JARNAIL SINGH & ORS. v. LACHHMI NARAIN GUPTA & ORS.

A case and therefore not precedential (although it may be considered persuasive). — Often shortened to dictum or, less commonly, obiter. … Strictly speaking an “obiter dictum” is a remark made or opinion expressed by a judge, in his decision upon a cause, “by the way”— that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the Judge or court merely by way of illustration, argument, analogy, or suggestion…. In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as “dicta”, or “obiter dicta”, these two terms being used interchangeably.” Wharton’s Law Lexicon (14th Edn., 1993) defines the term “obiter dictum” as “an opinion not necessary to a judgment; an observation as to the law made by a Judge in the course of a case, but not necessary to its decision, and therefore, of no binding effect; often called as obiter dictum, ‘a remark by the way’”. A decision on a point not necessary for the purpose of or which does not fall for determination in that decision becomes an obiter dictum.39 It is a well-settled proposition that only the ratio decidendi can act as the binding or authoritative precedent. Reliance placed on mere general observations or casual expressions of the Court, is not of much avail.40 Therefore, the casual and unnecessary observation in M.A. Murthy (supra) that there shall be no prospective overruling unless it is so indicated in a particular decision is obiter and not binding. Moreover, in M.A. Murthy (supra), this Court failed to consider the ratio of the judgment of this Court in Ashok Kumar Gupta (supra), even after referring to it. As stated above, the prospective overruling of Rangachari (supra) by Indra Sawhney (supra) was upheld in Ashok Kumar Gupta (supra).

42Copy pinpoint42. This Court in Golak Nath (supra) and Ashok Kumar Gupta (supra), referred to above, has laid down that Article 142 empowers this Court to mould the relief to do complete justice. To conclude this point, the purpose of holding that M. Nagaraj (supra) would have prospective effect is only to avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very 39 H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v. Union of India & Anr. (1971) 1 SCC 85 40 H Girnar Traders v. State of Maharashtra & Ors. (2007) 7 SCC 555

JARNAIL SINGH & ORS.v. LACHHMI NARAIN GUPTA 753 [L. NAGESWARA RAO, J.]

large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj (supra). Most of them would have already retired from service on attaining the age of superannuation. The judgment of M. Nagaraj (supra) was delivered in 2006, interpreting Article 16(4- A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time, it is necessary that the judgment of M. Nagaraj (supra) should be declared to have prospective effect. 6) QUANTIFIABLE DATA AND SAMPLING METHOD C

43Copy pinpoint43. The Karnataka Legislature enacted the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002. This Court declared the provisions of the said Act as unconstitutional on the ground that the Government of Karnataka failed to produce quantifiable data to show any compelling necessity for exercising power under Article 16(4-A) and therefore, Sections 3 and 4 of the said Act were held to be unconstitutional. Thereafter, the Government of Karnataka constituted a committee, headed by the Additional Chief Secretary to the State of Karnataka, and entrusted the following tasks to the committee:- “(1) Collect information in cadre-wise representation of SCs and STs in all the Government departments. (2) Collect information regarding backwardness of SCs and STs. F (3) Study the effect on the administration due to the provision of reservation in promotion to SCs and STs.”

44Copy pinpoint44. On 05.05.2017, the ‘Report on Backwardness, Inadequacy of Representation and Administrative Efficiency in Karnataka’ was G submitted by the Ratna Prabha Committee. The Government of Karnataka accepted the Report and the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Bill 2017 was passed by the Legislative Assembly and the Legislative Council and thereafter, received Presidential assent on 14.06.2018. The grievance H

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A of the petitioners therein was that the data was collected only from 31 departments out of a total of 62, based on Groups ‘A’, ‘B’, ‘C’ and ‘D’ and not on cadre. A further complaint was made that no data was collected with respect to public sector undertakings, boards, corporations, local bodies, grant-in-aid institutions and autonomous bodies, and therefore, the data is only representative in nature. This Court reproduced a summary B of the Ratna Prabha Committee Report, which is as follows: “2.5. Summary: (1) The analysis of time series data collected for the last 32 years (1984-2016 except for 1986) across 31 departments of the State C Government provides the rich information on the inadequacy of representation of SC and ST employees in various cadres of Karnataka Civil Services. (2) The total number of sanctioned posts as per the data of 2016 is 7,45,593 of which 70.22% or 5,23,574 are filled up across 31 D departments. (3) The vacancies or posts are filled up through Direct Recruitment (DR) and Promotions including consequential promotion. (4) The overall representation of the SC and ST employees of all 31 departments in comparison with total sanctioned posts E comprises of 10.65% and 2.92% respectively. This proves inadequacy of representation of SCs and Sts. (5) On an average the representation in Cadre A for SCs is at 12.07% and STs 2.70% which sufficiently proves the inadequacy of representation. F (6) The extent of representation in Cadre B is on an average of 9.79% and 2.34% for STs for all the years of the study period. (7) It is observed that on an average 3.05% of SC representation is inadequate in the Cadre ‘C’ whereas, 0.05% excess representation is seen for Sts. G (8) On an average of 2% and 1% 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% is found in this cadre.

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(9) The representation of Scheduled Caste in Cadres A, B and C A is on an average 12, 9.79 and 12.04% respectively whereas in Cadre D it is 16.91. (10) In case of STs in the Cadres A and the representation is 2.70 and 2.34%. However, excess representation of 0.04 and 0.93% is found in case of Group C and Group D respectively. B (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 latter does not fall under 50% limitation of reservation. 2.6: Conclusion: C

The data clearly shows the inadequacy of representation of SCs and STs in the civil services in Groups A, B and and adequate representation in Group D.” This Court found the challenge to the Report on the ground of data having been collected on the basis of Groups A, B, C and D as opposed to cadres, to be without merit. The basis of the said conclusion of the Court was that there is no fixed meaning ascribed to the term ‘cadre’ in service jurisprudence. Further, this Court held that collection of quantifiable data on the inadequacy of representation is in the services of the State, according to M. Nagaraj (supra). In addition, this Court E was also of the view that Article 16(4-A) referred to inadequacy of representation in the services of the State. It was further declared that collection of data on the basis of groups does not exclude data pertaining to cadres, as a group includes posts in all the cadres in that group.

45Copy pinpoint45. Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this court in M. Nagaraj (supra). The unit for the purpose of collection of data is a cadre, according to M. Nagaraj (supra) and Jarnail Singh (supra). For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated. The structure of services in the State of Karnataka is along the same lines as that of services in the Central Government. Services are divided into ‘groups’, which are further bifurcated into cadres. There is no confusion that a cadre is not synonymous with a ‘group’. H

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46Copy pinpoint46. The first term of reference for the Ratna Prabha Committee was to collect data cadre-wise. The conclusion of this Court in B.K. Pavitra II (supra) that the expression ‘cadre’ has no fixed meaning in service jurisprudence is contrary to the judgments of this Court, which have been referred to above while answering point 2. In clear terms, M. Nagaraj (supra) held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra II (supra). Article 16(4-A) of the Constitution enables the State to make reservation in promotions for SCs and STs, which are not adequately represented in the services of the State. However, the provision for reservation in matters of promotion is with reference to class or classes of posts in the services under the State. That ‘groups’ consist of cadres is a fact which was taken into consideration by this Court in B.K. Pavitra II (supra). The conclusion that the collection of data on the basis of ‘groups’ is valid, is contrary to the decisions of this court in M. Nagaraj (supra) and Jarnail Singh (supra).

47Copy pinpoint47. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a ‘group’, is the unit and the data has to be collected with respect to each cadre. Therefore, we hold that the conclusion of this Court in B.K. Pavitra II (supra) approving the collection of data on the basis of ‘groups’ and not cadres is contrary to the law laid down by this Court in M. Nagaraj (supra) and Jarnail Singh (supra).

48Copy pinpoint48. It is made clear that we have not expressed any opinion on the merits of any individual case as we have only answered the common issues that were formulated after hearing the parties.

49Copy pinpoint49. List the matters on 24/2/2022 for further hearing. Bibhuti Bhushan Bose Issues answered. H (Assisted by : Neha Sharma, LCRA)