JARNAIL SINGH & ORS versus LACHHMI NARAIN GUPTA & ORS on 28 January 2022

[2022] 19 S.C.R. 711

JARNAIL SINGH & ORS.

v.

LACHHMI NARAIN GUPTA & ORS.

(Civil Appeal No.629 of 2022)

JANUARY 28, 2022

[L. NAGESWARA RAO, SANJIV KHANNA AND

B. R. GAVAI, JJ.]

Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B)and 335 – Reservation in promotion – Collection of quantifiabledata regarding inadequacy of representation of SCs and STs –Yardstick for arriving at quantifiable data – In M. Nagaraj case thekey issue that was identified and decided by the Supreme Courtwas whether any constitutional limitation mentioned in Art.16(4)and Art.335 stood obliterated by the constitutional amendmentsresulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheldthe constitutional amendments – The amendments were held to beenabling provisions – It was observed that the State is not bound tomake reservation for SCs and STs in matters of promotion, however,if it wishes to exercise its discretion, the State has to collectquantifiable data showing the backwardness of the class andinadequacy of representation of that class in public employment, inaddition to compliance with Art.335 of the Constitution – What isthe yardstick by which, according to M. Nagaraj case, one wouldarrive at quantifiable data showing inadequacy of representationof SCs and STs in public employment – Held: Laying down of criteriafor determining the inadequacy of representation would result incurtailing the discretion given to the State Governments – In addition,the prevailing local conditions, which may require to be factoredin, might not be uniform – Moreover, in M. Nagaraj case, the Courtmade it clear that the validity of law made by the State Governmentsproviding reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether the inadequacyof representation is supported by quantifiable data – Therefore, noyardstick can be laid down by the court for determining the adequacyof representation of SCs and STs in promotional posts for thepurpose of providing reservation – Reservation.

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AConstitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B)and 335 – Reservation in promotion – Collection of quantifiabledata regarding inadequacy of representation of SCs and STs – Unitfor collecting quantifiable data – In M. Nagaraj case the key issuethat was identified and decided by the Supreme Court was whetherany constitutional limitation mentioned in Art.16(4) and Art.335Bstood obliterated by the constitutional amendments resulting in Arts.16(4-A) and 16(4-B) – The Supreme Court upheld the constitutionalamendments – The amendments were held to be enabling provisions– It was observed that the State is not bound to make reservationfor SCs and STs in matters of promotion, however, if it wishes toCexercise its discretion, the State has to collect quantifiable datashowing the backwardness of the class and inadequacy ofrepresentation of that class in public employment, in addition tocompliance with Art.335 of the Constitution – What is the unit withrespect to which quantifiable data showing inadequacy ofrepresentation is required to be collected – Held: In M. NagarajDcase, the Supreme Court approved that the percentage of reservationin promotions was to be applied to the entire cadre strength, as heldin R.K. Sabharwal case – While doing so, the court in M. Nagarajmade it clear that the unit for operation of the roster would be thecadre strength – Before providing for reservation in promotions toEa cadre, the State is obligated to collect quantifiable data regardinginadequacy of representation of SCs and STs – Collection ofinformation regarding inadequacy of representation of SCs and STscannot be with reference to the entire service or ‘class’/‘group’ butit should be relatable to the grade/category of posts to whichpromotion is sought – Cadre, which should be the unit for the purposeFof collection of quantifiable data in relation to the promotionalpost(s), would be meaningless if data pertaining to representationof SCs and STs is with reference to the entire service – Reservation.

Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B)and 335 – Reservation in promotion – Quantifiable data regardingGrepresentation of SCs and STs – Proportionate representation astest of adequacy – In M. Nagaraj case the key issue that was identifiedand decided by the Supreme Court was whether any constitutionallimitation mentioned in Art.16(4) and Art.335 stood obliterated bythe constitutional amendments resulting in Arts. 16(4-A) and 16(4-HB) – The Supreme Court upheld the constitutional amendments –

The amendments were held to be enabling provisions – It wasobserved that the State is not bound to make reservation for SCsand STs in matters of promotion, however, if it wishes to exercise itsdiscretion, the State has to collect quantifiable data showing thebackwardness of the class and inadequacy of representation of thatclass in public employment, in addition to compliance with Art.335of the Constitution – Whether proportion of the population of SCsand STs to the population of India should be taken to be the test fordetermining adequacy of representation in promotional posts forthe purposes of Art.16(4-A) – Held: In M. Nagaraj case, the Courtwas of the considered view that the exercise of collecting quantifiabledata depends on numerous factors, with conflicting claims to beoptimised by the administration in the context of local prevailingconditions in public employment – As equity, justice and efficiencyare variable factors and are context-specific, how these factorsshould be identified and counter-balanced will depend on the factsand circumstances of each case – The Court in Jarnail Singh foundno fault with M. Nagaraj case regarding the test for determining theadequacy of representation in promotional posts in the State – It isfor the State to assess the inadequacy of representation of SCs andSTs in promotional posts, by taking into account relevant factors –Reservation.

Constitution of India, 1950 – Arts. 16(4), 16(4-A), 16(4-B)and 335 – Reservation in promotion – Quantifiable data regardinginadequacy of representation of SCs and STs – Review of – Periodfor review – In M. Nagaraj case the key issue that was identifiedand decided by the Supreme Court was whether any constitutionallimitation mentioned in Art.16(4) and Art.335 stood obliterated bythe constitutional amendments resulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheld the constitutional amendments –The amendments were held to be enabling provisions – It wasobserved that the State is not bound to make reservation for SCsand STs in matters of promotion, however, if it wishes to exercise itsdiscretion, the State has to collect quantifiable data showing thebackwardness of the class and inadequacy of representation of thatclass in public employment, in addition to compliance with Art.335of the Constitution – Should there be a time period for reviewinginadequacy of representation – Held: Data collected to determineinadequacy of representation for the purpose of providing AB

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Areservation in promotions needs to be reviewed periodically – Theperiod for review should be reasonable and is left to the Governmentto set out – Reservation.

Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B),142 and 335 – Reservation in promotion – Prospective operationBof the judgment in M. Nagaraj case – In M. Nagaraj case the keyissue that was identified and decided by the Supreme Court waswhether any constitutional limitation mentioned in Art.16(4) andArt.335 stood obliterated by the constitutional amendments resultingin Arts. 16(4-A) and 16(4-B) – The Supreme Court upheld theconstitutional amendments – The amendments were held to beCenabling provisions – It was observed that the State is not bound tomake reservation for SCs and STs in matters of promotion, however,if it wishes to exercise its discretion, the State has to collectquantifiable data showing the backwardness of the class andinadequacy of representation of that class in public employment, inDaddition to compliance with Art.335 of the Constitution – Whetherthe judgment in M. Nagaraj case can be said to operate prospectively– Held: In Golak Nath and Ashok Kumar cases, it was laid down thatArt. 142 of the Constitution empowers the Supreme Court to mouldthe relief to do complete justice – The purpose of holding thatM. Nagaraj would have prospective effect is only to avoid chaosEand confusion that would ensue from its retrospective operation, asit would have a debilitating effect on a very large number ofemployees, who may have availed of reservation in promotionswithout there being strict compliance of the conditions prescribedin M. Nagaraj case – Most of them would have already retired from Fservice on attaining the age of superannuation – The judgment ofM. Nagaraj was delivered in 2006, interpreting Art.16(4-A) of theConstitution which came into force in 1995 – As making theprinciples laid down in M. Nagaraj effective from the year 1995would be detrimental to the interests of a number of civil servantsand would have an effect of unsettling the seniority of individualsGover a long period of time, the judgment of M. Nagaraj should bedeclared to have prospective effect – Reservation.

Constitution of India, 1950 – Arts.16(4), 16(4-A), 16(4-B)and 335 – Reservation in promotion – Quantifiable data regardinginadequacy of representation of SCs and STs – In M. Nagaraj caseH

the key issue that was identified and decided by the Supreme Courtwas whether any constitutional limitation mentioned in Art.16(4)and Art.335 stood obliterated by the constitutional amendmentsresulting in Arts. 16(4-A) and 16(4-B) – The Supreme Court upheldthe constitutional amendments – The amendments were held to beenabling provisions – It was observed that the State is not bound tomake reservation for SCs and STs in matters of promotion, however,if it wishes to exercise its discretion, the State has to collectquantifiable data showing the backwardness of the class andinadequacy of representation of that class in public employment, inaddition to compliance with Art.335 of the Constitution – Whetherquantifiable data showing inadequacy of representation can becollected on the basis of sampling methods, as held by the court inB.K. Pavitra II case – Held: The State should justify reservation inpromotions with respect to the cadre to which promotion is made –Taking into account the data pertaining to a ‘group’, which wouldbe an amalgamation of certain cadres in a service, would not givethe correct picture of the inadequacy of representation of SCs andSTs in the cadre in relation to which reservation in promotions issought to be made – For collection of quantifiable data to assessrepresentation of SCs and STs for providing reservation inpromotions, cadre, which is a part of a ‘group’, is the unit and thedata has to be collected with respect to each cadre – Therefore, theconclusion of the court in B.K. Pavitra II case approving thecollection of data on the basis of ‘groups’ and not cadres is contraryto the law laid down in M. Nagaraj and Jarnail Singh cases.

Constitution of India, 1950 – Art.142 – Art.142 of theConstitution empowers the Supreme Court to mould the relief to docomplete justice.

Doctrines / Principles – Doctrine of Prospective Overruling– Discussed.

Administrative action – Judicial review of – Scope – Held: Itis neither legal nor proper for the Courts to issue directions oradvisory sermons to the executive in respect of the sphere which isexclusively within their domain under the Constitution.

Service Jurisprudence – Term “cadre” – Meaning and legalconnotation of – Discussed – Words and Phrases.

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716SUPREME COURT REPORTS

[2022] 19 S.C.R.

AAnswering the issues, the Court

HELD:

1. YARDSTICK FOR ARRIVING AT QUANTIFIABLE

DATAB1.1. Articles 16(4) and 16(4-A) of the Constitution areenabling provisions. It was held in M. Nagaraj case that thediscretion of the State to provide reservation is subject to theexistence of backwardness and inadequacy of representation inpublic employment. It was further held that backwardness has tobe based on objective factors whereas inadequacy has to factuallyCexist. There is no fixed yardstick to identify equality, justice andefficiency which are variable factors and it depends on the factsand circumstances of each case. The Court was of the furtheropinion that the concepts of efficiency, backwardness, inadequacyof representation are required to be identified and measured onDthe basis of data. In case of a challenge made to reservationsprovided by the State Government, it is incumbent on the StateGovernment to satisfy the Court that the decision is supportedby quantifiable data showing backwardness of the class andinadequacy of representation of that class in public employment,in addition to compliance with Article 335 of the Constitution ofEIndia. [Para 11][732-E-H]

1.2. The exercise of identifying and measuring concepts ofefficiency, backwardness and inadequacy of representation on thebasis of data depends on numerous factors. It is for this reasonthat the enabling provisions are required to be made becauseFeach competing claim seeks to achieve certain goals. How bestone should optimise these conflicting claims can only be done bythe administration in the context of local prevailing conditions inpublic employment. [Para 12][733-A-B]

1.3. It is well-established that it is neither legal nor properGfor the Courts to issue directions or advisory sermons to theexecutive in respect of the sphere which is exclusively withintheir domain under the Constitution. [Para 14][733-A-D]

1.4. Determination of inadequate representation of SCs andSTs in services under a State is left to the discretion of the State,H

as the determination depends upon myriad factors which the courtcannot envisage. A conscious decision was taken by the court inM. Nagaraj and Jarnail Singh to leave it to the States to fix thecriteria for determining inadequacy of representation. Thesubmission of the Attorney General for India that the court hasto lay down the yardstick for measuring adequacy ofrepresentation did not yield a favourable result as the court inJarnail Singh found it befitting for the States to have the libertyto evaluate the representation of SCs and STs in publicemployment. Laying down of criteria for determining theinadequacy of representation would result in curtailing thediscretion given to the State Governments. In addition, theprevailing local conditions, which may require to be factored in,might not be uniform. Moreover, in M. Nagaraj, the Court madeit clear that the validity of law made by the State Governmentsproviding reservation in promotions shall be decided on a case-to-case basis for the purpose of establishing whether theinadequacy of representation is supported by quantifiable data.Therefore, no yardstick can be laid down by the court fordetermining the adequacy of representation of SCs and STs inpromotional posts for the purpose of providing reservation. [Para16][734-D-H]

2. UNIT FOR COLLECTING QUANTIFIABLE DATA

2. UNIT FOR COLLECTING QUANTIFIABLE DATA

2.1. In M.Nagaraj case, the Court observed that theappropriate Government has to apply cadre strength as a unit inthe operation of the roster in order to ascertain whether a givenclass/group is adequately represented in the service. Cadrestrength as a unit also ensures that the upper ceiling limit of 50per cent is not violated. Following the law laid down in R.K.Sabharwal, the court in M. Nagaraj further held that the rosterhas to be post-specific and not vacancy based. [Para 19][736-A-B]

2.2. In M. Nagaraj case, the Court held that it is open tothe State to provide for reservation in promotions subject tolimitation that there must exist compelling reasons forbackwardness, inadequacy of representation in a class of post(s)keeping in mind the overall administrative efficiency. While AB

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Areferring to the roster, the Court observed that the appropriateGovernment has to apply the cadre strength as a unit in theoperation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Collection ofquantifiable data regarding inadequacy of representation asstipulated by M. Nagaraj is relatable to the cadre concerned,Baccording to Jarnail Singh. [Para 20][736-B-D]

2.3. It is clear from the statutory regime and the law laiddown by the Supreme Court that civil posts under theGovernment are organised into different services. A serviceconstitutes ‘classes’/ ‘groups’ of posts. A ‘class’/‘group’ is furtherCbifurcated into grades. Though the nomenclature might bedifferent, the structure of services under the Union and the Statesis similar. According to the instructions issued by the Union ofIndia, cadres are constituted for each grade. Fundamental Rule9(4) defines “cadre” to mean the strength of a service or part ofDa service sanctioned as a separate unit. It is the choice of a Stateto constitute cadres. The entire service cannot be considered tobe a cadre for the purpose of promotion from one post to a higherpost in a different grade. Promotion is made from one grade tothe next higher grade, in relation to which cadres are constituted.A cadre is constituted by the Government by taking into accountEseveral factors within its sole discretion. [Para 28][741-C-F]

2.4. In the Office Memorandum dated 02.07.1997, theUnion of India set out the principles for making and operatingpost-based rosters, in which it has been expressly stated thatcadre is to be construed as the number of posts in a particularFgrade. It is made clear that rosters have been prepared grade-wise which are reviewed on a yearly basis and that reservation inpromotions is implemented on the basis of these rosters, whichoperate grade-wise. In M. Nagaraj, the Supreme Court approvedthat the percentage of reservation in promotions was to be appliedGto the entire cadre strength, as held in R.K. Sabharwal. Whiledoing so, the court in M. Nagaraj made it clear that the unit foroperation of the roster would be the cadre strength. Beforeproviding for reservation in promotions to a cadre, the State isobligated to collect quantifiable data regarding inadequacy of representation of SCs and STs. Collection of informationregarding inadequacy of representation of SCs and STs cannotbe with reference to the entire service or ‘class’/‘group’ but itshould be relatable to the grade/category of posts to whichpromotion is sought. Cadre, which should be the unit for thepurpose of collection of quantifiable data in relation to thepromotional post(s), would be meaningless if data pertaining torepresentation of SCs and STs is with reference to the entireservice. [Para 29][741-F-H; 742-A-B]

3. PROPORTIONATE REPRESENTATION AS TEST OFADEQUACY

3. PROPORTIONATE REPRESENTATION AS TEST OFADEQUACY

In R.K. Sabharwal, it was observed that State Governmentsmay take the total population of a particular Backward Class andits representation in the State services for the purpose of comingto a conclusion that there is inadequate representation in theState services. In M. Nagaraj, the Court was of the consideredview that the exercise of collecting quantifiable data depends onnumerous factors, with conflicting claims to be optimised by theadministration in the context of local prevailing conditions inpublic employment. As equity, justice and efficiency are variablefactors and are context-specific, how these factors should beidentified and counter-balanced will depend on the facts andcircumstances of each case. The Court in Jarnail Singh found nofault with M. Nagaraj regarding the test for determining theadequacy of representation in promotional posts in the State.While emphasising the contrast in the language used betweenArticle 330 and Articles 16(4-A) and 16(4-B) of the Constitution,the Court declined the invitation of the Attorney General for Indiato hold that the proportion of SCs and STs to the population ofIndia should be the test for determining inadequacy ofrepresentation in promotional posts. Therefore, this Court is notpersuaded to express any opinion on this aspect. It is for theState to assess the inadequacy of representation of SCs and STsin promotional posts, by taking into account relevant factors. [Para30][742-C-G]

4. TIME PERIOD FOR REVIEW

There is near unanimity amongst the counsel for both sidesthat the data collected to establish inadequacy of representation, AB

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Awhich forms the basis for providing reservation for promotions,should be reviewed periodically. This Court is not inclined toexpress any view on discontinuation of reservations in totality,which is completely within the domain of the legislature and theexecutive. As regards review, the data collected to determineinadequacy of representation for the purpose of providingBreservation in promotions needs to be reviewed periodically. Theperiod for review should be reasonable and is left to theGovernment to set out. [Para 31][742-H; 743-C-D]

5. PROSPECTIVE OPERATION OF THE JUDGMENTIN M. NAGARAJC

In Golak Nath and Ashok Kumar cases, it was laid down thatArticle 142 of the Constitution empowers the Supreme Court tomould the relief to do complete justice. The purpose of holdingthat M. Nagaraj would have prospective effect is only to avoidchaos and confusion that would ensue from its retrospectiveDoperation, as it would have a debilitating effect on a very largenumber of employees, who may have availed of reservation inpromotions without there being strict compliance of the conditionsprescribed in M. Nagaraj. Most of them would have alreadyretired from service on attaining the age of superannuation. TheEjudgment of M. Nagaraj was delivered in 2006, interpreting Article16(4-A) of the Constitution which came into force in 1995. Asmaking the principles laid down in M. Nagaraj effective from theyear 1995 would be detrimental to the interests of a number ofcivil servants and would have an effect of unsettling the seniorityof individuals over a long period of time, it is necessary that theFjudgment of M.Nagaraj should be declared to have prospectiveeffect. [Para 42][752-G; 753-A-C]

6. QUANTIFIABLE DATA AND SAMPLING METHOD

6.1. Collection of quantifiable data for determining theGinadequacy of representation of SCs and STs is a basic requirementfor providing reservation in promotions, as laid down by this courtin M. Nagaraj case. The unit for the purpose of collection of datais a cadre, according to Nagaraj and Jarnail Singh. For thepurpose of collection of quantifiable data for providing reservationin promotions, the entire service cannot be taken to be a unitHand treated as a cadre. [Para 45][755-F-G]

6.2. The State should justify reservation in promotions withrespect to the cadre to which promotion is made. Taking intoaccount the data pertaining to a ‘group’, which would be anamalgamation of certain cadres in a service, would not give thecorrect picture of the inadequacy of representation of SCs andSTs in the cadre in relation to which reservation in promotions issought to be made. Rosters are prepared cadre-wise and notgroup-wise. Sampling method adopted by the Ratna PrabhaCommittee (which submitted ‘Report on Backwardness,Inadequacy of Representation and Administrative Efficiency inKarnataka’) might be a statistical formula appropriate forcollection of data. However, for the purpose of collection ofquantifiable data to assess representation of SCs and STs for thepurpose of providing reservation in promotions, cadre, which isa part of a ‘group’, is the unit and the data has to be collectedwith respect to each cadre. Therefore, the conclusion of the courtin B.K. Pavitra II approving the collection of data on the basis of‘groups’ and not cadres is contrary to the law laid down by thecourt in M. Nagaraj and Jarnail Singh. [Para 47][756-D-G]

M. Nagaraj & Ors.v. Union of India & Ors. (2006) 8SCC 212 : [2006] 7 Suppl. SCR 336 – heldprospectively applicable.

I.C. Golak Nath & Ors. v. State of Punjab & Anr. [1967]2 SCR 762 and Ashok Kumar Gupta & Anr. v. State ofU.P. & Ors. (1997) 5 SCC 201 : [1997] 3 SCR 269 –relied on.

A.K. Subraman & Ors. v. Union of India & Ors. (1975)1 SCC 319 : [1975] 2 SCR 979; Dr ChakradharPaswan v. State of Bihar & Ors. (1988) 2 SCC 214 :[1988] 3 SCR 130; Indra Sawhney & Ors. v. Union ofIndia & Ors. 1992 Supp (3) SCC 217 : [1992] 2 Suppl.SCR 454; Union of India & Ors. v. Virpal SinghChauhan & Ors. (1995) 6 SCC 684 : [1995] 4 Suppl.SCR 158; State of Tripura & Ors. v. JayantaChakraborty & Ors. (2018) 1 SCC 146 : [2017] 11SCR 247; State of Maharashtra & Anr. v. Vijay Ghogre& Ors. (2018) 17 SCC 261; Jarnail Singh & Ors. v.Lachhmi Narain Gupta & Ors. (2018) 10 SCC 396 :

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[2018] 10 SCR 663; B.K. Pavitra & Ors. v. Union ofIndia & Ors. (2019) 16 SCC 129 : [2019] 7 SCR 1086;Uttar Pradesh Power Corporation Limited v. RajeshKumar & Ors. (2012) 7 SCC 1; Mallikarjuna Rao &Ors. v. State of Andhra Pradesh & Ors. (1990) 2 SCC707 : [1990] 2 SCR 418; Asif Hameed & Ors. v. Stateof Jammu & Kashmir & Ors. 1989 Supp. 2 SCC 364:[1989] 3 SCR 19; P. Ramachandra Rao v. State ofKarnataka (2002) 4 SCC 578; R.K. Sabharwal & Ors.v. State of Punjab & Ors. (1995) 2 SCC 745 : [1995] 2SCR 35; K. Manickaraj v. Union of India (1997) 4 SCC342 : [1997] 3 SCR 504; Union of India v. Pushpa Rani& Ors. (2008) 9 SCC 242 : [2008] 11 SCR 440; Stateof Rajasthan v. Fateh Chand Soni (1996) 1 SCC 562 :[1995] 6 Suppl. SCR 559; Union of India & Anr. v.Lieutenant Colonel P.K. Choudhary & Ors. (2016) 4SCC 236 : [2016] 2 SCR 426; Sub-Inspector Rooplal& Anr. v. Lt. Governor & Ors. (2000) 1 SCC 644 : [1999]5 Suppl. SCR 310; Ravi S. Naik v. Union of India &Ors., 1994 Supp (2) SCC 641 : [1994] 1 SCR 754; LilyThomas & Ors. v. Union of India & Ors. (2000) 6 SCC224 : [2000] 3 SCR 1081; Orissa Cement Ltd. v. Stateof Orissa & Ors. 1991 Supp (1) SCC 430 : [1991]2 SCR 105; Somaiya Organics (India) Ltd. & Anr. v.State of U.P. & Anr. (2001) 5 SCC 519 : [2001] 3 SCR33; General Manager, Southern Railway v. Rangachari[1962] 2 SCR 586; Indian Council for Enviro-LegalAction v. Union of India & Ors. (1996) 5 SCC 281 :[1996] 1 Suppl. SCR 507; Goan Real Estate andConstruction Limited & Anr. v. Union of India& Ors.(2010) 5 SCC 388 : [2010] 3 SCR 1160; M.A. Murthyv. State of Karnataka & Ors. (2003) 7 SCC 517 : [2003]3 Suppl. SCR 327; Ashok Kumar Sharma & Anr. v.Chander Shekher & Anr. (Ashok Kumar Sharma caseNo.I ) 1993 Supp (2) SCC 611 : [1992] 3 Suppl. SCR768; Ashok Kumar Sharma & Ors. v. Chander Shekhar& Anr. (Ashok Kumar Sharma case No. II ) (1997) 4SCC 18 : [1997] 2 SCR 896; H.H. MaharajadhirajaMadhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v. Union of India & Anr. (1971) 1 SCC 85 :[1971] 3 SCR 9 and Girnar Traders v. State ofMaharashtra & Ors. (2007) 7 SCC 555 : [2007] 9 SCR383 – referred to.

Kuhn v. Fairmont Coal Co. 215 U.S. 349 (1910);Linkletter v. Walker 1965 SCC Online US SC 126; Mappv. Ohio 643 367 U.S. 643 (1961); Weeks v. United States232 U.S. 383 (1914); Wolf v. Colorado 338 U.S. 25(1949) – referred to.

Blackstone, Commentaries (15[th] ed. 1809) – referredto.

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CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION: Civil Appeal No.629 Of 2022

From the Judgment and Order dated 15.07.2011 of the High Courtof Punjab and Haryana at Chandigarh in CWP No.13218 of 2009.

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With

Civil Appeal Nos.630, 631, 632, 636, 635, 633, 637, 638, 642, 753,759, 643-644, 646, 703-704, 735, 645, 713 And 648 of 2022, Civil AppealNos.4876-4877, 4878-4879, 4880, 4881, 4882 of 2017, Civil AppealNos.11817, 11816 And 11820 of 2016, Civil Appeal No.651 Of 2022,GCivil Appeal Nos.4833 And 701-704 Of 2017, Civil Appeal Nos.11822-11825, 11837-11840, 11842-11845, 11829-11832, 11847-11850 And 11828of 2016, Contempt Petition (C) No.13 Of 2017 In Civil Appeal Nos.4562-4564 of 2017, Civil Appeal Nos.734, 724-727, 736 of 2022, ContemptPetition (C) No.11 Of 2017 In Civil Appeal Nos.4562-4564 of 2017,Contempt Petition (C) No.314 Of 2016 In Slp (C) No.4831 of 2012,H

Civil Appeal No.5247 Of 2016, T.p. (C) Nos.608-609 Of 2017, CivilAppeal Nos.652, 764, 656, 654-655, 647, 649, 650, 653, 657, 663, 754,755, 768-775, 752, 659-660, 658, 683-694, 661, 765, 761-763, 777-780,695-702, 766, 776, 767 And 662 of 2022, Slp (C)….@ Diary No.38895of 2017, Civil Appeal Nos.677, 678, 670, 671, 679, 672, 673, 674, 707-708, 782, 757, 715-723, 681-682, 756, 666, 750-751, 667, 747-749, 668-669, 758 of 2022, Contempt Petition (C) No.985 of 2018 In Civil AppealNo.5247 of 2016, Civil Appeal Nos.516, 705, 760, 675-676, 517-519,706, 711, 634 And 680 of 2022, Contempt Petition (C) No.1067 of 2019In Slp (C) No.30621 of 2011, Civil Appeal Nos.522-627, 714, 730, 729,732 And 728 of 2022, Writ Petition (C) No.1371 of 2019, Civil AppealNos.731 And 1078 Of 2022, Civil Appeal No.1004 of 2020, Civil AppealNo.2434 of 2019, Civil Appeal Nos.664, 738-739, 709-710, 737, 733,741, 740, 742, 743, 744, 628, 745 And 746 of 2022, Contempt Petition(C) Nos.200-201 of 2021 In Slp (C) Nos.5724-5725 of 2019, ContemptPetition (C) Nos.211-212 of 2021 In Civil Appeal No.5247 of 2016, WritPetition (C) No.882 of 2021, Contempt Petition (C) Nos.378-379 of 2021In Civil Appeal Nos.11837-11840 of 2016

K. K. Venugopal, AG, Tushar Mehta, SG, Ms. Madhvi Divan, BalbirSingh, Sanjay Jain, Vikramjit Banerjee, Rupinder Singh Suri, Aman Lekhi,ASGs, Saurabh Mishra, Vinod Diwakar, AAGs, R. Balasubramanium,K. M. Nataraj, P. S. Patwalia, Ms. Kiran Suri, Dr. Rajeev Dhavan, Dr.Menaka Gurusamy, R. D. Agrawala, Sanjay R. Hegde, Ranjit Kumar,Krishnan Venugopal, Shyam Divan, Nidhesh Gupta, Rana Mukherjee,Ms. Indira Jaising, Atul Yeshwant Chitale, Ms. Soumya Chakraborty,Ms. Priya Hingorani, Ms. Nalini Chidambaram, Rakesh Dwivedi, BasantKumar Choudhary, Dinesh Dwivedi, Gopal Shankar Narayan, D. K.Goswami, V. K. Shukla, Rakesh Khanna, Kapil Sibal, Ashok KumarSharma, B. H. Marlapally, Arun Bhardwaj, Ms. Indira Jaising, Vinay Kr.Garg, Sr. Advs., M. K. Maroria, Rajesh Ranjan, Shyam Gopal, Ms.Shradha Deshmukh, Rajan Kumar Chourasia, Ms. Chinmayee Chandra,Apoorv Kurup, Siddhant Kohli, Ankur Talwar, Suhasini Sen, Ms.Deepabali Dutta, A. K. Sharma, Amrish Kumar, B. V. Balaram Das,Gurmeet Singh Makker, D. L. Chidanand, S. S. Rebello, Mehul Gupta,B. K. Satija, Ms. Ruchi Kohli, Avneesh Arputham, M/s Arputham Arunaand Co., Manish Kumar, Pratik R. Bombarde, Suraj Kumar, DevendraSingh, Ajay Singh, Pradeep S. Wathore, Devendra Kumar, AbhishekKumar, Shailesh Madiyal, Sudhanshu Prakash, Ms. Rakhi M., Ms. SruthiIyer, Ms. Neha Jain, Vaibhav Sabharwal, Dr. K. S. Chauhan, Ajit Kumar AB

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AEkka, Murari Lal, R. S. M. Kalky, Ajit Kumar, Ravi Prakash, SandeepMalik, Sumit Kishore, Ms. Ranjeeta Rohatgi, Sunil Kumar, S. P. Singh,K. C. Lamba, Ramesh Kumar, Abhinav Mukerji, Ms. Pratishtha Vij,Ms. Bihu Sharma, Akshay C. Shrivastava, Ms. Prerna Mehta, NareshAditya Madhav, Ms. Shreyas Gacche, Vishal Jogdand, Ms. Swati Vaibhav,Akshay Amritanshu, Dr. Gunratan Sadavarte, Dr. Jay Shree Patil, RajBSingh Rana, Pankaj Kumar Singh, Pawan Kumar Shukla, Kamal KumarPandey, Makrand Pratap Singh, S. J. Amith, Krishna Kumar, Dr. (Mrs.)Vipin Gupta, Irshad Ahmad, Dr. Dinesh Rattan Bharadwaj, AnuragRawat, Som Raj Choudhury, Kumar Parimal, Smarhar Singh, SanjeevChowdhary, Prashant R. Dahat, Sangharaj D. Rupwate, VijayCNirbhavane, Akash Moon, Ms. Smita Kamble, Ms. Shraddha Vavhal,Puneet Yadav, Sourabh Gupta, T. R. B. Sivakumar, Pradeep KumarMathur, Chiranjeev Johri, Sameer Agrawal, Manoj Gorkela, M/s GorkelaLaw Office, Ms. Preeti Nair, Aditya Giri, Ms. Nikita Capoor, ShivendraSingh, Ms. Apurva, Shuvodeep Roy, Ishaan Borthakaur, Deepak Jain,Ms. Jaspreet Aulakh, Tanpreet Gulati, Georgey V. M., Ms. A. Sumathi,DMs. Tanvi Kakar, Ansh Pandey, Atulesh Kumar, Ms. Suchitra A Chitale,Mrinal Elker Mazumdar, Vansaja Shukla, Manish Yadav, AnuradhaMishra, Shobhit Tiwari, Lal Pratap Singh, Umesh Pratap Singh, ArjunAggarwal, Bhaskar Aditya, Gaurav Kejriwal, Chandra Bhushan Prasad,Kripa Shankar Prasad, Pradeep Aggarwal, Vishal Singh, Ms. N.EAnnapoorani, Ravindra Keshavrao Adsure, Sidheshwar Namdev Biradar,Yash Prashant Sonavane, Yogesh Ramesh Joshi, Rajat Sehgal, VikasMehta, Dr. Sukhdev Sharma, Dr. Shivani, J. B. Mudgil, RameshwarPrasad Goyal, Ms. Sansriti Pathak, Suyash Guru, Amol Shrivasta,Sandeep Devashish Das, Ms. Alka Sinha, Anuvrat Sharma, ChandanKumar, Mayan Prasad, P. Soma Sundaram, Suyash Mohan Guru, Ms.FLalita Kaushik, Ms. Uttara Babbar, Manan Bansal, D. S. Rawat, KumarParimal, Smarhar Singh, Manoj Ranjan Sinha, Ankur Chibber, H. S. Tiwari,Anshuman Mehrotra, Nikunj Arora, Harsh Dhankar, Santosh KumarPandey, P. V. Yogeswaran, Babul Kumar, Randheer Singh, Amit Pal,Vaibhav Joshi, Suhaas Ratna Joshi, Ms. Swarupama Chaturvedi, AnmolGChandan, G. S. Makker, Praveen Jain, Dr. Krishan Singh Chauhan, FuzailAhmad Ayyubi, Ms. Kanishka Prasad, Ibad Mushtaq, M. L. Lahoty,Paban K Sharma, Anchit Sripat, P. N. Sharma, Himanshu Gupta, ManojC. Mishra, Ms. Rekha Pandey, L. C. Patne, Raghav Pandey, AldanishRein, Ms. Maheravish Rein, Sanjay Kharde, Satyajeet Kharde, SunilKumar Verma, D. Ramakrishna Reddy, S. Asif Ali Zaidi, Ms. D. BharathiH

Reddy, Mrigank Prabhakar, Ms. Trishna Das, Ms. Sakshi Banga, Ms.Tanuj Bagga, Saharsh Jauhari, Kuldeep Singh, Aditya Soni, M. GireeshKumar, Ankur S. Kulkarni, Shivam Singh, Yasharth Kant, B.Karunakaran, M. R. Jothimanian, K. Balu, G. Sanjay, S. Gowthaman,Nitin Meshram, Sourabh Singh, Rishi Raj Singh, Ranbir Singh Yadav,Senthil Jagadeesan, Ms. Sonakshi Malhan, Ms. Mrinal Kanwar, SajalJain, Sudarshan Rajan, Mahesh Kumar, Ramesh Rawat, Hiten Bajaj,Rohit Bhardwaj, A. Venkatesh, ADN Rao, Rahul Mishra, Ms. AnanyaKhandelwal, Ms. Sangeetha MR, Ms. Agrimaa Singh, Vishal Gupta,Dheeresh Kumar Dwivedi, Avijit Bhattacharjee, Ms. Upma Shrivastava,Abhay Kant Mishra, Dinesh P. Rajbhar, Mayank C. L. Gupta, Ms. AnzuK. Varkey, Uday Gupta, Ms. Shivani M. Lal, Hiren Dasan, M. K. Tripathi,Harish Dasan, Rajiv Ranjan, Mohan Pandey, Avijit Mani Tripathi, Ms.Tarini K. Nayak, Somesh Chandra Jha, Upendra Mishra, Vinod Kumar,Satpal Singh, Anjali Dubey, Pankaj Kumar Singh, Satish Kumar, SridharPotaraju, Gaichangpou Gangmei, Ms. Shiwani Tushir, Aayush, AbhayKumar, Sriharsh Nahush Bundela, Kumar Milind, Shagun Ruhil, VishalNautiyal, Kumar Parimal, Smarhar Singh, Sachin Patil, Rahul Chitnis,Rakesh Rathod, Aaditya A. Pande, Geo Joseph, Namit Saxena,Sudhanshu Chandra, Awnish Maithani, Ms. Arushi Dhawan, P. V. Dinesh,Vikalp Mudgal, Kshitij Mudgal, Ms. Monica Goel, Nihal Rathore, SatyaMitra, Ms. K. Saradadevi, R. Vijaynandan Reddy, Naresh Kaushik,Vardhman Kaushik, Ms. Lalitha Kaushik, B. Purushottama Reddy, ManojJoshi, Dhruv Joshi, Satyajit A Desai, Ms. Anagha S Desai, SiddharthGautam, Himanshu Sharma, Amit Anand Tiwari, Ms. Shakun Sharma,Ms. Mary Mitzy, Ms. Devyani Gupta, Ms. Damini Thaker, Ms. MrignaShekhar, Brajesh Pandey, Ms. Suchita Dixit, Rajeev Dixit, AnilendraPandey, Ashok K Mahajan, Ms. Gauraan, Abhishek Sharma, RahulKumar Sharma, Ms. Amita Singh Kalkal, K. K. L. Gautam, ChicalwarRastrapal, A. K. Suman, Manoj Sharma, Aditya Agarwal, AbhishekGurawa, Sandeep Kr. Singh, K. S. Rathod, Ravi Bharuka, Ms. Sarvshree,Justine George, Ankit Agarwal, Manas Syal, Devashish Bharuka, SunilFernandes, Ms. Nupur Kumar, Prastut Dalvi, Paras Nath Singh, Ms.Ujjaini Chatterjee, Darpan Sachdeva, Shubham Sharma, Ms. Gyan Mitra,Vishwa Pal Singh, Brijender Singh Dhull, Vikas Gothwal, Ashish Pandey,Dr. Pooja Jha, Ms. Nandita Jha, Anil Kumar, Vijay Pal, Varinder KumarSharma, Sushil Karanjkar, Dhawesh Pahuja, K. N. Rai, Gaurav Agarwal,Shivaji M Jadhav, Anish R Shah, Ms. Qurratulain, Brij Kishor Sah, AdityaS. Jadhav, Nicholas Chaudhary, M/s S. M. Jadhav and Company, Satya AB

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APrakash Gautam, Raj Bahadur Yadav, Ms. Shashi Kiran, Dr. K. S.Chauhan, M. Vijaya Bhaskar, Ravi Prakash, Sandeep Malik, RameshKumar, Ravindra Kumar, Navjot Neelam, Prakash Yadav, YadavNarender Singh, Parv Garg, Pawas Kulshrestha, Karandeep Singh Rekhi,Arvind Kumar Sharma, Arvind S. Avhad, Shantanu Krishna, B. KrishnaPrasad, R. C. Kaushik, Samir Ali Khan, B. Sridhar, Kuldip Singh, Mrs.BAnil Katiyar, M. K. Dua, Ravindra Kumar, Gopal Singh, Rahul Kaushik,Hrishikesh Baruah, Ms. Christi Jain, Arjun Garg, Nikilesh Ramachandran,Ms. Chandan Ramamurthi, M. C. Dhingra, P. N. Puri, Anil Kumar Mishra,Ranjan Mukherjee, S. N. Bhat, Prashant Bhushan, Sanjeev Malhotra,Dhananjay Garg, Advs. for the appearing parties.CRespondent-in-person The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

1. Leave granted (except Diary No.38895/2017).

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2. Reservation of 27 per cent in favour of backward classes wasthe subject matter of dispute in Indra Sawhney & Ors. v. Union ofIndia & Ors.[1]. This Court was of the opinion that Article 16(4) of theConstitution of India does not provide for reservation in the matter ofpromotions. It was clarified that the judgment shall have prospectiveEoperation and shall not affect the promotions already made, whethermade on regular or on any other basis. Reservation provided in the matterof promotions in the Central services or State services were directed tobe continued for a period of five years from the date of the judgment.

3. By the Constitution (Seventy-seventh Amendment) Act, 1995,Fwhich came into force on 17.06.1995, Article 16 of the Constitution wasamended by insertion of Article 16(4-A), which then read as below:- “Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion to anyclass or classes of posts in the services under the State inGfavour of the Scheduled Castes and the Scheduled Tribeswhich, in the opinion of the State, are not adequatelyrepresented in the services under the State”.

4. The above amendment was made in view of the State’s opinionthat representation of the Scheduled Castes and the Scheduled TribesH1 1992 Supp (3) SCC 217

(“SCs” and “STs”) in services in the States had not reached the requiredlevel and that it was necessary to continue the existing dispensation byproviding reservation in promotions. Therefore, the Government decidedto continue the existing policy of reservation in promotions for the SCsand the STs, according to the Statement of Objects and Reasons of theConstitution (Seventy-seventh Amendment) Act, 1995.

5. In Union of India & Ors. v. Virpal Singh Chauhan & Ors.[2],this Court held that roster-point promotees who were given the benefitof accelerated promotion would not get consequential seniority. As theGovernment was of the opinion that the concept of “catch-up” rule wasnot in the interest of SCs and STs in the matter of seniority on promotion,Article 16(4-A) was further amended by the Constitution (Eighty-fifthAmendment) Act, 2001 to give the benefit of consequential seniority inaddition to accelerated promotion. At present, Article 16(4-A) reads asfollows:- “(4-A) Nothing in this article shall prevent the State frommaking any provision for reservation in matters of promotion,with consequential seniority, to any class or classes of postsin the services under the State in favour of the ScheduledCastes and the Scheduled Tribes which, in the opinion of theState, are not adequately represented in the services underthe State.”

6. A number of vacancies which were reserved for SCs and STscould not be filled up due to non-availability of candidates belonging tothese categories. Such of these vacancies which were not filled up weretreated as “backlog vacancies” and were carried forward. In IndraSawhney (supra), this Court held that reservations contemplated in ayear under Article 16(4) shall not exceed 50 per cent. In practice, backlogvacancies were not included within the ceiling of 50 per cent reservationin a year. An office memorandum was issued on 29.08.1997 making the50 per cent limit applicable to current as well as backlog vacancies, inaccordance with Indra Sawhney (supra). Thereafter, severalrepresentations were made to the Central Government about the injusticethat would be caused to the members of SCs and STs in view of theoffice memorandum dated 29.08.1997, which led to a further amendmentto Article 16 of the Constitution of India, by insertion of Article 16(4-B)

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Aby the Constitution (Eighty-first Amendment) Act, 2000. Article 16(4-B)reads as under: - “(4-B) Nothing in this article shall prevent the State fromconsidering any unfilled vacancies of a year which arereserved for being filled up in that year in accordance withBany provision for reservation made under clause (4) or clause(4-A) as a separate class of vacancies to be filled up in anysucceeding year or years and such class of vacancies shallnot be considered together with the vacancies of the year inwhich they are being filled up for determining the ceiling offifty per cent reservation on total number of vacancies ofCthat year.”

7. The validity of the above amendments made to Article 16 (4)was considered by this Court in M. Nagaraj & Ors. v. Union of India& Ors.[3]. The key issue that was identified and decided in M. Nagaraj(supra) is whether any constitutional limitation mentioned in Article 16(4)Dand Article 335 stood obliterated by the constitutional amendmentsresulting in Articles 16(4-A) and 16(4-B). This Court upheld theconstitutional amendments. The amendments were held to be enablingprovisions. This Court observed that the State is not bound to makereservation for SCs and STs in matters of promotion. However, if itEwishes to exercise its discretion, the State has to collect quantifiabledata showing the backwardness of the class and inadequacy ofrepresentation of that class in public employment, in addition to compliancewith Article 335 of the Constitution of India.

8. This Court in State of Tripura & Ors. v. Jayanta ChakrabortyF& Ors.[4] referred M. Nagaraj (supra) to a larger bench forreconsideration. Further, in State of Maharashtra & Anr. v. VijayGhogre & Ors.[5], this Court thought it appropriate that the request forreconsideration of the judgment in M. Nagaraj (supra) should be heardby a constitution bench. The request made for referring M. Nagaraj(supra) to a seven-judge bench was not entertained by this Court inGJarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.[6].However,the conclusion arrived at in M. Nagaraj (supra) relating to collection of 3 (2006) 8 SCC 212

4 (2018) 1 SCC 146

5 (2018) 17 SCC 261H6 (2018) 10 SCC 396

quantifiable data showing backwardness of the SCs and the STs washeld to be invalid as the same was contrary to a larger bench judgmentof this Court in Indra Sawhney (supra), wherein it had been held by theCourt that conditions of social and educational backwardness arepresumed to be satisfied in case of SCs and STs as they are identifiedand grouped as such because of prior discrimination and its continuing illeffects. The Court rejected the remaining grounds of challenge to thedecision in M. Nagaraj (supra) and reiterated that the State has tocollect quantifiable data regarding inadequate representation of SCs andSTs in the services of the State, if reservation is sought to be provided inpromotions.

9. In the meanwhile, some High Courts have dealt with matterswhere reservation in promotions provided by the Central Governmentand the State Governments to SCs and STs have been assailed as beingviolative of the law laid down by this Court in M. Nagaraj (supra). Thejudgments of the High Courts have been challenged before this Court.In view of the broad similarities in the issues involved, all the cases weretagged together. On 18.01.2021, a direction was given to the Advocates-on-Record appearing for each State to submit a note to the learnedAttorney General for India, identifying the issues involved in theirrespective cases. The learned Attorney General for India was requestedto hold a conference with the counsel appearing in the matters to finalisethe issues for determination and a list of issues with reference to eachState was directed to be prepared thereafter. A note was submitted bythe learned Attorney General formulating issues that arise for ourconsideration.

10. When the matter was listed for hearing on 14.09.2021, it wasmade clear that this Court would not entertain any arguments forreconsideration of the law laid down by this Court in M. Nagaraj (supra)as a constitution bench in Jarnail Singh (supra) had rejected such arequest. This Court was informed that the cases in this batch of matterscan be bifurcated into eleven categories. As the common issues thathave been raised could be decided without reference to the facts ofeach case, the learned counsel appearing for the parties were requestedto make submissions on the issues that had been identified by the learnedAttorney General. After considering the issues identified by the learnedAttorney General and other learned counsel and hearing them, thefollowing six points are formulated for determination:- AB

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A1)What is the yardstick by which, according to M. Nagaraj(supra), one would arrive at quantifiable data showinginadequacy of representation of SCs and STs in publicemployment?

2) What is the unit with respect to which quantifiable dataBshowing inadequacy of representation is required to becollected?

3) Whether proportion of the population of SCs and STs to thepopulation of India should be taken to be the test fordetermining adequacy of representation in promotional postsfor the purposes of Article 16(4-A)?

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4) Should there be a time period for reviewing inadequacy ofrepresentation?

5) Whether the judgment in M. Nagaraj (supra) can be saidto operate prospectively?

6) Whether quantifiable data showing inadequacy ofrepresentation can be collected on the basis of samplingmethods, as held by this Court in B.K. Pavitra & Ors. v.Union of India & Ors.[7](“B.K. Pavitra II”)?

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1) YARDSTICK FOR ARRIVING AT QUANTIFIABLE

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11. Articles 16(4) and 16(4-A) are enabling provisions. It washeld in M. Nagaraj (supra) that the discretion of the State to providereservation is subject to the existence of backwardness and inadequacyof representation in public employment. It was further held thatbackwardness has to be based on objective factors whereas inadequacyFhas to factually exist. There is no fixed yardstick to identify equality,justice and efficiency which are variable factors and it depends on thefacts and circumstances of each case. This Court was of the furtheropinion that the concepts of efficiency, backwardness, inadequacy ofrepresentation are required to be identified and measured on the basis ofdata. In case of a challenge made to reservations provided by the StateGGovernment, it is incumbent on the State Government to satisfy the Courtthat the decision is supported by quantifiable data showing backwardnessof the class and inadequacy of representation of that class in publicemployment, in addition to compliance with Article 335 of the Constitutionof India.

H7 (2019) 16 SCC 129

12. The exercise of identifying and measuring concepts ofefficiency, backwardness and inadequacy of representation on the basisof data depends on numerous factors. It is for this reason that the enablingprovisions are required to be made because each competing claim seeksto achieve certain goals. How best one should optimise these conflictingclaims can only be done by the administration in the context of localprevailing conditions in public employment.[8]

13. The learned Attorney General argued before this Court inJarnail Singh (supra) that this Court did not indicate any test fordetermining adequacy of representation in service in M. Nagaraj (supra).He submitted that it is important to decide the yardstick applicable forarriving at quantifiable data showing inadequacy of representation ofSCs and STs to avoid multiple litigation. This Court refused to lay downany criteria for determining the adequacy of representation, as the Stateswere given liberty to determine the factors relevant for deciding adequaterepresentation, depending upon the promotional posts in question.

14. It is well-established that it is neither legal nor proper for theCourts to issue directions or advisory sermons to the executive in respectof the sphere which is exclusively within their domain under theConstitution[9]. In Asif Hameed & Ors. v. State of Jammu & Kashmir& Ors.[10], this Court observed as under: -

“When a State action is challenged, the function of the courtis to examine the action in accordance with law and todetermine whether the legislature or the executive has actedwithin the powers and functions assigned under theConstitution and if not, the court must strike down the action.While doing so the court must remain within its self-imposedlimits. The court sits in judgment on the action of a coordinatebranch of the Government. While exercising power of judicialreview of administrative action, the court is not an AppellateAuthority. The Constitution does not permit the court to director advise the executive in matters of policy or to sermonizequa any matter which under the Constitution lies within thesphere of legislature or executive…”.

8 Uttar Pradesh Power Corporation Limited v. Rajesh Kumar & Ors.(2012) 7 SCC 1

9 Mallikarjuna Rao & Ors. v. State of Andhra Pradesh & Ors.(1990) 2 SCC 707

10 1989 Supp (2) SCC 364

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A15. In P. Ramachandra Rao v. State of Karnataka[11], R. C.Lahoti, J. referred to a monograph “Judicial Activism andConstitutional Democracy in India”by T.R. Andhyarujina, in hisjudgment. While lauding judicial activism, a note of caution was soundedin the said monograph to the effect that the Supreme Court should leave“the decision-making to other branches of government afterBdirecting their attention to the problems rather than itself enteringinto the remedial field”. The following sentences from the monographare very well borne out in this particular context: “…courts lack thefacilities to gather detailed data or to make probing enquiries.Reliance on advocates who appear before them for data is likely toCgive them partisan or inadequate information. On the other hand ifcourts have to rely on their own knowledge or research it is boundto be selective and subjective. … Moreover, since courts mandatefor isolated cases, their decrees make no allowance for the differingand varying situations which administrators will encounter inapplying the mandates to other cases.”D

16. Determination of inadequate representation of SCs and STsin services under a State is left to the discretion of the State, as thedetermination depends upon myriad factors which this Court cannotenvisage. A conscious decision was taken by this Court in M. Nagaraj(supra) and Jarnail Singh (supra) to leave it to the States to fix theEcriteria for determining inadequacy of representation. The submissionof the learned Attorney General for India that this Court has to lay downthe yardstick for measuring adequacy of representation did not yield afavourable result as this Court in Jarnail Singh (supra) found it befittingfor the States to have the liberty to evaluate the representation of SCsFand STs in public employment. Laying down of criteria for determiningthe inadequacy of representation would result in curtailing the discretiongiven to the State Governments. In addition, the prevailing local conditions,which may require to be factored in, might not be uniform. Moreover, inM. Nagaraj (supra), this Court made it clear that the validity of lawmade by the State Governments providing reservation in promotions shallGbe decided on a case-to-case basis for the purpose of establishing whetherthe inadequacy of representation is supported by quantifiable data.Therefore, we are of the opinion that no yardstick can be laid down bythis Court for determining the adequacy of representation of SCs andSTs in promotional posts for the purpose of providing reservation.H11 (2002) 4 SCC 578

2) UNIT FOR COLLECTING QUANTIFIABLE DATA

2) UNIT FOR COLLECTING QUANTIFIABLE DATA

17. Seniority of Superintending Engineers in the IrrigationDepartment of the State of Punjab was the subject matter of a writpetition filed under Article 32 of the Constitution of India in R.K.Sabharwal & Ors. v. State of Punjab & Ors.[12].The relevant instructionsissued by the State of Punjab provided for 14 per cent reservation forSCs. Two points came up for consideration before this Court in the saidjudgment, the first being that in case more than 14 per cent of the ScheduledCaste candidates are appointed/promoted in a cadre on their own merit/seniority, then the purpose of reservation having been achieved in thesaid cadre, the Government instructions providing reservations wouldbecome inoperative. The second point on which arguments were heardis that roster cannot operate once the posts earmarked for the SCs, STsand Backward Classes are filled. Any post falling vacant in a cadre,thereafter, is to be filled from the category - reserved or general - due toretirement etc. of whose member the post fell vacant. The first pointraised by general category candidates was rejected by this Court byholding that reserved category candidates can compete for non-reservedposts and in the event of their appointment to the said posts, their numbercannot be added and taken into consideration for working out thepercentage of reservation. This Court was of the opinion that Article16(4) of the Constitution of India enables the State Government to makeprovision for reservation in favour of any Backward Class of citizenswhich, in the opinion of the State is not adequately represented in theservices. The percentage of posts reserved for Backward Classes, asprescribed by the State, has to be strictly followed and cannot be variedor changed simply because some members of the Backward Class havealready been appointed/promoted against the general seats.

18. The second point relates to the implementation of the roster inthe form of “running account” year to year. Roster points were fixed ina lot of 100 posts. This Court held that once 14 per cent posts earmarkedin the roster are filled up, the result envisaged by the instructions isachieved. Thereafter, there is no justification for operating the roster.This Court observed that the “running account” is to operate only till thequota provided by the instructions is reached and not thereafter. Thevacancies arising in the cadre, after the initial posts are filled, will haveto be filled from amongst the category to which the post belonged in theroster.

12 (1995) 2 SCC 745

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A19. In M. Nagaraj (supra), this Court observed that the appropriateGovernment has to apply cadre strength as a unit in the operation of theroster in order to ascertain whether a given class/group is adequatelyrepresented in the service. Cadre strength as a unit also ensures that theupper ceiling limit of 50 per cent is not violated. Following the law laiddown in R.K. Sabharwal (supra), this Court in M. Nagaraj (supra)Bfurther held that the roster has to be post-specific and not vacancy based.

20. In M. Nagaraj (supra), this Court held that it is open to theState to provide for reservation in promotions subject to limitation thatthere must exist compelling reasons for backwardness, inadequacy ofrepresentation in a class of post(s) keeping in mind the overallCadministrative efficiency. While referring to the roster, this Courtobserved that the appropriate Government has to apply the cadre strengthas a unit in the operation of the roster in order to ascertain whether agiven class/group is adequately represented in the service. Collection ofquantifiable data regarding inadequacy of representation as stipulatedDby M. Nagaraj (supra) is relatable to the cadre concerned, according to Jarnail Singh (supra).

Jarnail Singh (supra).

21. While it is clear that the unit for collection of quantifiable datais with respect to a cadre, it is necessary to understand what cadremeans. For a better appreciation, it would be profitable to relate to theEhistorical background of the concerned rules applicable to services underthe Centre as well as the states. In exercise of the powers conferred bysub-section (2) of Section 96B of the Government of India Act, 1919,the Secretary of State in Council made the Civil Services (Classification,Control and Appeal) Rules, 1930. Public services in India were classifiedas per Rule 14 of the said Rules in the following manner: (i) the all IndiaFServices; (ii) the Central Services, Class-I; (iii) the Central Services,Class-II; (iv) the Provincial Services; (v) the Specialist Services; and(vi) the Subordinate Services. The First Central Pay Commissionconsidered the classification of services to “secure fair treatment tothe employees on the basis of their services to Government, fairGreturn to the Government for the salary paid to its employees, andrelative fairness to employees in different kinds of position on thebasis of the nature of the duties performed”. According to the Reportof the First Central Pay Commission, the Central Services were broadlydivided into four categories, i.e., Class I, Class II, Subordinate Servicesand Inferior Services. After taking note of some objections regarding H

the use of the words “subordinate” and “inferior” as being derogatory,the First Central Pay Commission recommended that those categoriesbe referred to as Class III and Class IV. The classification of the CivilServices of the Union of India as per the Central Civil Services(Classification, Control and Appeal) Rules, 1965 (“CCA Rules, 1965”)is: (1) Central Civil Services, Class I; (2) Central Civil Services; ClassII; (3) Central Civil Services, Class III; and (4) Central Civil Services,Class IV. Rule 4 of the said Rules provides that a particular class cancomprise of different grades. All civil posts under the Union werereclassified from ‘Class’ to ‘Group’ by way of the notification of theGovernment of India in the Department of Personnel and AdministrativeReforms number S.O. 5041 dated 11.11.1975 and as recorded in Rule 6-A of the CCA Rules, 1965. Thereafter, the Central Civil Services/theCentral Civil Posts were organised into Group ‘A’, Group ‘B’, Group‘C’ and Group ‘D’. The present structure of the Central Civil Servicesis that a particular Service is divided across Groups, which further consistof grades.

22. During the course of the hearing, the Union of India has filedan affidavit informing this Court of the compliance of the conditionsprescribed in M. Nagaraj (supra) before making reservation inpromotions in services under the Centre. The Union of India referred toan Office Memorandum dated 02.07.1997, which heavily relied on R.K.Sabharwal (supra), wherein this Court had held that the cadre-strengthis always measured by the number of posts comprising the cadre. Rightto be considered for appointment can only be claimed in respect of apost in a cadre. As a consequence, the percentage of reservation has tobe worked out in relation to the number of posts which form the cadre-strength. The Union of India has brought to the notice of this Court thatthere are around 90 Ministries/Departments under the Government ofIndia in which 30 lakh employees are working. Referring to informationreceived from 44 Ministries/Departments out of the 90, the Union ofIndia has stated that there are around 3800 cadres. We were also apprisedof the fact that instructions have been in existence since 2013 forappointment of an officer of the rank of Deputy Secretary to theGovernment of India as a Liaison Officer, who is responsible for ensuringcompliance of the instructions on reservation. According to the affidavitfiled by the Union of India, thousands of reservation rosters are beingmaintained in the various offices/units/sub-units of the Departments andMinistries in the Government of India. Office Memorandum dated A

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A02.07.1997 issued by the Ministry of Personnel, Public Grievances andPensions, Department of Personnel and Training, Government of Indiacontains principles for preparing the rosters. According to para 4(c) ofthe said Office Memorandum, “cadre”, for the purpose of a roster, shallmean a particular grade and shall comprise the number of posts to befilled by a particular mode of recruitment in terms of the applicableBrecruitment rules. Explanatory Notes which are appended to the OfficeMemorandum dated 02.07.1997 elaborate the principles for making andoperating post-based rosters. Para 5 of the Explanatory Notes reads asfollows:

“While cadre is generally to be construed as the number of postsCin a particular grade, for the purpose of preparation of roster, itshall comprise posts required to be filled by a particular mode ofrecruitment in terms of the applicable recruitment rules. Toillustrate, in a cadre comprising 200 posts, where the recruitmentrules prescribe a ratio of 50:50 for direct recruitment andDpromotions, the roster for direct recruitment shall have 100 pointsand that for promotion shall have 100 points – thus making a totalof 200.”

23. The Union of India has filed the prevalent service rules of theStates of Andhra Pradesh, Uttar Pradesh, West Bengal, Rajasthan,EMadhya Pradesh, Punjab and Himachal Pradesh for the purpose ofdemonstrating the implementation of reservation in promotions in servicesunder these States. Rule 2(8) of the Andhra Pradesh State andSubordinate Services Rules, 1996 defines “cadre” as posts in variousclasses, categories and grades in a service. “Service” has been definedin Rule 2(30) as a post or a group of posts or categories of posts classifiedFby the State Government as State or Subordinate Service, as the casemay be. Rule 22 which deals with Special Representation (Reservation)empowers the State Government to make a provision for reservation inpromotions. The said Rule refers to the implementation of a 100-pointroster for promotion to the next higher category. It would be relevant toGrefer to the reservation policy of the State of Punjab according to whichreservation for SCs and STs is on the basis of roster registers maintainedfor each category of posts. The State of Himachal Pradesh has decidedto provide reservation in promotions by following the Explanatory Notesto the Office Memorandum issued by the Government of India dated02.07.1997.H

24. It would be relevant to refer to the judgments of this Courtwhich have dealt with the scope of the expression “cadre”. Rule 4(2) ofthe Central Engineering Service, Class I, Recruitment Rules, 1954 providedthat 75% of the vacancies in the grade of Executive Engineer, Class Ishall be filled by promotion from Assistant Executive Engineers, Class I.Interpreting the words “vacancies in the grade of Executive Engineer”,this Court in A.K. Subraman & Ors. v. Union of India & Ors.[13] heldthat the word “grade” is used in the sense of cadre. The dispute thatarose for consideration of this Court in Dr Chakradhar Paswan v.State of Bihar & Ors.[14] relates to the posts of Director and three DeputyDirectors in the Directorate of Indigenous Medicines, Department ofHealth, State of Bihar being grouped together for the purpose ofimplementing the policy of reservation under Article 16(4) of theConstitution of India. This Court was of the opinion that though theDirector and three Deputy Directors are Class I posts, the posts ofDirector and Deputy Directors do not constitute one ‘cadre’. It washeld that the term “cadre” has a definite legal connotation in servicejurisprudence. This Court referred to Fundamental Rule 9(4) whichdefines the word “cadre” to mean the strength of a service or part of aservice sanctioned as a separate unit. It was observed that as the postof Director is the highest post in the Directorate of Indigenous Medicinesfor which a higher pay scale is prescribed in comparison to DeputyDirectors, who are entitled to a lower scale of pay, they constitute twodistinct cadres or grades. This Court further expressed its view that it isopen to the Government to constitute as many cadres in any particularservice as it may choose, according to administrative convenience andexpediency. This Court concluded that the post of Director and DeputyDirectors constitute different cadres in the service.

25. In K. Manickaraj v. Union of India[15], the appellant was aWelfare Inspector, Grade III belonging to Scheduled Caste category.He claimed promotion to Grade II by contending that four posts werereserved for Scheduled Castes as there were 26 Grade II posts. TheRespondent contended that there were only 23 Grade II posts as threeGrade III posts which were temporarily upgraded to Grade II did notform part of the cadre strength of Grade II Inspectors. While allowingthe appeal of K. Manickaraj, this Court recognized that promotions take 13 (1975) 1 SCC 319

14 (1988) 2 SCC 214

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Aplace from one grade to a higher grade, with the cadre strength for thepurpose of providing reservation in such promotion to be the total numberof posts available in the grade to which promotion was sought. Themeaning of “cadre” fell for consideration of this Court again in Union ofIndia v. Pushpa Rani & Ors.[16]. “Cadre” in the 1985 edition of theRailway Establishment Code is defined as the strength of a service or aBpart of a service sanctioned as a separate unit. This Court held that theposts sanctioned in different grades would constitute independent cadres,even for the purpose of implementing the roster. The reason for givingan enlarged meaning to the term “cadre” was that the posts in the railwayestablishment are sanctioned with reference to grades. Even temporary,Cwork-charged, supernumerary and shadow posts created in differentgrades can constitute part of the cadre.

26. It is relevant to refer to another judgment of this Court inState of Rajasthan v. Fateh Chand Soni[17],wherein the meaning of“promotion” was looked into. This Court held that ‘promotion’ not onlyDcovered advancement to higher position or rank but also impliedadvancement to a higher grade. Whether the officers serving in Arms,Arms Support and Services comprise a single cadre for purposes ofpromotion was the question adjudicated by this Court in Union of India& Anr. v. Lieutenant Colonel P.K. Choudhary & Ors.[18]. This Courtheld that they do not constitute a single cadre, even though they might beEdrawing the same salary, holding the same rank, wearing the sameuniform and serving the same employer with similar service benefits. Asthe officers were allocated to different Arms and Services which putthem in distinct cadres, with promotional avenues being made availableagainst the posts comprising that cadre alone, there cannot be constitution Fof a common cadre. This Court referred to an earlier judgment in Sub-Inspector Rooplal & Anr. v. Lt. Governor & Ors.[19] in which it washeld that equivalence of two posts is not judged by the sole factor ofequal pay. There are four factors in that regard, namely: (i) the natureand duties of the post, (ii) the responsibilities and powers exercised bythe officer holding a post; the extent of territorial or other charge held orGresponsibilities discharged; (iii) the minimum qualifications, if any,prescribed for recruitment to the post; and (iv) the salary of the post.

16 (2008) 9 SCC 24217 (1996) 1 SCC 56218 (2016) 4 SCC 236H19 (2000) 1 SCC 644

This Court, in Lieutenant Colonel P.K. Choudhary (supra), was of thefurther opinion that transferability or interchangeability of one incumbentto another in the cadre are essential attributes of a common cadre.

27. In R.K. Sabharwal (supra), this Court held that the right to beconsidered for appointment can only be claimed in respect of a post in acadre and that the concept of ‘vacancy’ has no relevance in operatingthe percentage of reservation. It was further held that the cadre strengthis always measured by the number of posts comprising the cadre.

28. It is clear from the above statutory regime and the law laiddown by this Court that civil posts under the Government are organisedinto different services. A service constitutes ‘classes’/ ‘groups’ of posts.A ‘class’/‘group’ is further bifurcated into grades. Though thenomenclature might be different, the structure of services under theUnion and the States is similar. According to the instructions issued bythe Union of India, cadres are constituted for each grade. At the cost ofrepetition, the Union of India submitted that there are 3800 cadres in 44Ministries/Departments. Fundamental Rule 9(4) defines “cadre” to meanthe strength of a service or part of a service sanctioned as a separateunit. It is the choice of a State to constitute cadres. The entire servicecannot be considered to be a cadre for the purpose of promotion fromone post to a higher post in a different grade. Promotion is made fromone grade to the next higher grade, in relation to which cadres areconstituted. This Court in Dr Chakradhar Paswan (supra) hascategorically stated that the post of Director and Deputy Director cannotform one cadre. A cadre is constituted by the Government by taking intoaccount several factors within its sole discretion.

29. In the Office Memorandum dated 02.07.1997, the Union ofIndia set out the principles for making and operating post-based rosters,in which it has been expressly stated that cadre is to be construed as thenumber of posts in a particular grade. It is made clear that rosters havebeen prepared grade-wise which are reviewed on a yearly basis andthat reservation in promotions is implemented on the basis of these rosters,which operate grade-wise. In M. Nagaraj (supra), this Court approvedthat the percentage of reservation in promotions was to be applied to theentire cadre strength, as held in R.K. Sabharwal (supra). While doingso, this Court in M. Nagaraj (supra) made it clear that the unit foroperation of the roster would be the cadre strength. Before providingfor reservation in promotions to a cadre, the State is obligated to collect A

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Aquantifiable data regarding inadequacy of representation of SCs andSTs. Collection of information regarding inadequacy of representationof SCs and STs cannot be with reference to the entire service or ‘class’/‘group’ but it should be relatable to the grade/category of posts to whichpromotion is sought. Cadre, which should be the unit for the purpose ofcollection of quantifiable data in relation to the promotional post(s), wouldBbe meaningless if data pertaining to representation of SCs and STs iswith reference to the entire service.

3) PROPORTIONATE REPRESENTATION AS TEST OFADEQUACY

C30. In R.K. Sabharwal (supra), it was observed that StateGovernments may take the total population of a particular BackwardClass and its representation in the State services for the purpose ofcoming to a conclusion that there is inadequate representation in theState services. In M. Nagaraj (supra), this Court was of the consideredview that the exercise of collecting quantifiable data depends on numerousDfactors, with conflicting claims to be optimised by the administration inthe context of local prevailing conditions in public employment. As equity,justice and efficiency are variable factors and are context-specific, howthese factors should be identified and counter-balanced will depend onthe facts and circumstances of each case. The attempt of the learnedEAttorney General for India to impress upon this Court that the proportionof SCs and STs in the population of India should be taken as the test fordetermining whether they are adequately represented in promotional posts,did not yield results. This Court in Jarnail Singh (supra) found no faultwith M. Nagaraj (supra) regarding the test for determining the adequacyof representation in promotional posts in the State. While emphasisingFthe contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, this Court declined the invitation ofthe learned Attorney General for India to hold that the proportion of SCsand STs to the population of India should be the test for determininginadequacy of representation in promotional posts. Therefore, we areGnot persuaded to express any opinion on this aspect. It is for the State toassess the inadequacy of representation of SCs and STs in promotionalposts, by taking into account relevant factors.

4) TIME PERIOD FOR REVIEW

31. There is near unanimity amongst the counsel for both sidesHthat the data collected to establish inadequacy of representation, which

forms the basis for providing reservation for promotions, should bereviewed periodically. Ms. Indira Jaising, learned Senior Counselappearing for members of the reserved categories, supported thesubmissions of the learned Attorney General for India that a reviewshould be conducted every 10 years. Mr. Gopal Sankaranarayanan,learned Senior Counsel, submitted that it is time for reservation in publicemployment to be discontinued. Additionally, he submitted that the lion’sshare of reservation for members of SCs and STs accrued to the benefitof a select few within these categories, which further strengthened therequirement for review to appraise whether certain groups/classes withinthese categories had achieved the desired representation. We are notinclined to express any view on discontinuation of reservations in totality,which is completely within the domain of the legislature and the executive.As regards review, we are of the opinion that data collected to determineinadequacy of representation for the purpose of providing reservation inpromotions needs to be reviewed periodically. The period for reviewshould be reasonable and is left to the Government to set out.

5) PROSPECTIVE OPERATION OF THE JUDGMENTIN M. NAGARAJ

32. While holding that Article 16(4-A) does not provide forreservation in matters of promotion, this Court in Indra Sawhney (supra)saved the promotions that were already made. It was made clear thatthe judgment shall operate only prospectively and shall not affectpromotions already made, whether on temporary, officiating or regular/permanent basis. Already-existing provisions made for reservation inpromotions in Central or State services were permitted to continue tooperate for a period of five years from the date of the judgment in IndraSawhney (supra). Article 16(4-A) was brought into force from17.06.1995. This Court upheld the validity of Article 16(4-A) in M.Nagaraj (supra) on 19.10.2006 and observed that reservation inpromotions in public services can be made, subject to collection ofquantifiable data by the State showing backwardness of the class andinadequacy of representation of that class in public employment, inaddition to compliance with Article 335 of the Constitution. Reservationin promotions provided by various State Governments and the CentralGovernment have been challenged in the High Courts on the ground ofnon-compliance with the requirement of collection of quantifiable datashowing backwardness of the class and inadequacy of representation.

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AIt is relevant to mention at this stage that collection of quantifiable dataregarding backwardness of SCs and STs is no more required in view ofthe judgment of this Court in Jarnail Singh (supra). In respect of thedata relating to inadequacy of representation of SCs and STs, the HighCourts have adjudicated writ petitions which are the subject matter ofspecial leave petitions pending in this Court.

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33. The duty of the court is not to ‘pronounce a new law, but tomaintain and expound the old one’.[20] Holmes, J., in his dissent in Kuhnv. Fairmont Coal Co.[21], held “I know of no authority in this court tosay that, in general, state decisions shall make law only for thefuture. Judicial decisions have had retrospective operation for nearCa thousand years.” In M. Nagaraj (supra), this Court upheld theconstitutional validity of Article 16(4-A), subject to the State collectingquantifiable data showing inadequate representation. The law declaredby this Court interpreting Article 16(4-A) in M. Nagaraj (supra) appliesfrom 17.06.1995, i.e., the date on which Article 16(4-A) came into forceD(See: Ravi S. Naik v. Union of India & Ors.[22]; Lily Thomas & Ors.

v. Union of India & Ors.[23]). The contention put forth by the learnedAttorney General for India and the learned counsel appearing for thereserved category candidates, which requires to be examined, is regardingthe prospective applicability of the law laid down in M. Nagaraj (supra),i.e., from the date of the judgment.

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34. This Court, in I.C. Golak Nath & Ors. v. State of Punjab &Anr.[24], held that the Parliament had no power to amend Part III of theConstitution so as to take away or abridge the fundamental rights.However, to save the past transactions, the doctrine of prospectiveoverruling was invoked and the judgment was given prospective operation.FThe following propositions were laid down in Golak Nath case (supra):

“(1) The doctrine of prospective overruling can be invokedonly in matters arising out of the Constitution;

(2) it can be applied only by the highest court of the country,i.e., the Supreme Court as it has the constitutional jurisdiction G

to declare law binding on all the courts in India; 20 Blackstone, Commentaries 69 (15th ed. 1809)21 215 U.S. 349 (1910)22 1994 Supp (2) SCC 64123 (2000) 6 SCC 224H24 (1967) 2 SCR 762

(3) the scope of the retroactive operation of the law declaredby the Supreme Court superseding its earlier decisions is leftto its discretion to be moulded in accordance with the justiceof the cause or matter before it.”

While interpreting the scope of Article 142 of the Constitution,this Court held that the law declared by the Supreme Court is the law ofthe land and in so declaring, the operation of the law can be restricted tothe future, thereby saving past transactions.

35. The power of this Court under Article 142 of the Constitutionis a constituent power transcendental to statutory prohibition.[25] In OrissaCement Ltd.v.State of Orissa & Ors.[26], this Court observed that reliefcan be granted, moulded or restricted in a manner most appropriate tothe situation before it in such a way as to advance the interests of justice.The doctrine of prospective overruling is in essence a recognition of theprinciple that the Court moulds the reliefs claimed to meet the justice ofthe case, as has been held in Somaiya Organics (India) Ltd. & Anr. v.State of U.P. & Anr.[27]. It was further clarified that while in Golak Nath(supra), ‘prospective overruling’ implied an earlier judicial decision onthe same issue which was otherwise final, this Court had used the powereven when deciding on an issue for the first time. There is no need torefer to other judgments of this Court which have approved and appliedthe principle of prospective overruling or prospective operation ofjudgments. There cannot be any manner of doubt that this Court canapply its decision prospectively, i.e.,from the date of its judgment to savepast transactions.

36. While objecting to the contention of the learned AttorneyGeneral for India to declare the law laid down by M. Nagaraj (supra)as having prospective operation, Mr. Rakesh Dwivedi, learned SeniorCounsel appearing for the unreserved candidates, submitted that reliefcan be moulded in exercise of the power under Article 142 of theConstitution. It is no doubt true that M. Nagaraj (supra) did not statethat it would be prospective in operation. It is necessary for this Court toexamine whether a judgment can be made prospectively applicablesubsequently by a different bench of this Court. The doctrine ofprospective overruling was applied to Indian law in Golak Nath (supra)

25 Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997) 5 SCC 201

26 1991 Supp (1) SCC 430

27 (2001) 5 SCC 519

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Aby following the theory which was prevalent in the United States ofAmerica. Reference was made to the judgment of Linkletter v. Walker[28]which declared an earlier decision of the U.S. Supreme Court in Mappv.Ohio[29] to be prospective in operation.

37. For a better understanding, it is necessary to refer to the issueBin Linkletter (supra). The United States Supreme Court in Weeks v.United States[30] held that illegally-seized evidence cannot be used infederal courts, by establishing the exclusionary rule. The applicability ofthe exclusionary rule to states fell for consideration in Wolf v. Colorado[31].Taking note of the fact that 16 States adopted the exclusionary rule laiddown in Weeks (supra) while 31 other States rejected the exclusionaryCrule, the U.S. Supreme Court held that it was not a departure from basicstandards of due process to allow States to introduce illegally-obtainedevidence in State trials. Later, the U.S. Supreme Court in Mapp (supra)held that the exclusion of evidence seized in violation of search andseizure provisions of the Fourth Amendment was required of the StatesDby the due process clause of the Fourteenth Amendment. In Linkletter(supra), the U.S. Supreme Court was confronted with the question ofprospective operation of its earlier judgment in Mapp (supra). Theoverruling of the judgment in Wolf v. Colorado (supra) by Mapp (supra)was made prospective by the U.S. Supreme Court by making the followingobservations:E

“22. We believe that the existence of the Wolf doctrine priorto Mapp is ‘an operative fact and may have consequenceswhich cannot justly be ignored. The past cannot always beerased by a new judicial declaration.’ Chicot CountyDrainage Dist. v. Baxter State Bank, supra, 308 U.S. at 374,F60 S.Ct. at 319. The thousands of cases that were finallydecided on Wolf cannot be obliterated. The ‘particularconduct, private and official,’ must be considered. Here ‘priordeterminations deemed to have finality and acted uponaccordingly’ have ‘become vested.’ And finally, ‘public policyGin the light of the nature both of the (Wolf doctrine) and of itsprevious application’ must be given its proper weight. Ibid. Inshort, we must look to the purpose of the Mapp rule; the28 381 U.S. 618 (1965) : 1965 SCC Online US SC 12629 367 U.S. 643 (1961)30 232 U.S. 383 (1914)H31 338 U.S. 25 (1949)

reliance placed upon the Wolf doctrine; and the effect on theadministration of justice of a retrospective application ofMapp.

23. It is clear that the Wolf Court, once it had found the FourthAmendment’s unreasonable Search and Seizure Clauseapplicable to the States through the Due Process Clause ofthe Fourteenth Amendment, turned its attention to whetherthe exclusionary rule was included within the command ofthe Fourth Amendment. This was decided in the negative. It isclear that based upon the factual considerations heretoforediscussed the Wolf Court then concluded that it was notnecessary to the enforcement of the Fourth Amendment forthe exclusionary rule to be extended to the States as arequirement of due process. Mapp had as its prime purposethe enforcement of the Fourth Amendment through theinclusion of the exclusionary rule within its rights. This, itwas found, was the only effective deterrent to lawless policeaction. Indeed, all of the cases since Wolf requiring theexclusion of illegal evidence have been based on the necessityfor an effective deterrent to illegal police action. See, e.g.,Rea v. United States, supra. We cannot say that this purposewould be advanced by making the rule retrospective. Themisconduct of the police prior to Mapp has already occurredand will not be corrected by releasing the prisoners involved.Nor would it add harmony to the delicate state-federalrelationship of which we have spoken as part and parcel ofthe purpose of Mapp. Finally, the ruptured privacy of thevictims’ homes and effects cannot be restored. Reparationcomes too late.

24. It is true that both the accused and the States relied uponWolf. Indeed, Wolf and Irvine each pointed the way for thevictims of illegal searches to seek reparation for the violationof their privacy. Some pursued the same. See Monroe v. Pape,365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). In addition,in Irvine, a flag in a concurring opinion warned that Wolfwas in stormy weather. On the other hand, the States reliedon Wolf and followed its command. Final judgments ofconviction were entered prior to Mapp. Again and again this AB

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25. Finally, there are interests in the administration of justiceand the integrity of the judicial process to consider. To makethe rule of Mapp retrospective would tax the administrationof justice to the utmost. Hearings would have to be held onthe excludability of evidence long since destroyed, misplacedor deteriorated. If it is excluded, the witnesses available atthe time of the original trial will not be available or if locatedtheir memory will be dimmed. To thus legitimate such anextraordinary procedural weapon that has no bearing on guiltwould seriously disrupt the administration of justice.”

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38. This Court in Indra Sawhney (supra) interpreted Article 16(4-A) of the Constitution by holding that reservation cannot be provided inpromotions. However, reservation in promotions were permitted for afurther period of five years from the date of the judgment. In AshokKumar Gupta & Anr. v. State of U.P. & Ors.[32], promotions in PublicFWorks Department of the Government of Uttar Pradesh were challenged.One of the grounds of challenge was that the direction of the SupremeCourt for prospective overruling of the judgment of this Court in GeneralManager, Southern Railway v. Rangachari[33]and for operation of theratio in Indra Sawhney (supra) after five years from the date of thejudgment was inconsistent with and contrary to the scheme of theGConstitution. In other words, it was contended by the appellants in AshokKumar Gupta (supra) that after having declared reservation inpromotions under Articles 16(1) and 16(4) as unconstitutional andoverrulingRangachari (supra) as not being correct in law, the Court 32 (1997) 5 SCC 201H33 (1962) 2 SCR 586

cannot postpone the operation of the judgment to a future date as itamounts to perpetration of void action and is violative of the appellants’fundamental rights. In Ashok Kumar Gupta (supra), this Court was ofthe opinion that there is no prohibition for this Court to postpone theoperation of the judgment in Indra Sawhney (supra) or to prospectivelyoverrule the ratio in Rangachari (supra). This Court further held that:

“60. It would be seen that there is no limitation under Article142(1) on the exercise of the power by this Court. The necessityto exercise the power is to do “complete justice in the causeor matter”. The inconsistency with statute law made byParliament arises when this Court exercises power underArticle 142(2) for the matters enumerated therein.Inconsistency in express statutory provisions of substantivelaw would mean and be understood as some expressprohibition contained in any substantive statutory law. Thepower under Article 142 is a constituent power transcendentalto statutory prohibition. Before exercise of the power underArticle 142(2), the Court would take that prohibition(sic provision) into consideration before taking steps underArticle 142(2) and we find no limiting words to mould therelief or when this Court takes appropriate decision to meteout justice or to remove injustice. The phrase “completejustice” engrafted in Article 142(1) is the word of widthcouched with elasticity to meet myriad situations created byhuman ingenuity or cause or result of operation of statutelaw or law declared under Articles 32, 136 and 141 of theConstitution and cannot be cribbed or cabined within anylimitations or phraseology. Each case needs examination inthe light of its backdrop and the indelible effect of the decision.In the ultimate analysis, it is for this Court to exercise its powerto do complete justice or prevent injustice arising from theexigencies of the cause or matter before it. The question oflack of jurisdiction or nullity of the order of this Court doesnot arise. As held earlier, the power under Article 142 is aconstituent power within the jurisdiction of this Court. So,the question of a law being void ab initio or nullity or voidabledoes not arise.

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Acomplete justice in any cause or matter before this Court.The Rangachari [(1962) 2 SCR 586 : AIR 1962 SC36] ratio was in operation for well over three decades underwhich reservation in promotions were given to several personsin several services, grades or cadres of the Union of India orthe respective State Governments. This Court, with a view toBsee that there would not be any hiatus in the operation of thatlaw and, as held earlier, to bring about smooth transition ofthe operation of law of reservation in promotions, by a judicialcreativity extended the principle of prospective overrulingapplied in Golak Nath case [(1967) 2 SCR 762 : AIR 1967CSC 1643] in the case of statutory law and of the judicialprecedent in Karunakar case [(1993) 4 SCC 727 : 1993 SCC(L&S) 1184 : (1993) 25 ATC 704] and further elongated theprinciple postponing the operation of the judgment in Mandalcase [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :(1992) 22 ATC 385] for five years from the date of theDjudgment. This judicial creativity is not anathema toconstitutional principle but an accepted doctrine as anextended facet of stare decisis. It would not be labelled asproviso to Article 16(4) as contended for.”

39. Whether the judgment of this Court in Indian Council forEEnviro-Legal Action v. Union of India & Ors.[34] was prospective wasthe subject-matter of consideration in Goan Real Estate andConstruction Limited & Anr. v. Union of India & Ors.[35]. After adetailed consideration of the judgment in Indian Council for Enviro-Legal Action (supra), this Court in Goan Real Estate (supra) concludedFthat though not stated categorically in Indian Council for Enviro-LegalAction(supra), it was the intention of this Court to give prospective effectto the judgment. The above is an instance where this Court declared anearlier judgment to have prospective effect.

40. A contrary view was expressed by this Court in M.A.GMurthy v. State of Karnataka & Ors.[36] in which it was held thatprospective overruling can be done only by the Court which has renderedthe decision. The dispute that arose for consideration of this Court in thesaid judgment pertained to appointment to the posts of Manager (Finance 34 (1996) 5 SCC 28135 (2010) 5 SCC 388H36 (2003) 7 SCC 517

and Accounts) in the Karnataka State Financial Corporation. Theappellants challenged the selection of respondent no. 4 before theKarnataka High Court. Though the learned Single Judge of the HighCourt found respondent no. 4 therein to be ineligible as on the date of hisappointment, the selection was not disturbed on the ground that heobtained qualifications by the time of interview. The learned Single Judgerelied upon the judgment of this Court in Ashok Kumar Sharma &Anr.v. Chander Shekher & Anr.[37](Ashok Kumar Sharma case No.I). The judgment of the learned Single Judge was upheld by the DivisionBench of the High Court. Thereafter, a review application was filedinforming the Division Bench of the High Court that the judgment of thisCourt in Ashok Kumar Sharma case No.I was overruled in AshokKumar Sharma & Ors. v. Chander Shekhar & Anr.[38](Ashok KumarSharma case No. II). By holding that on the date of the judgment ofthe Division Bench, Ashok Kumar Sharma case No. I held the field,the High Court dismissed the review petition. Taking note of the factthat Ashok Kumar Sharma case No. II was a judgment of this Courtin review of the judgment in Ashok Kumar Sharma case No. I, which,therefore, merged with the subsequent judgment, making the laterdecision the one and only judgment rendered for all purposes, this Courtfound that the High Court had committed an error in not following thelaw laid down by this Court in Ashok Kumar Sharma case No. II.While holding so, this Court referred to the doctrine of prospectiveoverruling and earlier judgments of this Court in Golak Nath (supra),Ashok Kumar Gupta (supra) and others. This Court proceeded toobserve that there shall be no prospective overruling unless it is soindicated in a particular decision.

41. The facts of the case and the dispute resolved by this Court inM.A. Murthy (supra) relate to the applicability of the subsequent judgmentof Ashok Kumar Sharma case No. II rendered in review of an earlierjudgment. The question of prospective overruling did not arise in the saidcase. The observation made in M.A. Murthy (supra) that there shall beno prospective overruling unless indicated in the particular decision isobiter. Obiterdictum is defined in Black’s Law Dictionary (9th Edn.,2009), as follows:

“Obiter dictum.— A judicial comment made while delivering ajudicial opinion, but one that is unnecessary to the decision in the37 1993 Supp (2) SCC 61138 (1997) 4 SCC 18

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case and therefore not precedential (although it may be consideredpersuasive). — Often shortened to dictum or, less commonly,obiter.

…

Obiter dicta

Strictly speaking an “obiter dictum” is a remark made or opinionBexpressed by a judge, in his decision upon a cause, “by the way”—that is, incidentally or collaterally, and not directly upon the questionbefore the court; or it is any statement of law enunciated by theJudge or court merely by way of illustration, argument, analogy,or suggestion…. In the common speech of lawyers, all suchCextrajudicial 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 “obiterdictum” as “an opinion not necessary to a judgment; an observationas to the law made by a Judge in the course of a case, but notnecessary to its decision, and therefore, of no binding effect; oftenDcalled as obiter dictum, ‘a remark by the way’”. A decision on a pointnot necessary for the purpose of or which does not fall for determinationin that decision becomes an obiter dictum.[39 ]It is a well-settled propositionthat only the ratio decidendi can act as the binding or authoritativeprecedent. Reliance placed on mere general observations or casualEexpressions of the Court, is not of much avail.[40] Therefore, the casualand unnecessary observation in M.A. Murthy (supra) that there shall beno prospective overruling unless it is so indicated in a particular decisionis obiter and not binding. Moreover, in M.A. Murthy (supra), this Courtfailed to consider the ratio of the judgment of this Court in Ashok KumarGupta (supra), even after referring to it. As stated above, the prospectiveFoverruling of Rangachari (supra) by Indra Sawhney (supra) was upheldin Ashok Kumar Gupta (supra).

42. This Court in Golak Nath (supra) and Ashok Kumar Gupta(supra), referred to above, has laid down that Article 142 empowers thisCourt to mould the relief to do complete justice. To conclude this point,Gthe purpose of holding that M. Nagaraj (supra) would have prospectiveeffect is only to avoid chaos and confusion that would ensue from itsretrospective 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 Girnar Traders v. State of Maharashtra & Ors. (2007) 7 SCC 555

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large number of employees, who may have availed of reservation inpromotions without there being strict compliance of the conditionsprescribed in M. Nagaraj (supra). Most of them would have alreadyretired from service on attaining the age of superannuation. The judgmentof M. Nagaraj (supra) was delivered in 2006, interpreting Article 16(4-A) of the Constitution which came into force in 1995. As making theprinciples laid down in M. Nagaraj (supra) effective from the year 1995would be detrimental to the interests of a number of civil servants andwould have an effect of unsettling the seniority of individuals over a longperiod 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

6) QUANTIFIABLE DATA AND SAMPLING METHOD

43. The Karnataka Legislature enacted the KarnatakaDetermination of Seniority of the Government Servants Promoted onthe Basis of Reservation (to the Posts in the Civil Services of the State)Act, 2002. This Court declared the provisions of the said Act asunconstitutional on the ground that the Government of Karnataka failedto produce quantifiable data to show any compelling necessity forexercising power under Article 16(4-A) and therefore, Sections 3 and 4of the said Act were held to be unconstitutional. Thereafter, theGovernment of Karnataka constituted a committee, headed by theAdditional Chief Secretary to the State of Karnataka, and entrusted thefollowing tasks to the committee:- “(1) Collect information in cadre-wise representation of SCsand STs in all the Government departments.

(2) Collect information regarding backwardness of SCs andSTs.

(3) Study the effect on the administration due to the provisionof reservation in promotion to SCs and STs.”

44. On 05.05.2017, the ‘Report on Backwardness, Inadequacy ofRepresentation and Administrative Efficiency in Karnataka’ wassubmitted by the Ratna Prabha Committee. The Government ofKarnataka accepted the Report and the Karnataka Extension ofConsequential Seniority to Government Servants Promoted on the Basisof Reservation (to the Posts in the Civil Services of the State) Bill 2017was passed by the Legislative Assembly and the Legislative Counciland thereafter, received Presidential assent on 14.06.2018. The grievance AB

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Aof the petitioners therein was that the data was collected only from 31departments 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 wascollected 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 summaryBof 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 StateGovernment provides the rich information on the inadequacy ofrepresentation of SC and ST employees in various cadres ofKarnataka Civil Services.

C

(2) The total number of sanctioned posts as per the data of 2016is 7,45,593 of which 70.22% or 5,23,574 are filled up across 31departments.

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(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 all31 departments in comparison with total sanctioned postsEcomprises of 10.65% and 2.92% respectively. This provesinadequacy of representation of SCs and Sts.

(5) On an average the representation in Cadre A for SCs is at12.07% and STs 2.70% which sufficiently proves the inadequacyof representation.

F

(6) The extent of representation in Cadre B is on an average of9.79% 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 representationis inadequate in the Cadre ‘C’ whereas, 0.05% excessrepresentation is seen for Sts.

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(8) On an average of 2% and 1% over-representation of employeesof SCs and STs is found in Cadre D respectively. However, in thelast 5 years, inadequacy of representation of SCs by 3% is foundin this cadre.

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(9) The representation of Scheduled Caste in Cadres A, B and Cis on an average 12, 9.79 and 12.04% respectively whereas inCadre D it is 16.91.

(10) In case of STs in the Cadres A and B the representation is2.70 and 2.34%. However, excess representation of 0.04 and0.93% is found in case of Group C and Group D respectively.

(11) Over-representation in some years and departments isattributed to either Direct Recruitment or retirement of employeesor filling up of backlog vacancies as the latter does not fall under50% limitation of reservation.

2.6: Conclusion:

The data clearly shows the inadequacy of representation of SCsand STs in the civil services in Groups A, B and C and adequaterepresentation in Group D.”

This Court found the challenge to the Report on the ground ofdata having been collected on the basis of Groups A, B, C and D asopposed to cadres, to be without merit. The basis of the said conclusionof the Court was that there is no fixed meaning ascribed to the term‘cadre’ in service jurisprudence. Further, this Court held that collectionof quantifiable data on the inadequacy of representation is in the servicesof the State, according to M. Nagaraj (supra). In addition, this Courtwas also of the view that Article 16(4-A) referred to inadequacy ofrepresentation in the services of the State. It was further declared thatcollection of data on the basis of groups does not exclude data pertainingto cadres, as a group includes posts in all the cadres in that group.

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

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A46. The first term of reference for the Ratna Prabha Committeewas to collect data cadre-wise. The conclusion of this Court in B.K.Pavitra II (supra) that the expression ‘cadre’ has no fixed meaning inservice jurisprudence is contrary to the judgments of this Court, whichhave been referred to above while answering point 2. In clear terms, M.Nagaraj (supra) held that the unit for collection of quantifiable data isBcadre, 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 reservationin promotions for SCs and STs, which are not adequately represented inthe services of the State. However, the provision for reservation in mattersof promotion is with reference to class or classes of posts in the servicesCunder the State. That ‘groups’ consist of cadres is a fact which wastaken into consideration by this Court in B.K. Pavitra II (supra). Theconclusion that the collection of data on the basis of ‘groups’ is valid, iscontrary to the decisions of this court in M. Nagaraj (supra) and JarnailSingh (supra).D47. The State should justify reservation in promotions with respect

D47. The State should justify reservation in promotions with respectto the cadre to which promotion is made. Taking into account the datapertaining to a ‘group’, which would be an amalgamation of certain cadresin a service, would not give the correct picture of the inadequacy ofrepresentation of SCs and STs in the cadre in relation to which reservationin promotions is sought to be made. Rosters are prepared cadre-wiseEand not group-wise. Sampling method which was adopted by the RatnaPrabha Committee might be a statistical formula appropriate for collectionof data. However, for the purpose of collection of quantifiable data toassess representation of SCs and STs for the purpose of providingreservation in promotions, cadre, which is a part of a ‘group’, is the unitFand 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 cadresis contrary to the law laid down by this Court in M. Nagaraj (supra) andJarnail Singh (supra).

G48. It is made clear that we have not expressed any opinion onthe merits of any individual case as we have only answered the commonissues that were formulated after hearing the parties.

49. List the matters on 24/2/2022 for further hearing.

Bibhuti Bhushan BoseH(Assisted by : Neha Sharma, LCRA)

Issues answered.