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

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. C This judgment has been divided into sections to facilitate analysis. They are A. The constitutional challenge B. The constitutional backdrop to reservations in Karnataka D C. Submissions C.I Petitioners C.2 Submissions for the respondents and intervenors D. Assent to the Bill E E. Does the Reservation Act 2018 overrule or nullify B K Pavitra I E.I Is the basis of B K Pavitra I cured in enacting the Reservation Act 2018

F E.2 The Ratna Prabha Committee report F. Substantive versus formal equality F.I The Constituent Assembly’s understanding of Article 16 (4) F.2 The Constitution as a transformative instrument G G. Efficiency in administration H. The issue of creamy layer I. Retrospectivity J. Over representation in KPTCL and PWD H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1117 [DR. DHANANJAYA Y CHANDRACHUD, J.]

K. Conclusion A A. The constitutional challenge

1Copy pinpoint1. The principal challenge in this batch of cases is to the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 20181. The enactment provides, among other B things, for consequential seniority to persons belonging to the Scheduled Castes2 and Scheduled Tribes3 promoted under the reservation policy of the State of Karnataka. The law protects consequential seniority from 24 April 1978.

2Copy pinpoint2. The Reservation Act 2018 was preceded in time by the C 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 20024. The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v Union of India5, (“B K Pavitra I”). A two judge Bench of this Court (consisting of D 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 E Court in M Nagaraj v Union of India6 (“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 be invalid. F

3Copy pinpoint3. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The grievance of the petitioners is that the state legislature has virtually re-enacted the earlier legislation without curing its defects. According to the petitioners, it is not open to a legislative body governed by the parameters of a written constitution to override a G 1 Reservation Act 2018 2 SCs 3 STs 4 Reservation Act 2002 5 (2017) 4 SCC 620 6 (2006) 8 SCC 212 H

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A judicial decision, without taking away its basis. On the other hand, the State government has asserted that an exercise for collecting “quantifiable data” was in fact carried out, consistent with the parameters required by the decision in Nagaraj. The petitioners question both the process and the outcome of the exercise carried out by the state for collecting quantifiable data. B B. The constitutional backdrop to reservations in Karnataka

4Copy pinpoint4. The present case necessitates that this Court weave through the body of precedent which forms a part of our constitutional jurisprudence on the issue of reservations. In many ways, the issues before the Court are unique. For, in the post Nagaraj world which governs this body of law, the State government defends its legislation on the ground that it has fulfilled the constitutional requirement of collecting quantifiable data before it enacted the law. If such an exercise has been carried out, the Court will need to address itself to the standard of judicial review by a constitutional court of a legislation enacted by a competent legislature. The extent to which a data collection exercise by the government, which precedes the enactment of the law, may be reviewed by the Court is a seminal issue. B K Pavitra I involved a situation where this Court invalidated a law on the ground that no exercise of data collection was carried out by the State of Karnataka. In the present batch of cases, (herein referred to as B K Pavitra II), there is a constitutional challenge to the validity of a law enacted after the State had undertaken the exercise of collecting quantifiable data. Whether that exercise of data collection and the enactment of the new law which has emerged on its foundation takes away the basis of or the cause for the invalidation of the Reservation Act 2002 in B K Pavitra I is an essential question for our consideration. In this background, we set out the significant facts, in the chequered history of the present case.

5Copy pinpoint5. In exercise of the power conferred by the proviso to Article G 309 of the Constitution, the Governor of Karnataka framed the Karnataka Government Servant (Seniority Rules) 19577. 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.

7 The Rules 1957 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1119 [DR. DHANANJAYA Y CHANDRACHUD, J.]

Rule 2 inter alia, provides as follows: A “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 basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same the seniority inter se in the lower grade shall prevail.” Rule 4 provides for the determination of seniority where promotions are made at the same time on the basis of seniority-cum-merit to a class of posts or cadre: E “4. When promotions to a class of post or cadre are made on the basis of seniority-cum-merit at the same time, the relative seniority shall be determined.- (i) if promotions are made from any one cadre or class of F post, by their seniority inter se in the lower cadre or class of post; (ii) if promotions are made from several cadres or classes of posts of the same grade, by the period of service in those grades; G (iii) if promotions are made from several cadres or classes of posts, the grades of which are not the same, by the order in which the candidates are arranged by the authority making the promotion, in consultation with Public Service Commission where such consultation is necessary, taking H

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A into consideration the order in which promotions are to be made from those several cadres or classes of post.” Rule 4-A provides for the determination of the seniority where promotion is made by selection: “4-A When promotions to a class of post or cadre are made B by selection at the same time either from several cadres or classes of post or from same cadre or class of post by the order in which the candidates are arranged in order of merit by the Appointing Authority making the selection, in consultation with Public Service Commission where such consultation is necessary. C [Explanation – For purposes of this rule, “several cadres or classes of post” shall be deemed to include cadres or classes of post of different grades from which recruitment is made in any specified order of priority in accordance with any special rules of recruitment.].”

6Copy pinpoint6. Reservation for persons belonging to SCs and STs in specified categories of promotional posts was introduced by a Government Order8 dated 27 April 1978 of the Government of Karnataka. Reservation in promotional posts for SCs was set at 15 per cent and for STs at 3 per cent in all cadres up to and inclusive of the lowest category of Class I E posts in which there is no element of direct recruitment or where the direct recruitment does not exceed 662/3 per cent. A 33 point 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.

7Copy pinpoint7. On 1 June 1978, the State government issued an Official Memorandum9 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, 8 G.O. No. DPAR 29 SBC 77 9 O.M. No. DPAR 29 SBC 77 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1121 [DR. DHANANJAYA Y CHANDRACHUD, J.]

seniority would be governed by Rule 4-A : the ranking would be as A 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.

8Copy pinpoint8. By a notification10 dated 1 April 1992, a proviso was inserted to B Rule 8 of the Karnataka Civil Services (General Recruitment) Rules 197711 which provided that vacancies not filled by SCs and STs would be treated as a backlog and would be made good in the future. This provision was upheld by a two judge Bench of this Court in Bhakta Ramegowda v State of Karnataka12 (“Bhakta Ramegowda”). C

9Copy pinpoint9. On 16 November 1992, a nine judge Bench of this Court delivered judgment in Indra Sawhney v Union of India13 (“Indra Sawhney”). The issue as to whether reservations of promotional posts were contemplated by Article 16 (4)14 - when it used the expression ‘appointment’ was among the issues dealt with. Justice B P Jeevan Reddy speaking for a plurality of four judges held that: D

(i) Reservations contemplated by Article 16 (4) of the Constitution should not exceed 50 per cent15. While 50 per cent shall be the rule, “it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people”16. But, any E relaxation of the strict rule must be with extreme caution and on a special case being made out17;

10 No. DPAR 13 SRR 92 11 The Rules 1977 F 12 (1997) 2 SCC 661 13 1992 Supp (3) SCC 217 14 Clauses (1) and (4) of Article 16 provide: (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. … G (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. 15 Supra 13, paragraph 809 at page 735 16 Ibid, paragraph 810 at page 735 17 Ibid, paragraph 810 at page 735 H

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A (ii) Reservations under Article 16 (4) could only be provided at the time of entry into government service but not in matters of promotion. However, this principle would operate only prospectively and not affect promotions already made. Moreover, reservations already provided in promotions shall continue in operation for a period of five years from the date of the judgment18; (iii) The creamy layer can be and must be excluded. Justice B P Jeevan Reddy held : “792…While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).”19 D (iv) The adequacy of the representation of a backward class of citizens in services “is a matter within the subjective satisfaction of the State”20, since the requirement in Article 16 (4) is preceded by the words “in the opinion of the State”. The basis of the standard of judicial review was formulated thus: E “798…This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession 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. F 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/ G 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

18 Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771 19 Ibid at page 725 20 H Ibid, paragraph 798 at page 728

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1123 [DR. DHANANJAYA Y CHANDRACHUD, J.]

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.”21 (v) The backward class of citizens cannot be identified only and exclusively with reference to an economic criterion22. It is permissible to identify a backward class of citizens with reference to occupation, income as well caste. C

10Copy pinpoint10. In view of the decision of this Court in Indra Sawhney, the provisions for reservation in matters of promotion under the Government Order of 1978, as clarified by the Official Memorandum dated 1 June 1978 were saved for a period of five years from 16 November 1992. Promotions already made were saved. D

11Copy pinpoint11. On 17 June 1995, Parliament acting in its constituent capacity adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservations to be made in promotion in favour of the SCs and STs23. The amendment came into force on 17 June 1995, before the expiry of five years from 16 November 1992 (the E date on which the decision in Indra Sawhney was pronounced). As a result of the decision in Indra Sawhney and the seventy-seventh amendment to the Constitution, the provision for reservations made by the Government of Karnataka under the Government Order of 1978 stood saved and continued to operate. F

12Copy pinpoint12. On 10 February 1995, a Constitution Bench of this Court rendered a judgment in R K Sabharwal v State of Punjab 24 (“Sabharwal”) and held that:

21 Ibid at page 728 22 Ibid, paragraph 799 at page 728 G 23 Clause 16 (4A) : Nothing in this article shall prevent the State from making any provision 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. 24 (1995) 2 SCC 745 H

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A (i) Once the prescribed percentage of posts is filled by reserved category candidates by the operation of the roster, the numerical test of adequacy is satisfied and the roster would cease to operate25; (ii) The percentage of reservation has to be worked out in relation B to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation26; and (iii) The interpretation placed on the working of the roster shall operate prospectively27 from 10 February 1995.

13Copy pinpoint13. On 1 October 1995, a two judge Bench of this Court held in Union of India v Virpal Singh Chauhan28 (“Virpal Singh”) that the state could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of reservation and on the application of the roster, this would entitle such a person to seniority over a senior belonging D to the general category in the feeder cadre. However, a senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over 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 Sabharwal29. E

14Copy pinpoint14. 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 Punjab30 (“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 F 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. G 25 Ibid, paragraph 5 at page 750 26 Ibid, paragraph 6 at page 751 27 Ibid, paragraph 11 at page753 28 (1995) 6 SCC 684 29 10 February 1995 30 H (1996) 2 SCC 715

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1125 [DR. DHANANJAYA Y CHANDRACHUD, J.]

15Copy pinpoint15. On 24 June 1997, the Government of Karnataka issued a A Government Order31 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 Government Order32 pursuant to Article 16 (4A) stipulating a modified policy of reservation in matters of promotion. The 1999 Order provides for reservation in B promotion to the extent of 15 per cent for SCs and 3 per cent for STs of the posts in a cadre up to and inclusive of the lowest category of group A posts in each service for which there is no element of direct recruitment or, where the proportionate of direct recruitment does not exceed 662/3 per cent. While providing for the continuance of reservations in promotion, the Government Order stipulated that reservation in favour of persons belonging to the SCs shall continue to operate until their representation in a cadre reaches 15 per cent. Reservations in promotion for the STs would continue to operate until their representation in a cadre reaches 3 per cent. Thereafter, reservation in promotion shall continue only to maintain the representation to the extent of the above percentages for the respective categories. On 13 April 1999, the Government of Karnataka issued another Government Order33 modifying the 1999 Order to provide that reservations in promotions in favour of the SCs and STs shall continue to operate by applying the existing roster to the vacancies till the representation of persons belonging to these categories reached 15 per cent or 3 per cent as the case may be, respectively. Moreover, after the existing backlog was cleared, the representation of persons belonging to SCs and STs would be maintained to the extent of 15 per cent and 3 per cent of the total working strength.

16Copy pinpoint16. In Jagdish Lal v State of Haryana34, (“Jagdish Lal”) a three judge Bench of this Court took a view contrary to the decision in F Ajit Singh I. The decision in Jagdish Lal held that by virtue of the principle of continuous officiation, a candidate belonging to a reserved category who is promoted earlier than a general category candidate due to an accelerated promotion would not lose seniority in the higher cadre. This conflict of decisions was resolved by a Constitution Bench in Ajit Singh v State of Punjab35 (“Ajit Singh II”). The Constitution Bench G

31 G.O. No. DPAR 10 SCBC 97 32 G.O. No. DPAR 21 SBC 97 33 Ibid 34 (1997) 6 SCC 538 35 (1999) 7 SCC 209 H

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A held that Article 16 (4A) is only an enabling provision for reservation in promotion. In consequence, roster point promotees belonging to the reserved categories could not count their seniority in the promoted category from the date 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-à-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. D

17Copy pinpoint17. 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 Badappanavar v State of Karnataka36 (“Badappanavar”). A three judge Bench, relying on the E decisions in Ajit Singh I, Ajit Singh II and Sabharwal reiterated the principle that Article 16 (4A) does not permit the conferment of seniority to roster point promotees. This Court held that there was no specific rule in the State of Karnataka permitting seniority to be counted in respect of a roster promotion. It held thus: F “12…The roster promotions were, it was held, meant only for the limited purpose of due representation of backward classes at various levels of service. If the rules are to be interpreted in a manner conferring seniority to the roster-point promotees, who have not gone through the normal channel where basic seniority G or selection process is involved, then the rules, it was held will be ultra vires Article 14 and Article 16 of the Constitution of India. Article 16(4-A) cannot also help. Such seniority, if given, would amount to treating unequals equally, rather, more than equals.”37 36 (2001) 2 SCC 666 37 Ibid at page 672 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1127 [DR. DHANANJAYA Y CHANDRACHUD, J.]

18Copy pinpoint18. The conferment of seniority to roster point promotees of the A reserved categories would, in view of the court in Badappanavar, violate the equality principle which was part of the basic structure of the Constitution. The Court directed that the seniority lists and promotions be reviewed in accordance with its directions but those who were promoted before 1 March 1996 on principles contrary to Ajit Singh II B and those who were promoted contrary to Sabharwal before 10 February 1995 need not be reverted.

19Copy pinpoint19. The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with effect from 17 June 1995. Article 16 (4A), as amended, reads thus: C “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.” D

(Emphasis supplied) The purpose of the amendment was to enable the grant of consequential seniority to reserved categories promotees. The significance of the date on which the eighty-fifth amendment came into force – 17 E June 1995 – is that it coincides with the coming into force of the seventy- seventh amendment which enabled reservations in promotions to be made for the SCs and STs.

20Copy pinpoint20. In 2002, the Karnataka State Legislature enacted the Reservation Act 2002. The law came into force on 17 June 1995. It F provided for consequential seniority to roster point promotees 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 G consequential seniority was statutorily incorporated as a legislative mandate.

21Copy pinpoint21. The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance H

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A 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 judicially evolved concepts based on service jurisprudence. Hence, the exercise of the enabling power under Article 16 (4A) was held not to violate the basic features of the Constitution: “79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and “consequential seniority” are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot be said that by insertion of the concept of “consequential seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that “equality code” under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.” 38

22Copy pinpoint22. The Constitution Bench held that Article 16 (4A) is an enabling provision. The state is not bound to make reservations for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets: (i) The backwardness of the class;

G (ii) The inadequacy of the representation of that class in public employment; and (iii) The general efficiency of service as mandated by Article 335 would not be effected.

38 Supra 6 at page 259 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1129 [DR. DHANANJAYA Y CHANDRACHUD, J.]

23Copy pinpoint23. The principles governing this approach emerge from the following extracts from the decision: “107. …If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured…39 … 117… in each case the Court has got to be satisfied that the State C has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable 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.40 …

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 provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”41 39 Ibid at pages 270-271 40 Ibid at pages 276-277 41 Ibid at page 278 H

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A The Constitution Bench held that the constitutional amendments do not abrogate the fundamentals of equality: “110…the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.”42 These observations emphasise the parameters which must be applied where a law has been enacted to give effect to the provisions of Article 16 (4A). The legislative power of the state to enact such a law is preserved. The exercise of the power to legislate is conditioned by the existence of “compelling reasons” namely; the existence of backwardness, the inadequacy of representation and overall administrative efficiency. Elsewhere in the decision, the Constitution Bench treated these three parameters as “controlling factors” for making reservations in promotions for SCs and STs. They were held to be constitutional requirements crucial to the preservation of “the structure of equality of opportunity” in Article 16. The Constitution Bench left the validity of the individual enactments of the states to be adjudicated upon separately by Benches of this Court.

24Copy pinpoint24. In B K Pavitra I, a two judge Bench of this Court considered G a challenge to the Reservation Act 2002 providing for consequential seniority on the ground that the exercise which was required to be carried out in Nagaraj had not been undertaken by the State and there was no provision for the exclusion of the creamy layer. The validity of the

42 Ibid at page 272 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1131 [DR. DHANANJAYA Y CHANDRACHUD, J.]

Reservation Act 2002 had been upheld by a Division Bench of the A 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, B 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.

25Copy pinpoint25. Relying on the decisions of this Court in Suraj Bhan Meena v State of Rajasthan43, Uttar Pradesh Power Corporation Ltd v Rajesh Kumar44 and S Panneer Selvam v State of Tamil Nadu45 (“Panneer Selvam”), a two judge Bench of this Court affirmed that the exercise laid down in Nagaraj for determining “inadequacy of representation”, “backwardness” and “overall efficiency” is necessary for recourse to the enabling power under Article 16 (4A) of the Constitution. The Court held that the Government of Karnataka had failed to place material on record showing that there was a compelling necessity for the exercise of the power under Article 16 (4A). Hence, E the directions laid down by this Court in Nagaraj were not followed. Striking down Sections 3 and 4 of the Reservation Act 2002, this Court held thus: “29. It is clear from the above discussion in S. Panneer Selvam case that exercise for determining “inadequacy of representation”, F “backwardness” and “overall efficiency”, is a must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby G denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record

43 (2011) 1 SCC 467 44 (2012) 7 SCC 1 45 (2015) 10 SCC 292 H

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A that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4-A), it is the “catch-up” rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the rule of consequential seniority.”46 The Court clarified that the decision will not affect 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.

26Copy pinpoint26. After the decision of this Court in B K Pavitra I, on 22 March 2017, the Government of Karnataka constituted the Ratna Prabha F Committee47 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: G “1) Collect information on the cadre-wise representation of Scheduled Castes and Scheduled Tribes in all the Government Departments;

46 Supra 6 at page 641 47 G.O. No. DPAR 182 SeneNi 2011 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1133 [DR. DHANANJAYA Y CHANDRACHUD, J.]

2) Collect information regarding backwardness of Scheduled A Castes and Scheduled Tribes; and 3) Study the effect on the administration due to the provision of reservation in promotion to the Scheduled Castes and Scheduled Tribes.”

27Copy pinpoint27. On 5 May 2017, the Ratna Prabha Committee submitted a B report, titled as the ‘Report on Backwardness, Inadequacy of Representation and Administrative Efficiency in Karnataka’48. The Government of Karnataka, through its Department of Personnel and Administrative Reforms, submitted the Ratna Prabha Committee report to the Law Commission of Karnataka on 8 June 2017. The Law C Commission sought to opine on ‘whether the data collected and reasons assigned by the Ratna Prabha Committee constitute a valid basis for validating the law’ and submitted its report on 27 July 2017.

28Copy pinpoint28. In the meantime, the petitioners filed contempt petitions contending that the directions of this Court in B K Pavitra I to the State D of Karnataka to review the seniority list were not complied with. The State of Karnataka filed applications for extension of time for compliance. On 20 March 2018, this Court disposed of the petitions rejecting the applications for extension of time for compliance with the decision in B K Pavitra I and granted one month time to take any consequential action. The State of Karnataka subsequently filed compliance affidavits before E this Court stating that the exercise directed by the decision in B K Pavitra I had been carried out.

29Copy pinpoint29. On the basis of the Ratna Prabha Committee report, the Government of Karnataka introduced the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis F of Reservation (to the Posts in the Civil Services of the State) Bill 2017. The Bill was passed by the Legislative Assembly on 17 November 2017 and by the Legislative Council on 23 November 2017. On 16 December 2017, the Governor of the Karnataka reserved the Bill for the consideration of the President of India under Article 200 of the Constitution. The Bill G received the assent of the President on 14 June 2018 and was published in the official Gazette on 23 June 2018.

30Copy pinpoint30. Sections 3, 4 and 5 of the Reservation Act 2018 provides as follows : 48 Ratna Prabha Committee report H

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A “3. Determination of Seniority of the Government Servants Promoted on the basis of Reservation.- Notwithstanding anything contained in any other law for the time being in force, the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order B 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 C 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,- D (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 are not intended to determine inter-se seniority of the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes vis-a-vis the Government Servants belonging to the unreserved category promoted at the same time and such inter-se seniority shall be determined by their seniority inter-se in the cadre from which they are promoted, as illustrated in the Schedule appended to this Act. G

4. Protection of consequential seniority already accorded from 27th April 1978 onwards.- Notwithstanding anything contained in this Act or any other law for the time being in force, the consequential seniority already accorded to the Government servants belonging to the Scheduled Castes and the Scheduled H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1135 [DR. DHANANJAYA Y CHANDRACHUD, J.]

Tribes who were promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order with effect from the Twenty Seventh Day of April, Nineteen Hundred and Seventy Eight shall be valid and shall be protected and shall not be disturbed.

5. Provision for review.- All promotions to the posts belonging to the State Civil Services shall be within the extent and in accordance with the provisions of the reservation orders and other rules pertaining to method of recruitment and seniority. The Appointing Authority shall revise and redraw the existing seniority lists to ensure that the promotions are made accordingly: C Provided that subsequent to such a review, wherever it is found that Government Servants belonging to the Scheduled Castes and Scheduled Tribes were promoted against reservation and backlog vacancies in excess or contrary to extent of reservation provided in the reservation orders shall be adjusted and fitted with reference to the roster points in accordance with the reservation orders issued from time to time by assigning appropriate dates of eligibility. In case, if persons belonging to the Scheduled Castes and the Scheduled Tribes who have already been promoted against reservation or backlog vacancies in excess or contrary to the extent of reservation provisions cannot get adjusted and fitted against the roster points they shall be continued against supernumerary posts, to be created by the concerned administrative department presuming concurrence of Finance Department, in the cadres in which they are currently working, till they get the date of eligibility for promotion in that cadre.” F Section 9 provides for the 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 G 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 H

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A 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 B 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 of the seventy- seventh and eighty-fifth constitutional amendments). C

31Copy pinpoint31. These proceedings were instituted to assail the vires of the Reservation Act 2018. The principal contention which has been urged is that the Reservation Act 2018 does not take away basis of the decision of this Court in B K Pavitra I and is ultra vires. All matters have been admitted for hearing and tagged together. D

32Copy pinpoint32. On 27 July 2018, when the batch of cases was listed for hearing, it was suggested by this Court that the status quo may not be altered pending consideration of the matter. The Advocate General for the State of Karnataka orally agreed and accepted an order of status quo. The Government of Karnataka issued a circular on 3 August 2018 with a E direction to maintain status quo and not affect the process of promotion/ demotion till further orders from the government. These directions were issued to all autonomous bodies, universities, public enterprises, commissions, corporations, boards and to institutions availing aid from the government under their administrative control.

33Copy pinpoint33. In Jarnail Singh v Lachhmi Narain Gupta49, (“Jarnail”) a Constitution Bench of this Court considered whether the decision in Nagaraj requires to be referred to a larger Bench since: (i) It requires the state to collect quantifiable data showing backwardness of the SCs and STs contrary to the nine judge G Bench decision in Indra Sawhney; (ii) The creamy layer principle was not applied to SCs and STs in Indra Sawhney; and

49 2018 (10) SCC 396 H

B K PAVITRA AND ORS. v. THE UNION OF INDIA AND ORS 1137 [DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) In applying the creamy layer principle, Nagaraj conflicts with A the decision in E V Chinnaiah v State of AP50 (“Chinnaiah”).

34Copy pinpoint34. In Jarnail, the Constitution Bench held that : (i) The decision in Chinnaiah holds, in essence, that a state law51 cannot further sub-divide the SCs into sub categories. Such an exercise would be violative of Article 341(2) since only an Act B of Parliament and not the state legislatures can make changes in the Presidential list. Chinnaiah did not dwell on any aspect on which the constitutional amendments were upheld in Nagaraj. Hence, it was not necessary for Nagaraj to advert to the decision in Chinnaiah. Chinnaiah dealt with a completely different C problem and not with the constitutional amendments, which were dealt with in Nagaraj52; (ii) The decision of the Constitution Bench in Nagaraj, insofar as it requires the state to collect quantifiable data on backwardness in relation to the SCs and STs is contrary to Indra Sawhney D and would have to be declared to be bad on this ground53; 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 34254. The creamy layer principle is an essential aspect E of the equality code.

35Copy pinpoint35. 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 F 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 50 G (2005) 1 SCC 394 51 The court was considering the provisions of the Andhra Pradesh Scheduled Caste (Rationalisation of Reservations) Act 2000 52 Supra 49, paragraph 22 at page 422-423 53 Ibid, paragraph 24 at page 424 54 Ibid, paragraph 26 at page 425-426 55 (1969) 2 SCC 283 H

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