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

A (ii) No data was collected for public sector undertakings, boards, corporations, local bodies, grant-in-aid institutions and autonomous bodies; (iii) In PWD and KPTCL, the representation is excessive; (iv) The data is vacancy based and not post based as required by B Sabharwal; (v) The data is on sanctioned posts and not of filled posts; (vi) The data is based on grades A, B, C and D and not cadre based; and C (vii) On efficiency, there is only a general reference to the economic development of the State of Karnataka.

90Copy pinpoint90. Based on the above features, the petitioners have invoked the power of judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the constitutional validity of successive constitutional amendments to Article 16 conditional upon the existence of compelling reasons which must be demonstrated by the State by collecting and analysing relevant data. It is submitted that the flaws in the report of the Ratna Prabha Committee would indicate that the compelling reasons which constitute the foundation for the exercise of the enabling power contained in Article 16 are absent, which must result in the invalidation of the Reservation Act 2018.

91Copy pinpoint91. Before we deal with the merits of the attack on the Ratna Prabha Committee report, it is necessary to set down the parameters on which judicial review can be exercised. Essentially, the exercise which the petitioners require this Court to undertake is to scrutinize the underlying collection of data by the State on two facets laid out in Nagaraj, as now clarified by Jarnail: (i) the adequacy of representation; and (ii) impact on efficiency in administration. Clause (4) of Article 16 contains an enabling provision to empower the State to make reservations in appointments or posts in favour of any backward class of citizens “which, in the opinion of the State, is not adequately represented in the services under the State”. Clause (4A) contains an enabling provision that allows the state to provide for reservations in promotion with consequential seniority in posts or classes of posts in services under the State in favour of SCs and STs. Clause H (4A) also uses the expression “which, in the opinion of the State, are not

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adequately represented in the services under the State”. In Indra A Sawhney, while construing the nature of the satisfaction which has to be arrived at by the State, this Court held: “798….The language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. This is evident from the fact that the said requirement is preceded by the words “in the opinion of the State”. This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/ D Legislature. It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium Chemicals v. Company Law Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need not be repeated here. Suffice it to E mention that the said principles apply equally in the case of a constitutional provision like Article 16 (4) which expressly places the particular fact (inadequate representation) within the subjective judgment of the State/executive.”114 (Emphasis supplied) F The above extract from the decision in Indra Sawhney presents two mutually complementary and reinforcing principles. The first principle is that the executive arm of the state is aware of prevailing conditions. The legislature represents the collective will of the people through their elected representatives. The presumption of constitutionality of a law G enacted by a competent legislature traces itself to the fundamental doctrine of constitutional jurisprudence that the legislature is accountable to those who elect their representatives. Collectively, the executive and the legislature are entrusted with the constitutional duty to protect social 114 Supra 13 at page 728 H

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A welfare. This Court explained in Amalgamated Tea Estates Co Ltd v State of Kerala115, the rationale for the principles of constitutionality: “11.The reason why a statute is presumed to be constitutional is that the Legislature is the best judge of the local conditions and circumstances and special needs of various classes of persons. B “(T)he Legislature is the best judge of the needs of particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist.”116 This principle was reiterated in V C Shukla v State (Delhi Administration)117: C “11…Furthermore, the legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, Article 14 would not be attracted. That is why this Court has laid down that presumption D is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality.”118

92Copy pinpoint92. More recently, this was emphasized in State of Himachal E Pradesh v Satpal Saini119: “12…The duty to formulate policies is entrusted to the executive whose accountability is to the legislature and, through it, to the people. The peril of adopting an incorrect policy lies in democratic accountability to the people…”120 F

93Copy pinpoint93. The second of the reinforcing principles which emerges from Indra Sawhney is that the opinion of the government on the adequacy of representation of the SCs and STs in the public services of the state is a matter which forms a part of the subjective satisfaction of the state. Significantly, the extract from Indra Sawhney reproduced earlier adverts G to the decision in Barium Chemicals Ltd, which emphasises that when 115 (1974) 4 SCC 415 116 Ibid at page 420 117 (1980) Supp SCC 249 118 Ibid at page 259 119 (2017) 11 SCC 42 120 H Ibid at page 47

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an authority is vested with the power to form an opinion, it is not open A for the court to substitute its own opinion for that of the authority, nor can the opinion of the authority be challenged on grounds of propriety or sufficiency. In Nagaraj, while dealing with the parameters governing the assessment of the adequacy of representation or of the impact on efficiency, the Constitution Bench held: B “45… The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways it consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of “extent of reservation” is not an absolute concept and like merit it is context-specific. …

49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16 (4) and Article 16(4A) is enabling. The discretion of the State is, however, subject to the existence of “backwardness” and “inadequacy of representation” in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16 (4) and 16 (4A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. … 102…equity, justice and efficiency are variable factors. These G factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case.” 121 (Emphasis supplied) 121 Supra 6 at pages 249-250 H

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94Copy pinpoint94. The element of discretion vested in the state governments to determine adequacy of representation in promotional posts is once again emphasized in the following extract from the decision in Jarnail: “35…According to us, Nagaraj has wisely left the test for determining adequacy of representation in promotional B posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional pots, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. C As has been pointed out by B P Jeevan Reddy, J.’s judgment in Indra Sawhney, there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16 (4A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question.”122 (Emphasis supplied)

95Copy pinpoint95. In dealing with the submissions of the petitioners on this aspect, it is relevant for this Court to recognize the circumspection with which judicial power must be exercised on matters which pertain to propriety and sufficiency, in the context of scrutinizing the underlying collection of data by the State on the adequacy of representation and impact on efficiency. The Court, is above all, considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs. Judicial review must hence traverse conventional categories by determining as to whether the Ratna Prabha F Committee report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. In this area, the fact that an alternate line of approach was possible or may even appear to be desirable cannot furnish a foundation for the assumption by the court of a decision making authority G which in the legislative sphere is entrusted to the legislating body and in the administrative sphere to the executive arm of the government.

96Copy pinpoint96. On the inadequacy of representation, the summary which emerges from the Ratna Prabha Committee report is as follows:

122 Supra 49 at page 430 H

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“2.5: Summary: A 1) The analysis of time series data collected for the last 32 years (1984-2016 except for 1986) across 31 Departments of the State Government provides the rich information on the inadequacy of representation of SCs and STs employees in various cadres of Karnataka Civil Services. B 2) The total number of sanctioned posts as per the data of 2016 is 7,45,593 of which 70.22 percent or 5,23,574 are filled up across 31 Departments. 3) The vacancies or posts are filled up through Direct Recruitment (DR) and Promotions including consequential promotion. C

4) The overall representation of the SC and ST employees of all 31 Departments in comparison with total sanctioned posts comprises of 10.65 per cent and 2.92 per cent respectively. This proves inadequacy of representation of SCs and STs. D 5) On an average the representation in Cadre A for SCs is at 12.07 per cent and STs 2.70 per cent which sufficiently proves the inadequacy of representation. 6) The extent of representation in Cadre B is on an average of 9.79 per cent and 2.34 per cent for ST for all the years of the study period. 7) It is observed that on an average 3.05 per cent of SC representation is inadequate in the Cadre ‘C’ whereas, 0.05 per cent excess representation is seen for ST. 8) On an average of 2 per cent and 1 per cent over representation of employees of SCs and STs is found in Cadre D respectively. However, in the last 5 years, inadequacy of representation of SCs by 3 per cent is found in this cadre. 9) The representation of Scheduled Caste in Cadre A, B and C is on an average 12, 9.79 and 12.04 per cent respectively whereas G in Cadre D it is 16.91. 10) In case of STs in the cadres and the representation is 2.70 and 2.34 per cent. However, excess representation of 0.04 and 0.93 per cent is found in case of Group C and Group D respectively. H

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A 11) Over representation in some years and departments is attributed to either Direct Recruitment or retirement of employees or filling up of backlog vacancies as the later does not fall under 50 per cent limitation of reservation. 2.6: Conclusion: B The data clearly shows the inadequacy of representation of SCs and STs in the civil services in Groups A, B and C and adequate representation in Group D.”

97Copy pinpoint97. Collection of data and its analysis are governed by varying and often divergent approaches in the social sciences. An informative treatise on the subject titled Empirical Political Analysis – Quantitative and Qualitative Research Methods123 distinguishes between obtaining knowledge and using knowledge. The text seeks to explain empirical analysis on the one hand and normative analysis on the other hand: “Social Scientists distinguish between obtaining knowledge and using knowledge. Dealing with factual realities is termed empirical analysis. Dealing with how we should use our knowledge of the world is termed normative analysis. Empirical analysis is concerned with developing and using a common, objective language to describe and explain reality. It E can be quantitative or qualitative. Quantitative analyses are based on math-based comparisons of the characteristics of the various objects or events that we study. Qualitative analyses are based on the researcher’s informed and contextual understanding of objects or events. F Normative analysis is concerned with developing and examining subjective values and ethical rules to guide us in judging and applying what we have learned about reality. Although the emphasis in this book is on empirical analysis, it seeks to develop an appreciation of the larger, normative perspective within which knowledge is acquired, interpreted, and applied through a G discussion of the ethics of research. Normative analysis without an empirical foundation can lead to value judgments that are out of touch with reality. Empirical 123 Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B H Willnat, Longman Publishers

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analysis in the absence of sensitivity to normative concerns, on A the other hand, can lead to the collection of observations whose significance we are not prepared to understand fully. The objective in undertaking political inquiry is to draw upon both types of analysis – empirical and normative – so as to maximize not only our factual knowledge, but also our ability to use the facts we discover wisely.” B

98Copy pinpoint98. In supporting the methodology which has been adopted by the Ratna Prabha Committee, Ms Indira Jaising, learned Senior Counsel emphasized that: (i) Save and except where a national census is proposed to be conducted, data collection is based on valid sampling methods on which conclusions are drawn; (ii) Research methodology can be qualitative as well as quantitative – the present case deals with the collection of quantitative data; (iii) Quantitative data is also collected on the basis of sample surveys. In this case, the purpose of the study was to collect data on the adequacy of representation in promotional posts and the sample which was chosen was a representative sample from which conclusions were drawn; and (iv) In the study conducted by the State of Karnataka, statistics of a number of persons belonging to the SCs and STs in promotional posts were collected group wise. The groups include cadres. Hence, it stands to reason that if the data is collected in relation to a group, it will include data pertaining to cadres as well since, every cadre within the group has been statistically enquired.

99Copy pinpoint99. We find merit in the above submissions. The methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies. We are unable to find that the Committee has based its conclusions on any extraneous or irrelevant material. In adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily. G If, as we have held above, sampling is a valid methodology for collection of data, the necessary consequence is that the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to thirty one departments which are representative in character. The State has analysed the data which is both relevant and H

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A representative, before drawing its conclusions. As we have noted earlier, there are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data.

100Copy pinpoint100. Dr Dhavan has painstakingly compiled charts for the purpose of his argument. We may also note at this stage that Ms Jaising in response B to the charts relied upon by Dr Dhavan, also placed on records charts indicating: (i) Current representation after demotion of SC and ST employees in the PWD of Karnataka; (ii) Percentage of SCs and STs in the post of Executive Engineer C without consequential seniority in the PWD; and (iii) Corresponding figures in the post of Executive Engineer without consequential seniority in the PWD.

101Copy pinpoint101. We are of the view that once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.

102Copy pinpoint102. The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy. The Constitution Bench noticed this in Sabharwal, where it observed: G “4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be H considered for the reserved posts. On the other hand the reserve

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category candidates can compete for the non-reserve posts and A in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16 (4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward B Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular C Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class…”124 Explaining this further, the Constitution Bench held: “5...Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster…”125 124 Supra 24 at page 750 125 Ibid at page 751 H

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A Consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population.

103Copy pinpoint103. One of the submissions which has been urged on behalf of the petitioners is that the quota has to be reckoned with reference to B posts which are actually filled up or the working strength and not with reference to sanctioned posts. This submission is answered by the decision in Sabharwal, which holds that the percentage of reservation has to be worked out in relation to the number of posts which form part of the cadre strength. The Constitution Bench held: C “6. The expressions ‘posts’ and ‘vacancies’, often used in the executive instructions providing for reservations, are rather problematical. The word ‘post’ means an appointment, job, office or employment. A position to which a person is appointed. ‘Vacancy’ means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre- strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation.” 126 (Emphasis supplied) Similarly, in Nagaraj, the Constitution Bench held: F “83. In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further, roster has to be post- G specific and not vacancy based.”127 Hence, the submission that the quota must be reckoned on the basis of the posts which are actually filled up and not the sanctioned posts cannot be accepted. 126 Ibid at pages 751-752 127 H Supra 6 at page 261

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104Copy pinpoint104. We find no merit in the challenge to the Ratna Prabha A Committee report on the ground that the collection of data was on the basis of groups A, B, C and D as opposed to cadres. For one thing, the expression ‘cadre’ has no fixed meaning ascribed to it in service jurisprudence. But that apart, Nagaraj requires the collection of quantifiable data inter alia, on the inadequacy of representation in B services under the state. Clause 4A of Article 16 specifically refers to the inadequacy of representation in the services under the state. The collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres. The state has studied in the present case the extent of reservation for SCs and STs in groups A to D, consisting of several cadres. Since, the group includes posts in all the C cadres in that group, it can logically be presumed that the state has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well.

105Copy pinpoint105. Another facet of the matter is that in the judgment of Justice Jeevan Reddy in Indra Sawhney, it was observed that reservation under D Article 16 (4) does not operate on communal grounds. Hence, if a member belonging to a reserved category is selected in the general category, the selection would not count against the quota prescribed for the reserved category. The decision in Sabharwal also noted that while candidates belonging to the general category are not entitled to fill reserved posts, reserved category candidates are entitled to compete for posts in the E general category. In several group D posts, such as municipal sweepers, the sobering experience of administration is that the overwhelmingly large segment of applicants consists of persons belonging to the SCs and STs. Over representation in group D posts as a result of candidates belonging to the general category staying away from those posts cannot F be a valid or logical basis to deny promotion to group D employees recruited from the reserved category. F. Substantive versus formal equality

106Copy pinpoint106. The core of the present case is based on the constitutional content of equality. G

107Copy pinpoint107. For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which H

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A people are born. If Article 16(1) merely postulates the principle of formal equality of opportunity, then Article 16(4) (by enabling reservations due to existing inequalities) becomes an exception to the strict rule of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the principle of substantive equality (including the recognition of existing inequalities) then Article 16 (4) becomes -the enunciation of one B particular facet of the rule of substantive equality set out in Article 16 (1). F.I. The Constituent Assembly’s understanding of Article 16 (4) C (I). Reservations to overcome existing inequalities in society (a). There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services. Therefore, for the members of the Constituent Assembly who supported reservations, a key rationale for incorporating reservations for SCs and STs in the Constitution was the existence of inequalities in society based on discrimination and prejudice within the caste structure. This is evidenced by the statements in support of reservations for minorities by members. For example, in the context of legislative reservations for minorities Monomohan Das noted: “… Therefore, it is evident from the Report of the Minorities Committee that it is on account of the extremely low educational and economic conditions of the scheduled castes and the grievous social disabilities from which they suffer that the political safeguard of reservation of seats had been granted to them...”128 (b) Prof. Yashwant Rai used similar statements to support reservations for backward communities in employment: G “… Therefore, if you want to give equal status to those communities which are backward and depressed and on whom injustice has been perpetrated for thousands of years and if you want to establish Indian unity, so that the country may 128 (Volume XI) Debate on 25 August 1949. H

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progress and so that many parties in the country may not mislead A the poor, I would say that there should be a provision in the constitution under which the educated Harijans may be provided with employment….”129 (Emphasis supplied) (II). Recognition of the insufficiency of formal equality by the Constituent Assembly B

108Copy pinpoint108. During the debates on the principles of equality underlying Article 16 (then draft Article 10), certain members of the Assembly recognised that in order to give true effect to the principle of equality of opportunity, the Constitution had to expressly recognise the existing inequalities. For example, Shri Phool Singh noted: C “… Much has been made of merit in this case; but equal merit pre-supposes equal opportunity, and I think it goes without saying that the toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people from the villages to compete with those city people is asking a man on bicycle to compete with another on a D motorcycle, which in itself is absurd. Then again, merit should also have some reference to the task to be discharged…”130 (Emphasis supplied) Similarly, P Kakkam stated, “… If you take merit alone into account, the Harijans cannot E come forward. I say in this house, that the Government must take special steps for the reservation of appointment for the Harijans for same years. I expect the government will take the necessary steps to give more appointments in police and military services also...”131 (Emphasis supplied) F

109Copy pinpoint109. By recognising that formal equality of opportunity will be insufficient in fulfilling the transformative goal of the Constitution, these members recognised that the conception of equality of opportunity must recognise and account for existing societal inequalities. The most revealing debates as to how the Constituent Assembly understood equality of opportunity under the Constitution took place on 30 November 1948. G Members debated draft article 10 (which would go on to become Article 16 of the Constitution). In these debates, some members understood 129 (Volume XI) Debate on 23 August 1949. 130 (Volume XI) Debate on 23 August 1949. 131 (Volume VII) Debate on 30 May 1948. H

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A sub-clause (4) (providing for reservations) as an exception to the general rule of formal equality enunciated in sub-clause (1). Illustratively, an articulation of this position was made by Mohammad Ismail Khan, who stated, “… There can be only one of these two things—either there can be clear equal opportunity or special consideration. Article 10 says there shall be equality of opportunity, then it emphasises the fact by a negative clause that no citizen shall be discriminated on account of religion or race. It is quite good, but when no indication is given whether this would override article 296 or article 296 is independent of it, we are certainly left in the lurch. What would be the fate of the minorities? [Article 296 stated that special considerations shall be shown to minorities to ensure representation in the services]…”132 (Emphasis supplied)

110Copy pinpoint110. Dr B R Ambedkar’s response summarises the different conceptions of equality of opportunity that the members of the assembly put forward. Dr Ambedkar argued that the inclusion of sub-clause (4) was a method of recognising the demand that mere formal equality in sub-clause (1) would be insufficient, and a balance between formal equality of opportunity and the needs of the disadvantaged classes of society was needed. Dr Ambedkar presciently observed: “… If members were to try and exchange their views on this subject, they will find that there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all… F The first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations… G Another view mostly shared by a section of the House is that, if this principle is to be operative—and it ought to be operative in their judgment to its fullest extent—there ought to be no reservations of any sort for any class or community at all… 132 H (Volume VII) Debate on 30 May 1948.

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Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the administration… The view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of C Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now—for historical reasons—been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services…”133 (Emphasis supplied) F.2. The Constitution as a transformative instrument

111Copy pinpoint111. The Constitution is a transformative document. The realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts. For, above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression of and discrimination against the marginalised. As our constitutional jurisprudence has evolved, the realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantive potential.

112Copy pinpoint112. In the context of reservations, the decision in T Devadasan v The Union of India134 construed Article 16 (4) to be a proviso or an exception to Article 16 (1). In a dissent which embodied a vision statement of the Constitution, Justice Subba Rao held:

133 (Volume VII) Debate on 30 May 1948. 134 AIR 1964 SC 179 H

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A “26. Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State… Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Article 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.”

113Copy pinpoint113. Subsequently, in N M Thomas, the Constitution Bench adopted an interpretation of Articles 15 and 16 which recognized these provisions as but a facet of the doctrine of equality under Article 14. E Justice K K Mathew observed: “78…Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational F background of the members of Scheduled Castes and Scheduled Tribes. If equality of opportunity guaranteed under Article 16 (1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., G even up to the point of making reservation.”135 In his own distinctive style, Justice Krishna Iyer observed: “139. It is platitudinous constitutional law that Articles 14 to 16 are a common code of guaranteed equality, the first laying down 135 Supra 77 at page 347 H

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the broad doctrine, the other two applying it to sensitive areas A historically important and politically polemical in a climate of communalism and jobbery.”136 This court has set out this latter understanding in several cases including ABS Sangh (Railways) v Union of India137.

114Copy pinpoint114. Ultimately, a Bench of nine judges of this Court in Indra B Sawhney recognized that Article 16 (4) is not an exception to but a facet of equality in Article 16 (1). Justice Jeevan Reddy delivering the judgment of a plurality of four judges observed: “741…Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision itself... In our respectful opinion, the view taken by the majority in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it.”138

115Copy pinpoint115. Justice Mathew in N M Thomas spoke of the need for proportional equality as a means of achieving justice. Highlighting the notion that equality under the Constitution is based on the substantive idea of providing equal access to resources and opportunities, learned judge observed: “73. There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.”139 Carrying these precepts further Justice S H Kapadia (as the learned judge then was) speaking for the Constitution Bench in Nagaraj observed: G “51…Therefore, there are three criteria to judge the basis of distribution, namely, rights, deserts or need. These three criteria 136 Ibid at page 369 137 (1981) 1 SCC 246 138 Supra 13 at page 691 139 Supra 77 at page 346 H

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A can be put under two concepts of equality— “formal equality” and “proportional equality”. “Formal equality” means that law treats everyone equal and does not favour anyone either because he belongs to the advantaged section of the society or to the disadvantaged section of the society. Concept of “proportional equality” expects the States to take affirmative action in favour B of disadvantaged sections of the society within the framework of liberal democracy.”140 Social justice, in other words, is a matter involving the distribution of benefits and burdens. C G. Efficiency in administration

116Copy pinpoint116. Critics of affirmative action programs in government services argue that such programs adversely impact the overall competence or “efficiency” of government administration. Critics contend that the only method to ensure “efficiency” in the administration of government is to use a “merit” based approach – whereby candidates that fulfil more, seemingly “neutral”, criteria than others are given opportunities in government services. The constitutional justification for this “efficiency” argument is centred around Article 335. “335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: [Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.].” The proviso was inserted by the Constitution (Eighty-second G Amendment) Act 2000.

117Copy pinpoint117. The substantive part of Article 335 contains a mandate : a requirement to take into consideration the claims of SCs and STs in making appointments to services and posts in connection with the affairs 140 H Supra 6 at page 250

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of the Union or of a State. Consideration is much broader in its ambit than reservation. The consideration of their claims to appointment is to be in a manner consistent with maintaining the efficiency of administration. The proviso specifically protects provisions in favour of the SCs and STs for: (i) relaxing qualifying marks in an examination; (ii) lowering the standards of evaluation; or (iii) reservation in matters of promotion. Reservation is encompassed within the special provision but the universe of the latter is wider.

118Copy pinpoint118. The proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory. The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs D and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.

119Copy pinpoint119. The Constitution does not define what the framers meant by the phrase “efficiency of administration”. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a G qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with H

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A the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognizes governance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State.

120Copy pinpoint120. This part of the philosophy of the Constitution was emphasized in a powerful exposition contained in the judgment of Justice O Chinnappa Reddy in K C Vasanth Kumar v State of Karnataka141 (“K C Vasanth Kumar”). The learned Judge held: “35. One of the results of the superior, elitist approach is that the question of reservation is invariably viewed as the conflict between the meritarian principle and the compensatory principle. No, it is not so. The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is not enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely 141 H (1985) Supp. SCC 714

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literate and vulnerable people of our country are too obvious to be A stated. And, what is merit? There is no merit in a system which brings about such consequences…”142 Speaking of efficiency, the learned Judge held: “36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned… B

One would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil service is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlying assumption that those belonging to the upper castes and classes, who are appointed to the non-reserved posts will, because of their presumed merit, “naturally” perform better than those who have been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes…”143

121Copy pinpoint121. The substantive right to equality is for all segments of society. Articles 15 (4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. While, we are conscious of the fact that the decision in Indra Sawhney did not accept K C Vasanth Kumar144 on certain aspects, the observations have been cited by us to explain the substantive relationship between equal opportunity and merit. It embodies the fundamental philosophy of the Constitution towards advancing substantive equality. F

122Copy pinpoint122. An assumption implicit in the critique of reservations is that awarding opportunities in government services based on “merit” results in an increase in administrative efficiency. Firstly, it must be noted that administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not G tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second 142 Ibid at pages 737-738 143 Ibid at page 738 144 Supra 139 at paragraph 613 H

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A method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods. Secondly, arguments that attack reservations on the grounds of efficiency equate “merit” with candidates who perform better than other candidates on seemingly “neutral” criteria, e.g. standardised examinations. B Thus, candidates who score beyond a particular “cut-off point” are considered “meritorious” and others are “non-meritorious”. However, this is a distorted understanding of the function “merit” plays in society.

123Copy pinpoint123. As Amartya Sen notes in his chapter on “Merit and Justice”,145 the idea of merit is fundamentally derivative of our views of a good society. Sen notes, “Actions may be rewarded for the good they do, and a system of remunerating the activities that generate good consequences would, it is presumed, tend to produce a better society. The rationale of incentive structures may be more complex than this simple statement suggests, but the idea of merit in this instrumental perspective relates to the motivation of producing better results. In this view, actions are meritorious in a derivative and contingent way, depending on the good they do, and more particularly, the good that can be brought about by rewarding them…. E …The concept of merit is deeply contingent on our views of a good society. Indeed, the notion of merit is fundamentally derivative, and thus cannot be qualified and contingent. There is some elementary tension between (1) the inclination to see merit in fixed and absolute terms, and (2) the ultimately instrumental character of merit – its dependence on the concept of “the good” in the relevant society. This basic contrast is made more intense by the tendency, in practice, to characterise “merit” in inflexible forms reflecting values and priorities of the past, often in sharp conflict with conceptions that would be needed for seeing merit in the context of contemporary objectives and concerns… Even though the typical “objective functions” that are implicitly invoked in most countries to define and assess 145 Sen A, Merit and Justice, in Arrow, KJ, M ERITOCRACY AND ECONOMIC INEQUALITY H (Princeton University Press 2000) (Amartya Sen, Merit and Justice).

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what is to count as merit tend to be indifferent to (or negligent of) distributive aspects of outcomes, there is no necessity to accept that ad hoc characterisation. This is not a matter of a “natural order” of “merit” that is independent of our value system….” (Emphasis supplied)

124Copy pinpoint124. Once we understand “merit” as instrumental in achieving goods that we as a society value, we see that the equation of “merit” with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.

125Copy pinpoint125. For example, performance in standardised examinations C (distinguished from administrative efficiency) now becomes one among many of the actions that the process of appointments in government services seeks to achieve. Based on the text of Articles 335, Articles 16 (4), and 46, it is evident that the uplifting of the SCs and STs through employment in government services, and having an inclusive government are other outcomes that the process of appointments in government services seeks to achieve. Sen gives exactly such an example. “If, for example, the conceptualisation of a good society includes the absence of serious economic inequalities, then in the characterisation of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen – or to generate – economic inequality. In this case, the rewarding of merit cannot be done independent of its distributive consequences. … F A system of rewarding of merit may well generate inequalities of well-being and of other advantages. But, as was argued earlier, much would depend on the nature of the consequences that are sought, on the basis of which merits are to be characterised. If the results desired have a strong distributive component, with a preference for equality, then in assessing merits G (through judging the generating results, including its distributive aspects), concerns about distribution and inequality would enter the evaluation.”146 (Emphasis supplied) 146 Ibid H

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A Thus, the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. “Merit” must not be limited to narrow and inflexible criteria such as one’s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration. In fact, Sen argues that there is a risk to excluding equality from the B outcomes. “In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased C (often implicitly) towards the interests of more fortunate groups (favouring the outcomes that are more preferred by “talented” and “successful” sections of the population. This can reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, D attaches some weight to lower inequality levels.” 147 (Emphasis supplied)

126Copy pinpoint126. The Proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If E the government’s sole consideration in appointments was to appoint individuals who were considered “talented” or “successful” in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined. Thus, a F “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

127Copy pinpoint127. It is well settled that existing inequalities in society can lead G to a seemingly “neutral” system discriminating in favour of privileged candidates. As Marc Galanter notes, three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of “merit”. These are:

147 H Ibid

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“… (a) economic resources (for prior education, training, materials, freedom from work etc.); (b) social and cultural resources (networks of contacts, confidence, guidance and advice, information, etc.); and (c) intrinsic ability and hard work...” 148

128Copy pinpoint128. The first two criteria are evidently not the products of a candidate’s own efforts but rather the structural conditions into which they are born. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society.

129Copy pinpoint129. The Ratna Prabha Committee report considers in Chapter C III, the relationship between reservation in promotion and maintenance of efficiency in administration. Finally, it concludes: “3.12: Conclusion: Karnataka has been showing high performance in all the sectors of development viz., finance, health, education, industry, services, etc., to support sustainable economic growth. The analysis on performance of the state in economic development clearly indicates that reservation in promotions has not affected the overall efficiency of administration.

130Copy pinpoint130. Moreover, even in a formal legal sense, promotions, including those in respect of roster points, are made on the basis of seniority-cum- merit and a candidate to be promoted has to meet this criteria [See in this context Rule 19(3) A and D of the Karnataka Civil Services General Recruitment Rules 1977 which states that subject to other provisions all appointments by promotion shall be on an officiating basis for a period of one year and at the end of the period of officiation, if appointing authority considers the person not suitable for promotion, she/he may be reverted back to the post held prior to the promotion]. A candidate on promotion has to serve a statutory period of officiation before being confirmed. This rule applies across the board including to roster point promotees. This ensures that the efficiency of administration is, in any event, not adversely affected. 148 Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S, Inclusion versus excellence: Caste and the framing of fair access in Indian higher education, 40:1 South African Review of Sociology 127-147. H

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A H. The issue of creamy layer

131Copy pinpoint131. At the outset, we analyse the submission of Ms Indira Jaising, learned Senior Counsel that the concept of creamy layer is inapplicable to the SCs and STs. This submission which has been urged by the learned Counsel is founded on two hypotheses which we have extracted below B from the written submissions: “(i) This Court in Indra Sawhney seems to suggest that the creamy layer should be excluded, however there was no unanimity for determining what is creamy layer. Some judges took the view that the criteria for creamy layer exclusion is social advancement C (i.e. based on social basis, educational, and economical basis) and others took the view that it will be economic basis alone. It is submitted that it must be kept in mind that the said judgment related only to OBCs; and (ii) Jarnail is not an authority for the proposition that the creamy D layer principle applies to SCs and STs. It dealt only with the competence of the Parliament to enact a law in relation to creamy layer without affecting Articles 341 and 342.”

132Copy pinpoint132. Dr Dhavan, learned Senior Counsel in his response has urged that the above submissions are incorrect because: E (i) Indra Sawhney decided the issue of creamy layer as a principle of equality; and (ii) Jarnail affirmed that if Nagaraj is rightly applied, creamy layer is a principle of equality and of the basic structure.

133Copy pinpoint133. Ms Jaising’s argument is based on the decision in Chinnaiah F that the SCs and STs cannot be split or bifurcated and the adoption of the creamy layer principle would amount to a spilt in the homogenous groups of the SCs and STs. This argument according to Dr Dhavan, was rejected in Jarnail by the Constitution Bench.

134Copy pinpoint134. As a Bench of two judges we are bound by the decision in G Indra Sawhney as indeed, we are by the construction placed on that decision by the Constitution Benches in Nagaraj and Jarnail. Construing the decision in Indra Sawhney. Nagaraj held: “120…Concept of egalitarian equality is the concept of proportional equality and it expects the States to take affirmative action in H favour of disadvantaged sections of society within the framework

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of democratic polity. In Indra Sawhney [1992 Supp (3) SCC 217 A : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] all the Judges except Pandian, J. held that the “means test” should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court has, therefore, accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above, we are bound by the decision in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] . The question as to the “determinant” of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in Indra D Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] has evolved numerical benchmarks like ceiling limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination.”149 Then again, in paragraphs 121, 122 and 123, the Constitution Bench E held: “121. The impugned constitutional amendments by which Articles 16 (4A) and 16 (4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , the concept of post-based roster with inbuilt 149 Supra 6 at pages 277-278 H

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A concept of replacement as held in R.K. Sabharwa [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”150

135Copy pinpoint135. The reference before the Constitution Bench in Jarnail arose out of an initial reference by a two judge Bench in State of Tripura v Jayanta Chakraborty (“State of Tripura”)151 and then by a three judge F Bench in State of Maharashtra v Vijay Ghogre152. The order in State of Tripura states: “2…However, apart from the clamour for revisit, further questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, G communities, groups or parts thereof of SC/STs notified by the President under Articles 341 and 342 of the Constitution of India.”153 150 Ibid at pages 278 -280 151 (2018) 1 SCC 146 152 (2018) 15 SCC 64 H 153 Supra 149 at pages 147-148

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136Copy pinpoint136. Before the Constitution Bench in Jarnail, the learned Attorney A General specifically raised the following arguments: “3…according to the learned Attorney General, the creamy layer concept has not been applied in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] to the Scheduled Castes and the Scheduled Tribes B and Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes. According to the learned Attorney General, once the Scheduled Castes and the Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be Scheduled Castes C and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament under Articles 341 and 342. The learned Attorney General also argued that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not indicate any test for determining adequacy D of representation in service. According to him, it is important that we lay down that the test be the test of proportion of Scheduled Castes and Scheduled Tribes to the population in India at all stages of promotion, and for this purpose, the roster that has been referred to in R.K. Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC E (L&S) 548] can be utilised. Other counsel who argued, apart from the learned Attorney General, have, with certain nuances, reiterated the same arguments.”154 The decision in Jarnail specifically addressed the issue of creamy layer: F “28. Therefore, when Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16 (4A) and 16 (4B), it did not in any manner interfere with Parliament’s power under Article 341 G or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj [M.

154 Supra 49 at pages 407-408 H

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A Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We may also add at this juncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. This judgment has been repeatedly followed and applied…”155 Justice Rohinton Nariman speaking for the Constitution Bench in Jarnail explained the reason for applying the creamy layer principle: “25. However, when it comes to the creamy layer principle, it is important to note that this principle sounds in Articles 14 and 16 (1), as unequals within the same class are being treated equally with other members of that class.”

137Copy pinpoint137. We are thus unable to subscribe to the submission that Jarnail is not per curium on the issue of creamy layer. For one thing, Jarnail D specifically examined the decision in Indra Sawhney, noticing that eight of the nine learned Judges applied the creamy layer principle as a facet of the larger equality principle. In fact, the decision in Indra Sawhney II v Union of India156 (“Indra Sawhney II”) summarised the judgments in Indra Sawhney I on the aspect of creamy layer. The judgment in Jarnail approved Indra Sawhney II when it held that the creamy layer E principle sounds in Articles 14 and 16 (1): “12. In para 27 of the said judgment, the three-Judge Bench of this Court clearly held that the creamy layer principle sounds in Articles 14 and 16(1) as follows: [Indra Sawhney (2) case [Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168 : F 2000 SCC (L&S) 1] , SCC p. 190, para 27] “(i) Equals and unequals, twin aspects

27. As the “creamy layer” in the backward class is to be treated “on a par” with the forward classes and is not entitled to benefits of reservation, it is obvious that if the “creamy layer” is not G excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of Backward Classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of 155 Ibid at page 426 H 156 (2000)1 SCC 168

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Articles 14, 16(1) and 16(4) of the Constitution of India A since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class… Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4). We shall examine the validity of Sections 3, 4 and 6 in the light of the above principle. (emphasis in original)”157 Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create sub- categories among the Presidential lists under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds that the creamy layer principle is a principle of equality.

138Copy pinpoint138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act E 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and F STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. G The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the

157 Supra 49 at page 415 H

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A submission on the ground that it related to the validity of Article 16 (4A) and held thus: “34…We may hasten to add that Shri Dwivedi’s argument cannot be confused with the concept of “creamy layer” which, as has been pointed out by us hereinabove, applies to persons within the B Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes.”158 (Emphasis supplied)

139Copy pinpoint139. In sustaining the validity of Articles 16 (4A) and 16 (4B) C against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, D neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. E This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act F 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. I. Retrospectivity

140Copy pinpoint140. Sections 3 and 4 of the Reservation Act 2018 came into G force on 17 June 1995. The other provisions came into force “at once” as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27

158 H Supra 49 at page 430

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

April 1978 shall be valid and shall be protected. In this context, we must note from the earlier decisions of this Court that: (i) The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; (ii) The decision in Ajit Singh II specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule; and (iii) In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. C

141Copy pinpoint141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to D retrospectivity in the Reservation Act, 2018 are either arbitrary or unconstitutional.

142Copy pinpoint142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded. E J. Over representation in KPTCL and PWD

143Copy pinpoint143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed,

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A there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SC’s and ST’s has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well. K. Conclusion

144Copy pinpoint144. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act 2018 is lacking in substance. Following the decision in B K Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature. It is Nagaraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.

145Copy pinpoint145. We therefore find no merit in the batch of writ petitions as the constitutional validity of the Reservation Act 2018 has been upheld. E They shall stand dismissed. Accordingly, the review petitions and miscellaneous applications shall also stand dismissed in view of the judgment in the present case. There shall be no order as to costs. All pending applications are disposed of. 146 Before concluding, the Court records its appreciation of the F erudite submissions of the learned Counsel who have ably assisted the Court. We deeply value the assistance rendered by Dr Rajeev Dhavan and Mr Shekhar Naphade, learned Senior Counsel and Mr Puneet Jain, learned Counsel who led the arguments on behalf of the Petitioners. We acknowledge the valuable assistance rendered to the Court by Ms Indira G Jaising, Mr Basava Prabhu S Patil, Mr Dinesh Dwivedi, Mr Nidhesh Gupta and Mr V Lakshminarayana, learned Senior Counsel.

Nidhi Jain Petitions and Applications dismissed.