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TMI Blog2019 (5) TMI 1908X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the government duly complied with. This objection of the state government cannot cast doubt upon the grant of assent by the President. The law having received the assent of the President, the submissions which were urged on behalf of the Petitioners cannot be countenanced. Considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs. Judicial review must hence traverse conventional categories by determining as to whether the Ratna Prabha Committee report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. In this area, the fact that an alternate line of approach was possible or may even appear to be desirable cannot furnish a foundation for the assumption by the court of a decision making authority which in the legislative sphere is entrusted to the legislating body and in the administrative sphere to the executive arm of the government. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duled Tribes 3 promoted under the reservation policy of the State of Karnataka. The law protects consequential seniority from 24 April 1978. 2. The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 4 . The constitutional validity of the Reservation Act 2002 was challenged in B.K. Pavitra v. Union of India (2017) 4 SCC 620, ( B.K. Pavitra I ). A two judge Bench of this Court (consisting of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on the ground that an exercise for determining inadequacy of representation , backwardness and the impact on overall efficiency had not preceded the enactment of the law. Such an exercise was held to be mandated by the decision of a Constitution Bench of this Court in M. Nagaraj v. Union of India (2006) 8 SCC 212 ( Nagaraj ). In the absence of the State of Karnataka having collected quantifiable data on the above three parameters, the Reservation Act 2002 was held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chequered history of the present case. 5. In exercise of the power conferred by the proviso to Article 309 of the Constitution, the Governor of Karnataka framed the Karnataka Government Servant (Seniority Rules) 1957 5 . Rules 2 and 4 provide for seniority on the basis of the period of service in a given cadre. There was 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 of a person in a particular cadre of service or class of post shall be determined as follows: (a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post; (b) The seniority inter se of officers who are confirmed shall be determined according to dates of confirmation, but where the date of confirmation of any two officers is the same, their relative seniority will be determined by their seniority inter se while officiating in the same post and if not, by their seniority inter se in the lower grade. (c) Seniority inter se of persons appointed on temporary basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t roster was applicable to each cadre of posts under appointing authorities. Inter-se seniority amongst persons promoted on any occasion was to be determined in accordance with Rules 4 and 4-A, as the case may be, of the Rules 1957. It also stipulated that vacancies would not be carried forward. 7. On 1 June 1978, the State government issued an Official Memorandum 7 providing guidelines and clarifications for implementing the Government Order dated 27 April 1978. The Official Memorandum stipulated that after promotion, seniority among candidates promoted on the basis of seniority-cum-merit shall, on each occasion, be fixed in accordance with Rule 4 of the Rules 1957. In other words, seniority would be governed by the inter se seniority in the cadre from which candidates were promoted. For candidates promoted by selection, seniority would be governed by Rule 4-A: the ranking would be as assigned in the list of selected candidates by the appointing authority. The Official Memorandum dated 1 June 1978 thus provided, what can be described as the principle of consequential seniority to reserved category candidates. 8. By a notification 8 dated 1 April 1992, a proviso was inser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board [1966 Supp SCR 311: AIR 1967 SC 295] which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16(4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/executive. 16 (v) The backward class of citizens cannot be identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the reserved candidate who was promoted earlier. This Rule came to be known as the catch-up rule. The two judge Bench directed that the above principle would be followed with effect from the date in the judgment in Sabharwal 22 . 14. Six months after the decision in Virpal Singh, on 1 March 1996, a three judge Bench of this Court in Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715 ( Ajit Singh I ), adopted the catch-up Rule propounded in Virpal Singh, to the effect that the seniority between reserved category candidates and general candidates in the promoted category shall continue to be governed by their inter se seniority in the lower grades. This Court held that a balance has to be maintained so as to avoid reverse discrimination and, a Rule or circular which gives seniority to a candidate belonging to the reserved category promoted on the basis of roster points would violate Articles 14 and 16 of the Constitution. 15. On 24 June 1997, the Government of Karnataka issued a Government Order 23 formulating guidelines in regard to the manner in which backlog vacancies were required to be filled. On 3 February 1999, the Government of Karnataka issued another Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of continuance officiation in the promoted post in relation to general category candidates who were senior to them in the lower category and who were promoted later. Where a senior general candidate at the lower level is promoted later than a reserved category candidate, but before the further promotion of the latter, such a person will have to be treated as senior at the promotional level in relation to the reserved candidate who was promoted earlier. The Constitution Bench accordingly applied the catch-up Rule for determining the seniority of roster point promotees vis-a-vis general category candidates. The Court held that any circular, order or Rule that was issued to confer seniority to roster point promotees would be invalid. However, the Constitution Bench directed that candidates who were promoted contrary to the above principles of law before 1 March 1999 (the date of the decision in Ajit Singh I) need not be reverted. 17. Contending that there was no provision permitting seniority to be granted in respect of roster point promotees belonging to the reserved categories, the reservation policy of the State of Karnataka came to be challenged before this Court in M G Badapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otions to be made for the SCs and STs. 20. In 2002, the Karnataka State Legislature enacted the Reservation Act 2002. The law came into force on 17 June 1995. It provided for consequential seniority to roster point promotes based on the length of service in a cadre, making the catch-up Rule propounded in Ajit Singh II inapplicable. The earlier decision of this Court in Badappanavar had held that there was no specific Rule for the conferment of seniority to roster point promotees. By the enactment of the Reservation Act 2002 with effect from 17 June 1995, the principle of consequential seniority was statutorily incorporated as a legislative mandate. 21. The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before a Constitution Bench of this Court in Nagaraj. The Constitution Bench analysed whether the replacement of the catch-up Rule with consequential seniority violated the basic structure and equality principle under the Constitution. Upholding the constitutional validity of the amendments, this Court held that the catch-up Rule and consequential seniority are judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated Under Article 335 of the Constitution. 29 ... 123. ... In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State and there was no provision for the exclusion of the creamy layer. The validity of the Reservation Act 2002 had been upheld by a Division Bench of the Karnataka High Court. In B.K. Pavitra I, this Court struck down Sections 3 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 in Badappanavar, Ajit Singh II and Virpal Singh remained applicable despite the Constitution (Eighty-fifth Amendment) Act 2001. Moreover, it was contended that the Government of Karnataka had not complied with the tests laid down in Nagaraj and had failed to provide any material or data to show inadequacy of representation. Moreover, no consideration was given to the issue of overall administrative efficiency. The principal challenge was that an exercise for determining backwardness , inadequacy of representation , and overall efficiency in terms of the decision in Nagaraj had not been carried out. 25. Relying on the decisions of this Court in Suraj Bhan Meena v. State of Rajasthan (2011) 1 SCC 467, Uttar Pradesh Power Corporation Ltd. v. Rajesh Kumar (2012) 7 SCC 1 and S. Panneer Selvam v. State of Tamil Nadu (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct those who have already retired and availed of financial benefits. It was further directed that promotions granted to existing employees based on consequential seniority are liable to be reviewed and that the seniority list be revised in terms of the decision. Three months were granted to take further consequential action. Petitions seeking a review of the decision have been tagged with the present proceedings. 26. After the decision of this Court in B.K. Pavitra I, on 22 March 2017, the Government of Karnataka constituted the Ratna Prabha Committee 33 headed by the Additional Chief Secretary to the State of Karnataka to submit a report on the backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka. The tasks entrusted to the Committee were to: 1) Collect information on the cadre-wise representation of Scheduled Castes and Scheduled Tribes in all the Government Departments; 2) Collect information regarding backwardness of Scheduled Castes and Scheduled Tribes; and 3) Study the effect on the administration due to the provision of reservation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided for in the Reservation Order shall be entitled to consequential seniority. Seniority shall be determined on the basis of the length of service in a cadre: Provided that the seniority inter-se of the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes as well as those belonging to the unreserved category, promoted to a cadre, at the same time by a common order, shall be determined on the basis of their seniority inter-se, in the lower cadre. Provided further that where the posts in a cadre, according to the Rules of recruitment applicable to them are required to be filled by promotion 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 of recruitment applicable to it shall be calculated; and (ii) The roster shall be applied separately to the number of vacancies so calculated in respect of each of those lower cadres: Provided also that the serial numbers of the roster points specified in the Reservation Order are intended only to facilitate calculation of the number of vacancies reserved for promotion at a time and such roster points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he validation of action taken in respect of promotions since 27 April 1978: 9. Validation of action taken under the provisions of this Act.-Notwithstanding anything contained in any Judgment, Decree or Order of any court, tribunal or other authority contrary to Section 3 and 4 of this Act any action taken or done in respect of any promotions made or purporting to have been made and any action or thing taken or done, all proceedings held and any actions purported to have been done since 27th April, 1978 in relation to promotions as per Sections 3 and 4 of this Act, before the publication of this Act shall be deemed to be valid and effective as if such promotions or action or thing has been made, taken or done under this Act and accordingly:(a) no suit or other proceedings shall be maintained or continued in any court or any tribunal or before any authority for the review of any such promotions contrary to the provisions of this Act; and (b) no court shall enforce any decree or order to direct the review of any such cases contrary to the provisions of this Act. Section 1(2) provides that the Reservation Act 2018 came into force with effect from 17 June 1995 (the effective date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insofar as it requires the state to collect quantifiable data on backwardness in relation to the SCs and STs is contrary to Indra Sawhney and would have to be declared to be bad on this ground 37 ; and (iii) Constitutional courts, when applying the principle of reservation will be within their jurisdiction to exclude the creamy layer on a harmonious construction on Articles 14 and 16 along with Articles 341 and 342 38 . The creamy layer principle is an essential aspect of the equality code. 35. On 12 October 2018, the State of Karnataka submitted before this Court that since a legislation has been enacted by the state legislature and in view of the judgment of the Constitution Bench in Jarnail, the State would no longer proceed on the oral assurance of the Advocate General and would not be bound to it. On the other hand, it was urged by learned Counsel appearing for the Petitioners that the intent of the Reservation Act 2018 was only to nullify the effect of the judgment in B.K. Pavitra I. Counsel urged that in view of the decisions of this Court including those in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283 ( Prithvi Cotton Mills Ltd ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 2018 compliant with the principles enunciated in the Constitution Bench decisions in Nagaraj and Jarnail? Does the report of the Ratna Prabha Committee dated 5 May 2017 constituted an adequate and appropriate basis to support the validity of the Act and its implementation? C Does the Reservation Act 2018 apply in the present writ petitions (instituted by B.K. Pavitra and Shivakumar) to those departments where there is over representation or in public corporations not covered by the Ratna Prabha report or the legislation? 38. While we will be dealing with the submissions urged by Dr Dhavan in the course of our analysis, it would be appropriate at this stage to advert to the salient aspects of the submissions under the following heads: A Usurpation of judicial power 39. Dr Dhavan has urged that the Reservation Act 2018 was enacted in a hurry with no purpose other than to overrule the decision in B.K. Pavitra I, while the issue of implementation was still pending. The decision in B.K. Pavitra I was rendered on 19 February 2017. On 22 March 2017, a Government Order was issued appointing the Additional Chief Secretary to submit a report on backwardness, inadequacy of repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional division between legislative and judicial functions. In this context, the submission is: (a) The legislative power is distinct from the judicial power; (b) The legislature cannot lawfully usurp judicial power by sitting in appeal over any judicial decision by attempting to overturn it; (c) Any statute which seeks to overturn a judicial decision must be within the legislative competence of the legislature under the Seventh Schedule to the Constitution; (d) Any such statute must change the basis of the law; (e) The decision of a court will always be binding unless the law or conditions underlying the legislation which was held to be invalid are so fundamentally altered so that a different result would enure; (f) While a legislation may be retroactive, an interim or final direction must be obeyed especially when rights are conferred; (g) A new legislation can be challenged on the basis that it violates the fundamental rights; and (h) Unless the basis of a legislation which is found to be ultra vires has been altered, the mere enactment of a new legislation would constitute a brazen overruling of the law, which is impermissible. 42. Dr Dhavan urges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Nagaraj and Jarnail 44. Dr Dhavan assails the report of the Ratna Prabha Committee on the ground that is was not in compliance with Nagaraj and Jarnail. Nagaraj postulates that: (i) The backlog should not extend beyond three years; (ii) Excessive reservation would invalidate the exercise of power; and (iii) There is a theory of guided power under which a failure to follow the 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 enabling and were valid. The conditionalities for a valid exercise of the enabling power are two-fold: (i) The existence of compelling reasons namely, backwardness, inadequacy of representation and overall administrative efficiency requiring quantifiable data; and (ii) Excessiveness, which postulates that the ceiling limit of fifty per cent is not transgressed, the creamy layer is not obliterated and reservation is not extended indefinitely. (b) The methodology of Nagaraj was approved both in I.R. Coelho v. State of TN (2007) 2 SCC 1 and Jarna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to the President 47. Dr Dhavan urged that from the counter affidavit filed by the State Government, it is evident that: (i) The view of the State government was that given the legislative competence of the state legislature, the Bill was not required to be reserved for the assent of the President; (ii) On 6 December 2017, the Governor of Karnataka considered it appropriate to refer the Bill to the President in view of the decision in B.K. Pavitra I and the importance of the issue and the constitutional interpretation involved in the matter Under Article 200; (iv) The State government on the Bill being forwarded to the President continued to maintain that the Bill neither attracted the second proviso to Article 200 nor did it deal with a matter which was repugnant to a Union law on an entry falling in List III of the Seventh Schedule. Hence, the State government opined that there did not appear to be any situation warranting the reservation of the Bill for the consideration of the President. Hence, it has been urged that it may be: (a) The reference by the Governor on 6 December 2017 to the President simply stated that since a constitutional interpretation was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niority Rules 1957 as amended. The Seniority Rules 1957 will override the administrative orders of 27 April 1978; (vi) The Government Order dated 27 April 1978 specifically adverts to Rules 4 or 4-A (as the case may be) of the Seniority Rules 1957; (vii) No seniority can be conveyed by filling up of backlog and creating excess or supernumerary posts; and (viii) The proviso to Section 5 would be liable to be struck down for its excessiveness. 50. In substance, Dr. Dhavan's are as follows: (i) Every administrative action or legislation has to be Nagaraj compliant as explained in Jarnail; (ii) After the decision in B.K. Pavitra I, the State of Karnataka hurriedly enacted the Reservation Act 2018 without demonstrating any compelling necessity; (iii) The Governor of Karnataka reserved the Bill for the President without delineating the exact reasons for doing so. Even while forwarding the Bill, the State government maintained that there was no reason to make a reference to the President. The queries exchanged subsequently would not constitute a valid reference; (iv) The Ratna Prabha Committee report is flawed and does not establish inadequacy of representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual matrix which is not available as a ground for review; (xi) The Ratna Prabha Committee report has collected no substantive material on the impact of reservation in promotion on the efficiency of administration; (xii) The second proviso to Article 200 and Article 254 (2) of the Constitution are exhaustive of the constitutional power of the Governor to reserve a Bill for the assent of the President; (xiii) The Ratna Prabha Committee report does not deal with the aspect of creamy layer which had been duly considered in Jarnail; (xiv) The Ratna Prabha Committee dwelt on groups and not on cadres. The data includes direct recruits as well as promotees, whereas the present case is only about promotion; and (xv) Data was collected only from thirty one government departments and 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 adverted to the following issues which arise for the consideration of this Court: (i) Section 3 of the Reservation Act 2018 only seeks to extend consequential seniority retrospectively to vacancy based roster point promotees and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joinery (P) Ltd ) and State of Himachal Pradesh v. Narain Singh (2009) 13 SCC 165 ( Narain Singh ); (c) Sections 3 and 4 of the Reservation Act 2018 came into operation on 17 June 1995, on which date the seventy-seventh and eighty-fifth amendments to the Constitution came into effect, thereby enabling reservations to be made in promotion together with consequential seniority. The Reservation Act 2018 protects consequential seniority accorded from 27 April 1978 (the date of the reservation order) in light of the data collected which shows the inadequacy of representation; (d) In terms of the decision in Virpal Singh, the catch-up Rule was to be applied with effect from 10 February 1995 (i.e. the date of the judgment in Sabharwal). According to the decision in Ajit Singh II, promotions granted prior to 1 March 1996 without following the catch-up Rule are protected. Badappanavar protects the promotions of reserved candidates based on consequential seniority which took place before 1 March 1996; (e) While judicial review allows courts to declare a statute as unconstitutional if it transgresses constitutional limits, courts are precluded from inquiring into the propriety or wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee considered the backwardness of SCs and STs in view of the dictum in Nagaraj which then held the field. The Committee after carrying out the exercise came to the conclusion that the requirement of backwardness is satisfied. 2. Inadequacy of representation (i) Chapter II of the Ratna Prabha Committee report considered the inadequacy of representation and records a summary of its conclusions in paragraphs 2.5 and 2.6; (ii) It is misleading to assert that the State did not collect cadre wise data. Para 2.4.1 indicates that the government took into account the data for groups A, B, C and D to draw a conclusion about the inadequacy of representation; (iii) The decisions in Indra Sawhney and Sabharwal are clear in postulating that persons belonging to the SCs and STs who are appointed against general category posts/vacancies are not to be reckoned for ascertaining over representation; and (iv) It is a matter of common experience that for most of the group D posts such as municipal sweepers, only persons belonging to SCs and STs apply. Over representation in group D posts which results from general category candidates keeping away from them is no ground to deny pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overall efficiency of administration. B.K. Pavitra I did not accept the plea of the applicability of creamy lawyer principle to consequential seniority; and (vi) Under the Reservation Order 1978, reservations in promotion are restricted up to the lowest category of class I post. D There is no basis in the challenge that the Reservation Act 2018 does not meet the proportionality test and results in over representation. (i) In view of the Reservation Order 1999 providing that reservation in promotion in favour of SCs and STs shall continue only till their representation reaches 15 per cent and 3 per cent respectively, it is ensured that there is no over representation; and (ii) Since the Reservation Act 2018 provides only for consequential seniority and not for reservation in appointment or promotion, it cannot be asserted that reservation for the purpose of seniority is vacancy-based and not post-based, contrary to the decision in Sabharwal. Reservations in promotion are provided by the Government Order 1978 which provides for roster point promotion and not roster point seniority. The Government Order dated 13 April 1999 provides for making promotions (after the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government. It noted that 80.35 per cent of the sanctioned posts are concentrated in six major Government departments namely; Education, Home, Health, Revenue, Judicial and Finance. The data pertaining to thirty one government departments was taken in the totality to analyse and assess the adequacy of representation. The data of smaller departments may not be representative of the State Civil Services as a whole. On the above grounds, it was urged that the challenge to the Reservation Act 2018 must fail. 54. Ms. Indira Jaising 41 , learned Senior Counsel appearing on behalf of the intervenors (Karnataka SC/ST Engineer's Welfare Association) contended that the Reservation Act 2018 is constitutionally valid. Ms. Jaising urged the following submissions: (i) The decisions of this Court in State of Kerala v. N.M. Thomas (1976) 2 SCC 310 ( N M Thomas ) and Nagaraj affirmed that Article 16 (4) is an emphatic declaration of Article 16 (1). The principle of 'proportional equality' entails substantive equality which is reflected in affirmative action to remedy injustice to SCs, STs and Other Backward Classes 42 . Social justice is concerned with the distribution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bha Committee report. Hence, the basis of the decision in B.K. Pavitra I has been removed. Additionally, no mandamus was issued in B.K. Pavitra I; (vii) The collection of data required to be carried out by the State is a matter of social science and is carried out by experts. Data collection is both qualitative and quantitative. As long as the methodology adopted by the state is scientifically sound, the assessment of the data collected is the prerogative of the state. The court may intervene in judicial review only when there is a complete absence of data or if the data relied on is irrelevant; and (viii) The principles laid down by this Court in Indra Sawhney on the exclusion of the creamy layer apply only to OBCs and cannot extend to SCs and STs. No question arose in Nagaraj on the exclusion of the creamy layer in respect of SCs and STs. Hence, the decision is not an authority for the principle that the states are bound to exclude the creamy layer in respect of SCs and STs. The decision of this Court in Jarnail dealt with the competence of Parliament to enact a law in relation to the creamy layer and did not lay down a general proposition on its exclusion. The concept of crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to a given case, consequential seniority must be granted; (iv) The decision in Virpal Singh concerned a Rule that specifically provided for the application of the catch-up Rule in a departure from the normal Rule of seniority. This Court held that a state may prescribe either consequential seniority based on continuous officiation or the catch-up Rule of seniority in case of roster point promotions. A harmonious reading of Articles 14 and 16(1) of the Constitution does not stipulate that the catch-up Rule must apply in the case of roster point promotions. Thus, a balancing of Articles 14, 16(1) and 16(4) of the Constitution denotes that the catch-up Rule is not mandatory. The decisions of this Court in Ajit Singh I, Ajit Singh II and Badappanavar, in holding to the contrary, have been expressly overruled by the seventy-seventh and the eighty-fifth amendments to the Constitution, following which the principles enunciated in Virpal Singh continue to govern the field. The eighty-fifth amendment was intended to make consequential seniority a constitutional principle and revive consequential seniority as the normal Rule of seniority; (v) The principles enunciated in V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 27 April 1978 as it originally stood provided that inter se seniority amongst persons promoted on any occasion shall be determined Under Rules 4 and 4 (A) of the Seniority Rules 1957; (iv) The words on any occasion in Clause (vii) were amended by Clause (d) of the Government Order dated 1 June 1978 so that the determination of seniority among reserved promotees and general candidates on the basis of seniority-cum-merit shall on each occasion be fixed Under Rule 4 of the Seniority Rules 1957; (v) The substitution of the expression on any occasion with the expression on each occasion denotes the intention of the government to provide consequential seniority to reserved category candidates promoted on the basis of roster; (vi) The legislature enacted provisions pertaining to the policy of reservation in promotion in the State Civil Services and Public Sector Undertakings as follows: (a) The Rules 1977 including the proviso to Rule 8, upheld by this Court in Bhakta Ramegowda; (b) The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.,) Act 1990; (c) The Karnataka Scheduled Castes, Scheduled Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, dated 10.07.1996, shall be deemed to have been 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, the scheduled caste category and the scheduled tribe category shall be determined in accordance with Rule 4 or Rule 4 A as the case may be, of the Karnataka Government Servants Seniority Rules 1957. The roster points are meant only for calculating the number of vacancies that become available for the different categories on each occasion and they do not determine the seniority. The above clauses reiterated the purpose of assessing inter se seniority after promotion of roster promotees in reckoning consequential seniority among two groups. (ix) The State Government is entitled to prescribe the percentage of reservation based on the total population of a particular backward class and its representation in the services of the State Under Article 16 (4). Once the prescribed percentage of reservations is determined, the numerical test of adequacy is satisfied. The percentage of reservation is the desired representation of the backward classes in the state servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itra I, by carrying out the exercise of data collection, the opinion formed by the State after analysing the data lies in its subjective satisfaction. The reservation policy dated 27 April 1978 which introduced provisions for reservations in promotions for SCs and STs in public services has continued until date without interruption. 57. Mr. Nidhesh Gupta, learned Senior Counsel urged the following submissions: (i) The phrase 'in the opinion of the state' in Article 16(4) of the Constitution indicates that the issue with regard to adequacy of representation is within the subjective satisfaction of the state. The role of the court is limited to examining whether the opinion formed by the government was on the basis of data available with it. While the existence of circumstances requiring state action may be reviewed, the opinion formed is outside the purview of judicial review. These propositions have been accepted in the decisions of this Court in Indra Sawhney, Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295 ( Barium Chemicals Ltd. ), Rohtas Industries v. S.D. Agarwal (1969) 1 SCC 325 and Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248; (ii) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President: Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantive part of Article 200 does not indicate specifically, the circumstances in which the Governor may reserve a Bill for the consideration of the President. The Constitution has entrusted this discretion to the Governor. The nature and scope of the discretionary power of the Governor to act independent of, or, contrary to aid and advice of Council of Ministers Under 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 as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise.... 46 Justice Dipak Misra (as the learned judge then was), observed thus: 375....The Governor is expected to function in accordance with the provisions of the Constitution (and the history behind the enactment of its provisions), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an existing law with respect to that matter. In such an eventuality, the law made by the legislature of the state can prevail in that state only if it has received the assent of the President on being reserved for consideration. 65. When the reservation of a Bill for the assent of the President has been occasioned on the ground of a repugnancy with an existing law or a law enacted by the Parliament, there are decisions of this Court which hold that the President has to be apprised of the reason why the assent was sought. In Gram Panchayat of Village Jamalpur, a law enacted by the Punjab legislature in 1953, extinguished all private interests in Shamlat-deh lands and vested them in the village Panchayats as a matter of agrarian reform. This Court held that the Punjab enactment had not been reserved for the assent of the President on the ground that it was repugnant to an earlier Act enacted by Parliament in 1950 but the assent was sought for a different and a specific purpose. In this background, the Constitution Bench held that the assent of the President would not avail the state government to accord precedence to the law enacted by the state legislature over the law made by P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurrent List. It is in this context, that the decisions of this Court hold that the assent of the President should be sought in relation to a repugnancy with a specific provision contained in a Parliamentary legislation so as to enable due consideration by the President of the ground on which assent has been sought. Article 200 contains the source of the constitutional power which is conferred upon the Governor to reserve a Bill for the consideration of the President. Article 254 (2) is an illustration of the constitutional authority of the Governor to reserve a law enacted by the state legislature for consideration of the President in a specified situation-where it is repugnant to an existing law or to a Parliamentary legislation on a matter falling in the Concurrent List. The eventuality which is specified in Article 254 (2) does not exhaust the ambit of the power entrusted to the Governor Under Article 200 to reserve a Bill for the consideration of the President. Apart from a repugnancy in matters falling in the Concurrent List between state and Parliamentary legislation, a Governor may have sound constitutional reasons to reserve a Bill for the consideration of the President. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the submissions which were urged by Dr Dhavan. The law as propounded in the line of precedents adverted to above must negate the submissions which were urged on behalf of the Petitioners. Once the Bill (which led to the Reservation Act 2018) was reserved by the Governor for the consideration of the President, it was for the President to either grant or withhold assent to the Bill. The President having assented to the Bill, the requirements of Article 201 were fulfilled. The validity of the assent by the President is non-justiciable. The Governor, while reserving the Bill in the present case for the consideration of the President on 6 December 2017 observed thus: The Supreme Court in the case of B.K. Pavitra Case, while considering the issue of grant of promotion to persons belonging to SC and STs has observed the necessity of applying the test of inadequacy of representation, backwardness and overall efficiency, for exercise of power Under Article 16 (4A) of the Constitution and has directed the State Government to revise the seniority list within the time frame. The State Government to overcome the situation which was found fault with by the Supreme Court in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he enabling power to make reservations in promotions and to provide for consequential seniority. 72. The decision in B.K. Pavitra I did not restrain the state from carrying out the exercise of collecting quantifiable data so as to fulfil the conditionalities for the exercise of the enabling power Under Article 16 (4A). The legislature has the plenary power to enact a law. That power extends to enacting a legislation both with prospective and retrospective effect. Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation. A legislature cannot overrule a 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 to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review. Curative legislation is constitutionally permissible. It is not an encroachment on judicial power. In the present case, state legislature of Karnataka, by enacting the Reservation Act 2018, has not nullified the judicial decision in B.K. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the Rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. 52 75. In State of T.N. v. Arooran Sugars Ltd. (1997) 1 SCC 326, a Constitution Bench of this Court recognized the power of the legislature to enact a law retrospectively to cure a defect found by the Court. It was held that in doing so, the legislature did not nullify a writ or encroach upon judicial power. The legislature in remedying a deficiency in the law acted within the scope of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject matter of the legislation. Obviously, in such a case, a legislature which has been held to lack legislative competence cannot arrogate to itself competence over a subject matter over which it has been held to lack legislative competence. However, a legislature which has the legislative competence to enact a law on the subject can certainly step in and enact a legislation on a field over which it possesses legislative competence. For instance, where a law has been invalidated on the ground that the state legislature lacks legislative competence to enact a law on a particular subject-Parliament being conferred with legislative competence over the same subject-it is open for the Parliament, following a declaration of the invalidity of the state law, to enact a new law and to regulate the area. As an incident of its validating exercise, Parliament may validate the collection of a levy under the earlier law. The collection of a levy under a law which has been held to be invalid is validated by the enactment of legislation by a legislative body-Parliament in the above example-which has competence over the subject matter. Apart from legislative competence, a law may have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees. 55 78. The decision in Madan Mohan Pathak is hence distinguishable from the facts of the present case. The above observations recognized the constitutional position that in the case of a declaratory judgment holding an action to be invalid, a validating legislation to remove the defect is permissible. Applying this principle, it is evident that the decision in B.K. Pavitra I declared the Reservation Act 2002 to be invalid and consequent upon the declaration of invalidity, certain directions were issued. If the basis on which Reservation Act 2002 was held to be invalid is cured by a validating legislation, in this case the Reservation Act 2018, this would constitute a permissible legislative exercise. The grounds which weighed in Madan Mohan Pathak would hence not be available in the present case. 79. The decision in Madan Mohan Pathak has been adverted to and clarified in several decisions of this Court rendered subsequently. These include: (i) Sri Ranga Match Industries v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rural employment cess and education cess. 58 (Emphasis supplied) 80. Madan Mohan Pathak involved a situation where a parliamentary law was enacted to override a mandamus which was issued by the High Court for the payment of bonus under an industrial settlement. The case did not involve a situation where a law was held to be ultra vires and the basis of the declaration of invalidity of the law was sought to be cured. 81. Dr Dhavan adverted to the legal basis of B.K. Pavitra I as set out in the following extract from the conclusion: 30. In view of the above, we allow these appeals, set aside the impugned judgment and declare the provisions of the impugned Act to the extent of doing away with the 'catch-up' Rule and providing for consequential seniority Under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution. 59 Dr. Dhavan is entirely correct, if we may say so with respect, in submitting that what has to be shown is whether the Reservation Act 2018 is, in law Articles 14 and 16 compliant . This necessitates an examination of the constitutionality of the Reservat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of the Supreme Court order, the Government considering the need and taking note of the decision of the Constitution Bench in M Nagaraj, in Writ Petition No. 61 of 2002, has entrusted the task of conducting study and submitting a report on the backwardness of the Scheduled Castes and Scheduled Tribes in the state, inadequacy of their representation in the State Civil Services and the effect of reservation in promotion on the State administration, to the Additional Chief Secretary to Government in Government order No. DPAR 182 SRR 2011 dated 22.03.2017; The Additional Chief Secretary to Government with the assistance of officers from various departments has collated the scientific, quantifiable and relevant data collected and having made a detailed study of quantifiable data has submitted a report on backwardness of Scheduled Castes and Scheduled Tribes in the state, inadequacy of their representation in the State Civil Services and the effect of reservation in promotion on the State administration to the State Government; The report confirms the backwardness of the Scheduled Castes and Scheduled Tribes in the state, inadequacy of their representation in the State Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 2017. Its report was examined by a Cabinet Sub-Committee on 4 August 2017 and was eventually approved by the Cabinet on 7 August 2017. The Ratna Prabha Committee report was commissioned to: (i) collect information on cadre wise representation of SC and ST employees in all government departments; (ii) collect information on backwardness of SCs and STs; and (iii) study the effect on the administration due to the promotion of SCs and STs. 89. Dr Dhavan's challenge to the report is basically founded on the following features: (i) Only thirty one out of sixty two government departments were examined; (ii) No data was collected for public sector undertakings, boards, corporations, local bodies, grant-in-aid institutions and autonomous bodies; (iii) In PWD and KPTCL, the representation is excessive; (iv) The data is vacancy based and not post based as required by Sabharwal; (v) The data is on sanctioned posts and not of filled posts; (vi) The data is based on grades A, B, C and D and not cadre based; and (vii) On efficiency, there is only a general reference to the economic development of the State of Karnataka. 90. Based on the above features, the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board [1966 Supp SCR 311: AIR 1967 SC 295] which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16 (4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/executive. 64 (Emphasis supplied) The above extract from the decision in Indra Sawhney presents two mutually complementary and reinforcing principles. The first principle is that the executive arm of the state is aware of prevailing conditions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erts to the decision in Barium Chemicals Ltd., which emphasises that when an authority is vested with the power to form an opinion, it is not open for the court to substitute its own opinion for that of the authority, nor can the opinion of the authority be challenged on grounds of propriety or sufficiency. In Nagaraj, while dealing with the parameters governing the assessment of the adequacy of representation or of the impact on efficiency, the Constitution Bench held: 45.... The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways it consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of extent of reservation is not an absolute concept and like merit it is context-specific. ... 49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification. Equality in Article 16(1) is individual-specific whereas reservation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact on efficiency. The Court, is above all, considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs. Judicial review must hence traverse conventional categories by determining as to whether the Ratna Prabha Committee report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. In this area, the fact that an alternate line of approach was possible or may even appear to be desirable cannot furnish a foundation for the assumption by the court of a decision making authority which in the legislative sphere is entrusted to the legislating body and in the administrative sphere to the executive arm of the government. 96. On the inadequacy of representation, the summary which emerges 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 State Government provides the rich information on the inadequacy of representation of SCs and STs employees in various cadres of Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analysis on the other hand: Social Scientists distinguish between obtaining knowledge and using knowledge. Dealing with factual realities is termed empirical analysis. Dealing with how we should use our knowledge of the world is termed normative analysis. Empirical analysis is concerned with developing and using a common, objective language to describe and explain reality. It can be quantitative or qualitative. Quantitative analyses are based on math-based comparisons of the characteristics of the various objects or events that we study. Qualitative analyses are based on the researcher's informed and contextual understanding of objects or events. Normative analysis is concerned with developing and examining subjective values and ethical Rules to guide us in judging and applying what we have learned about reality. Although the emphasis in this book is on empirical analysis, it seeks to develop an appreciation of the larger, normative perspective within which knowledge is acquired, interpreted, and applied through a discussion of the ethics of research. Normative analysis without an empirical foundation can lead to value judgments that are out of touch with reality. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing its conclusions. As we have noted earlier, there are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data. 100. Dr Dhavan has painstakingly compiled charts for the purpose of his argument. We may also note at this stage that Ms. Jaising in response to the charts relied upon by Dr Dhavan, also placed on records charts indicating: (i) Current representation after demotion of SC and ST employees in the PWD of Karnataka; (ii) Percentage of SCs and STs in the post of Executive Engineer without consequential seniority in the PWD; and (iii) Corresponding figures in the post of Executive Engineer without consequential seniority in the PWD. 101. We are of the view that once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class... 71 Explaining this further, the Constitution Bench held: 5....Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster... 72 Consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population. 103. One of the submissions which has been urged on behalf of the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation in the services under the state. The collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres. The state has studied in the present case the extent of reservation for SCs and STs in groups A to D, consisting of several cadres. Since, the group includes posts in all the cadres in that group, it can logically be presumed that the state has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well. 105. Another facet of the matter is that in the judgment of Justice Jeevan Reddy in Indra Sawhney, it was observed that reservation Under Article 16 (4) does not operate on communal grounds. Hence, if a member belonging to a reserved category is selected in the general category, the selection would not count against the quota prescribed for the reserved category. The decision in Sabharwal also noted that while candidates belonging to the general category are not entitled to fill reserved posts, reserved category candidates are entitled to compete for posts in the general category. In several group D posts, such as municipal sweepers, the sobering experience of administration is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tremely low educational and economic conditions of the scheduled castes and the grievous social disabilities from which they suffer that the political safeguard of reservation of seats had been granted to them.... 75 (b) Prof. Yashwant Rai used similar statements to support reservations for backward communities in employment: ... Therefore, if you want to give equal status to those communities which are backward and depressed and on whom injustice has been perpetrated for thousands of years and if you want to establish Indian unity, so that the country may progress and so that many parties in the country may not mislead the poor, I would say that there should be a provision in the constitution under which the educated Harijans may be provided with employment.... 76 (Emphasis supplied) (II) Recognition of the insufficiency of formal equality by the Constituent Assembly 108. During the debates on the principles of equality underlying Article 16 (then draft Article 10), certain members of the Assembly recognised that in order to give true effect to the principle of equality of opportunity, the Constitution had to expressly recognise the existing inequalities. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B.R. Ambedkar's response summarises the different conceptions of equality of opportunity that the members of the assembly put forward. Dr Ambedkar argued that the inclusion of Sub-clause (4) was a method of recognising the demand that mere formal equality in Sub-clause (1) would be insufficient, and a balance between formal equality of opportunity and the needs of the disadvantaged classes of society was needed. Dr Ambedkar presciently observed: ... If members were to try and exchange their views on this subject, they will find that there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all... The first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations... Another view mostly shared by a Section of the House is that, if this principle is to be operative--and it ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the general Rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State... Centuries of calculated oppression and habitual submission reduced a considerable Section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced Clause (4) in Article 16. The expression nothing in this article is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article. 113. Subsequently, in N.M. Thomas, the Constitution Bench adopted an interpretation of Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims. 81 Carrying these precepts further Justice S.H. Kapadia (as the learned judge then was) speaking for the Constitution Bench in Nagaraj observed: 51....Therefore, there are three criteria to judge the basis of distribution, namely, rights, deserts or need. These three criteria can be put under two concepts of equality-- formal equality and proportional equality . Formal equality means that law treats everyone equal and does not favour anyone either because he belongs to the advantaged Section of the society or to the disadvantaged Section of the society. Concept of proportional equality expects the States to take affirmative action in favour of disadvantaged Sections of the society within the framework of liberal democracy. 82 Social justice, in other words, is a matter involving the distribution of benefits and burdens. G Efficiency in administration 116. Critics of affirmative action programs in government services argue that such pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mandate of the Constitution for the consideration of their 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 SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs. 119. The Constitution does not define what the framers meant by the phrase efficiency of administration . Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, elitist approach is that the question of reservation is invariably viewed as the conflict between the meritarian principle and the compensatory principle. No, it is not so. The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is not enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. And, what is merit? There is no merit in a system which brings about such consequences.... 83 Speaking of efficiency, the learned Judge held: 36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned... One would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the good they do, and a system of remunerating the activities that generate good consequences would, it is presumed, tend to produce a better society. The rationale of incentive structures may be more complex than this simple statement suggests, but the idea of merit in this instrumental perspective relates to the motivation of producing better results. In this view, actions are meritorious in a derivative and contingent way, depending on the good they do, and more particularly, the good that can be brought about by rewarding them.... ...The concept of merit is deeply contingent on our views of a good society. Indeed, the notion of merit is fundamentally derivative, and thus cannot be qualified and contingent. There is some elementary tension between (1) the inclination to see merit in fixed and absolute terms, and (2) the ultimately instrumental character of merit-its dependence on the concept of the good in the relevant society. This basic contrast is made more intense by the tendency, in practice, to characterise merit in inflexible forms reflecting values and priorities of the past, often in sharp conflict with conceptions that would be needed for seeing merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Merit must not be limited to narrow and inflexible criteria such as one's rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration. In fact, Sen argues that there is a risk to excluding equality from the outcomes. In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased (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 reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, attaches some weight to lower inequality levels. 25 (Emphasis supplied) 126. The Proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If the gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is criteria [See in this context Rule 19(3) A and D of the Karnataka Civil Services General Recruitment Rules 1977 which states that subject to other provisions all appointments by promotion shall be on an officiating basis for a period of one year and at the end of the period of officiation, if appointing authority considers the person not suitable for promotion, she/he may be reverted back to the post held prior to the promotion]. A candidate on promotion has to serve a 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, not adversely affected. H 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 inapplicable to the SCs and STs. This submission which has been urged by the learned Counsel is founded on two hypotheses which we have extracted below from the written submissions: (i) This Court in Indra Sawhney seems to suggest that the creamy layer should be excluded, however there was no unanimity for determining what is creamy la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be the determinant of backwardness. As stated above, we are bound by the decision in 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 binding decision. In addition to the above requirements this Court in Indra Sawhney [1992 Supp (3) SCC 217: 1992 SCC (L S) Supp 1: (1992) 22 ATC 385] has evolved numerical benchmarks like ceiling limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination. 88 Then again, in paragraphs 121, 122 and 123, the Constitution Bench held: 121. The impugned constitutional amendments by which Articles 16 (4A) and 16 (4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration Under Article 335. These impugned amendments are confined only to SCs and STs. They do not oblitera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f SC/STs notified by the President Under Articles 341 and 342 of the Constitution of India. 90 136. Before the Constitution Bench in Jarnail, the learned Attorney General specifically raised the following arguments: 3. ...according to the learned Attorney General, the creamy layer concept has not been applied in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L S) Supp 1] to the Scheduled Castes and the Scheduled Tribes and Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212: (2007) 1 SCC (L S) 1013] has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes. According to the learned Attorney General, once the Scheduled Castes and the Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament Under Articles 341 and 342. The learned 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 adequacy of representation in service. According to him, it is import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indra Sawhney II when it held that the creamy layer principle sounds in Articles 14 and 16 (1): 12. In para 27 of the said judgment, the three-Judge Bench of this Court clearly held that the creamy layer principle sounds in Articles 14 and 16(1) as follows: [Indra Sawhney (2) case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168: 2000 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 a par with the forward classes and is not entitled to benefits of reservation, it is obvious that if the creamy layer is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of Backward Classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class... Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes. 69 (Emphasis supplied) 139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up Rule and consequential seniority are not constitutional requirements. They were held not to be implicit in Clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployment under the State. The over representation in KPTCL and PWD has been projected by the Petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SC's and ST's has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well. K Conclusion 144. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act 2018 is lacking in substance. Following the decision in B.K. Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. 19Ibid, paragraph 5 at page 750 20Ibid, paragraph 6 at page 751 21Ibid, paragraph 11 at page 753 2210 February 1995 23G.O. No. DPAR 10 SCBC 97 24G.O. No. DPAR 21 SBC 97 25Ibid 26Ibid at page 672 27Supra 6 at page 259 28Ibid at pages 270-271 29Ibid at pages 276-277 30Ibid at page 278 31Ibid at page 272 32Supra 6 at page 641 33G.O. No. DPAR 182 SeneNi 2011 34Ratna Prabha Committee report 35The court was considering the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of Reservations) Act 2000 36Supra 49, paragraph 22 at page 422-423 37Ibid, paragraph 24 at page 424 38Ibid, paragraph 26 at page 425-426 39G.O. No. DPAR 186 SRS 2018 40M.A. Nos. 730-756 of 2017 41In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018 42OBCs 43In I.A. No. 102966 of 2018 in W.P. (C) No. 791 of 2018 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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