ASHOK KUMAR GUPTA AND ANR. v. STATE OF U.P. AND ORS.

A paragraph 860 (8) by Jeevan Reddy, J. prospectively overruling the ratio in Rangachari's case is a majority judgment? In this connection, we may, at the outset, refer to Article 145 (5) of the Constitution. It postulates that "(No) judgment and no such opinion shall be delivered by the Supreme Court, save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent ·a Judge who does not concur from delivering a dissenting judgment or opinion". It would, therefore, be manifest that unless majority Judges comprised in the Bench concur on the opinion or the decision, it would not be a judgment and no such opinion shall be delivered by the Supreme Court. In Mandal's case, on the question of reservation in promotion, eight of the nine Judges participated in the opinion. Of them, Jeevan Reddy;J. spoke for himself, Kania, CJ.I. and Venkatachaliah, J. as he then was. Pandian and Sawant, JJ. also agreed with them. There is a considerable debate on Micro Lexicon Surgery conducted by the learned counsel for the appellants/petitioners drawing a distinction between conclusions and directions contained in paragraph 860 (8) and the language used in the concurrent opinions of Pandian and Sawant, JJ. In support thereof, they have placed strong reliance on the wording used by Sawant, J. in para- graphs 552 and 555 on the conclusions and the absence of concurrence with directions. Pandian, J. has expressly agreed in his conclusions and directions. Equally, there was absence of concurrence by other learned E Judges. They have also drawn our attention to the dictionary meaning of those words. Having given due consideration, we area of the view that the Micro Lexicon Surgery of the distinction between conclusions and direc- tions leads us nowhere to reach satisfactory solution. One needs to adopt pragmatic approach to understand the conclusions reached and the direc- F tions given as part of the judgment in that behalf. Even if rule of strict interpretation is to be applied, as is sought by the learned counsel, Sawant, J. in paragraph 555 has indicated his concurrence with the conclusions of .Jeevan Reddy, J. in paragraph 860 (8) which includes directions contained therein. We have, to our benefit, the contemporaneous understanding that directions in paragraph 860 (8) given by Jeevan Reddy, J. is a majority judgment and it gets reinforced from the approval thereof, as followed by the Constitution Bench, in R.K Sabharwal's case. The presiding Judge therein, viz;, Kuldip Singh, J., who was one of the nine Judges inMandal's case, participated in the majority opinion on the issue of reservation in promotion. However, no opinion was expressed on the conclusions and directions of Jeevan Reddy, J. in para 860, the Constitution Bench having

/ AK.GUPTA v. STATE(K.RAMASWAMY,J.] 307

upheld the rule of reservation in promotion, proceeded to apply the law and worked out the rights of the Dalits in promotions in R.K. Sabharwal's case. The same do support out conclusion that the Constitution Bench equally understood that the directions contained in paragraph 860 (8) constituted majority judgment. Otherwise, the Constitution Bench in R.K Sabharwal's case would not have proceeded to consider the right to promo- B tion of the Dalits and question of giving effect to the roster system and the question of percentage of reservation provided in promotions would not have been give effect. The Constitution Bench in that case would have declared that in the light of the majority judgment the reservation in promotions were void ab initio under Article 13 (2) and that, therefore, the question of application of the roster would not have arisen. It is true that there is no positive indication or a finding to that effect in Sabharwal's case but the fact that the presiding Judge therein was one of the members of the nine-Judge Bench in Mandal's case, and that the Constitution Bench considered and upheld the right to reservation in promotion to the Dalits and Backward Classes and applied the roster points to such promotions, itself goes to point out and reassure us that prospective overruling of Rangachari's case by .Teevan Reddy, J. is a majority opinion. In that view of the matter, the Micro Lexicon Surgery fails.

The next questions are: whether the prospective over-ruling of Rangachari's case, to be operative after five years from the date of Mandal's E case, amounts to judicial legislation? Is it void ab initio under Article 13 (2) of the Constitution? Whether it is violative of the fundamental rights of the appellant-petitioners and whether the exercise of the power by this Court under Article 32 (4) and 142 of the Constitution is inconsistent with and derogatory to the fundamental rights of the appellants-petitioners and, p if so, what would be the consequence? It is settled constitutional principle that to make the right to equality to the disadvantaged Dalits and Tribes meaningful, practical contents of results would be secured only when principles of distributive justice ~nd protective discrimination are applied, as a facet of right to equality enshrined under Article 14 of the Constitu- tion. Otherwise, right to equality will be a teasing illusion. Right to promo- G tion is a method of recruitment from one cadre to another higher cadre or class or category or grade of posts or classes of posts or offices, as the case may be. Reservation in promotion has been evolved as a facet of equality where the appropriate Government is of the opinion that the Dalits and Tribes are not adequately represented in the class or classes of posts in H

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A diverse cadres, grade, category of posts or classes of posts. The discrimina- tion, therefore, by operation of protective discrimination and distributive justice is inherent in the principle of reservation and equality too by way of promotion but the same was evolved as a part of social and economic justice assured in the Preamble and Articles 38, 46, 14, 16 (1), 16 (4) and 16(4A) of the Constitution. The right to equality, dignity of person ~d B equality of status and of opportunity are fundamental rights to bring the Dalits and the Tribes in the mainstream of the national life. It would, therefore, be an imperative to evolve such principle to adjust the competing rights, balancing the claims, rights and interest of the deprived and disad- vantaged Dalits and Tribes on one had and the general section of the C society on the other.

The Constitution, unlike other Acts, is intended to provide an endur- ing paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a D long lapse of ages. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future. It contains a framework of mechanism for resolution of constitu- tional disputes. It also embeds its ideals of establishing an egalitarian social order to accord socio-economic and political justice to all sections of the society assuring dignity of person and to integrate a united social order assuring every citizen fundamental rights assured in Part III and the directives in Part IV of the Constitution. In the interpretation of the Constitution, words of width are both a framework of concepts and means to the goals in the Preamble. Concepts may keep changing to expand and elongate the rights. Constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line Qf their growth. The intention of the Constitution is, rather, to outline principles than to engrave details. In State of Kamataka v. Appa Balu, [1995] Supp. 4 SCC 469 at 485-86 a two-Judge Bench of this Court, to which one of us, K. Ramaswamy, J. was a member, while interpreting Articles 17 and 15 (2) and the Civil Rights Protection Act, held that "(Judiciary) act as a bastion of the freedom and of the rights of the people. Jawaharlal Nehru, the architect of Modern India as early as in 1944 stated that the spirit of the age is in favour of equality though the practice denies it almost everywhere, yet the spirit of the age triumphs. The judge must be atune with the spirit of his/her times. Power of judicial review, a constituent power has, there- H fore, been conferred upon the judiciary which constitutes one of the most

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important and potent weapons to protect the citizens again•t violation of social, legal or constitutional rights. The judges are participants in the living stream of natural life, steering the law between the dangers of rigidity on the one had and formlessness on the other hand in the seamless web of life. The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the judges idly by. Law should subserve social purpose. Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution c and the Act with its interpretative armoury to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedoms of the people and D the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order. The power of judicial review must, therefore, be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are to be removed and social order readjusted through rule of law, lest the force of violent cult gain ugly triumph. Judges are sum- E moned to the duty of shaping the progress of the law to consolidate society and grant access to the Dalits and Tribes to public means or places dedicated to public use or places of amenities open to public etc. The law which is the resultant product is not found but made. Public policy of law, as determined by new conditions, would enable the courts to recast the changing conceptions of social values of yesteryears yielding place to the changed conditions and environment to the common good. The courts are to search for light from among the social elements of every kind that are the living forces behind the factors they deal with. By judicial review, the glorious contents and the trite realisation in the constitutional words of width must be made vocal and audible giving them continuity of life, expression and force when they might otherwise be forgotten or ignored in the heat of the moment or under sway of passions or emotions remain aroused, that the rational faculties get befogged and the people are ad- dicted to take immediate for eternal, the transitory for the permanent and the ephemeral for the timeless, it is in such transitory for the permanent H

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A and the ephemeral for the timeless. It is in such surging situation the presence and consciousness and the restraining external force by judicial review ensures stability and progress of the society. Judiciary does not forsake the ideals enshrined in the Constitution, but makes them meaning- ful and mades the people realise and enjoy the rights.

B The judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the right to life and give effect to the Constitution and the will of the legisla- ture. The Court as the vechicle of transforming the nation's life should· respond to the nations's needs, interpret the law with pragmatism to further C public welfare to make the constitutional animations a reality and interpret the Constitution broadly and liberally enabling the citizens to enjoy the rights.

In Sakal Papers (P) Ltd. & Ors. v. 171e Union of India, [1962] 3 SCR D 842 at 857 it was held by another Constitution Bench thus: "It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights E ·the Court must not be took astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand, the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it is the fullest measure subject, of course, to permissible restric- F tions."

Common sense has always served in the c.ourt's ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which the sine qua non for stability in the process of change in a parliamen- tary democracy. G Therefore, it is but the duty of the Court to supply vitality, blood and flesh, to balance the competing rights by interpreting the principles, to the language or the words contained in the living and organic Constitution, broadly and liberally. The judicial function of the Court, thereby is to build H up, by judicial statesmanship the judicial review, smooth social change

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under rule of law with a continuity of the past to meet the dominant needs and aspirations of the present. This Court, as sentinel on the qui vive, has been invested with more freedom, in the interpretation of the Constitution than in the interpretation of other laws. This Court, therefore, is not bound to accept an interpretation which retards the progress or impedes social integration; it adopts such interpretation which would bring about the ideals set down in the Preamble of the Constitution aided by Part III and Part IV-a truism meaningful and a living reality to all sections of the society as a whole by making available the rights to social justice and economic empowerment to the weaker sections, and by preventing injustice to them. Protective discrimination is an armour to realise distributive justice. Keep- C ing the above perspective in the backdrop of our consideration, let us broach whether the rights of the employees belonging to the general category are violative of Article 14; inconsistent with and derogatory to right to equality and are void ab initio.

In Union of India & Anr. v. Raghubir Singh (Dead) by LRs. Etc., D [1989] 2 SCC 754 at 766, a Constitution Bench had held that like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by per- ceptible limitations, arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home that truth that the life of the law has not been logic, but it has been experienced. The law is forever adopting new principles from life at one end and "solughing off' old ones at the other. The choice is between competing legal propositions rather than by the operation of logic upon existing legal propositions that the growth of law tends to the determined. Interpretation of the Constitution is a continuous process. The concepts engraved therein keep changing with the demands of changing needs and time.

The doctrine of stare decisis is ordinarily a wise rule of action, because in most matters, it is more important that the applicable rule of law be settled right. The rule of stare decisis, though one tending to keep consistency and uniformity of decisions, is not an inflexible rule. Whether it shall be followed or departed from is a question entirely within the discretion of the Court and it does not deter the court to depart from it. H

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A State decisis is not, like the rule of res judicate, a universal, inexorable command. Whether it would be desirable to continue the decision in constitutional questions is one of the choice between competing rights. In the Be11gal Immunity Company Ltd. case, consideriQg the question whether the decision of a Constitution Bench referred in.the State of Bombay v. The B U11io11 Motors (/11dia) Ltd. (1953] SCR 1069, a majority of seven Judges following the descending judgment of Stone, CJ in U11ited States of America v. South-Eastem U11derwriters Associatio11 (322 US 533), had held that the Court has never committed itself to any rule or policy that it will not bow to the lessons of experience and the force of better reasoning by overruling C a mistaken precedent. The doctrine of stare decisis should not be rigidly applied to be constitutional as well as to other laws in the case of private import, the chief desideratum is that the law remained certain, and, there- fore, whether a rule has been judicially declared and private rights created thereunder, the courts will not, except in the clearest cases of error, depart from the doctrine of Stare decisis. When, however, public interest are involved, and especially, when the question is one of constitutional con- struction, the matter is otherwise. Accordingly the Bench overruled the majority decision. It would, thus, be settled law that in the interpretation of the Constitution or the concepts embodied therein, the application of the doctrine of stare decisis is not an inexorable or rigid rule. It requires modulation or adherence based upon the need of the constitutional com- mand and social imperatives. It would, therefore, be entirely within the descretion of the Court when it is called upon to consider it application to the given set of circumstances.

F It is settled principle right from Golak Nath ratio that prospective over-ruling is a part of the principles of constitutional canon of interpreta- tion. Though Gokal Nath ratio of unamendability of fundamental rights under Article 368 of the Constitution was over-ruled in Keshavnanda Bharati's case, (1973) Supp. SCR 1 the doctrine of prospective over-ruling G was upheld and followed in several decisions. This Court negatived the contention in Gokal Nath's case that prospective over-ruling amounts to judicial legislation. Explaining the Blackstoniam theory of law, i.e., Judge discovers law and does not make law, and the efficacy of prospective over- ruling at page 808 placitum D to H, this Court by a Bench of eleven Judges H had held that the doctrine of prospective over-ruling is a modern doctrine

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' and is suitable for a fast moving society. It does not do away with the A · doctrine of stare decisis but confines it to past transactions. While in strict theory, it may be said that he dqctrine involves the making of law, what a Court really does is to declare the law, but refu_ses to give retrospectivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that Court finds law and that it does make the law. B It fmds the law but restricts its operation to the future. It enables the Courts to bring about a smooth transition by correcting the errors .without disturbing the impact of those errors on past transactions. By implication of this doctrine, the past may be preserved and the future protected. The Constitution does not expressly or by necessary implica- C tion speak against the doctrine of prospective over-ruling. Articles 32 (4) and 142 are designed with words of Width t_o enable this Court to ,declare the law and to give such direction or pass such orders as are ' necessary to do complete justice. Declaration of law under Article 141 i is wider than words found or made. The law declared by this Court is the law of the land. So, there is no acceptable reason as to why the Court in dealing with the law in supersession of the law declared by it earlier :could not restrict the operation of law, as declared, to the future and save the transactions, whether statutory or otherwise, that were effected on the basis of the earlier law. This Court is, therefore, not impotent to adjust the competing rights of parties by prospective over-ruling of the previous decision in Rangachari ratio. The decision in Mandal's case postponing the operation for five years from the date of the judgment is an instance of, and an extension to the principle of prospective over-ruling following the principle evolved in Golak Nath case. In Managing Director, F ECIL, Hyderabad & Ors. v. B. Karunakar & Ors., [1993] 4 SCC 727, a Constitution Bench of this 'court, while over-ruling Union of India v. Mohd. Ramzan Khan [1991) 1 SCC 588 had held that benefit of the decisions would be given only to the parties to the cases pending before the authorities from the date of the judgment but not to the actions already G taken by the date of that judgment. In that behalf in separate but partly dissenting judgment to a limited extent, on the issue of the need ,to give benefit to the party that approaches the Court in that case, one of us, K. Ramaswamy, J. had held that as a matter of constitutional law retrospective operation of an overruling decision is neither required nor prohibited by H

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' A the Constitution; It is a matter of Judicial attitude depending on the facts and circumstances in each case; the nature and purpose the particular over-ruling decision seeks to serve are required to be taken into considera- tion. The Court would look into the justifiable reliance on the over-ruled case by the administration. All the factors, viz., ability to effectuate the new rule adopted in the over-ruling case, without doing injustice and whether , the likelihood of its operation substantially burdens the administration or retards the purpose, are to be taken into account, while over-ruling the earlier decision or laying down a new principle. Equally, no distinction could be made between claims involving constitutional rights, statutory right or common law right. The Court is required to adjust the competing rights taking into consideration the prior history of the rule in question, its purpose and effect and to find out whether retrospective operation will accelerate or retard its operation. Therefore, evolving of the appropriate rule to give effect to the decision of the Court over-ruling its previous precedent, is one of judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law operated prior to the date of the judgment over-ruling the previous law. E The question, therefore, is: whether such a decision is void when it offends the fundamental rights under Article 13 (2) of the constitution? The doctrine of voidity was dealt with in the Administrative law by Wade (Seventh Edition) at page 342, and it is stated that "the truth of the matter is that the Court would invalidated an order only if the right remedy is sought by the right person in the right proceedings and circumstances". The terms "void ab initio" or "nullity'' or "voidable" are descriptive of the status of the legislation or subordinate legislation alleged to be ultra vires for patent or for latent defects before its validity has been pronounced by a Court of competent jurisdiction. It would, therefore, be of necessity to consider in each case, the effect of the declaration granted by the Court before labelling it as void, nullity or voidable, as the case may be.

It is seen that Article 13 (2) envisages a situation where the State action, be it legislative or executive, violates the fundamental rights in Part H III of the Constitution; such law is declared as void but when the previous

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over-ruled decision and the new rule laid down, by the Court as a stare A decisis operates prospectively from a given date, namely, either the date of the judgment or extended date. Judgment or order is not a legislative Act which is void under Article 13 (2) but judicial tool by which the effect of the judgment was given. Therefore, the judgment of this Court in Mandal's case declaring that Rangachari ratio did not correctly interpret Articles B 16(1) and 16 (4) of the Constitution is a declaratory law under Article 141 of the Constitution. It is true that Article 13 (1) deals with pre-constitu- tional law and if it is inconsistent with fundamental rights, it becomes void from January 26, 1950, the date on which the Constitution of India came into force and if a post-constitutional law governed by Article 13 (2) C violates fundamental rights, it becomes void from its inception. Either case deals with statue law and not the law declared by this Court under Article 141 and direction/order under Article 142.

The question then is: whether such a declaration is inconsistent with the Constitution or in derogation of the fundamental rights? As held earlier, both the disadvantaged and advantaged sections of the society have equal competing fundamental rights in Part III, i.e., Chapter of Fundamen- tal Rights. The Court in Mandal's case had obviously recognised the need to adjust the competing rights of both sections of citizens and, therefore, it postponed the operation of that judgment of five years from that date giving and option to the Executive to have the law amended appropriately.

In Union Carbide Corpn. & Ors. v. Union of India & Ors., [1991] 4 SCC 584, a Constitution Bench was to consider the scope, ambit and limitation of the exercise of the power under Article 142. Therein, the contention raised was that the direction issued was contrary to the statutory provision violating Article 21 of the Constitution and that, therefore, the power under Article 142 could not be exercised in that backdrop. This Court explaining the interplay of inference of prohibition or limitation on the constitutional power and as to when need to its exercise the same under Article 142 arises, had pointed out in para 83 thus: G

"It is necessary to set at rest certain misconceptions in the argu- ments touching the scope of the powers of this Court under Article 142 (1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in, any ordinary H

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A law irrespective of the importance of the public policy on which it - is founded, operates to limit the powers of the apex Court under Article 142 (1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really un- B necessary in those case as the decisions in the intimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 Cr. PC or all of them put together. c The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers- limited in some appropriate may-is contemplated. The limitations may not necessarily reflect or be based on any fundamental con- siderations of public policy. Shri ~abjee, learned attorney General, referring to Garg case, said that limitation on the powers under Article 142 arising from "inconsistency with express statutory provisions of substantive law'' must early means and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of "complete justice" of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the

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powers of the Court under Article 142, but only to what is or is A not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise."

In Delhi Judicial Se1vice Association, Tis Hazari Court, Delhi v. State of Gujarat & Ors., [1991) 4 SCC 406 and ln Re: Vijay Chandra Mishra, B [1995) 2 SCC 584, this Court considered its paramount power and duty to protect limbs of administration of justice from those whose actions created interference with or obstruction to the course of justice. It was held that the failure to exercise the power with such situations, when it is invested specifically for the purpose, is a failure to discharge the duty. The first case C deals with a case when the judicial officer in Gujarat was assaulted by the police and in the latter when a practicing advocate assaulted a Judge of the High Court, this Court took suo motu action and passed appropriate orders, in spite of absence of specific power to deal with or despite the disciplinary power available under the Advocates Act. In Delhi Develop- D ment Authority v. Skipper Constrnction Co. (p) Ltd. & Anr., [1996] 4 SCC 622, a Bench of two judges exercised the power under Articles 129 and 142 of the constitution and not only punished the defrauding party but also directed restoration of the benefits illegally derived to the persons defrauded. The imposition of the punishment, it was held, does not denude E the power of the Court; it could issue directions to remedy the wrong done by the contemner including directions to refund the amounts wrongfully derived by the contemner to the rightful persons.

It would be seen that there is no limitation under Article 142 (1) on the exercise of the power by this Court. The necessity to exercise the Power F is to do "complete justice in the cause or matter". The inconsistency with statue law made by Parliament arises when this Court exercise power under Article 142 (2) for the matters enumerated therein. Inconsistency in ex- press statutory provisions of substantive law would mean and be under- stood as some express prohibition contained in any substantive statutory G law. The power under Article 142 is constituent power transcendental to statutory prohibition. Before exercise of the power under Article 142 (2), the Court would take that prohibition into consideration before taking steps under Article 142 (2) and we find no limiting words to could the relief or when this Court takes appropriate decision to met out justice or to H

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A remove injustice. The phrase "complete justice" engrafted in Article 142 (1) is the word of width couched with elasticity to meet myriad situation created by human ingenuity or cause or result of operation of statue law or law declared under Article 32, 136 and 141 of the Constitution and cannot be cribbed or crabbed within any limitations or phraseology. Each B case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do complete justice or prevent injustice arising from the exigen- cies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does not arise. As held earlier, the power under Article 142 is a constituent power within the jurisdiction of this court. · So, the question of a law being void ab initio or nullity or voidable does not arise.

Admittedly, the Constitution has entrusted this salutary duty to this Court with power to remove injustice or to do complete justice in any cause or matter before this Court. The Rangachari ratio was in operation for well over three decades under which reservation in promotio4:s were given to several persons in several services, grade or cadre of the Union of India or the respective State Governments. This Court, with a view to see that there would not be any hiatus in the operation of that law and, as held earlier, to bring about smooth transition of the operation of law of reser- vation in promotions, by a judicial creativity extended the principle of prospective over-ruling applied in Gokal Noath case in the case of statutory law and of the judicial precedent in KOTU11akaran's case and further elon- gated the principle postponing the operation of the judgment in Mandal's p case for five years from the date of the judgment. This judicial creativity is not anathema to constitutional principle but an accepted doctrine, as an extended facet of stare decisis. It would not be labelled as provjso to Article 16 (4) as contended for.

G In S.P: Sampat Kumar v. Union of India & Ors., [1987) 1 SCC 124, while noticing that the administrative Tribunal Act suffered from constitu- tional invalidity, instead of declaring the Act as invalid, declared that its invalidity would be removed by making necessary suggested amendments there to so that the law will become consistent with the Constitution. In St. H Stephen College case (supra), while holding that the orders issued by Delhi

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University were violative of Article 30 (1) of the Constitution, this Court A declared that admission by the minority institutions in the ratio of 50:50 between minority students and the general students was constitutional which is another facet of judicial creativity. In Pannalal Bansilal Pitti v. State of Andhra Pradesh, [1996] 2 SCC 498, this Court instead of declaring that abolition of hereditary trusteeship of the founder of the temper to manage a temple was unconstitutional, declared the law reading it down that the institutions would be managed by a Committee of the non- hereditary and hereditary trustees presided over by the hereditary trustee so as to be conducive to proper and efficient management of the endow- ment or institutions. At the same time, this Court unhealed the power to remove hereditary trustees who mismanaged the endowment or committee for acts of misfeasance or malfeasance, as valid. It is settled legal principle of reading down the provisions of a statute by so interpreting them as to make the Act consistent with the constitutional principles. Instances, there- fore, are many under which this Court has evolved the appropriate prin- D ciple to sustain the legislative or executive actions consistent with the constitutional philosophy or principles. Mahendara Lal Jaini v. The State of Uttar Pradesh & Ors., (1963] Supp. (1) SCR 912, relied on by the petitioners, is of no assistance to the facts of this case. Therein, the distinction between the post-constitutional and pre-constitutional law which violated the fun- E ) damental rights and the effect thereof under Article 13 (1) and 13(2) was considered. The doctrine of eclipse was pressed into service and explaining the circumstances which the voidity of the pre-constitutional law and the validity of the post -constitutional law was declared, this Court held that the post-constitutional law violating the fundamental rights was still-born and that, therefore, was void from its inception, while the preconstitutional law

' is effective from inception but its voidity supervened when the Constitu- tions came into force. Therefore, it would be void only from January 26, 1950 and the previous operation of the law remained unaffected. The ratio therein, therefore, has no application to the facts in this case. Similarly, the ratio in Atam Prakash v. State of Hmyana & Ors., (1986] 2 SCC 249 is equally inapplicable to the facts of this case. Therein, it was declared that the justification of right of pre-emption of different classes enumerated in ' Section· 15 of the Punjab Promotion Act was declared Ultra vires and inconsistend with the modern concept of equality. Therefore, it was held H

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A that the law was not valid. Equally, the ratio in Wama11 Rao's case (supra), is equally inapplicable. Therein, it was held that a law violating the fun- damental rights was void but it remained valid under the protective umbrella of Schedule IX of the Constitution and, therefore, though it was void, it cannot be declared to be void and remained to be valid law. But a B post-constitutional Kasava11a11da Bharati law which did not receive the protective umbrella of Schedule IX ts void from its inception. We are not concerned, as stated supra, with statute law in this case. Under those circumstances, the ratio therein is inapplicable to the facts in this case. A.R. A11tule's case is inapplicable to the facts in this case. Therein, though this C Court had directed under Article 142 trial of the appellant by a High Court Judge, it was held that such direction was inconsistent with fundamental rights of equality under Article 21 read with Article 14 with the trial of other similarly circumstances offenders by a properly constituted Court with a right of appeal while the order passed under Article 142 denied him of the equality of trial process. This Court accepted that contention and held that the direction issued on earlier occasion was invalid in law. In that context, the observations came to be made in para 50. The ratio therein is also inapplicable to the facts in this case. In Delhi Judicial Service Associa- tio11 v. State of Gujarat, (1991] 4 SCC 406 at 452, para 37, it was held that the powers under Articles 32, 136, 141 and 142 are basic structures of the Constitution and cani;iot be curtailed by statute law. Equally, the same position was reiterated in para 51 therein. The ratio also is inapplicable to the facts in this case as we have already held that the direction in Mandal's case postponing the operation of the judgment of reservation in promotion for a period of five years is a part of the scheme of judicial review being an innovative device to mete out justice to the Dalits and Tribes giving breathing time to the executive to bring about suitable legislative measures, if they so desired and if no action was taken by amending the law, on expiry of five years, the judgment in Manda/ case would become operative. G Thereafter reservation in promotion would be unconstitutional which in- validity was remedied. As held earlier this being one of the tools of judicial craftsmanship adopted by exercising the power under Article 142, which is available only to this Court, the directions given are not violative of rights under Article 14 read with Article 16 (1), not ultra vires the power nor void, H nor incompatible to or inconsistent with the doctrine of equality enshrined

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under Article 14 read with Article 16 (1) of the Constitution. On the other hand, the power was exercised by this Court under Article 142 read with Articles 32 and the direction postponing the operation of the decision for a period of five years is a law of the land under Article 141.

It is already seen that the rule of reservation in promotions was in vogue in the State of Uttar Pradesh. right from 1973 and the promotions came to be made from 1981 onwards to the respondents 2 to.10. The U.P. Act sa~es the existing policy of reservation in promotions. The judgment in Manda/ case saves the promotions already made. In Sabharwal's case also a Constitution Bench has upheld the validity of the promotions given in excess of the roster; otherwise also those promoted on their own merit were held to be validly promoted. Even excess promotions remained undisturbed and the law became operative only from the date of the judgment. This Court upheld the previous promotions, though in excess of the roster system, as constitutional and valid. Therefore, we hold that the promotions of the respondents are legal and valid and they do not become void or unconstitutional as contended.

Both, the appeal and the writ petition are accordingly dismissed with no order as to costs.

S.M. Appeal and petition dismissed. · E