Jarnail Singh vs Lachhmi Narain Gupta .

12 | P a g e prospective operation and shall not affect the promotions

already made, whether made on regular or on any other

basis. Reservation provided in the matter of promotions in

the Central services or State services were directed to be

continued for a period of five years from the date of the

judgment.

3. By the Constitution (Seventy-seventh Amendment)

Act, 1995, which came into force on 17.06.1995, Article 16

of the Constitution was amended by insertion of Article

16(4-A), which then read as below:-

“Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”.

4. The above amendment was made in view of the

State’s opinion that representation of the Scheduled Castes

and the Scheduled Tribes (“SCs” and “STs”) in services in

the States had not reached the required level and that it

was necessary to continue the existing dispensation by

providing reservation in promotions. Therefore, the

Government decided to continue the existing policy of

13 | P a g e reservation in promotions for the SCs and the STs, according

to the Statement of Objects and Reasons of the Constitution

(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 benefit of accelerated promotion would not

get consequential seniority. As the Government was of the

opinion that the concept of “catch-up” rule was not 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-fifth Amendment) Act, 2001 to give the

benefit of consequential seniority in addition to accelerated

promotion. At present, Article 16(4-A) reads as follows:-

“(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

6. A number of vacancies which were reserved for SCs

and STs could not be filled up due to non-availability of

2 (1995) 6 SCC 684

14 | P a g e candidates belonging to these categories. Such of these

vacancies which were not filled up were treated as “backlog

vacancies” and were carried forward. In Indra Sawhney

(supra), this Court held that reservations contemplated in a

year under Article 16(4) shall not exceed 50 per cent. In

practice, backlog vacancies were not included within the

ceiling of 50 per cent reservation in a year. An office

memorandum was issued on 29.08.1997 making the 50 per

cent limit applicable to current as well as backlog vacancies,

in accordance with Indra Sawhney (supra). Thereafter,

several representations were made to the Central

Government about the injustice that would be caused to the

members of SCs and STs in view of the office memorandum

dated 29.08.1997, which led to a further amendment to

Article 16 of the Constitution of India, by insertion of Article

16(4-B) by the Constitution (Eighty-first Amendment) Act,

2000. Article 16(4-B) reads as under: -

“(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies

15 | P a g e shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that 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) and

Article 335 stood obliterated by the constitutional

amendments resulting in Articles 16(4-A) and 16(4-B). This

Court upheld the constitutional amendments. The

amendments were held to be enabling provisions. This

Court observed that the State is not bound to make

reservation for SCs and STs in matters of promotion.

However, if it wishes to exercise its discretion, the State has

to collect quantifiable data showing the backwardness of the

class and inadequacy of representation of that class in

public employment, in addition to compliance with Article

335 of the Constitution of India.

3 (2006) 8 SCC 212

16 | P a g e

8. This Court in State of Tripura & Ors. v. Jayanta

Chakraborty & Ors.4 referred M. Nagaraj (supra) to a

larger bench for reconsideration. Further, in State of

Maharashtra & Anr. v. Vijay Ghogre & Ors. 5, this Court

thought it appropriate that the request for reconsideration

of the judgment in M. Nagaraj (supra) should be heard by a

constitution bench. The request made for referring M.

Nagaraj (supra) to a seven-judge bench was not

entertained by this Court in Jarnail Singh & Ors. v.

Lachhmi Narain Gupta & Ors.6. However, the conclusion

arrived at in M. Nagaraj (supra) relating to collection of

quantifiable data showing backwardness of the SCs and the

STs was held to be invalid as the same was contrary to a

larger bench judgment of this Court in Indra Sawhney

(supra), wherein it had been held by the Court that

conditions of social and educational backwardness are

presumed to be satisfied in case of SCs and STs as they are

identified and grouped as such because of prior

discrimination and its continuing ill effects. The Court

rejected the remaining grounds of challenge to the decision

4 (2018) 1 SCC 146 5 (2018) 17 SCC 261 6 (2018) 10 SCC 396

17 | P a g e in M. Nagaraj (supra) and reiterated that the State has to

collect quantifiable data regarding inadequate

representation of SCs and STs in the services of the State, if

reservation is sought to be provided in promotions .

9. In the meanwhile, some High Courts have dealt with

matters where reservation in promotions provided by the

Central Government and the State Governments to SCs and

STs have been assailed as being violative of the law laid

down by this Court in M. Nagaraj (supra). The judgments

of the High Courts have been challenged before this Court.

In view of the broad similarities in the issues involved, all

the cases were tagged together. On 18.01.2021, a

direction was given to the Advocates-on-Record appearing

for each State to submit a note to the learned Attorney

General for India, identifying the issues involved in their

respective cases. The learned Attorney General for India

was requested to hold a conference with the counsel

appearing in the matters to finalise the issues for

determination and a list of issues with reference to each

State was directed to be prepared thereafter. A note was

18 | P a g e submitted by the learned Attorney General formulating

issues that arise for our consideration.

10. When the matter was listed for hearing on 14.09.2021,

it was made clear that this Court would not entertain any

arguments for reconsideration of the law laid down by this

Court in M. Nagaraj (supra) as a constitution bench in

Jarnail Singh (supra) had rejected such a request. This

Court was informed that the cases in this batch of matters

can be bifurcated into eleven categories. As the common

issues that have been raised could be decided without

reference to the facts of each case, the learned counsel

appearing for the parties were requested to make

submissions on the issues that had been identified by the

learned Attorney General. After considering the issues

identified by the learned Attorney General and other learned

counsel and hearing them, the following six points are

formulated for determination:-

1) What is the yardstick by which, according to M.

Nagaraj (supra), one would arrive at quantifiable

data showing inadequacy of representation of SCs

and STs in public employment?

19 | P a g e

2) What is the unit with respect to which quantifiable

data showing inadequacy of representation is

required to be collected?

3) Whether proportion of the population of SCs and STs

to the population of India should be taken to be the

test for determining adequacy of representation in

promotional posts for the purposes of Article 16(4-A)?

4) Should there be a time period for reviewing

inadequacy of representation?

5) Whether the judgment in M. Nagaraj (supra) can be

said to operate prospectively?

6) Whether quantifiable data showing inadequacy of

representation can be collected on the basis of

sampling methods, as held by this Court in B.K.

Pavitra & Ors. v. Union of India & Ors. 7 (“B.K.

Pavitra II”)?

1) YARDSTICK FOR ARRIVING AT QUANTIFIABLE DATA

11. Articles 16(4) and 16(4-A) are enabling provisions. It

was held in M. Nagaraj (supra) that the discretion of the

State to provide reservation is subject to the existence of

7 (2019) 16 SCC 129

20 | P a g e backwardness and inadequacy of representation in public

employment. It was further held that backwardness has to

be based on objective factors whereas inadequacy has to

factually exist. There is no fixed yardstick to identify

equality, justice and efficiency which are variable factors

and it depends on the facts and circumstances of each case.

This Court was of the further opinion that the concepts of

efficiency, backwardness, inadequacy of representation are

required to be identified and measured on the basis of data.

In case of a challenge made to reservations provided by the

State Government, it is incumbent on the State Government

to satisfy the Court that the decision is supported by

quantifiable data showing backwardness of the class and

inadequacy of representation of that class in public

employment, in addition to compliance with Article 335 of

the Constitution of India.

12. The exercise of identifying and measuring concepts of

efficiency, backwardness and inadequacy of representation

on the basis of data depends on numerous factors. It is for

this reason that the enabling provisions are required to be

made because each competing claim seeks to achieve

21 | P a g e certain goals. How best one should optimise these

conflicting claims can only be done by the administration in

the context of local prevailing conditions in public

employment. 8

13. The learned Attorney General argued before this Court

in Jarnail Singh (supra) that this Court did not indicate any

test for determining adequacy of representation in service in

M. Nagaraj (supra). He submitted that it is important to

decide the yardstick applicable for arriving at quantifiable

data showing inadequacy of representation of SCs and STs

to avoid multiple litigation. This Court refused to lay down

any criteria for determining the adequacy of representation,

as the States were given liberty to determine the factors

relevant for deciding adequate representation, depending

upon the promotional posts in question.

14. It is well-established that it is neither legal nor proper

for the Courts to issue directions or advisory sermons to the

executive in respect of the sphere which is exclusively

within their domain under the Constitution9. In Asif

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

22 | P a g e Hameed & Ors. v. State of Jammu & Kashmir & Ors.10,

this Court observed as under: -

“When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self- imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive…”.

15. In P. Ramachandra Rao v. State of Karnataka11, R.

C. Lahoti, J. referred to a monograph “Judicial Activism and

Constitutional Democracy in India” by T.R. Andhyarujina, in

his judgment. While lauding judicial activism, a note of

caution was sounded in the said monograph to the effect

that the Supreme Court should leave “the decision-making

to other branches of government after directing their

attention to the problems rather than itself entering into the

remedial field”. The following sentences from the

10 1989 Supp (2) SCC 364 11 (2002) 4 SCC 578

23 | P a g e monograph are very well borne out in this particular

context: “…courts lack the facilities to gather detailed data

or to make probing enquiries. Reliance on advocates who

appear before them for data is likely to give them partisan

or inadequate information. On the other hand if courts have

to rely on their own knowledge or research it is bound to be

selective and subjective. … Moreover, since courts mandate

for isolated cases, their decrees make no allowance for the

differing and varying situations which administrators will

encounter in applying the mandates to other cases.”

16. Determination of inadequate representation of SCs and

STs in services under a State is left to the discretion of the

State, as the determination depends upon myriad factors

which this Court cannot envisage. A conscious decision was

taken by this Court in M. Nagaraj (supra) and Jarnail

Singh (supra) to leave it to the States to fix the criteria for

determining inadequacy of representation. The submission

of the learned Attorney General for India that this Court has

to lay down the yardstick for measuring adequacy of

representation did not yield a favourable result as this Court

in Jarnail Singh (supra) found it befitting for the States to

24 | P a g e have the liberty to evaluate the representation of SCs and

STs in public employment. Laying down of criteria for

determining the inadequacy of representation would result

in curtailing the discretion given to the State Governments.

In addition, the prevailing local conditions, which may

require to be factored in, might not be uniform. Moreover,

in M. Nagaraj (supra), this Court made it clear that the

validity of law made by the State Governments providing

reservation in promotions shall be decided on a case-to-case

basis for the purpose of establishing whether the

inadequacy of representation is supported by quantifiable

data. Therefore, we are of the opinion that no yardstick can

be laid down by this Court for determining the adequacy of

representation of SCs and STs in promotional posts for the

purpose of providing reservation.

2) UNIT FOR COLLECTING QUANTIFIABLE DATA

17. Seniority of Superintending Engineers in the Irrigation

Department of the State of Punjab was the subject matter of

a writ petition filed under Article 32 of the Constitution of

India in R.K. Sabharwal & Ors. v. State of Punjab &

Ors.12. The relevant instructions issued by the State of 12 (1995) 2 SCC 745

25 | P a g e Punjab provided for 14 per cent reservation for SCs. Two

points came up for consideration before this Court in the

said judgment, the first being that in case more than 14 per

cent of the Scheduled Caste candidates are

appointed/promoted in a cadre on their own merit/seniority,

then the purpose of reservation having been achieved in the

said cadre, the Government instructions providing

reservations would become inoperative. The second point

on which arguments were heard is that roster cannot

operate once the posts earmarked for the SCs, STs and

Backward Classes are filled. Any post falling vacant in a

cadre, thereafter, is to be filled from the category - reserved

or general - due to retirement etc. of whose member the

post fell vacant. The first point raised by general category

candidates was rejected by this Court by holding that

reserved category candidates can compete for non-reserved

posts and in the event of their appointment to the said

posts, their number cannot be added and taken into

consideration for working out the percentage of reservation.

This Court was of the opinion that Article 16(4) of the

Constitution of India enables the State Government to make

26 | P a g e provision for reservation in favour of any Backward Class of

citizens which, in the opinion of the State is not adequately

represented in the services. The percentage of posts

reserved for Backward Classes, as prescribed by the State,

has to be strictly followed and cannot be varied or changed

simply because some members of the Backward Class have

already been appointed/promoted against the general seats.

18. The second point relates to the implementation of the

roster in the form of “running account” year to year. Roster

points were fixed in a lot of 100 posts. This Court held that

once 14 per cent posts earmarked in the roster are filled up,

the result envisaged by the instructions is achieved.

Thereafter, there is no justification for operating the roster.

This Court observed that the “running account” is to operate

only till the quota provided by the instructions is reached

and not thereafter. The vacancies arising in the cadre, after

the initial posts are filled, will have to be filled from amongst

the category to which the post belonged in the roster.

19. In M. Nagaraj (supra), this Court observed that the

appropriate Government has to apply cadre strength as a

unit in the operation of the roster in order to ascertain

27 | P a g e whether a given class/group is adequately represented in

the service. Cadre strength as a unit also ensures that the

upper ceiling limit of 50 per cent is not violated. Following

the law laid down in R.K. Sabharwal (supra), this Court in

M. Nagaraj (supra) further 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 the State to provide for reservation in promotions subject

to limitation that there must exist compelling reasons for

backwardness, inadequacy of representation in a class of

post(s) keeping in mind the overall administrative efficiency.

While referring to the roster, this Court observed that the

appropriate Government has to apply the cadre strength as

a unit in the operation of the roster in order to ascertain

whether a given class/group is adequately represented in

the service. Collection of quantifiable data regarding

inadequacy of representation as stipulated by M. Nagaraj

(supra) is relatable to the cadre concerned, according to

Jarnail Singh (supra).

21. While it is clear that the unit for collection of

quantifiable data is with respect to a cadre, it is necessary

28 | P a g e to understand what cadre means. For a better appreciation,

it would be profitable to relate to the historical background

of the concerned rules applicable to services under the

Centre as well as the states. In exercise of the powers

conferred by sub-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 classified

as per Rule 14 of the said Rules in the following manner: (i)

the all India Services; (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 Commission considered the

classification of services to “ secure fair treatment to the

employees on the basis of their services to Government, fair

return to the Government for the salary paid to its

employees, and relative fairness to employees in different

kinds of position on the basis of the nature of the duties

performed”. According to the Report of the First Central Pay

Commission, the Central Services were broadly divided into

four categories, i.e., Class I, Class II, Subordinate Services

29 | P a g e and Inferior Services. After taking note of some objections

regarding the use of the words “subordinate” and “inferior”

as being derogatory, the First Central Pay Commission

recommended that those categories be referred to as Class

III and Class IV. The classification of the Civil Services 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; Class II; (3) Central Civil Services,

Class III; and (4) Central Civil Services, Class IV. Rule 4 of

the said Rules provides that a particular class can comprise

of different grades. All civil posts under the Union were

reclassified from ‘Class’ to ‘Group’ by way of the notification

of the Government of India in the Department of Personnel

and Administrative Reforms 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/the Central Civil

Posts were organised into Group ‘A’, Group ‘B’, Group ‘C’

and Group ‘D’. The present structure of the Central Civil

Services is that a particular Service is divided across

Groups, which further consist of grades.

30 | P a g e

22. During the course of the hearing, the Union of India

has filed an affidavit informing this Court of the compliance

of the conditions prescribed in M. Nagaraj (supra) before

making reservation in promotions in services under the

Centre. The Union of India referred to an Office

Memorandum dated 02.07.1997, which heavily relied on

R.K. Sabharwal (supra), wherein this Court had held that

the cadre-strength is always measured by the number of

posts comprising the cadre. Right to be considered for

appointment can only be claimed in respect of a post in a

cadre. As a consequence, the percentage of reservation has

to be worked out in relation to the number of posts which

form the cadre-strength. The Union of India has brought to

the notice of this Court that there are around 90

Ministries/Departments under the Government of India in

which 30 lakh employees are working. Referring to

information received from 44 Ministries/Departments out of

the 90, the Union of India has stated that there are around

3800 cadres. We were also apprised of the fact that

instructions have been in existence since 2013 for

appointment of an officer of the rank of Deputy Secretary to

31 | P a g e the Government of India as a Liaison Officer, who is

responsible for ensuring compliance of the instructions on

reservation. According to the affidavit filed by the Union of

India, thousands of reservation rosters are being maintained

in the various offices/units/sub-units of the Departments and

Ministries in the Government of India. Office Memorandum

dated 02.07.1997 issued by the Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel and

Training, Government of India contains principles for

preparing the rosters. According to para 4(c) of the said

Office Memorandum, “cadre”, for the purpose of a roster,

shall mean a particular grade and shall comprise the

number of posts to be filled by a particular mode of

recruitment in terms of the applicable recruitment rules.

Explanatory Notes which are appended to the Office

Memorandum dated 02.07.1997 elaborate the principles for

making and operating post-based rosters. Para 5 of the

Explanatory Notes reads as follows:

“While cadre is generally to be construed as the number of posts in a particular grade, for the purpose of preparation of roster, it shall comprise posts required to be filled by a particular mode of recruitment in terms of the applicable recruitment rules. To illustrate, in a cadre comprising 200

32 | P a g e posts, where the recruitment rules prescribe a ratio of 50:50 for direct recruitment and promotions, the roster for direct recruitment shall have 100 points and that for promotion shall have 100 points – thus making a total of 200.”

23. The Union of India has filed the prevalent service rules

of the States of Andhra Pradesh, Uttar Pradesh, West

Bengal, Rajasthan, Madhya Pradesh, Punjab and Himachal

Pradesh for the purpose of demonstrating the

implementation of reservation in promotions in services

under these States. Rule 2(8) of the Andhra Pradesh State

and Subordinate Services Rules, 1996 defines “cadre” as

posts in various classes, categories and grades in a service.

“Service” has been defined in Rule 2(30) as a post or a

group of posts or categories of posts classified by the State

Government as State or Subordinate Service, as the case

may be. Rule 22 which deals with Special Representation

(Reservation) empowers the State Government to make a

provision for reservation in promotions. The said Rule refers

to the implementation of a 100-point roster for promotion to

the next higher category. It would be relevant to refer to the

reservation policy of the State of Punjab according to which

reservation for SCs and STs is on the basis of roster registers

33 | P a g e maintained for each category of posts. The State of

Himachal Pradesh has decided to provide reservation in

promotions by following the Explanatory Notes to the Office

Memorandum issued by the Government of India dated

02.07.1997.

24. It would be relevant to refer to the judgments of this

Court which have dealt with the scope of the expression

“cadre”. Rule 4(2) of the Central Engineering Service, Class

I, Recruitment Rules, 1954 provided that 75% of the

vacancies in the grade of Executive Engineer, Class I shall

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 held that the word “grade” is

used in the sense of cadre. The dispute that arose for

consideration of this Court in Dr Chakradhar Paswan v.

State of Bihar & Ors.14 relates to the posts of Director and

three Deputy Directors in the Directorate of Indigenous

Medicines, Department of Health, State of Bihar being

grouped together for the purpose of implementing the

13 (1975) 1 SCC 319 14 (1988) 2 SCC 214

34 | P a g e policy of reservation under Article 16(4) of the Constitution

of India. This Court was of the opinion that though the

Director and three Deputy Directors are Class I posts, the

posts of Director and Deputy Directors do not constitute one

‘cadre’. It was held that the term “cadre” has a definite

legal connotation in service jurisprudence. This Court

referred to Fundamental Rule 9(4) which defines the word

“cadre” to mean the strength of a service or part of a

service sanctioned as a separate unit. It was observed that

as the post of Director is the highest post in the Directorate

of Indigenous Medicines for which a higher pay scale is

prescribed in comparison to Deputy Directors, who are

entitled to a lower scale of pay, they constitute two distinct

cadres or grades. This Court further expressed its view that

it is open to the Government to constitute as many cadres in

any particular service as it may choose, according to

administrative convenience and expediency. This Court

concluded that the post of Director and Deputy Directors

constitute different cadres in the service.

25. In K. Manickaraj v. Union of India15, the appellant

was a Welfare Inspector, Grade III belonging to Scheduled

15 (1997) 4 SCC 342

35 | P a g e Caste category. He claimed promotion to Grade II by

contending that four posts were reserved for Scheduled

Castes as there were 26 Grade II posts. The Respondent

contended that there were only 23 Grade II posts as three

Grade III posts which were temporarily upgraded to Grade II

did not form part of the cadre strength of Grade II

Inspectors. While allowing the appeal of K. Manickaraj, this

Court recognized that promotions take place from one grade

to a higher grade, with the cadre strength for the purpose of

providing reservation in such promotion to be the total

number of posts available in the grade to which promotion

was sought. The meaning of “cadre” fell for consideration of

this Court again in Union of India v. Pushpa Rani &

Ors.16. “Cadre” in the 1985 edition of the Railway

Establishment Code is defined as the strength of a service

or a part of a service sanctioned as a separate unit. This

Court held that the posts sanctioned in different grades

would constitute independent cadres, even for the purpose

of implementing the roster. The reason for giving an

enlarged meaning to the term “cadre” was that the posts in

the railway establishment are sanctioned with reference to

16 (2008) 9 SCC 242

36 | P a g e grades. Even temporary, work-charged, supernumerary and

shadow posts created in different grades can constitute part

of the cadre.

26. It is relevant to refer to another judgment of this Court

in State of Rajasthan v. Fateh Chand Soni 17, wherein

the meaning of “promotion” was looked into. This Court

held that ‘promotion’ not only covered advancement to

higher position or rank but also implied advancement to a

higher grade. Whether the officers serving in Arms, Arms

Support and Services comprise a single cadre for purposes

of promotion was the question adjudicated by this Court in

Union of India & Anr. v. Lieutenant Colonel P.K.

Choudhary & Ors.18. This Court held that they do not

constitute a single cadre, even though they might be

drawing the same salary, holding the same rank, wearing

the same uniform and serving the same employer with

similar service benefits. As the officers were allocated to

different Arms and Services which put them in distinct

cadres, with promotional avenues being made available

against the posts comprising that cadre alone, there cannot

17 (1996) 1 SCC 562 18 (2016) 4 SCC 236

37 | P a g e be constitution of a common cadre. This Court referred to

an earlier judgment in Sub-Inspector Rooplal & Anr. v.

Lt. Governor & Ors.19 in which it was held that

equivalence of two posts is not judged by the sole factor of

equal pay. There are four factors in that regard, namely: (i)

the nature and duties of the post, (ii) the responsibilities and

powers exercised by the officer holding a post; the extent of

territorial or other charge held or responsibilities discharged;

(iii) the minimum qualifications, if any, prescribed for

recruitment to the post; and (iv) the salary of the post. This

Court, in Lieutenant Colonel P.K. Choudhary (supra),

was of the further opinion that transferability or

interchangeability of one incumbent to another in the cadre

are essential attributes of a common cadre.

27. In R.K. Sabharwal (supra), this Court held that the

right to be considered for appointment can only be claimed

in respect of a post in a cadre and that the concept of

'vacancy' has no relevance in operating the percentage of

reservation. It was further held that the cadre strength is

always measured by the number of posts comprising the

cadre.

19 (2000) 1 SCC 644

38 | P a g e

28. It is clear from the above statutory regime and the law

laid down by this Court that civil posts under the

Government are organised into different services. A service

constitutes ‘classes’/ ‘groups’ of posts. A ‘class’/‘group’ is

further bifurcated into grades. Though the nomenclature

might be different, the structure of services under the Union

and the States is similar. According to the instructions

issued by the Union of India, cadres are constituted for each

grade. At the cost of repetition, the Union of India

submitted that there are 3800 cadres in 44

Ministries/Departments. Fundamental Rule 9(4) defines

“cadre” to mean the strength of a service or part of a

service sanctioned as a separate unit. It is the choice of a

State to constitute cadres. The entire service cannot be

considered to be a cadre for the purpose of promotion from

one post to a higher post in a different grade. Promotion is

made from one grade to the next higher grade, in relation to

which cadres are constituted. This Court in Dr Chakradhar

Paswan (supra) has categorically stated that the post of

Director and Deputy Director cannot form one cadre. A

39 | P a g e cadre is constituted by the Government by taking into

account several factors within its sole discretion.

29. In the Office Memorandum dated 02.07.1997, the

Union of India 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 the number of posts

in a particular grade. It is made clear that rosters have

been prepared grade-wise which are reviewed on a yearly

basis and that reservation in promotions is implemented on

the basis of these rosters, which operate grade-wise. In M.

Nagaraj (supra), this Court approved that the percentage of

reservation in promotions was to be applied to the entire

cadre strength, as held in R.K. Sabharwal (supra). While

doing so, this Court in M. Nagaraj (supra) made it clear

that the unit for operation of the roster would be the cadre

strength. Before providing for reservation in promotions to

a cadre, the State is obligated to collect quantifiable data

regarding inadequacy of representation of SCs and STs.

Collection of information regarding inadequacy of

representation of SCs and STs cannot be with reference to

the entire service or ‘class’/‘group’ but it should be relatable

40 | P a g e to the grade/category of posts to which promotion is sought.

Cadre, which should be the unit for the purpose of collection

of quantifiable data in relation to the promotional post(s),

would be meaningless if data pertaining to representation of

SCs and STs is with reference to the entire service.

3) PROPORTIONATE REPRESENTATION AS TEST OF

ADEQUACY

30. In R.K. Sabharwal (supra), it was observed that State

Governments may take the total population of a particular

Backward Class and its representation in the State services

for the purpose of coming to a conclusion that there is

inadequate representation in the State services. In M.

Nagaraj (supra), this Court was of the considered view that

the exercise of collecting quantifiable data depends on

numerous factors, with conflicting claims to be optimised by

the administration in the context of local prevailing

conditions in public employment. As equity, justice and

efficiency are variable factors and are context-specific, how

these factors should be identified and counter-balanced will

depend on the facts and circumstances of each case. The

attempt of the learned Attorney General for India to impress

41 | P a g e upon this Court that the proportion of SCs and STs in the

population of India should be taken as the test for

determining whether they are adequately represented in

promotional posts, did not yield results. This Court in

Jarnail Singh (supra) found no fault with M. Nagaraj

(supra) regarding the test for determining the adequacy of

representation in promotional posts in the State. While

emphasising the 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 of the learned

Attorney General for India to hold that the proportion of SCs

and STs to the population of India should be the test for

determining inadequacy of representation in promotional

posts. Therefore, we are not persuaded to express any

opinion on this aspect. It is for the State to assess the

inadequacy of representation of SCs and STs in promotional

posts, by taking into account relevant factors.

4) TIME PERIOD FOR REVIEW

31. There is near unanimity amongst the counsel for both

sides that the data collected to establish inadequacy of

representation, which forms the basis for providing

42 | P a g e reservation for promotions, should be reviewed periodically.

Ms. Indira Jaising, learned Senior Counsel appearing for

members of the reserved categories, supported the

submissions of the learned Attorney General for India that a

review should be conducted every 10 years. Mr. Gopal

Sankaranarayanan, learned Senior Counsel, submitted that

it is time for reservation in public employment to be

discontinued. Additionally, he submitted that the lion’s

share of reservation for members of SCs and STs accrued to

the benefit of a select few within these categories, which

further strengthened the requirement for review to appraise

whether certain groups/classes within these categories had

achieved the desired representation. We are not inclined 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 determine inadequacy of

representation for the purpose of providing reservation in

promotions needs to be reviewed periodically. The period

for review should be reasonable and is left to the

Government to set out.

43 | P a g e

5) PROSPECTIVE OPERATION OF THE JUDGMENT IN

M. NAGARAJ

32. While holding that Article 16(4-A) does not provide for

reservation in matters of promotion, this Court in Indra

Sawhney (supra) saved the promotions that were already

made. It was made clear that the judgment shall operate

only prospectively and shall not affect promotions already

made, whether on temporary, officiating or

regular/permanent basis. Already-existing provisions made

for reservation in promotions in Central or State services

were permitted to continue to operate for a period of five

years from the date of the judgment in Indra Sawhney

(supra). Article 16(4-A) was brought into force from

17.06.1995. This Court upheld the validity of Article 16(4-A)

in M. Nagaraj (supra) on 19.10.2006 and observed that

reservation in promotions in public services can be made,

subject to collection of quantifiable data by the State

showing backwardness of the class and inadequacy of

representation of that class in public employment, in

addition to compliance with Article 335 of the Constitution.

Reservation in promotions provided by various State

44 | P a g e Governments and the Central Government have been

challenged in the High Courts on the ground of non-

compliance with the requirement of collection of

quantifiable data showing backwardness of the class and

inadequacy of representation. It is relevant to mention at

this stage that collection of quantifiable data regarding

backwardness of SCs and STs is no more required in view of

the judgment of this Court in Jarnail Singh (supra). In

respect of the data relating to inadequacy of representation

of SCs and STs, the High Courts have adjudicated writ

petitions which are the subject matter of special leave

petitions pending in this Court.

33. The duty of the court is not to ‘pronounce a new law,

but to maintain and expound the old one’. 20 Holmes, J., in

his dissent in Kuhn v. Fairmont Coal Co.21, held “I know of

no authority in this court to say that, in general, state

decisions shall make law only for the future. Judicial

decisions have had retrospective operation for near a

thousand years.” In M. Nagaraj (supra), this Court upheld

the constitutional validity of Article 16(4-A), subject to the

20 Blackstone, Commentaries 69 (15th ed. 1809) 21 215 U.S. 349 (1910)

45 | P a g e State collecting quantifiable data showing inadequate

representation. The law declared by this Court interpreting

Article 16(4-A) in M. Nagaraj (supra) applies from

17.06.1995, i.e., the date on which Article 16(4-A) came into

force (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 learned Attorney General for

India and the learned counsel appearing for the reserved

category candidates, which requires to be examined, is

regarding the prospective applicability of the law laid down

in M. Nagaraj (supra), i.e., from the date of the judgment.

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 the Constitution so as to take away or

abridge the fundamental rights. However, to save the past

transactions, the doctrine of prospective overruling was

invoked and the judgment was given prospective operation. The following propositions were laid down in Golak Nath

case (supra):

22 1994 Supp (2) SCC 641 23 (2000) 6 SCC 224 24 (1967) 2 SCR 762

46 | P a g e “(1) The doctrine of prospective overruling can be invoked only 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 to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of 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 of the land and in so declaring, the

operation of the law can be restricted to the future, thereby

saving past transactions.

35. The power of this Court under Article 142 of the

Constitution is a constituent power transcendental to

statutory prohibition.25 In Orissa Cement Ltd. v. State of

Orissa & Ors.26, this Court observed that relief can be

granted, moulded or restricted in a manner most

appropriate to the 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 the principle that

the Court moulds the reliefs claimed to meet the justice of

25 Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. (1997) 5 SCC 201 26 1991 Supp (1) SCC 430

47 | P a g e the 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 on the same

issue which was otherwise final, this Court had used the

power even when deciding on an issue for the first time.

There is no need to refer to other judgments of this Court

which have approved and applied the principle of

prospective overruling or prospective operation of

judgments. There cannot be any manner of doubt that this

Court can apply its decision prospectively, i.e., from the date

of its judgment to save past transactions.

36. While objecting to the contention of the learned

Attorney General for India to declare the law laid down by M. Nagaraj (supra) as having prospective operation, Mr.

Rakesh Dwivedi, learned Senior Counsel appearing for the

unreserved candidates, submitted that relief can be

moulded in exercise of the power under Article 142 of the

Constitution. It is no doubt true that M. Nagaraj (supra)

did not state that it would be prospective in operation. It is

necessary for this Court to examine whether a judgment can

27 (2001) 5 SCC 519

48 | P a g e be made prospectively applicable subsequently by a

different bench of this Court. The doctrine of prospective

overruling was applied to Indian law in Golak Nath (supra)

by following the theory which was prevalent in the United

States of America. Reference was made to the judgment of

Linkletter v. Walker28 which declared an earlier decision of

the U.S. Supreme Court in Mapp v. Ohio29 to be prospective

in operation.

37. For a better understanding, it is necessary to refer to

the issue in Linkletter (supra). The United States Supreme

Court in Weeks v. United States30 held that illegally-

seized evidence cannot be used in federal courts, by

establishing the exclusionary rule. The applicability of the

exclusionary rule to states fell for consideration in Wolf v.

Colorado31. Taking note of the fact that 16 States adopted

the exclusionary rule laid down in Weeks (supra) while 31

other States rejected the exclusionary rule, the U.S.

Supreme Court held that it was not a departure from basic

standards of due process to allow States to introduce

illegally-obtained evidence in State trials. Later, the U.S. 28 381 U.S. 618 (1965) : 1965 SCC Online US SC 126 29 367 U.S. 643 (1961) 30 232 U.S. 383 (1914) 31 338 U.S. 25 (1949)

49 | P a g e Supreme Court in Mapp (supra) held that the exclusion of

evidence seized in violation of search and seizure provisions

of the Fourth Amendment was required of the States by the

due process clause of the Fourteenth Amendment. In

Linkletter (supra), the U.S. Supreme Court was confronted

with the question of prospective operation of its earlier

judgment in Mapp (supra). The overruling of the judgment

in Wolf v. Colorado (supra) by Mapp (supra) was made

prospective by the U.S. Supreme Court by making the

following observations:

“22. We believe that the existence of the Wolf doctrine prior to Mapp is 'an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.' Chicot County Drainage Dist. v. Baxter State Bank, supra, 308 U.S. at 374, 60 S.Ct. at 319. The thousands of cases that were finally decided on Wolf cannot be obliterated. The 'particular conduct, private and official,' must be considered. Here 'prior determinations deemed to have finality and acted upon accordingly' have 'become vested.' And finally, 'public policy in the light of the nature both of the (Wolf doctrine) and of its previous application' must be given its proper weight. Ibid. In short, we must look to the purpose of the Mapp rule; the reliance placed upon the Wolf doctrine; and the effect on the administration of justice of a retrospective application of Mapp.

50 | P a g e

23. It is clear that the Wolf Court, once it had found the Fourth Amendment's unreasonable Search and Seizure Clause applicable to the States through the Due Process Clause of the Fourteenth Amendment, turned its attention to whether the exclusionary rule was included within the command of the Fourth Amendment. This was decided in the negative. It is clear that based upon the factual considerations heretofore discussed the Wolf Court then concluded that it was not necessary to the enforcement of the Fourth Amendment for the exclusionary rule to be extended to the States as a requirement of due process. Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. See, e.g., Rea v. United States, supra. We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. Nor would it add harmony to the delicate state-federal relationship of which we have spoken as part and parcel of the purpose of Mapp. Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.

24. It is true that both the accused and the States relied upon Wolf. Indeed, Wolf and Irvine each pointed the way for the victims of illegal searches to seek reparation for the violation of their privacy. Some pursued the same. See

51 | P a g e 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 Wolf was in stormy weather. On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction were entered prior to Mapp. Again and again this Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.

25. Finally, there are interests in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.”

The point to be noticed is that the U.S. Supreme Court in

Linkletter (supra) declared its earlier judgment in Mapp

(supra) to be prospective in operation, after considering the

consequences of Mapp (supra) being given retrospective

effect.

52 | P a g e

38. This Court in Indra Sawhney (supra) interpreted

Article 16(4-A) of the Constitution by holding that

reservation cannot be provided in promotions. However,

reservation in promotions were permitted for a further

period of five years from the date of the judgment. In

Ashok Kumar Gupta & Anr. v. State of U.P. & Ors. 32,

promotions in Public Works Department of the Government

of Uttar Pradesh were challenged. One of the grounds of

challenge was that the direction of the Supreme Court for

prospective overruling of the judgment of this Court in

General Manager, Southern Railway v. Rangachari 33

and for operation of the ratio in Indra Sawhney (supra)

after five years from the date of the judgment was

inconsistent with and contrary to the scheme of the

Constitution. In other words, it was contended by the

appellants in Ashok Kumar Gupta (supra) that after

having declared reservation in promotions under Articles

16(1) and 16(4) as unconstitutional and overruling

Rangachari (supra) as not being correct in law, the Court

cannot postpone the operation of the judgment to a future

32 (1997) 5 SCC 201 33 (1962) 2 SCR 586

53 | P a g e date as it amounts to perpetration of void action and is

violative of the appellants’ fundamental rights. In Ashok

Kumar Gupta (supra), this Court was of the opinion that

there is no prohibition for this Court to postpone the

operation of the judgment in Indra Sawhney (supra) or to

prospectively overrule the ratio in Rangachari (supra).

This Court further held that:

“60. It would be seen that there is no limitation under Article 142(1) on the exercise of the power by this Court. The necessity to exercise the power is to do “complete justice in the cause or matter”. The inconsistency with statute law made by Parliament arises when this Court exercises power under Article 142(2) for the matters enumerated therein. Inconsistency in express statutory provisions of substantive law would mean and be understood as some express prohibition contained in any substantive statutory law. The power under Article 142 is a constituent power transcendental to statutory prohibition. Before exercise of the power under Article 142(2), the Court would take that prohibition (sic provision) into consideration before taking steps under Article 142(2) and we find no limiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase “complete justice” engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be

54 | P a g e cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do complete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does not arise. As held earlier, the power under Article 142 is a constituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or voidable does not arise.

61. Admittedly, the Constitution has entrusted this salutary duty to this Court with power to remove injustice or to do complete justice in any cause or matter before this Court. The Rangachari [(1962) 2 SCR 586 : AIR 1962 SC 36] ratio was in operation for well over three decades under which reservation in promotions were given to several persons in several services, grades or cadres of the Union of India or the respective State Governments. This Court, with a view to see that there would not be any hiatus in the operation of that law and, as held earlier, to bring about smooth transition of the operation of law of reservation in promotions, by a judicial creativity extended the principle of prospective overruling applied in Golak Nath case [(1967) 2 SCR 762 : AIR 1967 SC 1643] in the case of statutory law and of the judicial precedent in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] and further elongated the principle postponing the operation of the judgment in Mandal case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] for five years from the date of the judgment. This judicial creativity is not

55 | P a g e anathema to constitutional principle but an accepted doctrine as an extended facet of stare decisis. It would not be labelled as proviso to Article 16(4) as contended for.”

39. Whether the judgment of this Court in Indian Council

for Enviro-Legal Action v. Union of India & Ors. 34 was

prospective was the subject-matter of consideration in

Goan Real Estate and Construction Limited & Anr. v.

Union of India & Ors.35. After a detailed consideration of

the judgment in Indian Council for Enviro-Legal Action

(supra), this Court in Goan Real Estate (supra) concluded

that though not stated categorically in Indian Council for

Enviro-Legal Action (supra), it was the intention of this

Court to give prospective effect to the judgment. The above

is an instance where this Court declared an earlier judgment

to have prospective effect.

40. A contrary view was expressed by this Court in M.A.

Murthy v. State of Karnataka & Ors.36 in which it was

held that prospective overruling can be done only by the

Court which has rendered the decision. The dispute that

arose for consideration of this Court in the said judgment

pertained to appointment to the posts of Manager (Finance 34 (1996) 5 SCC 281 35 (2010) 5 SCC 388 36 (2003) 7 SCC 517

56 | P a g e and Accounts) in the Karnataka State Financial Corporation.

The appellants challenged the selection of respondent no. 4

before the Karnataka High Court. Though the learned Single

Judge of the High Court found respondent no. 4 therein to be

ineligible as on the date of his appointment, the selection

was not disturbed on the ground that he obtained

qualifications by the time of interview. The learned Single

Judge relied 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 Division Bench of

the High Court. Thereafter, a review application was filed

informing the Division Bench of the High Court that the

judgment of this Court in Ashok Kumar Sharma case No.

I was overruled in Ashok Kumar Sharma & Ors. v.

Chander Shekhar & Anr.38 (Ashok Kumar Sharma case

No. II). By holding that on the date of the judgment of the

Division Bench, Ashok Kumar Sharma case No. I held the

field, the High Court dismissed the review petition. Taking

note of the fact that Ashok Kumar Sharma case No. II

37 1993 Supp (2) SCC 611 38 (1997) 4 SCC 18

57 | P a g e was a judgment of this Court in review of the judgment in

Ashok Kumar Sharma case No. I , which, therefore,

merged with the subsequent judgment, making the later

decision the one and only judgment rendered for all

purposes, this Court found that the High Court had

committed an error in not following the law laid down by this

Court in Ashok Kumar Sharma case No. II . While holding

so, this Court referred to the doctrine of prospective

overruling and earlier judgments of this Court in Golak

Nath (supra), Ashok Kumar Gupta (supra) and others.

This Court proceeded to observe that there shall be no

prospective overruling unless it is so indicated in a particular

decision.

41. The facts of the case and the dispute resolved by this

Court in M.A. Murthy (supra) relate to the applicability of

the subsequent judgment of Ashok Kumar Sharma case

No. II rendered in review of an earlier judgment. The

question of prospective overruling did not arise in the said

case. The observation made in M.A. Murthy (supra) that

there shall be no prospective overruling unless indicated in

58 | P a g e the particular decision is obiter. Obiter dictum is defined in

Black's Law Dictionary (9th Edn., 2009), as follows:

“Obiter dictum.— A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). — Often shortened to dictum or, less commonly, obiter.

…

Strictly speaking an “obiter dictum” is a remark made or opinion expressed by a judge, in his decision upon a cause, “by the way”—that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the Judge or court merely by way of illustration, argument, analogy, or suggestion…. In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as “dicta”, or “obiter dicta”, these two terms being used interchangeably.”

Wharton's Law Lexicon (14th Edn., 1993) defines the term

“obiter dictum” as “an opinion not necessary to a judgment;

an observation as to the law made by a Judge in the course

of a case, but not necessary to its decision, and therefore,

of no binding effect; often called as obiter dictum, ‘a remark

by the way’”. A decision on a point not necessary for the

purpose of or which does not fall for determination in that

59 | P a g e decision becomes an obiter dictum.39 It is a well-settled

proposition that only the ratio decidendi can act as the

binding or authoritative precedent. Reliance placed on mere

general observations or casual expressions of the Court, is

not of much avail.40 Therefore, the casual and unnecessary

observation in M.A. Murthy (supra) that there shall be no

prospective overruling unless it is so indicated in a particular

decision is obiter and not binding. Moreover, in M.A.

Murthy (supra), this Court failed to consider the ratio of the

judgment of this Court in Ashok Kumar Gupta (supra),

even after referring to it. As stated above, the prospective

overruling of Rangachari (supra) by Indra Sawhney

(supra) was upheld in Ashok Kumar Gupta (supra).

42. This Court in Golak Nath (supra) and Ashok Kumar

Gupta (supra), referred to above, has laid down that Article

142 empowers this Court to mould the relief to do complete

justice. To conclude this point, the purpose of holding that

M. Nagaraj (supra) would have prospective effect is only to

avoid chaos and confusion that would ensue from its

retrospective operation, as it would have a debilitating

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

60 | P a g e effect on a very large number of employees, who may have

availed of reservation in promotions without there being

strict compliance of the conditions prescribed in M.

Nagaraj (supra). Most of them would have already retired

from service on attaining the age of superannuation. The

judgment of M. Nagaraj (supra) was delivered in 2006,

interpreting Article 16(4-A) of the Constitution which came

into force in 1995. As making the principles laid down in M.

Nagaraj (supra) effective from the year 1995 would be

detrimental to the interests of a number of civil servants

and would have an effect of unsettling the seniority of

individuals over a long period of time, it is necessary that

the judgment of M. Nagaraj (supra) should be declared to

have prospective effect.

6) QUANTIFIABLE DATA AND SAMPLING METHOD

43. The Karnataka Legislature enacted the Karnataka

Determination of Seniority of the Government Servants

Promoted on the Basis of Reservation (to the Posts in the

Civil Services of the State) Act, 2002. This Court declared

the provisions of the said Act as unconstitutional on the

ground that the Government of Karnataka failed to produce

61 | P a g e quantifiable data to show any compelling necessity for

exercising power under Article 16(4-A) and therefore,

Sections 3 and 4 of the said Act were held to be

unconstitutional. Thereafter, the Government of Karnataka

constituted a committee, headed by the Additional Chief

Secretary to the State of Karnataka, and entrusted the

following tasks to the committee:-

“(1) Collect information in cadre-wise representation of SCs and STs in all the Government departments.

(2) Collect information regarding backwardness of SCs and STs.

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

44. On 05.05.2017, the ‘Report on Backwardness,

Inadequacy of Representation and Administrative Efficiency

in Karnataka’ was submitted by the Ratna Prabha

Committee. The Government of Karnataka accepted the

Report and the Karnataka Extension of Consequential

Seniority to Government Servants Promoted on the Basis of

Reservation (to the Posts in the Civil Services of the State)

Bill 2017 was passed by the Legislative Assembly and the

Legislative Council and thereafter, received Presidential

assent on 14.06.2018. The grievance of the petitioners

62 | P a g e therein was that the data was collected only from 31

departments out of a total of 62, based on Groups ‘A’, ‘B’,

‘C’ and ‘D’ and not on cadre. A further complaint was made

that no data was collected with respect to public sector

undertakings, boards, corporations, local bodies, grant-in-

aid institutions and autonomous bodies, and therefore, the

data is only representative in nature. This Court reproduced

a summary of the Ratna Prabha Committee Report, which is

as follows:

“2.5. Summary:

(1) The analysis of time series data collected for the last 32 years (1984-2016 except for 1986) across 31 departments of the State Government provides the rich information on the inadequacy of representation of SC and ST employees in various cadres of Karnataka Civil Services.

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

(3) The vacancies or posts are filled up through Direct Recruitment (DR) and Promotions including consequential promotion.

(4) The overall representation of the SC and ST employees of all 31 departments in comparison with total sanctioned posts comprises of 10.65% and 2.92% respectively. This proves inadequacy of representation of SCs and Sts.

63 | P a g e (5) On an average the representation in Cadre A for SCs is at 12.07% and STs 2.70% which sufficiently proves the inadequacy of representation.

(6) The extent of representation in Cadre B is on an average of 9.79% and 2.34% for STs for all the years of the study period.

(7) It is observed that on an average 3.05% of SC representation is inadequate in the Cadre ‘C’ whereas, 0.05% excess representation is seen for Sts.

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

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

(10) In case of STs in the Cadres A and B the representation is 2.70 and 2.34%. However, excess representation of 0.04 and 0.93% is found in case of Group C and Group D respectively.

(11) Over-representation in some years and departments is attributed to either Direct Recruitment or retirement of employees or filling up of backlog vacancies as the latter does not fall under 50% limitation of reservation.

2.6: Conclusion:

64 | P a g e The data clearly shows the inadequacy of representation of SCs and STs in the civil services in Groups A, B and C and adequate representation in Group D.”

This Court found the challenge to the Report on the ground

of data having been collected on the basis of Groups A, B, C

and D as opposed to cadres, to be without merit. The basis

of the said conclusion of the Court was that there is no fixed

meaning ascribed to the term ‘cadre’ in service

jurisprudence. Further, this Court held that collection of

quantifiable data on the inadequacy of representation is in

the services of the State, according to M. Nagaraj (supra).

In addition, this Court was also of the view that Article 16(4-

A) referred to inadequacy of representation in the services

of the State. It was further declared that collection of data

on the basis of groups does not exclude data pertaining to

cadres, as a group includes posts in all the cadres in that

group.

45. Collection of quantifiable data for determining the

inadequacy of representation of SCs and STs is a basic

requirement for providing reservation in promotions, as laid

down by this court in M. Nagaraj (supra). The unit for the

purpose of collection of data is a cadre, according to M.

65 | P a g e Nagaraj (supra) and Jarnail Singh (supra). For the

purpose of collection of quantifiable data for providing

reservation in promotions, the entire service cannot be

taken to be a unit and treated as a cadre, as already stated.

The structure of services in the State of Karnataka is along

the same lines as that of services in the Central

Government. Services are divided into ‘groups’, which are

further bifurcated into cadres. There is no confusion that a

cadre is not synonymous with a ‘group’.

46. The first term of reference for the Ratna Prabha

Committee was to collect data cadre-wise. The conclusion of

this Court in B.K. Pavitra II (supra) that the expression

‘cadre’ has no fixed meaning in service jurisprudence is

contrary to the judgments of this Court, which have been

referred to above while answering point 2. In clear terms,

M. Nagaraj (supra) held that the unit for collection of

quantifiable data is cadre, and not services as has been held

in B.K. Pavitra II (supra). Article 16(4-A) of the Constitution

enables the State to make reservation in promotions for SCs

and STs, which are not adequately represented in the

services of the State. However, the provision for reservation

66 | P a g e in matters of promotion is with reference to class or classes

of posts in the services under the State. That ‘groups’

consist of cadres is a fact which was taken into

consideration by this Court in B.K. Pavitra II (supra). The

conclusion that the collection of data on the basis of

‘groups’ is valid, is contrary to the decisions of this court in

M. Nagaraj (supra) and Jarnail Singh (supra).

47. The State should justify reservation in promotions with

respect to the cadre to which promotion is made. Taking

into account the data pertaining to a 'group’, which would

be an amalgamation of certain cadres in a service, would

not give the correct picture of the inadequacy of

representation of SCs and STs in the cadre in relation to

which reservation in promotions is sought to be made.

Rosters are prepared cadre-wise and not group-wise.

Sampling method which was adopted by the Ratna Prabha

Committee might be a statistical formula appropriate for

collection of data. However, for the purpose of collection of

quantifiable data to assess representation of SCs and STs for

the purpose of providing reservation in promotions, cadre,

which is a part of a 'group’, is the unit and the data has to

67 | P a g e be collected with respect to each cadre. Therefore, we hold

that the conclusion of this Court in B.K. Pavitra II (supra)

approving the collection of data on the basis of 'groups’ and

not cadres is contrary to the law laid down by this Court in

M. Nagaraj (supra) and Jarnail Singh (supra).

48. It is made clear that we have not expressed any

opinion on the merits of any individual case as we have only

answered the common issues that were formulated after

hearing the parties.

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

…….......................................J. [ L. NAGESWARA RAO ]

…….......................................J. [SANJIV KHANNA]

.……......................................J. [B.R. GAVAI]

New Delhi, January 28, 2022

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