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

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(b) Does it violate the law laid down by this Court in A Badappanavar on seniority? (c) Does the background to the enactment to the Reservation Act 2018 reveal a manifest intent to overrule the decision in B K Pavitra I? (d) Was the reference of the Bill by the Governor of B Karnataka to the President under Article 200 of the Constitution and the subsequent events which took place constitutionally valid? In this context, could the Bill have been brought into force without the assent of the Governor? C B Is the Reservation Act 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 D 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 E report or the legislation?

38Copy pinpoint38. 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: F A. Usurpation of judicial power

39Copy pinpoint39. 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 G March 2017, a Government Order was issued appointing the Additional Chief Secretary to submit a report on backwardness, inadequacy of representation and the impact of reservation on efficiency. The report was submitted on 5 May 2017. On 26 July 2017, the report was accepted by the State Cabinet which constituted a sub-committee to examine the H

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A matter and submit a draft Bill. The State Law Commission recommended the State to pass a legislation with retrospective effect by curing the infirmities and factors noticed in the decision in B K Pavitra I. On 4 August 2017, the Cabinet Sub-Committee submitted its decision based on the report. On 7 August 2017, the Cabinet approved the proposed Bill. The Bill was introduced in the Karnataka State Legislative Assembly B on 14 November 2017 and was passed on 17 November 2017. The Bill was passed by the State Legislative Council on 23 November 2017 and was submitted to the Governor on 6 December 2017. The Bill was reserved by the Governor for the consideration of the President. On 15 February 2018, 9 March 2018 and 18 April 2018, the Union Government C in the Ministry of Home Affairs sought clarifications from the State government which were provided on 16 March 2018 and 23 April 2018. The Bill received the assent of the President on 14 June 2018, and was published in the official Gazette and came into force on 23 June 2018.

40Copy pinpoint40. On the basis of the above facts, Dr Dhavan submitted that: D (i) There was no compelling necessity to overrule B K Pavitra I “except political necessities”; (ii) A comparison of the provisions of the Reservation Act 2002 with the Reservation Act 2018 indicates that: (a) The Reservation Act 2018 is substantively the same as E the Reservation Act 2002; (b) The change in the basis of the decision in B K Pavitra I is on the factum of the Ratna Prabha Committee report; (c) “Compelling necessities” are mentioned but their existence is not demonstrated; F (d) The title of the Reservation Act 2018 is limited to consequential seniority which is not mentioned in the law; (e) Section 5 allows for an unlimited backlog and the creation of supernumerary posts for SCs and STs; G (f) Section 5 presumes the permission of the Finance Department and visualizes an “excess”, which will invalidate the law; and (g) Section 9 brazenly overrules and goes beyond the date of 17 June 1995 and postulates that in future a review of the H cases is forbidden.

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

B. Violation of the separation of powers A

41Copy pinpoint41. Separation of powers postulates a constitutional division between legislative and judicial functions. In this context, the submission is: (a) The legislative power is distinct from the judicial power; B (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; C (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; D (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 E has been altered, the mere enactment of a new legislation would constitute a brazen overruling of the law, which is impermissible.

42Copy pinpoint42. Dr Dhavan urges that Reservation Act 2018 will not pass muster, when it is assessed in the context of the principles enunciated by the decisions of this Court in (i) Prithvi Cotton Mills Ltd, (ii) Madan F Mohan Pathak, (iii) S R Bhagwat v State of Mysore 58, (iv) Bakhtawar Trust v M D Narayan59, (v) Delhi Cloth & General Mills Co. Ltd v State of Rajasthan60, (vi) Re Cauvery61, (vii) S T Sadiq v State of Kerala62 and (viii) Medical Council of India v State of Kerala63. G 57 G.O. No. DPAR 186 SRS 2018 58 (1995) 6 SCC 16 59 (2003) 5 SCC 298 60 (1996) 2 SCC 449 61 (1993) Supp (1) SCC 96 62 (2015) 4 SCC 400 63 (2018) 11 SCALE 141 H

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43Copy pinpoint43. Explaining the applicability of the above principles on facts, Dr Dhavan urged that after the decision of this Court in B K Pavitra I, the State Government filed applications for extension of time on 9 May 2017 and 8 September 201764. This Court extended time to revise the seniority lists till 30 November 2017 and for consequential actions by 15 January 2018. On 15 January 2018, the State Government moved before this Court seeking extension of time for implementing the decision in B K Pavitra I. On 29 January 2018, this Court finally granted time until 15 March 2018. On 17 March 2018, the State moved before this Court for extension of time and on 20 March 2018, while disposing of certain contempt petitions and other applications, one month’s time was granted to take consequential action. On 25 April 2018, this Court directed the State to file a further affidavit (by 1 May 2018) indicating that promotions and demotions have been duly effected. On 9 May 2018, this Court directed the State to file an affidavit to the effect that the judgment in B K Pavitra I had been fully complied with and the hearing was posted for 4 July 2018. On 28 June 2018, the State of Karnataka informed this D Court that the “further process have been stalled because of the enactment of the new legislation and its publication in the Gazette on 23 June 2018”. On 7 August 2018, the State of Karnataka filed an interim application seeking permission of this Court to implement the Reservation Act 2018. It has been urged that contrary to what was stated by the E state Government, there was no compliance of the decision in B K Pavitra I. In this background, it has been submitted that the state has undertaken an exercise to overrule B K Pavitra I which constitutes a clear usurpation of judicial power. C. Lack of compliance with Nagaraj and Jarnail

44Copy pinpoint44. 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;

G (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.

64 H M.A. Nos. 730-756 of 2017

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

45Copy pinpoint45. According to the submission, the decision in Nagaraj: A (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, B 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. C

(b) The methodology of Nagaraj was approved both in I R Coelho v State of TN65 and Jarnail; and (c) The decision in Jarnail, while upholding the methodology adopted in Nagaraj held that there is a constitutional presumption which D obviates the need for quantifiable data on the backwardness of SCs and STs and hence that part of Nagaraj was held to be contrary to the decision in Indra Sawhney. The application of the creamy layer test was held to be a requirement for SCs and STs and other principles or applications enunciated in Nagaraj were held to be valid. E

46Copy pinpoint46. In this background, the Ratna Prabha Committee report is assailed on the following grounds: (i) The chapter on backwardness is not necessary; (ii) Inadequacy of representation is examined over 30 pages; F (iii) The data collected is over 32 years in thirty one government departments; (iv) No data exists in 1986; (v) The data indicates that STs are adequately represented from G 1999 to 2015 but the average of 31 years is 2.70; (vi) No data has been collected from public sector undertakings, boards, corporations, local bodies, grant-in-aid institutions, among others, and it is assumed that the data is representative in nature; 65 (2007) 2 SCC 1 H

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A (vii) The representation in Public Works Department (“PWD”) and Karnataka Power Transport Corporation Limited (“KPTCL”) is adequate; (viii) The data collected is with respect to the availability of vacancies and not posts, contrary to the requirements laid out in B Sabharwal’s case; (ix) The data is on sanctioned posts and not posts which have been filled; (x) The data is not cadre based but based on grades A, B, C and D even though Jarnail requires the data to be on the basis of cadre; (xi) The report erroneously assumed that grades A, B, C and correspond to cadres; (xii) The report candidly admits that “in some departments, D corporations like PWD and KPTCL there may be over representation of the percentage mandated”; (xiii) On administrative efficiency: (a) The data is based on general considerations such as economic development; E (b) The efficiencies adverted to in matters of administrative, policy and service are general; and (c) Reliance which has been placed is on performance reports.

F (xiv) The state has followed a strange method of back door entry by filling up vacancies not by selection but through toppers from universities in various departments for gazetted grade and posts. D. Reservation of the Bill to the President

47Copy pinpoint47. 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; H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(ii) On 6 December 2017, the Governor of Karnataka considered it A 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 B 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 required, the Bill was reserved for the President; however no specific issues were referred; and (b) The State government forwarded the Bill to the President, recording at the same time that there was no reason to refer. E (v) The Union Government invited reasons for the reference to which responses were made by the State Government in its clarification; (vi) The Governor was altogether by-passed in this process; and (vii) The Governor has the exclusive authority under Article 200 on the reference and must formulate a specific reference, which F was not done. The Central Government, it was urged, cannot create a reference which has not been made by the state.

48Copy pinpoint48. In order to buttress his submissions, Dr Dhavan relied upon the decisions in Kaiser-I-Hind Pvt Ltd v National Textile Corporation Ltd 66, Gram Panchayat of Village Jamalpur v G Malwinder Singh67 (“Gram Panchayat of Village Jamalpur”), Hoechst Pharmaceuticals Ltd v State of Bihar 68 (“Hoechst 66 (2002) 8 SCC 182 67 (1985) 3 SCC 661 68 (1983) 4 SCC 45 H

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A Pharmaceuticals Ltd”) and Nabam Rebia and Bamang Felix v Deputy Speaker Arunachal Pradesh Legislative Assembly 69 (“Nabam Rebia”). Dr Dhavan urged that: (i) There was no valid reference by the Governor in the absence of specificity on the matter of reference; (ii) The State government consistently indicated that there was no reason to refer the Bill to the President; (iii) The Union Government could not have created a reference where none existed; and (iv) The reference was unconstitutional and the assent of the Governor was not obtained. E. Seniority including consequential seniority

49Copy pinpoint49. The submissions of Dr Dhavan are: D (i) Seniority is determined by the Seniority Rules 1957; (ii) The decision in Badappanavar held that there was no specific rule providing for consequential seniority in the Seniority Rules 1957; E (iii) The amendments in the Seniority Rules 1957 on 18 August 2006 did not effect any change to unsettle the decision in Badappanavar; (iv) The Reservation Act 2002 attempted to overrule Badappanavar and was eventually invalidated in B K Pavitra I; F (v) The Reservation Act 2018 mentions consequential seniority in its title yet Section 5 makes no reference of it and in fact reinforces the Seniority Rules 1957 by implication. The reference to the Rules in Section 5 can only be in the context of the Seniority Rules 1957 as amended. The Seniority Rules 1957 will override G 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; 69 H (2016) 8 SSC 1

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

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

50Copy pinpoint50. In substance, Dr Dhavan’s are as follows: B (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; C (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; D (iv) The Ratna Prabha Committee report is flawed and does not establish inadequacy of representation and impact on administrative efficiency; (v) The Reservation Act 2018 is similar to the Reservation Act 2002 except for (i) Section 5 while mandates reservations; and (ii) E Section 9 which overrules all decisions of the past and pre-empts challenges in the future; (vi) The Seniority Rules 1957 continue not to cover consequential seniority and by the repeal of the Reservation Act 2002, the decision in Badappanavar continues to be good law; F (vii) The uncontrolled backlog is not valid; (viii) A proper exercise must be post and not vacancy based, it must be based on cadres and not on groups A to D; (ix) The counter affidavit of the State admits the flaws of the process G denying curative effect to the exercise; and (x) The Reservation Act 2018 has failed to pass muster and its non- compliant with the decisions in Nagaraj and Jarnail.

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51Copy pinpoint51. Mr Shekhar Naphade, learned Senior Counsel submitted that: (i) The decision in B K Pavitra I has attained finality and a subsequent change in law cannot abrogate the principle of res judicata; (ii) As held in the decision of this Court in Pandit M S M Sharma B v Dr Krishna Sinha70, whether an earlier judgment is right or wrong is not material to the applicability of the doctrine of res judicata; (iii) The subsequent decision in Jarnail is not a ground for review and, in any event, a review of B K Pavitra I by the state will C not lie; (iv) In view of the explanation to Order XLVII of the CPC, a reversal on a question of law in a subsequent decision of a superior court is not a ground for review;

D (v) An error of law is no ground for review (State of West Bengal v Kamal Sengupta71); (vi) The Reservation Act 2018 is based on a report which furnishes factual data: this could have been furnished in the earlier round. The legislature has taken recourse to exercise of judicial power; E (vii) The provisions of the Reservation Act 2018 are virtually the same as those of the Reservation Act 2002; (viii) The basis of legislative intervention was the collection of data: the attempt is to place fresh material before the Court to review its decision in B K Pavitra I. There is no change in law; F (ix) Retrospectivity of the Reservation Act 2018 from 1978 is arbitrary; (x) There is no change in the basis of the law. The basis is a change in the factual matrix which is not available as a ground for review;

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

70 AIR 1960 SC 1186 71 (2008) 8 SCC 612 H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(xii) The second proviso to Article 200 and Article 254 (2) of the A 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; B (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. C

52Copy pinpoint52. 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 D consequential seniority retrospectively to vacancy based roster point promotees and is not concerned with the state exercising its enabling power to provide for reservation in promotions. The Government Order72 dated 27 April 1978 by which reservation for persons belonging to SCs and STs in specified categories of promotional posts was introduced cannot be “justified” by a E satisfaction on the basis of the Ratna Prabha Committee report; (ii) Article 16 (4A) confers a discretion upon the state to provide for reservations in promotion with or without consequential seniority. Nagaraj mandates that there have to exist compelling reasons and the satisfaction of the state before exercise of its F powers under Article 16 (4A). In view of the decision in Panneer Selvam, automatic conferment of consequential seniority can no longer be sustained; and (iii) The fact that the eighty-fifth amendment has been made retrospective from 17 June 1995 cannot enable the state to make G a provision for the first time by exercising powers retrospectively and consequently taking away vested rights which legitimately accrued upon the general category employees.

72 G.O. No. DPAR 29 SBC 77 H

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A C.2. Submissions for the respondents and intervenors

53Copy pinpoint53. Appearing for the State of Karnataka, Mr Basava Prabhu S Patil, learned Senior Counsel submitted thus: A. The basis of B K Pavitra I has been altered B (i) The Reservation Act 2018 has taken away the basis of the judgment in B K Pavitra I and the protection of seniority with retrospective effect which is permissible in law: (a) The Reservation Act 2018 does not seek to overrule or nullify simpliciter the decision in B K Pavitra I. The C law was enacted to provide consequential seniority for roster point promotees after collecting data showing the existence of the compelling reasons of : (i) backwardness; (ii) inadequacy of representation; and (iii) overall efficiency. Hence, the Reservation Act 2018 removes the basis of the decision in B K Pavitra I; D (b) The state legislature is competent to enact a law with retrospective or retroactive operation. The legislative competence of the State Legislature to enact law is traceable to Article 16 (4A). Merely because the legislation confers seniority with effect from 1978, will E not lead to its invalidation (Cheviti Venkanna Yadav v State of Telangana73 (“Cheviti Venkanna Yadav”), Utkal Contractors & Joinery (P) Ltd v State of Orissa74 (“Utkal Contractors and Joinery (P) Ltd”) and State of Himachal Pradesh v Narain Singh75 F (“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. G The Reservation Act 2018 protects consequential seniority accorded from 27 April 1978 (the date of the 73 (2017) 1 SCC 283 74 (1987) Supp. SCC 751 75 (2009) 13 SCC 165 H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

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; C (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 wisdom underlying the exercise of the legislative power. The motives of the legislature in enacting a law are incapable of being judicially evaluated; and D

(f) Seniority is not a vested or an accrued right and hence it is open for the legislature to enact a law for dealing with it. (ii) The Reservation Act 2018 is not of the same genre of legislation dealt with in the decision of Madan Mohan Pathak: (a) Madan Mohan Pathak involved a challenge by the employees of the Life Insurance Corporation to the constitutional validity of a Parliamentary law which attempted to render ineffective a settlement with employees for the payment of bonus. The judgment does not deal with a case where the basis of the invalidity of a legislation noticed in a judicial decision is taken away by a subsequent law; and (b) Madan Mohan Pathak in fact, notices that in the case of a declaratory judgment holding an action to be invalid, validating legislation to remove the defect is permissible. (iii) The collection of data by the State must demonstrate the presence of compelling reasons namely, (a) inadequacy of representation; (b) backwardness; and (c) overall administrative efficiency as enunciated in Nagaraj and B K Pavitra I; H

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A (iv) The decision in Indra Sawhney holds that the question as to whether a backward class of citizens is not adequately represented in the services under the state is a matter of subjective satisfaction; (v) Nagaraj also notices the position that there is a presumption that the state is in the best position to define and measure merit and that there is no fixed yardstick to identify and measure the three factors on which quantifiable data has to be collected; (vi) The decision in Jarnail also holds that the test of determining the adequacy of representation in promotional posts is left wisely to the states; and (vii) The Reservation Act 2018 was enacted after the State was satisfied about the existence of the three compelling reasons. B. The Ratna Prabha Committee has dealt with all the three facets constituting the ‘compelling reasons’: D

1. Backwardness (i) The decision in Jarnail has clarified that there is no requirement of collecting quantifiable data on the backwardness of SCs and STs. The observation in Nagaraj is contrary to the larger Bench decision in Indra Sawhney. E (ii) Yet, in any event, the Ratna Prabha 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. F

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; G (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 to draw a conclusion about the inadequacy of representation; (iii) The decisions in Indra Sawhney and Sabharwal are clear in H postulating that persons belonging to the SCs and STs who are

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

appointed against general category posts/vacancies are not to A 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 B them is no ground to deny promotion to group D employees recruited against the reserved category.

3. Administrative efficiency (i) Para 3.12 of Chapter III of the Ratna Prabha Committee report has considered all relevant aspects before coming to the C conclusion that reservations in promotion do not affect administrative efficiency; (ii) Promotions are made on the basis of seniority-cum-merit. [Rule 19(3)(a) of the Rules 1977] Only those candidates who fulfil the criteria of merit/suitability are promoted based on seniority. Since D this criterion is applicable even in respect of roster promotions, the efficiency of administration is not adversely impacted; and (iii) On promotion, a candidate is required to serve a statutory period of officiation before being confirmed in service. This applies to all candidates including roster point promotees and ensures that E the efficiency of administration is not adversely affected. C. The challenge on the ground that the Reservation Act 2018 does not exclude the benefit of consequential seniority in respect of the creamy layer in terms of the decision in Jarnail is baseless: F (i) Creamy layer as a concept can be applied only at the entry level or at appointment and has no application while granting reservations in promotion and allowing for consequential seniority. The Reservation Act 2018 provides only for consequential seniority and the extent of reservation granted to G SCs and STs at the entry level/ in appointment is not under challenge; (ii) Even assuming that the concept of creamy layer can be applied at the stage of promotion, it is inapplicable to the conferment of H

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A consequential seniority. Consequential seniority is not an additional benefit but a consequence of promotion; (iii) Appointment to a post or progression in career based on promotion cannot be treated as acquisition of creamy layer status. In fact, the decision in Jarnail makes it clear that the B concept of creamy layer applies only to the entry stage; (iv) Nagaraj does not hold that the exclusion of the creamy layer is a pre-condition for the exercise of the enabling power under Article 16 (4A) for providing promotion or consequential seniority; C (v) In the decision in B K Pavitra I, the challenge to the Reservation Act 2002 was accepted on the ground that the State had not carried out an exercise for determining inadequacy of representation, backwardness and overall efficiency of administration. B K Pavitra I did not accept the plea of the D 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 E 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 backlog is filled) in favour of SCs and STs by maintaining H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

their representation to the extent of 15 per cent and 3 per cent A of the total working strength (and not vacancies). E. There was no constitutional infirmity in the Governor of Karnataka having reserved the Reservation Act 2018 for the consideration of the President. The Governor in reserving the Bill for consideration of the President B acted in pursuance of the provisions of Article 200 of the Constitution. The Governor may under Article 200 (i) declare assent to a Bill; or (ii) declare the withholding of assent; or (iii) reserve a Bill for consideration of the President. The power of the Governor to reserve a Bill for consideration of the President is not subject to the existence of a C repugnancy under Article 254 (2). The action of the Governor is non- justiciable. (Hoechst Pharmaceuticals Ltd) F. The assent of the Governor is not contemplated once the President has given assent to a Bill. Neither Article 200 nor Article 201 contemplates that the Bill should be presented again before the Governor after it has been assented to by the President. Section 5(1)(iv) of the Karnataka General Clauses Act 1899 postulates that an Act passed by the Karnataka legislature shall come into operation on the day on which the assent of the Governor or, as the case may be, of the President is granted and is first published in the Official Gazette. Hence, once the assent of the President is granted, the necessity of a further assent by the Governor is obviated. G. The submission that in Karnataka Power Transport Corporation Limited, as a consequence of the reservation in seniority in the cadre of Superintending Engineer and Engineer- F in-Chief, there was over representation for SCs and ST between 2005 and 2016 is erroneous. (i) There is no reservation for promotion to the posts of Superintending Engineer and Engineer-in-Chief in KPTCL. Reservation in promotion and consequential seniority is available G only up to the post of Assistant Executive Engineer. In fact, if consequential seniority were not to be granted on promotion up to the post of Assistant Executive Engineer, there would be excessive under-representation of reserved category candidates. The Ratna Prabha Committee report, in paragraph 2.4, took note of the total number of officials/employees working in thirty H

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A one government departments of the State 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 B 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.

54Copy pinpoint54. Ms Indira Jaising76, 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 Thomas77 D (“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 Classes78. Social justice is concerned with the distribution of benefits and burdens. The Reservation Act E 2018, in providing for consequential seniority, furthers the vision of substantive equality and is valid; (ii) Affirmative action under Article 15 (4) and reservation under Article 16 (4) of the Constitution are intended to ensure that all sections of the society are represented equally in services under F the state. The Reservation Act 2018 underlies this salient objective and furthers the promotion of the interests of the SCs, STs and other weaker sections as stipulated in Article 46 of the Constitution; (iii) Article 16 (4A) is an enabling provision which empowers the G State to frame rules or enact a legislation granting reservations in promotions with consequential seniority subject to the fulfilment of the conditions laid down in Nagaraj and modified by Jarnail. 76 In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018 77 (1976) 2 SCC 310 78 H OBCs

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

Following the decision in Jarnail, the state is required to show A data only on the inadequacy of representation and efficiency of administration. The State of Karnataka, in exercise of the enabling power under Article 16 (4A) enacted the Reservation Act 2018 in compliance with the conditions precedent to the exercise of the power stipulated in that Article; B (iv) The decision in Sabharwal lays down that in determining the inadequacy of representation of SCs and STs in promotional posts, the state may take the total population of a particular class and its representation in the service. The State has studied the extent of reservation in posts for SCs and STs in a ‘group’ which is a collection of cadres. Hence, it cannot be said that the state failed to collect quantifiable data on the representation of SCs and STs in promotional posts. Without the grant of consequential seniority, the percentage of reservation will not reach the prescribed percentage; (v) No statistical studies have been provided to show that the grant of consequential seniority has led to the lowering of efficiency in administration. It cannot be presumed that the appointment of SCs and STs will lead to a lowering of efficiency as at the individual level, all individuals belonging to SCs and STs must also achieve the minimum benchmark of ‘good’; E (vi) The Reservation Act 2002 was struck down on the basis of the failure of the state to collect quantifiable data. The Reservation Act 2018 has been enacted on the basis of data collected and studied in the Ratna Prabha Committee report. Hence, the basis of the decision in B K Pavitra I has been removed. Additionally, F 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 G 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

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A (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 B 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 creamy layer, if applicable, can only be applied at the entry level and not in promotions.

55Copy pinpoint55. Mr Dinesh Dwivedi79, learned Senior Counsel appearing on behalf of the intervenor (Karnataka SC/ST Engineers’ Welfare Association), urged the following submissions: (i) The decision in Nagaraj was concerned with whether reservation in promotion as inserted in Article 16 (4A) by the Constitution D (Seventy-seventh Amendment) Act 1995 and the enabling provision for the grant of consequential seniority under Article 16 (4A) inserted by the Constitution (Eighty-fifth Amendment) Act 2001 violated the basic structure of the Constitution. The decision in Nagaraj was concerned with reservations in promotion and did not equate reservation in promotion with the grant of consequential seniority. In this view, the four controlling factors, namely (i) backwardness; (ii) adequacy of representation; (iii) elimination of the creamy layer; and (iv) efficiency of administration have relevance only to the exercise of the enabling power under Article 16 (4A) for making reservation in promotion and not the exercise of the enabling power to grant consequential seniority; (ii) Reservation in promotion was introduced in the State of Karnataka by the Government Order dated 27 April 1978 and continues to be in operation. The Reservation Act 2018 stipulates the grant of consequential seniority which is premised on the prior existence and operation of reservation in promotion. Absent a challenge to the Government Order dated 27 April 1978 in the present proceedings, the petitioner is precluded from challenging the grant of consequential seniority in the Reservation Act 2018; H 79 In I.A. No. 102966 of 2018 in W. P. (C) No. 791 of 2018

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) Consequential seniority is nothing but the normal rule of seniority which accords seniority to roster point promotees from the date of their substantive promotion. The catch-up rule is an exception to the normal rule of seniority. Prior to the decision in Indra Sawhney, accelerated seniority to roster point promotees existed in the State of Karnataka with the application of the continuous officiation rule. This is supported by Rule 2(b) of the 1957 Rules. Para III (d) of the Government Order dated 27 April 1978 provided for the application of the catch-up rule only in a limited manner. Rule 4 is restricted in its application to appointments made on the same day which implies that in the absence of its 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 E 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 Virpal Singh are fortified by the decision in Nagaraj which held that the catch-up rule and consequential seniority are principles of service jurisprudence and cannot be elevated to a constitutional status. The discretion to choose between consequential seniority and catch-up vests with the state. The Reservation Act 2018, in stipulating for consequential seniority, is a valid exercise of discretion by the State; and H

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

56Copy pinpoint56. Mr Lakshminarayana, learned Senior Counsel has submitted B thus: (i) The issue as to whether reservation under Article 16 (4A) can be provided by an executive order was answered in the affirmative in the judgment of Justice BP Jeevan Ready speaking for a plurality of judges in Indra Sawhney. The word ‘provision’ C in Article 16 (4) was interpreted in contrast with the word ‘law’ in clauses (3) and (5) of Article 16. The word ‘any’ and the word ‘provision’ in Article 16 (4) must be given their due meaning. Article 16 (4) is exhaustive as a special provision in favour of the backward class of citizens. Backward classes having been classified by the Constitution as a class deserving special treatment and the Constitution itself having specified the nature of the special treatment, it should be presumed that no further classification or special treatment is permissible in their favour outside Article 16 (4). In light of the decision in Indra Sawhney, it is now a settled principle that a provision for reservation can be made by the legislature, by statutory rules and by executive orders; (ii) Provisions for reservation in promotions were introduced in Karnataka by the Government Order dated 27 April 1978 on the basis of the inadequacy of representation of SCs and STs in public services under Article 16 (4). After the report on the inadequacy of representation dated 30 August 1979, first and second roster points were reserved for SCs and STs. The principle of consequential seniority is adopted by clause (vii) of the Government Order dated 27 April 1978 and clause (d) of the Government Order dated 1 June 1978; G (iii) Clause (vii) of the Government Order 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;

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iv) The words “on any occasion” in clause (vii) were amended by A 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; B (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 C 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 D Other Backward Classes (Reservation of Appointment etc.,) Act 1990; (c) The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.,) Rules 1992; and E (d) The Karnataka State Civil Services (Unfilled Vacancies Reserved for the persons belonging to the Scheduled Castes and the Scheduled Tribes) (Special Recruitment) Rules 2001. F The above provisions were followed by the Reservation Acts of 2002 and 2017. (vii) With effect from 1 April 1992, the State of Karnataka inserted the proviso to Rule 8 in the Rules 1977 which reads as follows: “8. Provision for reservation of appointments or posts.- G Appointments or posts shall be reserved for the members of the Scheduled Castes, Scheduled Tribes, and Other Backward Classes to such extent and in such manner as may be specified by the government under clause (4) of Article 16 of the Constitution of India. H

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A Proviso to Rule 8 80 [Provided that, notwithstanding anything in the rules of Recruitment specially made in respect of any Service or Post, the backlog vacancies in the promotional quota shall be determined and implemented with effect from 27th April,1978. B Note.– The backlog vacancy means the extent of the number of vacancies available under the roster system up to the level of lowest category in Group-A post calculated from 27th April, 1978.].” The above Rule was upheld in Bhakta Ramegowda; C (viii) The Government Order dated 24 June 1997 provided additional roster points to cover up backlog promotional roster points, both in promotion and direct recruitment. Clauses (iv) and (v) of para 8 of the Government Order dated 24 June 1997 reads as follows : D “Clause (IV). After effecting review of promotion and adjustment and fitment as indicated in item (iii) above, if some more persons belonging to scheduled castes and scheduled tribes who have already been promoted against backlog cannot get adjusted due to want of adequate number of vacancies as per the aforesaid roster points, such persons shall be adjusted and fitted in accordance with the procedure specified in item (iii) while effecting promotion in respect of future vacancies. Until such time, shall be continued against supernumerary posts to be created by the concerned Administrative Department. For this purpose, the Secretaries to Government are hereby delegated the power to create supernumerary posts presuming the concurrence of Finance Department and to that extent the Government Order No. FD 1 TFP 96, dated 10.07.1996, shall be deemed to have been modified accordingly. G Clause (V) While adjusting and fitting promote[e]s as indicated in item (iii) and (iv) above, the inter-se seniority among the General category, 80 Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992 H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(xi) Reserved candidates who have been appointed or promoted on merit as general candidates cannot be included in calculating adequacy of representation of backward classes in operating the roster points. Only reserved candidates promoted against roster points are to be taken into account in considering the adequacy of representation; (xii) A cadre includes different grades and reservation can be provided in different grades within the cadre. The reservation policy contained in the Government Order dated 27 April 1978 has been re-issued on 17 April 1993 and 11 May 1993 after the decision in Indra Sawhney; (xiii) Both clauses (1) and (4) of Article 16 operate in the same field. Both are directed towards achieving equality of opportunity in services under the State. The formation of opinion by the State on the adequacy of representation is a matter of subjective H

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A satisfaction and the test is whether there was some material before the State to justify its opinion. In the exercise of judicial review, the court would extend due deference to the judgment and discretion of the executive. Even if there are some errors on the part of the State Government, that would not in any way result in the invalidation of the entire exercise; B (xiv) Efficiency of administration means governance which provides responsive service to the people. Merit alone is not a component of efficiency. Once an employee is promoted, efficiency is judged on the basis of the annual confidential reports; C (xv) A curative legislation does not constitute an encroachment on judicial power by the State Legislature. Similarly, it is open to the legislature to enact a legislation both with retrospective and prospective effect; (xvi) Judicial review cannot extend to examine the adequacy of the D material available before the President and unless, there is a situation involving a fraud on power or conduct actuated by oblique motive, the court would not intervene; (xvii) The principle of creamy layer has no application to in-service candidates; and E (xviii) The State having rectified the lacuna which was pointed out in B K Pavitra 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 F for SCs and STs in public services has continued until date without interruption.

57Copy pinpoint57. 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 G 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 H of judicial review. These propositions have been accepted in the

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

decisions of this Court in Indra Sawhney, Barium Chemicals A Ltd. v Company Law Board81 (“Barium Chemicals Ltd.”), Rohtas Industries v S D Agarwal82 and Rustom Cavasjee Cooper v Union of India83; (ii) The expression ‘to any class or classes of posts’ in Article 16(4) makes it abundantly clear that the phrase refers to a ‘class’ or B ‘group’ and not a cadre. The use of the word ‘services’ in the phrase ‘services under the state’ in Article 16 (4A) supports this contention. The decisions in Sabharwal and Nagaraj clarify that cadre strength is to be applied in the operation of the roster. The reference to ‘entire cadre strength’ in Sabharwal adverted to the fact that the entire cadre strength should be taken into C account in determining whether reservation up to the quota limit has been reached. In this view, ‘entire cadre strength’ is the reference point to (i) ascertain the position of representation in the entire service; (ii) determine whether reservation up to the quota limit has been reached in the application of the roster; and D (iii) the cadre strength has been applied in the operation of the roster. It was urged that if the percentages were calculated on the basis of vacancies, the actual appointments made may exceed the prescribed quota. Reliance has been placed on the decisions of this Court in Indra Sawhney, Nagaraj, and Jarnail; E (iii) The decision in Indra Sawhney does not deal with SCs and STs in regard to the creamy layer principle. In any case, even if the principle applies to SCs and STs, it would only be applicable at the stage of appointments and not for promotional posts; and (iv) The percentages in the PWD which are marginally above the F stipulated quota are by way of including those reserved category candidates who were selected on general merit. This is contrary to the law laid down by this Court in Sabharwal, Indra Sawhney and Ritesh Sah v Y L Yamul84.

58Copy pinpoint58. The rival submissions now fall for consideration. G

59Copy pinpoint59. Other Counsel, who argued and submitted their written submissions, have with certain nuances, reiterated similar arguments. 81 AIR 1967 SC 295 82 (1969) 1 SCC 325 83 (1970) 1 SCC 248 84 (1996) 3 SCC 253 H

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A D. Assent to the Bill

60Copy pinpoint60. Besides the Governor, the legislatures of the States consist of a bicameral legislature for some States and a unicameral legislature for others.85

61Copy pinpoint61. Article 200 is the provision which enunciates the power of the B Governor to assent to a Bill, withhold assent or reserve a Bill for considering of the President: “200. When a Bill has been passed by the Legislative Assembly of a State or, in the 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 the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

85 G Article 168. (1) For every State there shall be a Legislature which shall consist of the Governor, and — (a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra], [Karnataka], [[Tamil Nadu, Telangana]] [and Uttar Pradesh], two Houses; (b) in other States, one House. (2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only H one House, it shall be known as the Legislative Assembly.

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Article 201 deals with what is to happen when the Governor A reserves a Bill for the consideration of the President. “201. When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President B may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.” Upon a Bill being passed by the Houses of the legislature (or by the sole House where there is only a legislative assembly), it has to be presented to the Governor. The Governor can (i) assent to the Bill; (ii) withhold assent; or (iii) reserve the Bill for the consideration of the President.

62Copy pinpoint62. Where a Bill is not a Money Bill, the Governor may return the Bill for reconsideration upon which the House or Houses, as the case may be, will reconsider the desirability of introducing the amendments which the Governor has recommended. If the Bill is passed again by the House (or Houses as the case may be), the Governor cannot thereafter withhold assent. The second proviso to Article 200 stipulates that the Governor must not assent to a Bill but necessarily reserve it for the consideration of the President if the Bill upon being enacted would derogate from the powers of the High Court in a manner that endangers its position under the Constitution. Save and except for Bills falling within the description contained in the second proviso (where the Governor must reserve the Bill for consideration of the President), a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200. Aside from Bills which are covered by the second proviso, where the Governor is obliged to reserve the Bill for the consideration of the President, the substantive 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. H

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A 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…”86 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), the law and the rules regulating his functions. It is easy to forget that the Governor is a constitutional or formal head—nevertheless like everybody else, he has to play the game in accordance with the rules of the game—whether it is in relation to the Executive (aid and advice of the Council of E Ministers) or the Legislature (Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly). This is not to say that the Governor has no powers—he does, but these too are delineated by the Constitution either specifically or by necessary implication…”87

63Copy pinpoint63. The framers carefully eschewed defining the circumstances in which the Governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories. Exigencies may arise in the working of the Constitution which justify a recourse to the power of reserving a Bill G for the consideration of the President. They cannot be foreseen with the vision of a soothsayer. The power having been conferred upon a constitutional functionary, it is conditioned by the expectation that it would be exercised upon careful reflection and for resolving legitimate concerns 86 Supra 69 at page 159 87 H Ibid at page 244

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in regard to the validity of the legislation. The entrustment of a A constitutional discretion to the Governor is premised on the trust that the exercise of authority would be governed by constitutional statesmanship. In a federal structure, the conferment of this constitutional discretion is not intended to thwart democratic federalism. The state legislatures represent the popular will of those who elect their representatives. They B are the collective embodiments of that will. The act of reserving a Bill for the assent of the President must be undertaken upon careful reflection, upon a doubt being entertained by the Governor about the constitutional legitimacy of the Bill which has been passed.

64Copy pinpoint64. Dr Dhavan in the course of his submissions, has dwelt at length on the power which is entrusted to the Governor to reserve a Bill C for the consideration of the President under Article 254 (2). Article 254 (2) deals with a situation where a law which has been enacted by the legislature of a state on a matter which is enumerated in the Concurrent List of the Seventh Schedule contains any provision which is repugnant either to an earlier law made by Parliament or 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.

65Copy pinpoint65. 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 Parliament. The Constitution Bench held: “12…The assent of the President under Article 254(2) of the Constitution is not a matter of idle formality. The President has, at least, to be apprised of the reason why his assent is sought if, H

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A there is any special reason for doing so. If the assent is sought and given in general terms so as to be effective for all purposes, different considerations may legitimately arise. But if, as in the instant case, the assent of the President is sought to the Law for a specific purpose, the efficacy of the assent would be limited to that purpose and cannot be extended beyond it.”88 B

66Copy pinpoint66. A similar principle was adopted in Kaiser-I-Hind Pvt Ltd. The case concerned rent legislation in Maharashtra and the Public Premises (Eviction of Unauthorized Occupants) Act 1971 enacted by Parliament. This Court held that where the assent was given after considering the repugnancy between the Bombay Rent Act, the Transfer C of Property Act and the Presidency Small Cause Courts Act, it was not correct to hold that the state law would prevail over another parliamentary enactment for which no assent had been sought. In that context, the Court held: “65… 2. (a) Article 254(2) contemplates “reservation for consideration of the President” and also “assent”. Reservation for consideration is not an empty formality. Pointed attention of the President is required to be drawn to the repugnancy between the earlier law made by Parliament and the contemplated State legislation and the reasons for having such law despite the enactment by Parliament. (b) The word “assent” used in clause (2) of Article 254 would in context mean express agreement of mind to what is proposed by the State.”89

67Copy pinpoint67. These decisions are specifically in the context of Article 254. F Article 254(1) postulates inter alia, that in a matter which is governed by the Concurrent List, a law which has been enacted by the legislature of a state shall be void to the extent of its repugnancy with a law enacted by the Parliament. Clause (2) of Article 254 obviates that consequence where the law has been reserved for the consideration of the President G and has received assent. Article 254(1) is made subject to Clause (2), thereby emphasizing that the assent of the President will cure a repugnancy of the state law with a law enacted by the Parliament in a matter falling in the Concurrent List. It is in this context, that the decisions 88 Supra 67 at pages 668-669 89 H Supra 66 at pages 215-216

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of this Court hold that the assent of the President should be sought in A 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. B 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 C 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. Article 200, in its second proviso mandates that a Bill which derogates from the powers of the High Court must be reserved for the consideration of the President. Apart from Bills which fall within the description set out in the second proviso, the Governor may legitimately refer a Bill for consideration of the President upon entertaining a legitimate doubt about the validity of the law. By its very nature, it would not be possible for this Court to reflect upon the situations in which the power under Article 200 can be exercised. This was noticed in the judgment of this Court in Hoechst. Excluding it from judicial scrutiny, the Court held: “86…There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. This aspect of the matter, as the law now stands, is not open to scrutiny H

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A by the courts. In the instant case, the Finance Bill which ultimately became the Act in question was a consolidating Act relating to different subjects and perhaps the Governor felt that it was necessary to reserve it for the assent of the President. We have no hesitation in holding that the assent of the President is not justiciable, and we cannot spell out any infirmity arising out of his decision to give such assent.”90

68Copy pinpoint68. Hoechst is an authority for the proposition that the assent of the President is non - justiciable. Hoechst also lays down that even if, as it turns out, it was not necessary for the Governor to reserve a Bill for the consideration of the President, yet if it was reserved for and received the assent of the President, the law as enacted cannot be regarded as unconstitutional for want of ‘proper’ assent.

69Copy pinpoint69. The above decisions essentially answer 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 BK 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.

G The State Government to overcome the situation which was found fault with by the Supreme Court in the aforesaid judgment has come out with a Bill, which is now sent for my assent. Having regard to the judgment of the Supreme Court in the aforesaid case and importance of the issue and the Constitutional 90 H Supra 68 at pages 100-101

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

interpretation involved in the matter, I deem it appropriate to reserve the matter for the consideration of the President. Accordingly, the Bill is reserved for the consideration of the President under Article 200 of the Constitution of India.”

70Copy pinpoint70. The state government, in the course of its clarifications, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights. All procedural requirements under the Constitution were according 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. E. Does the Reservation Act 2018 overrule or nullify B K Pavitra I D

71Copy pinpoint71. The foundation of the decision in B K Pavitra I is the principle enunciated in Nagaraj that in order to sustain the exercise of the enabling power contained in Article 16 (4A), the state is required to demonstrate a “compelling necessity” by collecting quantifiable data on: (i) inadequacy of representation; (ii) backwardness; and (iii) overall efficiency. The E judgment in B K Pavitra I held that no such exercise was undertaken by the State of Karnataka before providing for reservation in promotion and providing for consequential seniority. On the ground that the state had not collected quantifiable data on the three parameters enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional. F The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the basis that before taking recourse to the enabling power the state has to carry out the exercise of collecting quantifiable data and fulfilling the three parameters noted above. B K Pavitra I essentially held that there was a failure on the part of the state to undertake this exercise, which was a pre-condition for the exercise of the enabling power to G make reservations in promotions and to provide for consequential seniority.

72Copy pinpoint72. 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 H

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A 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 B 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 Pavitra C I, but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place. Such a law is valid because it removes the basis of the decision.

73Copy pinpoint73. These principles have consistently been reiterated in a line of precedents emerging from this Court. In Utkal Contractors and D Joinery (P) Ltd, this Court held: “15. …The legislature may, at any time, in exercise of the plenary power conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law. There is no prohibition against retrospective legislation. The power of the legislature to pass a law postulates the power to pass it prospectively as well as retrospectively. That of course, is subject to the legislative competence and subject to other constitutional limitations. The rendering ineffective of judgments or orders of competent courts by changing their basis by legislative enactment is a well-known pattern of all validating acts. Such validating legislation which removes the causes of ineffectiveness or invalidity of action or proceedings cannot be considered as encroachment on judicial power. The legislature, however, cannot by a bare declaration, without more, directly overrule, reverse or set aside any judicial decision…”91 G (See also in this context : Bhubaneshwar Singh v Union of India 92, Indian Aluminium Co v State of Kerala 93 (“Indian Aluminium Co”), Narain Singh94 and Cheviti Venkanna Yadav). 91 Supra 74 at page 759 92 (1994) 6 SCC 77 93 (1996) 7 SCC 637 H 94 (2009) 13 SCC 165

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74Copy pinpoint74. The legislature has the power to validate a law which is found to be invalid by curing the infirmity. As an incident of the exercise of this power, the legislature may enact a validating law to make the provisions of the earlier law effective from the date on which it was enacted (The United Provinces v Mst Atiqa Begum95 and Rai Ramkrishna v State of Bihar96). These principles were elucidated in the decision of this Court in Prithvi Cotton Mills Ltd. The judgment makes a distinction between a law which simply declares that a decision of the court will not bind (which is impermissible for the legislature) and a law which fundamentally alters the basis of an earlier legislation so that the decision would not have been given in the altered circumstances. This distinction is elaborated in the following extract: C “4. … Granted 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.”97

75Copy pinpoint75. In State of T N v Arooran Sugars Ltd98, 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 authority. This Court held: “16…It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be 95 AIR 1941 FC 16 96

(1964) 1 SCR 897

97 Supra 55 at pages 286-287 98 (1997) 1 SCC 326 H

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A said that there has been an encroachment by the legislature over the power of the judiciary. A court’s directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or B substitution of provisions of the enactment on which such judgment is based, with retrospective effect.”99 The same principle was formulated in the decision of this Court in Virender Singh Hooda v State of Haryana100: C “59. …vested rights can be taken away by retrospective legislation by removing the basis of a judgment so long as the amendment does not violate the fundamental rights. We are unable to accept the broad proposition… that the effect of the writs issued by the courts cannot be nullified by the legislature by enacting a law with retrospective effect. The question, in fact, is not of nullifying the effect of writs which may be issued by the High Court or this Court. The question is of removing the basis which resulted in issue of such a writ. If the basis is nullified by enactment of a valid legislation which has the effect of depriving a person of the benefit accrued under a writ, the denial of such benefit is incidental to the power to enact a legislation with retrospective effect. Such an exercise of power cannot be held to be usurpation of judicial power…”101

76Copy pinpoint76. A declaration by a court that a law is constitutionally invalid does not fetter the authority of the legislature to remedy the basis on which the declaration was issued by curing the grounds for invalidity. While curing the defect, it is essential to understand the reasons underlying the declaration of invalidity. The reasons constitute the basis of the declaration. The legislature cannot simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires. A law may have been held to be invalid on the ground that the legislature which enacted the law had no legislative competence on the subject matter of the legislation. Obviously, in such a case, a legislature which has been held to lack legislative competence cannot arrogate to 99 Ibid at page 340 100 (2004) 12 SCC 588 101 H Ibid at page 616

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itself competence over a subject matter over which it has been held to A 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 B 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 declared invalid on the ground that there was a breach of the fundamental rights contained in Part III of the Constitution. In that situation, if the legislature proceeds to enact a new law on the subject, the issue in essence is whether the re-enacted law has taken care to remove the infractions of the fundamental rights on the basis of which the earlier law was held to be invalid. The true test therefore is whether the legislature has acted within the bounds of its authority to remedy the basis on which the earlier law was held to suffer from a constitutional infirmity. E

77Copy pinpoint77. The petitioners have placed a considerable degree of reliance on the decision in Madan Mohan Pathak, where a law – The Life Insurance Corporation (Modification of Settlements) Act 1976 was enacted by Parliament to render ineffective a settlement which was arrived at between LIC and its employees for the payment of bonus. F The law was challenged by the employees. In that case, there was a judgment of the Calcutta High Court which had given effect to the right of the employees to an annual cash bonus under an industrial settlement, by the issuance of a writ of mandamus. The mandamus bound the parties to the dispute. It was in this backdrop that the Constitution Bench observed that the effect of the mandamus issued by the High Court G could not simply be nullified by enacting a law overriding the industrial settlement. This Court held: “9...Here the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute H

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A can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a writ of mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance 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.”102

78Copy pinpoint78. 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.

79Copy pinpoint79. 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 Union of India103, where it was held that: G “14. While appreciating the ratio of the said opinions, it is necessary to bear in mind the basic fact that the settlement between the Corporation and its employees was not based upon any statute or 102 Supra 56 at page 67 103 1994 Supp. (2) SCC 726 H

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statutory provision. Sub-sections (1) and (3) of Section 18 of the A Industrial Disputes Act provide merely the binding nature of such settlements; they do not constitute the basis of the settlements. The settlement between the parties was directed to be implemented by the High Court. In other words, it was not a case where the High Court either struck down a statutory B provision nor was it a case where a statutory provision was interpreted in a particular manner or directed to be implemented. It was also not a case where the statutory provision, on which the judgment was based, was amended or altered to remove/rectify the defect.”104 (Emphasis supplied) C

(ii) Indian Aluminium Co, where it was held that: “49. In Madan Mohan Pathak v. Union of India (1978) 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334]… From the observations made by Bhagwati, J. per majority, it is clear that this Court did not intend to lay down that Parliament, under no circumstance, has power to amend the law removing the vice pointed out by the court. Equally, the observation of Chief Justice Beg is to be understood in the context that as long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Thus understood, it is unexceptionable. But it does not mean that the learned Chief Justice intended to lay down the law that mandamus issued by court cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the court.”105 F (Emphasis supplied) (iii). Agricultural Income Tax Officer v Goodricke Group Ltd106, where it was held: “14. We are of the view that Madan Mohan Pathak case [(1978) G 2 SCC 50 : 1978 SCC (L&S) 103 : (1978) 3 SCR 334] would not apply to the facts in the present case for the simple reason that

104 Ibid at pages 736-737 105 Supra 93 at page 660 106 (2015) 8 SCC 399 H

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A what has been undone by Section 4-B and Section 78-C is not a mandamus issued by a superior court. What is undone is the very basis of the judgment in Buxa Dooars Tea Co. Ltd. case[(1989) 3 SCC 211 : 1989 SCC (Tax) 394] by retrospectively changing the levy of rural employment cess and education cess.”107 (Emphasis supplied) B

80Copy pinpoint80. 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.

81Copy pinpoint81. 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.”108

E 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 Reservation Act 2018. That would require this Court to examine the challenge on the ground that there has been a violation of the equality code contained in Articles 14 F and 16. E.I. Is the basis of B K Pavitra I cured in enacting the Reservation Act 2018

82Copy pinpoint82. The Statement of Objects and Reasons of the Reservation Act 2018 refers to the legislative history preceding its enactment. The G Ratna Prabha Committee was constituted after the Reservation Act 2002 was held to be invalid in B K Pavitra I on the ground that no compelling necessity had been shown by the state to provide for 107 Ibid at page 407 108 Supra 5 at page 641 H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

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

83Copy pinpoint83. The Statement of Objects and Reasons is extracted below, insofar as it is material: “The Hon’ble Supreme Court of India in its judgment dated: 09.02.2017 in the case of BK Pavitra and others Vs Union of India and others in Civil Appeal No. 2368 of 2011 and connected matters while dealing with the issue of consequential seniority provided to the Scheduled Castes and Scheduled Tribes, having regard to the ratio of the decision of the Constitution Bench in M.Nagaraj in Writ Petition No. 61 of 2002 has observed that a proper exercise for determining ‘inadequacy of representation’ ‘backwardness’ and ‘overall efficiency’ is a must for exercise of power under Article 16 (4A). The court held that in the absence of this exercise under Article 16 (4A) it is the “catch-up” rule that shall be applicable. Having observed this the Court declared the provisions of Sections 3 and 4 of the Karnataka Act 10 of 2002 to be ultra vires of Articles 14 and 16 of the Constitution. The Hon’ble Supreme Court directed that revision of the Seniority lists be undertaken and completed within three months and further consequential action be taken within the next three months; In order to comply with the directions of the Hon’ble Supreme Court in BK Pavitra and others vs Union of India and others in Civil Appeal No. 2368 of 2011 the Government has issued order vide Government order No. DPAR 182 SRR 2011 dated 06.05.2017 to all appointing authorities to revise the seniority lists; While in compliance 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, G 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 H

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A 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 B 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; C The report confirms the backwardness of the Scheduled Castes and Scheduled Tribes in the state, inadequacy of their representation in the State Civil Services and that the overall efficiency of administration has not been affected or hampered by extending reservation in promotion to the Scheduled Castes and Scheduled Tribes in the state and continuance of reservation in promotion D within the limits will not affect or hamper overall efficiency of administration;”

84Copy pinpoint84. The first principle of statutory interpretation guides us towards the view that undoubtedly, the Statement of Objects and Reasons:

E (i) Cannot be used for restricting the plain meaning of a legislation109; (ii) Cannot determine whether a provision is valid110; and (iii) May not be definitive of the circumstances in which it was passed 111. F [See in this context Welfare Association v Ranjit112].

85Copy pinpoint85. The preamble to a law may be a statutory aid to consider the mischief which the law seeks to address. While it cannot prevail over the provisions of the statute, it can be an aid to resolve an ambiguity113. G 109 Bhaiji v Sub-Divisional Officer, Thandla : (2003) 1 SCC 692 at page 700, A Manjula Bhashini v A P Monen’s Coor. Finance Corp. Ltd. : (2009) 8 SCC 431 at paras 34, 40 110 Kerala State (Electricity) Board v Indian Aluminum : (1976) 1 SCC 466. 111 K S Paripoornan v State of Kerala : (1994) 5 SCC 593 112 (2003) 9 SCC 358 113 Burrakur Coal Co. Ltd. v Union of India : AIR 1961 SC 954 at pages 956-957 H

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86Copy pinpoint86. In the course of his submissions, Dr Dhavan has emphasized A the “new provisions” contained in the Reservation Act 2018. These according to him, are: (i) Section 2 (d) which defines ‘backlog’; (ii) Section 5 under which the appointing authority is to revise and redraw the existing seniority lists; B

(iii) Section 7 which deals with the power to remove difficulties; (iv) Section 8 which provides for the repeal of the Reservation Act 2002; and (v) Section 9 which is a validating provision. C

87Copy pinpoint87. The essential issue which now needs to be addressed by this Court is whether the basis of the decision in B K Pavitra I has been cured. The decision of the Constitution Bench in Nagaraj mandates that before the State can take recourse to the enabling power contained in Clauses (4A) and (4B) of Article 16, it must demonstrate the existence of “compelling reasons” on three facets: (i) backwardness; (ii) inadequacy of representation; and (iii) overall administrative efficiency. In Jarnail, the Constitution Bench clarified that the first of the above factors – “backwardness” has no application in the case of reservations for the SCs and STs. Nagaraj to that extent was held to be contrary to the decision of the larger Bench in Indra Sawhney. E.2. The Ratna Prabha Committee report

88Copy pinpoint88. The decision in B K Pavitra I was rendered on 9 February

2017. The Ratna Prabha Committee was established on 22 March 2017. Its report was examined by a Cabinet Sub-Committee on 4 August 2017 F 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. G

89Copy pinpoint89. 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; H

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