K PAVITHRA AND ORS. versus UNION OF INDIA AND ORS. on 19 March 2020

1. On 10 May 2019, this Court delivered its judgment in B KPavitra & Ors. v Union of India & Ors.[1] (“B K Pavitra II”),upholding the constitutional validity of the Karnataka Extension ofBConsequential Seniority to Government Servants Promoted on the Basisof Reservations (to the Posts in the Civil Services of the State) Act2018[2]. The conclusion which was arrived at by the Court is extractedbelow:

“144. For the above reasons, we have come to the conclusionCthat the challenge to the constitutional validity of the ReservationAct 2018 is lacking in substance. Following the decision in B KPavitra I, the State government duly carried out the exercise ofcollating and analysing data on the compelling factors advertedto by the Constitution Bench in Nagaraj. The ReservationAct 2018 has cured the deficiency which was noticed by B KDPavitra I in respect of the Reservation Act 2002. TheReservation Act 2018 does not amount to a usurpation of judicialpower by the state legislature. It is Nagaraj and Jarnailcompliant. The Reservation Act 2018 is a valid exercise of theenabling power conferred by Article 16 (4A) of the Constitution.”

E2. 277 applicants are before this Court in three MiscellaneousApplications[3]. The reliefs sought in the lead MA are thus:

“(a) Direct the State of Karnataka to implement ‘post basedreservation’ in terms of the judgment passed by thisHon’ble Court in R.K. Sabharwal vs State of Punjab –F(1995) 2 SCC 745 and to re-work all promotions on‘post’ basis before any further action.

(b) Direct the State of Karnataka to apply ‘creamy layer’and to exclude individuals belonging to the ScheduledCastes and Scheduled Tribes who no longer requireGreservation under Article 16(4-A) of the Constitutionwith a further direction to the State to apply creamylayer at entry level to disqualify those who were creamy 1 (2019) 16 SCC 129

2 “Reservation Act 2018”H3 “MAs”

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

layer at that stage and to conduct the exercise from 17[th]June, 1995, i.e. the date of the Seventy SeventhAmendment.

(c) estrain the State and its instrumentalities from taking anyaction where, no exercise is undertaken for that serviceor cadre on adequacy or where there is adequacy ofrepresentation particular when every specific applicationof order in relation to each cadre must be Nagarajcompliant.”

Similar reliefs have been sought by the applicants in the othertwo MAs.

3. Dr Rajeev Dhavan, learned Senior Counsel prefaced hisarguments by submitting that:

(i) The present MA is for directions and not for review ofthe recent judgment of this Court in B K Pavitra II;and

(ii) The directions which have been sought emanate fromthe judgment of this Court in B K Pavitra II.

4. The Government of Karnataka issued a Government Order[4]on 15 May 2019[5]. The preamble to the GO notes that on 27 February2019, instructions have been issued for implementing the ReservationAct 2018 subject to the judgment that would be delivered by this Courton the validity of the Reservation Act 2018. Subsequently, in pursuanceof an interim order of this Court dated 1 March 2019,[6] instructions wereissued in a GO dated 5 March 2019 to the effect that no further actionshould be taken for implementing the GO dated 27 February 2019until further directions. Following the judgment of this Court in B KPavitra II upholding the Reservation Act 2018, the Government ofKarnataka, by the GO dated 15 May 2019 withdrew the earlier GOdated 5 March 2019 and directed all appointing authorities to abide bythe GO dated 27 February 2019 in the implementation of the ReservationAct 2018.

5. On 24 June 2019, a circular was issued by the Governmentof Karnataka[7]. The circular notes that while preparing the seniority lists 4 “GO”

5 Government Order No. DPAR 186 SRS 2018, Bengaluru.

6 In IA 36981 of 2019 in Writ Petition (C) No. 764 of 2019

7 No : DPAR 186 SRS 2018

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Ain conformity with the GO dated 27 February 2019, meetings were heldunder the auspices of the Chief Secretary and Additional ChiefSecretary to the Government of Karnataka, following which a list ofFrequently Asked Questions[8] has been prepared together with answers.The annexure to the circular contains a reference to the FAQs andthe answers provided by the Government.B6. Dr Rajeev Dhavan, learned Senior Counsel has morespecifically adverted to items 2 and 3 of the FAQs in the annexurewhich are extracted below:

“2.Whether to consider the scheduled caste and scheduledtribe candidate for promotions for the purpose ofCcalculating their representation for such of the candidateswho are selected in general merit rather than against theroaster points under direct recruitment.

Answer: Even though the scheduled caste and scheduled tribecandidates are selected under general merit rather than againstDroaster points under direct recruitment, they shall be consideredagainst their roaster points for the purpose of calculating theirrepresentation. This has been clearly told in the GovernmentOrder No. DPAR 29 SBC 77 dated 01.06.1978 and the samepoint is explained in the form of an example in the Schedule ofthe Act 2017.E3. Whether to consider the total no. of post in therespective cadres while revising the seniority list from27.04.1978? or to consider the number of Governmentemployees working in the respective cadre (Excluding thevacant post of the cadre strength)FAnswer: The consequential seniority is to be given to thosebelonging to the reserved category employees who have beenpromoted against promotional roaster points at the time of revisingthe seniority list from 27.04.1978 to 02.02.1999.

3.1 After the date 3.2.1999, only it is to be revised by consideringGon the basis of total number of Government employees in therespective cadres (Cadre working strength excluding vacantposts). Thus it is not allowed to calculate the representation onthe basis of total number of posts in the respective cadres. In B K PAVITHRA AND ORS. v. UNION OF INDIA AND ORS.[DR. DHANANJAYA Y CHANDRACHUD, J.]

this regard attention is drawn towards Government order numberDPAR 21 SBC 97 dated 03.02.1999 and Government order evennumber dated 13.04.1999.”

7. The grievance of the applicants is that until the backlog iscleared, the proportion of Scheduled Castes/Scheduled Tribes willexceed 15 per cent and 3 per cent. The principal points which havebeen urged in the present MAs are:

(i) The State government has not taken any step to correctthe illegality of following a vacancy-based roaster since27 April 1978, when the policy of reservation inpromotions was introduced in the State Civil Servicesof Karnataka;

(ii) The State government was bound by the statementcontained in its Counter Affidavit filed before this Courtin B K Pavitra II that the reservation policy would beimplemented on the principle of post-based reservations;

(iii) Since reservations in the state are contemplatedretrospectively from 27 April 1978, the State governmentis obliged to apply the ‘creamy layer’ principle todisqualify those who fall within the creamy layer at theentry level and this exercise should be conducted at leastfrom 17 June 1995, when the Seventy SeventhAmendment to the Constitution came into force; and

(iv) Though it was mandatory for the State of Karnataka tobalance Article 16(4-A) against Article 16(1) of theConstitution and to collect cadre-wise data beforeimplementing the Reservation Act 2018, the GO dated15 May 2019 and the circular dated 24 June 2019 aresilent on the above issues as a result of which, the Stategovernment is implementing the Reservation Act 2018in an arbitrary manner.

8. Dr Dhavan relied on the inherent powers of this Court, asrecognised by Order LV of the Supreme Court Rules 2013[9] to urgethat the invocation of the jurisdiction of this Court in the form of thepresent MAs is based on the recourse to that inherent power. Reliance 9 “2013 Rules”

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Ain this regard was placed on the decisions of this Court in HimachalPradesh Scheduled Tribes Employees Federation v HimachalPradesh Samanaya Varg Karamchari Kalayan Mahasangh[10]andAbu Salem Abdul Qayyum Ansari v Central Bureau ofInvestigation[11].

B9. Mr Shekhar Naphade, learned Senior Counsel appearing onbehalf of the applicant in MA 1324 of 2019[12], submitted that no datahad been collected for the departments in which the applicants havebeen engaged as required by the judgment of this Court in Nagaraj vUnion of India[13].

C10. Mr Basava Prabhu S Patil, learned Senior Counsel and MrDinesh Dwivedi, learned Senior Counsel have opposed the MAs andurged that:

(i) The prayers in the MAs are not adjunct to the maindecision of this Court in B K Pavitra II; and D(ii) The applicants have sought to challenge the subsequentdirections and clarifications issued by the Stategovernment through the present MAs.

The MAs, it was urged, are not maintainable.

11. Ms Indira Jaising, learned Senior Counsel submitted that:

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(i) No provision of law has been invoked while filing thepresent MAs;

(ii) This Court, upon delivering its decision on 10 May 2019,has been rendered functus officio; F(iii) There is a bar contained in Order XII Rule 3 of the 2013Rules for entertaining such an application, except forcorrecting arithmetical errors; and

(iv) A petition for review has been filed by the applicantsand hence the MAs are not maintainable.

G12. Addressing the Court on the reliefs which have been soughtin the MAs, Ms Jaising submitted that:

10 (2013) 10 SCC 30811 (2013) 12 SCC 1

12 KPTCL General Category Association (Regd.)H13 (2006) 8 SCC 212

(i) The relief which has been sought in prayer (a) isfounded on a fresh cause of action for re-drafting theseniority list; A

(ii) The nature of the reliefs sought require the filing of afresh substantive Writ Petition; B

(iii) The relief in prayer (b) was not an issue in the judgmentof this Court in B K Pavitra II since the Court did notdeal with recruitment at the entry level, but withpromotions and consequential seniority thereto; and

(iv) Prayer (c) has been specifically dealt with andconsidered in paragraph 96 of the judgment of this Courtin B K Pavitra II.

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13. In rejoinder, Dr Dhavan submitted that:

(i) The concern is that the parties should not be requiredto go through endless stages of litigation; and D

(ii) The judgment delivered by this Court on 10 May 2019requires directions and even the State government hasthought it fit so as to implement the Reservation Act2018.

14. The rival submissions fall for consideration.

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15. It is necessary for this Court to address at the outset thepreliminary objection raised by the learned counsel opposing the MAsthat, though styled as an application for directions, they seek to lay asubstantive challenge to the subsequent directions and clarificationsissued by the State government in implementing the Reservation Act2018.

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16. Order XII Rule 3 of the Supreme Court Rules provides that:

“3. Subject to the provisions contained in Order XLVII of theserules, a judgment pronounced by the Court or by a majority ofthe Court or by a dissenting Judge in open Court shall notafterwards be altered or added to, save for the purpose ofcorrecting a clerical or arithmetical mistake or an error arisingfrom any accidental slip or omission.”

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Rule 3 stipulates that, save for the purpose of correcting a clericalor arithmetical mistake or any error arising from an accidental slip orH

Aomission, no alteration or addition may be made to a judgmentpronounced by the Court. This is in keeping with the principle ofaccording finality to a judgment of the Court. The rule is made subjectto Order XLVII of the 2013 Rules which contains provisions for thefiling of a review before this Court. The parameters that guide theexercise of the review jurisdiction of this Court are contained in OrderBXLVII. Subject to the review jurisdiction of this Court, Rule 3 mandatesthat the Court “shall not” alter or delete any part of a judgment thathas been pronounced, save for the purposes of minor corrections oraccidental mistakes.

17. Order LV of the 2013 Rules titled ‘Power to Dispense andCInherent Powers’ contains provisions that empower this Court to adopt,notwithstanding anything contained in the Rules, such course as itconsiders just and expedient. Order LV, in so far as is relevant providesthus:

“1. The Court may, for sufficient cause shown, excuse the partiesDfrom compliance with any of the requirements of these rules, andmay give such directions in matters of practice and procedureas it may consider just and expedient.

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E6. Nothing in these rules shall be deemed to limit or otherwiseaffect the inherent powers of the Court to make such orders asmay be necessary for the ends of justice or to prevent abuse ofthe process of the Court.”

Order LV empowers this Court to, for sufficient cause, excuseparties from compliance with any of the requirements of the 2013 RulesFand issue such directions as it considers just and expedient. Rule 6 ofOrder LV clarifies that nothing in the rules shall be deemed to limit orotherwise affect the inherent powers of the Court to make such ordersas may be necessary for the ends of justice or to prevent the abuse ofthe process of the Court. Rule 6 of Order LV mirrors the constitutionalGpower conferred by Article 142 of the Constitution which empowersthis Court to pass such decree or make such order as is necessary fordoing complete justice.

18. Dr Rajeev Dhavan, learned Senior Counsel has urged thatthis Court may issue the directions sought in exercise of its inherentHpower. In effect, Order LV of the 2013 Rules has been pressed in aid of the submission that this Court may grant the reliefs sought in exerciseof its inherent power to do complete justice.

19. This Court has, on several previous occasions, consideredwhether the filing of applications, though styled as applications fordirections/ modification/recall/correction are, in substance, of a differentnature and consequentially not maintainable. In Delhi Administrationv Gurdip Singh Uban[14](“Gurdip Singh”), this Court disapproved ofthe practice of filing applications for “clarifications”, “modifications” and“recall” of final judgments and orders, noting that this was an attemptto bypass the provisions for review contained in Order XL of theSupreme Court Rules 1966. The Court observed:

“17. We next come to applications described as applications for“clarification”, “modification” or “recall” of judgments or ordersfinally passed. We may point out that under the relevant RuleXL of the Supreme Court Rules, 1966 a review application hasfirst to go before the learned Judges in circulation and it will befor the Court to consider whether the application is to be rejectedwithout giving an oral hearing or whether notice is to be issued.

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In case notice is issued, the review petition will be listed forhearing, after notice is served. This procedure is meant to savethe time of the Court and to preclude frivolous review petitionsbeing filed and heard in open court. However, with a view toavoid this procedure of “no hearing”, we find that sometimesapplications are filed for “clarification”, “modification” or“recall” etc. not because any such clarification,modification is indeed necessary but because the applicantin reality wants a review and also wants a hearing, thusavoiding listing of the same in chambers by way ofcirculation. Such applications, if they are in substancereview applications, deserve to be rejected straight awayinasmuch as the attempt is obviously to bypass Order XL Rule3 relating to circulation of the application in chambers forconsideration without oral hearing…

By describing an application as one for “clarification” or“modification”, — though it is really one of review — aparty cannot be permitted to circumvent or bypass the A

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Acirculation procedure and indirectly obtain a hearing in theopen court. What cannot be done directly cannot bepermitted to be done indirectly.

(Emphasis supplied)

The Court observed that many applications, though styled asBapplications for clarification or modification are, in substance,applications for review. This practice was presumably adopted to bypassthe procedure stipulated for the consideration by this Court of reviewpetitions. A party, it was held, would not be permitted to circumventsubstantive procedures by filing such applications. With the aboveobservations, the Court affirmed a fundamental principle of jurisprudenceCthat “what cannot be done directly cannot be permitted to be doneindirectly.”

20. The view of the two judge Bench in Gurdip Singh has beenreiterated by this Court in Zahira Habibullah Sheikh v State ofGujarat[15], Common Cause v Union of India[16], Ram Chandra SinghDv Savitri Devi[17]and APSRTC v Abdul Karim[18].

21. Recently, in M C Mehta v Union of India[19], a two judgeBench of this Court rejected an application filed before it seeking aclarification that the applicant is permitted to carry out construction onthe land in question in the following terms:

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“…the view expressed by this Court in Gurdip Singh Uban cannotbe limited only to applications for modification, clarification orrecall. There is a growing tendency to provide differentnomenclatures to applications to side-step the rigours andlimitations imposed on an applicant and the Court in dealing withFa review petition. Applications can be and are titled as applicationsfor directions, rehearing, reconsideration, revisiting etc. etc. Onehas only to open a thesaurus and find an equivalent word andgive an application an appropriate nomenclature so that it couldbe taken up for consideration in open Court and on its meritsand not as a review petition by circulation. In our opinion, theGnomenclature given to an application is of absolutely no 15 (2004) 5 SCC 353

16 (2004) 5 SCC 222

17 (2004) 12 SCC 713

18 (2007) 3 SCJ 168H19 (2019) 2 SCJ 640

consequence-what is of importance is the substance of theapplication and if it is found, in substance, to be an applicationfor review, it should be dealt with by the Court as such, and bycirculation.

(Emphasis Supplied)

22. The Court noted the growing practice, despite the decisionof this Court in Gurdip Singh, of filing applications before this Courtwith different nomenclatures in order to bypass or circumvent theprocedure envisaged for the consideration of the reliefs sought. ThisCourt clarified that the nomenclature of an application is of noconsequence and courts must assess the contents and reliefs sought inthe application to determine what is the true nature of the application.

23. Though the cases adverted to above were rendered in thecontext of applications before this Court which were held to be, insubstance, applications for the review of a judgment, the principle oflaw that emerges is that courts may scrutinise applications to assesswhether they, in substance, seek a relief that may not be granted inthose applications. Where the court is of the opinion that the nature ofthe application differs from its nomenclature and there is a methodprescribed in law for the grant of the reliefs sought, it may hold thatthe application before it is not maintainable.

24. In the present case, the basis of the MAs is founded in thesteps taken by the State of Karnataka pursuant to the judgment of thisCourt in B K Pavitra II. The MA adverts to the GO dated 15 May2019 and the circular dated 24 June 2019, both of which were issuedsubsequent to the decision of this Court.

25. By the GO dated 15 May 2019, the stay on the earlier GOdated 27 February 2019 which stipulated instructions for theimplementation of the Reservation Act 2018 was lifted. Consequently,the Reservation Act 2018, as upheld by this Court, was to beoperationalised in terms of the instructions contained in the GO dated27 February 2019. By the circular dated 24 June 2019, a list of FAQsand their answers were annexed to the Schedule which concerned thepreparation of the seniority list in accordance with the GO dated 27February 2019.

26. The judgment of this Court in B K Pavitra II concernedthe constitutional validity of the Reservation Act 2018 and not actionstaken thereunder or in pursuance of its implementation. The present A

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AMAs, though styled as applications for directions, seek to lay challengeto the actions of the State government to carry into effect the provisionsof the Reservation Act 2018. This is clear from the nature of the reliefssought in the MAs, which impugn both the GO dated 15 May 2019and the circular dated 24 June 2019, both of which are subsequent tothe judgment of this Court in B K Pavitra II.B

27. The remedy, styled as directions, sought by the applicantscannot lie in the form of MAs. Prayer (a) which seeks a direction to“re-work” all promotions on the basis of ‘post based reservations’impugns item 3 of the FAQs annexed to the circular dated 24 June 2019which states that the list is to be revised on the basis of the total numberCof government employees in the respective cadre. Prayer (b) seeks theissuance of a direction to the State of Karnataka to apply the creamylayer principle at the entry level. As it has been noted above, thejudgment of this Court in B K Pavitra II concerned the grant ofconsequential seniority and not the applicability of the creamy layer atthe entry level. Prayer (c) seeks the issuance of a direction to the StateDGovernment to ensure, in the implementation of the Reservation Act2018, compliance with the decision in Nagaraj.

28. The present MAs are, in effect, a substantive challenge tothe actions of the State government in implementing the ReservationAct 2018 through the GO dated 15 May 2019 and the circular datedE24 June 2019. If the applicants are aggrieved by the steps which havebeen taken by the State government, it is open to them to pursue asubstantive remedy for challenging the steps taken by the Stategovernment in independent proceedings.

29. We are clearly of the view that MAs of this nature are notFmaintainable. Having come to this conclusion, no need arises for thisCourt to adjudicate upon the other contentions urged by Dr RajeevDhavan, learned Senior Counsel appearing for the applicants.

30. We consequently dismiss the Miscellaneous Applications, butleave it open to the applicants to pursue such independent remedies asGmay be available in the law. We clarify that no observations have beenmade on the merits of the matter.

31. Pending application(s), if any, shall stand disposed of.

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Devika Gujral

M.As dismissed.