Bench) (see paras 9 and 26).

28.6. Suresh Chand Gautam v. State of U.P.[21] (two-Judge Bench)(see paras 2 and 45).

28.7. B.K. Pavitra v. Union of India[22] (two-Judge Bench) (seeparas 17 to 22).”

10.1 The conclusion arrived at in para 36 of the decision was:-

36. Thus, we conclude that the judgment in Nagaraj[7] does notneed to be referred to seven-Judge Bench. However, theconclusion in Nagaraj[7] that the State has to collect quantifiable

17 (2009) 9 SCC 45418 (2012) 7 SCC 1

19 (2015) 10 SCC 292

20 (2015) 12 SCC 30821 (2016) 11 SCC 11322 (2017) 4 SCC 620

data showing backwardness of the Scheduled Castes and theScheduled Tribes, being contrary to the nine-Judge Bench in Indra8Sawhney (1) is held to be invalid to this extent.”

11. Thereafter, by way of Interlocutory Application No.17130 of2019 copy of order dated 05.10.2018 issued by the Government ofBRajasthan was placed on record. The relevant portion of said order wasas under:-

“As per the opinion of Law Department in reference to thejudgment dated 09.02.2017 delivered by Hon’ble Supreme Courtin SLP No.2368/2011 B.K. Pavitra V/s. Govt. of India, thenotification dated 11.09.2011 is hereby clarified as under:-

As per the provisions of notification dated 11.09.2011 ofPersonnel Department, the benefits of consequential seniorityin reservation in promotion for public servants of SC/STcategories, can only be extended till the achievement of theDcondition of adequacy in promotion or till roster point iscompleted. Once the fulfillment of roster point, replacementtheory will be applicable.

As per the principle laid down by Hon’ble Supreme Court inabove judgment dated 09.02.2017 and above provision providedEin notification dated 11.09.2011, in the matter of promotion ofpublic servants of Scheduled Castes/Scheduled Tribescategories, where adequacy of representation has beenachieved, the consequential seniority cannot be given and thepublic servants of General & OBC categories will regain theirconsequential seniority and seniority lists will be issuedFaccordingly.

Hence all Recruiting Officers/HODs hereby instructed toimplement the above order word by word.”

12. In affidavit dated 17.02.2019 filed on behalf of the StateGovernment following stand was taken in para 3 of the affidavit:-

“3. clarification was sought to be issued by the State Governmentvide Circular dated 05.10.2018. However, the Circular dated05.10.2018 was made inoperative/stayed by the State Governmentimmediately after the issuance of the Circular dated 05.10.2018

in the month of October, 2018 itself. Thus the circular of05.10.2018 has never been acted upon. The present governmentis seeking re-examine the efficacy of the Circular dated05.10.2018. It is reiterated that the Circular of 05.10.2018 isinoperative.”

13. We heard Mr. M. L. Lahoti, learned Advocate for the contemptpetitioner and Dr. Manish Singhvi, learned Senior Advocate for the allegedcontemnors.

It was submitted by Mr. Lahoti, learned Advocate that the directionsissued by this Court in Suraj Bhan Meena[1] were not complied with;that the Notification dated 11.09.2011 was in contempt of the directionsissued by this Court; that the stand taken in the affidavit dated 17.02.2019was completely incorrect and more than 50 inter-departmental ordershad been passed implementing Circular dated 05.10.2018; that in thelight of Circular dated 05.10.2018 adequacy level in RAC Cadre havingbeen achieved the contempt petitioner ought to be extended the benefitof regaining of seniority along with all consequential benefits of reservationin promotion from RAS[23] to IAS[24].

In response, Dr. Singhvi, learned Senior Advocate submitted thatNotification dated 11.09.2011 was found to be in contempt of bindingdirections and was specifically held by the High Court to be inoperative;however, the view taken by the High Court was set aside by this Court;and that the Notification dated 11.09.2011 cannot therefore be held to bein contempt of the directions issued by this Court; that challenge to suchNotification and to the recommendations of the Bhatnagar Committeewas still pending in the High Court; and that one of the pending writpetitions was that of the contempt petitioner himself.

14. The law declared by this Court in M. Nagraj[7], which wasfollowed in Suraj Bhan Meena[1] is clear that in the absence of anyquantifiable data relating to the issue of backwardness and inadequacyof representation of the concerned classes in public employment, nobenefit of consequential seniority could be extended. Therefore, in SurajBhan Meena[1], the Notifications dated 28.12.2002 and 25.08.2008providing for consequential seniority in promotion to the Members of theSC/ST communities were set aside.

23 Rajasthan Administrative Service

24 Indian Administrative Service

A15. Since the decision in Suraj Bhan Meena[1] was on the premisethat no such exercise was undertaken to acquire quantifiable data, theState Government constituted the Bhatnagar Committee. The Committeewent into the issues and made certain recommendations based on whicha Notification was issued by the State Government on 11.09.2011.Whether that amounted to contempt or not was subject matter ofBdiscussion before the High Court which, by its judgment and order dated23.02.2012 found said Notification to be not in compliance of bindingdirections and to be invalid. The challenge in Salauddin[2] was inter aliato the finding arrived at by the High Court in its contempt jurisdiction andthe submission advanced by the learned Attorney General as recordedCin paras 18 and 19 of the decision in Salauddin[2] was that in the absenceof any substantive writ petition challenging the same, said Notificationcould not have been questioned in contempt jurisdiction. The decision inSalauddin[2] set aside the view taken by the High Court. Thus, theissuance of Notification dated 11.09.2011 was not found to be in contemptnor was it invalidated for being non-compliant of any binding directions.D

16. As matter of fact, the directions issued by this Court in para48 were clear that the State and its authorities were to act in terms ofthe report of the Bhatnagar Committee in accordance with the decisionsin M. Nagraj[7] and Suraj Bhan Meena[1]. The basic foundation of thepresent contempt petitions projecting the issuance of Notification datedE11.09.2011 to be in contempt of the directions issued by this Court, thus,does not survive. In any case, challenge to said Notification and thereport of the Bhatnagar Committee is still pending consideration beforethe High Court where the correctness and validity thereof will be goneinto in accordance with law.F[[13]]

17. With the decision of this Court in Jarnail Singh[[13]] the matteralso stands on slightly modified footing. As concluded by this Court inJarnail Singh[13] the conclusion in M. Nagraj[7] that the State has tocollect quantifiable data showing backwardness of SC/ST, being contraryto the 9 Judges Bench decision in Indra Sawhney[8], was held to beGinvalid. The challenge to the recommendations given by the BhatnagarCommittee and the quantifiable data adverted to by the Committee willtherefore have to be seen by the High Court in the light of the directionsissued by this Court in Jarnail Singh[13].

18. It is, thus, clear that all these issues need to be gone into in aHsubstantive challenge and will be beyond the scope of contempt

jurisdiction. The issuance of Notification dated 11.09.2011 was in exerciseof powers vested in the concerned authorities and if the approach andthe exercise is otherwise incorrect or wrong, the same can be testedand considered while dealing with the substantive challenge but suchissuance cannot be said to be contumacious to invite any action in contemptjurisdiction.

19. In the circumstances, we see no reason to entertain thesecontempt petitions any longer. These contempt petitions are directed tobe closed. We, however, request the High Court to consider taking upall the matters where challenge has been made to the issuance ofNotification dated 11.09.2011 and to the recommendations of theCBhatnagar Committee and such allied issues as early as possible anddispose of the same preferably within period of six months from thedate of this order.

Kalpana K. Tripathy

Contempt petitions closed.